Florida District Court: Individual Officer Not Liable Under TCPA Without Direct Commission or Authorization of Wrongful Acts

In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1283885, 11-CV-61936 (S.D. Fla. March 27, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida issued an important opinion concerning the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C § 227(b)(1)(A)(iii), in a case dealing with one of the more troubling trends in TCPA litigation - efforts to hold individual officers or stakeholders of TCPA defendants individually liable. In Mais, Jack W. Brown III ("Brown") was named a defendant in a putative TCPA class action. Brown was allegedly the "vice president and 20% owner" of the corporate defendant, had in the course of his work-related responsibilities authorized the use of an automatic telephone dialer, and failed to ensure the Defendant had policies in place to protect against potential violations of the TCPA. The case alleged millions of dollars in potential class damages. However, in issuing a summary judgment in Brown's favor, the Court noted that "[w]hile several cases, including Texas v. American Blastfax, Inc., 164 F.Supp.2d 892, 898 (W.D.Tex. 2001), have found corporate officers may be individually liable under the TCPA, those decisions have all required the direct commission or authorization of wrongful acts by the corporate officer. See, e.g., Maryland v. Universal Elections, 787 F.Supp.2d 408, 415-16 (D.Md.2011); Versteeg v. Bennett, Deloney & Noyes, P .C., 775 F.Supp.2d 1316, 1321 (D.Wyo. 2011); Baltimore-Washington Tel. Co. v. Hot Leads Co., LLC, 584 F.Supp.2d 736, 745 (D.Md. 2008)." Id. at 4. Thus, to hold Brown individually liable, the "Plaintiff would have to show that Brown failed to take efforts to implement appropriate policies or procedures designed to comply with the TCPA, or that he authorized or personally engaged in conduct that clearly violated the TCPA." Id. On summary judgment the Court held that "'[w]hile Brown is the person who allegedly 'authorized the use of Gulf Coast's dialer,' . . . there is no evidence of plainly violative conduct by Brown personally; indeed, there is no evidence that he had anything personally to do with the calls made to Plaintiff or any putative class member. Instead the evidence shows that he, as the person responsible, attempted to implement policies that conformed with the TCPA." Most interestingly, the Court held that since certain policies and procedures Brown implemented relied upon agency interpretations of the TCPA (specifically declarations of the FCC) concerning the existence of consumer consent, the policies that Brown had instructed be put in place, even if premised on mistaken legal theories, insulated Brown from individual liability. The District Court held that such policies and reliance on agency interpretations of the TCPA demonstrated that his conduct did not amount to the "direct commission, approval, or authorization of wrongful acts" necessary to trigger individual liability, but instead evidenced "intent to comply with the TCPA." Id. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Posted in: TCPA
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