On April 3, the Northern District of West Virginia issued an order denying Monitronics International, Inc.’s motion for summary judgment on multiple Telephone Consumer Protection Act grounds. In re Monitronics Int’l, Inc., No. 1:13-md-02493-JPB (N.D. W.Va. April 3, 2019). Monitronics sought summary judgment, claiming there was no evidence that it was the seller under the TCPA and that there was no formal or apparent agency relationship between it and its authorized retail agents sufficient to establish TCPA liability.
Judge Preston Bailey disagreed with Monitronics’ arguments, stating that, despite the fact that Monitronics did not actually place any of the telemarketing calls at issue, it was still subject to TCPA vicarious liability. First, Judge Bailey held Monitronics was a seller as defined in the TCPA. The decision confirmed a 2013 ruling out of the same court. See Mey v. Monitronics International, Inc., 959 F. Supp.2d 927, 933 (N.D. W.Va. 2013). Second, Judge Bailey held that there was a genuine issue of material fact as to whether Monitronics had knowledge of and supported the TCPA-violating acts of the authorized retail agents. Despite Monitronics’ assertions that there was no evidence to support that it directed the retailers to make calls on its behalf or that it had any control sufficient to establish an agency relationship, Judge Bailey held otherwise:
The substantial evidence of Monitronics’ control over its dealers’ sales tactics — including the provision of scripts, leads and contracts the dealers had to use to sell Monitronics’ services, as well as required pricing structures and extensive sales training — confirms that the dealers acted as Monitronics’ agents, making it a jury issue whether Monitronics is vicariously liable for their telemarketing violations.
Citing Monitronics’ receipt of customer complaints regarding the calls at issue, Judge Bailey concluded that “nothing prevented Monitronics from investigating the merits of these complaints and reigning in the dealers, but Monitronics chose to do nothing.” In light of these findings, Judge Bailey stated that “[a] jury could find that by ignoring the repeated notice it had of these violations, Monitronics impliedly authorized the unlawful calls.”
Perhaps most damning for Monitronics, however, was its failure to deny the perks it received from the authorized retail agents’ actions: “Monitronics does not dispute that it benefited from its authorized dealers’ illegal telemarketing,” Judge Bailey said. “Nor could it. Plaintiffs have proffered substantial evidence that Monitronics profited from the illegal calls.”
The decision in In re Monitronics is just the latest ruling with the potential to impose liability on vendors for TCPA violations as courts and businesses alike await new TCPA regulations from the Federal Communications Commission.