Companies are not the only ones with exposure in consumer protection suits, as a defendant company’s director was reminded earlier this month in Zoppi v. Proform Trading LLC, No. 2:21-cv-2307 (D.N.J. Dec. 9, 2021). There, the federal district court granted the plaintiff’s motion to amend his complaint to bring Telephone Consumer Protection Act (TCPA) claims against the director in his individual capacity, as well as against the defendant company.
The plaintiff’s claims stem from an allegedly unsolicited, prerecorded telemarketing call to his cell phone from Proform Trading LLC (Proform). While his original complaint alleged TCPA violations by Proform only, he argued in his motion for leave to amend that Proform’s director, who also serves as its general manager, had also violated the TCPA in four ways. Specifically, he claims that the director expressly approved the sending of the prerecorded messages, determined their content, determined the recipients, and loaded the telephone numbers into the call software used to make the prerecorded calls. In support of his motion, the plaintiff pointed to a 2013 decision from the Federal Communications Commission, which ruled that individuals may be held personally liable under the TCPA for the corporate defendant’s TCPA violations.
Following decisions from the Third Circuit and Northern District of Texas, the court agreed that a corporation’s officer may be held personally liable under the TCPA if he had “direct, personal participation in or personally authorized the allegedly unlawful conduct.” Because the director was alleged to have authorized, personally recorded, and made the violative call, the plaintiff had sufficiently alleged “more than merely tangential[ ]” involvement. Therefore, the court granted the motion to amend, allowing the suit to proceed against both Proform and its director.