Seventh Circuit Advances Vicarious Liability Claims – Media, Telecommunications, IT, Entertainment
Reversing the dismissal, the U.S. Court of Appeals, Seventh Circuit, found that a plaintiff had sufficiently argued vicarious liability claims to keep his action under the Personal Protection Act alive. consumers by telephone (TCPA).
Christopher Bilek received two unauthorized robocalls. A pre-recorded message would have requested health insurance and asked Bilek to press 1 to be put in touch with a representative. When he pressed 1, Bilek was reportedly connected to a live agent who provided a quote for health insurance underwritten by Federal Insurance Company (FIC) and facilitated by Health Insurance Innovations (HII).
Bilek sued the FIC and the HII for violating the TCPA and the Illinois state analog over a vicarious liability theory, claiming the defendants’ agents generated the appeals.
To substantiate his claims, Bilek alleged a network of business relationships: FIC contracted with HII to sell its insurance, HII hired lead generators to perform telemarketing, and lead generators made the unauthorized robocalls. which formed the basis of Bilek’s claims.
A district court dismissed Bilek’s complaint, ruling that he had not plausibly alleged the agency on one of three grounds – actual authority, apparent authority or ratification.
But the federal appeal board overturned, finding Bilek’s allegations sufficient to move the trial forward.
The panel first noted that it was not required to examine the agency’s three theories, as its investigation was limited to finding a single plausible claim for relief. This is how he began and ended his examination with Bilek’s Theory of Real Authority over agency accountability.
To allege that the main generators had actual authority, Bilek had to cite sufficient facts to suggest that (1) a principal / agent relationship existed, (2) the principal controlled or had the right to control the conduct of the alleged agent, and ( 3) the alleged behavior fell within the agency’s jurisdiction.
“We don’t need – and we don’t – decide here whether Bilek’s claims are sufficient, if they are true, to prove his vicarious liability claims,” the panel wrote. “But we find that his claims include enough detail to make plausible his theory of the actual authority of the agency’s liability” enough to survive the dismissal.
The panel noted that Bilek’s liability theory was supported by factual claims that the lead generators had made robocalls requesting health insurance from the FIC, and that the FIC had allowed the lead generators to use its lead generators. approved scripts, business name and proprietary information for making calls.
“Indeed, Bilek spoke directly with a lead generator who quoted him [FIC’s] health insurance, ”the court noted.
Bilek also alleged that the lead generators were matched with these real-time quotes by HII, the company FIC contracted with to sell its insurance. HII then emailed quotes to the recipients of the calls and allowed lead generators to enter information into their system.
“These alleged facts, viewed in the most favorable light for Bilek, support the inference that [FIC] authorized the lead producers to act on its behalf and under its control, ”the court said.
Contrary to what other appellate courts have found, the Seventh Circuit was not convinced that Bilek’s failure to include allegations that the FIC controlled the timing, quantity and geographic location of calls automated main generators terminated its claim, holding that “the claims of minute details of the parties’ business relationship are not necessary to allege a plausible agency claim.” Regarding HII, the panel found specific personal jurisdiction over the company through the alleged launch of calls by the lead generators in Bilek, Illinois.
“[A]The attribution of an agent’s actions to a principal which are closely related to the controversy at issue is consistent with the requirement of intentional availability which underlies the Supreme Court’s specific personal jurisdiction precedent, ”said the panel. “Here, the alleged conduct of the main generators forms the basis of Bilek’s TCPA and [state law] complaints. Bilek clearly alleges that the lead generators made the illegal phone calls to Bilek, Illinois. And just like with [FIC], claims by Bilek’s support agency adequately allege that the main generators acted with [HII’s] real authority. “
The court overturned the dismissal of Bilek’s TCPA lawsuit.
To read the notice in Bilek v. Federal Insurance Company, Click here.
Why is this important: The Seventh Circuit ruling sends two important messages to the TCPA defendants. First, the panel noted that it was enough for it to find a plausible agency theory in order to keep all vicarious liability claims alive – and found the alleged facts sufficient to do so. The court then determined that he had specific personal jurisdiction over a defendant based on the alleged conduct of anonymous lead generators who called the plaintiff in Illinois, binding the defendant to the state. Notably, other federal courts of appeal, including the Ninth Circuit, have concluded that there must be sufficient factual allegations to suggest that the defendant had “control” over when, to whom, to what and to what. persons involved in the TCPA vicarious liability appeals. to attach. In the present case, such appeal-specific facts were not necessarily required under the Seventh Circuit, and the panel found that there were other alleged facts indicating sufficient “control” over the agent for TCPA vicarious liability.
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