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By: Nikki Sachdeva
In a recent opinion, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s grant of summary judgment in favor of a creditor, finding that common law principles of ratification may create vicarious liability under the Telephone Consumer Protection Act (TCPA). In Henderson v. United Student Aid Funds, 2019 U.S. App. LEXIS 8597 (9th Cir. Mar. 22, 2019), the Court heard an appeal by named plaintiff Henderson in a putative class action brought under the TCPA. After ceasing to make payments on her student loan, Henderson began receiving calls from several debt collection companies. Henderson alleged that the pattern of the calls, which included several prerecorded messages to a cellular telephone number she had not provided in connection with her loan application or consented to be called on, evidenced the use of a combination of skip-tracing and autodialing. Such combined use is prohibited by the TCPA. 47 U.S.C. § 227(b)(1)(A)(iii).
United Student Aid Funds (“USA Funds”), which owned Henderson’s loans, had hired a loan servicer, which in turn hired debt collectors to collect on the unpaid loans. USA Funds did not have contractual relationships with the debt collectors, nor did it have day-to-day interactions with them. However, USA Funds had access to the debt collectors’ performance reports and had previously reviewed the debt collectors’ call notes upon identification of an issue with improper calling practices. As to the loan servicer, USA Funds monitored its regulatory compliance and, while it did not have the ability to fire debt collectors, USA Funds had the ability to ask the loan servicer to replace debt collectors.
In 2017, the U.S. District Court for the Southern District of California granted summary judgment in favor of USA Funds. The district court rejected Henderson’s arguments that there was a triable issue of fact as to whether USA Funds could be liable under theories of classical agency or implied actual authority. Further, finding that there was no principal-agent relationship between USA Funds and the debt collectors, the district court held that USA Funds could not be vicariously liable under a ratification theory.
The Ninth Circuit, in a 2-1 decision, reversed the district court’s grant of summary judgment and remanded for further proceedings. The Court held that there was a material issue of fact as to whether USA Funds ratified the debt collectors’ calling practices. According to the Court’s opinion, federal common law principles of ratification may create vicarious liability under the TCPA even where the contractual agreements at issue state and/or suggest an independent contractor relationship rather than an agency relationship. First, the Court held that ratification may create an agency relationship where none existed before where the acts are “done by an actor… who is not an agent but pretends to be.” The Court noted that the debt collectors told borrowers they were calling on behalf of USA Funds and accepted payments on USA Funds’ behalf. Finding that there was a triable issue of fact, the Court continued: “a reasonable jury could conclude that USA Funds accepted the benefits—loan payments—of the collectors’ calls while knowing some of the calls may have violated the TCPA. If a jury concluded that USA Funds also had ‘knowledge of material facts,’ USA Funds’ acceptance of the benefits of the collector’s unlawful practices would constitute ratification.”
The Ninth Circuit’s decision in Henderson raises issues for creditors and other businesses who engage third parties to conduct borrower or consumer calls on their behalf. Businesses should be mindful that they may be exposed to vicarious liability under the TCPA based on improper conduct by third parties even where there is no contractual relationship with the entity making the allegedly violative telephone calls.
If you have any questions or would like more information, please contact Nikki Sachdeva at [email protected].