The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action. The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf. Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019). The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls.
Plaintiff alleged that defendants NorthStar and Yodel violated the TCPA and certain regulations when Yodel allegedly placed telemarketing calls to consumers to market NorthStar’s residential security and home automation systems. Id. The Braver case involved a unique factual context. For instance, the recorded calls at issue allegedly stated, with no apparent factual basis, that home security systems “in your neighborhood” had experienced “issues with false alarms,” creating “a big concern” with “crime rates and mass shootings on the rise in the US and national security with our borders.” Id. at *8. The court characterized the calls as “plainly deceptive,” to the point of being “predatory” when heard by “credulous or otherwise vulnerable listeners,” although the court stated that the nature of the calls did not factor into the opinion. Id. at *8 n.45. Furthermore, defendants expressly conceded numerous important facts. Id. at *4. Notably, defendants conceded that the calls were telemarketing and that Yodel did not obtain consent for the calls; the lack of any effort to obtain consent was apparent from the fact that Yodel blanketed various territories with approximately 78 million calls. See id. In a previous opinion, the court dismissed all of plaintiff’s direct liability claims against NorthStar and held that NorthStar could only be held vicariously liable for Yodel’s acts. Id. at *1. The court certified the case as a class action and the parties subsequently filed cross-motions for summary judgment. See id. at *1-4. NorthStar’s motion for summary judgment argued, in part, that it was not vicariously liable for Yodel’s conduct. Id. at *4, 7-14.
Initially, the court noted that a TCPA defendant may be vicariously liable under theories of actual agency (or “classical agency”), apparent authority and ratification. Id. at *7...
