TCPA Vicarious Liability Limited By Ninth Circuit In Texting Class Action

In the high-risk Telephone Consumer Protection Act (TCPA) arena, the Ninth Circuit recently offered some respite. On January 10, 2018, the Ninth Circuit limited the potential liability that companies may unknowingly face for the communication practices of their upstream vendors. In Kristensen v. Credit Payment Services, Inc., No. 16-15823 (9th Cir. 2018), the Ninth Circuit affirmed summary judgment for defendant payday lenders, finding that the lenders were not vicariously liable for any unlawful text messages sent by a third-party lead generator.

The TCPA plaintiff had received a text message from a company called AC Referral, which contained a link to a loan application website. AC Referral had contracted with lead generator Click Media, which in turn sold customer leads to a lead acquisition company LeadPile. The defendant lenders had hired LeadPile to help acquire customer leads for loans. In 2014, the District of Nevada certified a class of other similar text