Business Process Outsourcing and the TCPA: Are Officers of BPO Companies Responsible for TCPA Violations?

Different States Interpret TCPA Federal Law Differently in Finding Personal Liability in Company

BPO (Business Process Outsourcing) companies know to keep an eye on Telephone Consumer Protection Act (TCPA) because the statute touches on the behavior of BPOs in certain outgoing calls and activities.  The TCPA seems to be in a mode of expansion with courts now looking into the personal liability of officers of BPOs.  

TCPA in Texas Finds Personal Liability for BPO Company Officers

The TCPA states “It shall be unlawful for any person within the United States…to make any call…using any automatic telephone dialing system…”  47 U.S.C. § 227(b)(1)(A). This wording has led some courts to decide that corporate officers are personally liable under the provisions of the TCPA.  Yes, you read that right.  One of the first rulings on this issue came in 2001 from the Western District of Texas in Texas v. American Blast Fax, Inc. Texas v. Am. Blast Fax, Inc., 164 F. Supp. 2d 892 (W.D. Tex. 2001), where the District Court ruled that “an officer may be liable under the TCPA if he had direct, personal participation in or personally authorized the conduct found to have violated the statute and was not merely tangentially involved.”

TCPA and Officer Personal Liability in Different States

Different courts have viewed the words “direct, personal participation” in different ways to determine if an officer was liable under the TCPA.  Some jurisdictions have held officers liable if they set policies, oversaw day-to-day operations, and were involved in the practices that caused the violation.  (For example, the Eastern District of Michigan in Jackson Five Star Catering, Inc. v. Beason, No. 10-10010, 2013 U.S. Dist. LEXIS 159985 (E.D. Mich. Nov. 8, 2013)). Other jurisdictions require more specific conduct such as drafting the fax or call script, approving the content to be used, or otherwise directly authorizing the conduct. (For example, The Eleventh Circuit in Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014)).  The Eighth Circuit has adopted possibly the narrowest view that the officer must initiate the call or “take the steps necessary to physically place the telephone call” in order to be held liable.  Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019).

Recent TCPA Case in Texas Allowed Addition of Company Owner as Individual Defendant

Recently in the Eastern District of Texas, a plaintiff successfully had an officer added to the pleadings of their TCPA case.  Plaintiff Francois Auguston filed suit against Affordable Auto Protection, LLC, and National Administrative Service Co., LLC, for violation of the TCPA. Notably, Auguston was proceeding in the case without an attorney. After the suit had been filed, Auguston moved to add as a defendant Gustav Renny, the owner of Affordable Auto Protection, in his personal capacity. On Friday, May 27, 2022, the court granted the motion. This is significant and opens the door for Auguston to convince the court that Renny had direct, personal participation in the violating calls and to be found personally liable for the TCPA violations.

Key Takeaways on TCPA Personal Liability Interpretation by States

From the various case law in different states interpreting TCPA violations involving personal liability of officers, companies in the BPO space should be aware that:

  • different states interpret the TCPA federal law language with more willingness to find personal liability of officers;

  • the specific state where the BPO company operates or where the case is litigated can make a difference on whether an officer could be found personally liable for TCPA violations of a BPO company; and

  • companies should conduct the business of the BPO with diligence and care to avoid the potential for personal liability of officers and company owners. 

For more information about liability and litigation, see our Corporate Law & Commercial Transactions Legal Services and Industry Focused Legal Solutions pages.

Blog, Law, Business LitigationGabriela N. Smith