An advertiser bears vicarious liability for a telemarketer’s Telephone Consumer Protection Act violations, if the telemarketer was an agent rather than an independent contractor—a question resolved under federal common law by applying the 10-factor Restatement of Agency test. An advertiser bears vicarious liability for its telemarketer’s TCPA violations only if the telemarketer is an agent rather than an independent contractor. Agency status is determined under federal common law, which this decision holds is guided by the 10-factor test set out in Rest.2d Agency 220(2). Here, applying that test, the telemarketer was an independent contractor since the advertiser exercised little control over the manner in which and to whom the telemarketer made calls, only approving scripts the telemarketer was to follow once the call was placed and the recipient expressed interest in the type of service contract that the advertiser offered for sale.
Ninth Circuit Court of Appeals (Smith, N.R., J.); August 9, 2017; 2017 WL 3401317