Credit card giant American Express last week saw a judge in Illinois deny its motion to dismiss a TCPA class action lawsuit that argues the financial services company is directly liable for damages under the statute even though it did not make the calls in question.
American Express had contracted debt collection work to a third party collection agency. Plaintiff Jennifer Ossola filed a TCPA suit in 2013 arguing that AmEx was directly liable for debt collection calls made to her cell phone placed by the collection agency. The suit was expanded to a class action, Ossola, et. al. v. American Express.
AmEx had previously conceded that it may be held vicariously liable under the TCPA for calls made on its behalf. But it filed a motion for partial summary judgment arguing that it could not be held directly liable for actions it did not take.
District Judge John Z. Lee, in the Northern District of Illinois, disagreed in his opinion, writing “American Express, as the primary creditor, may be held directly liable under the TCPA, even if the calls were placed by a third-party collector acting on its behalf.”
Judge Lee relied on previous rulings, including Soppet, which found that “[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” He also referenced a 2008 TCPA Order from the FCC that stated the same.
“With respect to the debt collection phone calls, whether American Express itself actually placed the calls at issue is irrelevant,” the judge wrote.
The ruling was not on the merits of the case, merely a rejection of AmEx’s motion for partial summary judgment. The case will proceed and AmEx will have more opportunity to defend the direct liability under the TCPA.
The issue of vicarious liability under the TCPA has been a hot topic for original creditors for the past couple of years, as plaintiffs’ attorneys began targeting larger companies with larger pocketbooks.