Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Democratic National Committee unable to evade TCPA claims, (Apr 21, 2015)

By Greg Hammond, J.D.

DNC Services Corporation, also known as the Democratic National Committee, could not obtain summary judgment in a class action suit alleging that the DNC violated the Telephone Consumer Protection Act (TCPA) by calling voters’ cell phones with auto-dialed calls and pre-recorded messages. The federal district court in Tampa determined that genuine issues of material fact existed as to the DNC’s direct and vicarious liability for the robocalls (Shamblin v. Obama for America, April 17, 2015, Covington, V.).

Background. Lori Shamblin filed a putative class action against Obama for America in September 2013, alleging violations of the TCPA. She alleged that she received two unsolicited auto-dialed telephone calls paid for by Obama for America to her cellular telephone that left pre-recorded messages on her voicemail system. In 2014, Shamblin was granted leave to amend her complaint to add the DNC as a defendant, alleging that the DNC assisted and participated in the calling of voters’ cell phones, urging recipients to vote for Barack Obama in the 2012 presidential election. The DNC moved for summary judgment on the TCPA claims.

The issue before the court was whether there was any basis for holding DNC Services directly or vicariously liable for the two robocalls which were undisputedly placed to Shamblin’s cell phone.

Direct liability. The court first determined that Shamblin provided sufficient evidence for a reasonable juror to find that the DNC initiated calls to Shamblin for the purpose of finding direct liability for illegal robocalls. According to the court, the record demonstrated that the DNC provided voter information to Obama for America, reviewed telemarketing scripts, and provided technical support. Because a genuine issue of material fact existed concerning the DNC’s direct involvement in the telephone calls, the DNC’s motion for summary judgment was denied.

Vicarious liability. The court additionally found that Shamblin pointed to sufficient evidence to establish a genuine issue of material fact in whether an agency relationship existed between Obama for America and the DNC with regard to the telephone calls. Specifically, there was evidence that the DNC reviewed and approved robocall scripts used by Obama for America, the DNC was aware of TCPA violations and failed to prevent them, and there was evidence that the DNC controlled access to and use of the Voter File. The court consequently found that the Voter Data Exchange Agreement between the DNC and Obama for America, despite containing a disclaimer of any principal/agent relationship, could be used as evidence in support of a determination that an agency relationship arose.

The case number is 8:13-cv-2428-T-33TBM.

Attorneys: Andrew L. Quiat (Andrew L. Quiat, PC) for Lori Shamblin. Dale Thomas Golden (Golden Scaz Gagain, PLLC), Debra R. Bernard (Perkins Coie, LLP), and Gregg Darrow Thomas (Thomas & LoCicero, PL) for Obama for America, DNC Services Corp., and New Partners Consulting, Inc.

Companies: Obama for America; DNC Services Corp.; New Partners Consulting, Inc.;

Cases: Privacy FloridaNews