On March 25, 2014, Brian Jackson received a text message on his cellular phone, allegedly making an offer for cruise ticks on behalf of Caribbean Cruise Line (“CCL”).  Jackson filed suit against AdSource Marketing Ltd. (“AdSource”), the company that allegedly sent the text message on behalf of CCL, and CCL.  Jackson alleged that the text message was unsolicited, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), which prohibits making unsolicited calls (including sending unsolicited text messages), to cellular phones.  Jackson sought to represent a similarly situated class of consumer

On February 17, 2015, the Eastern District of New York granted CCL’s motion to dismiss Jackson’s second amended complaint.  Jackson v. Caribbean Cruise Line, No. 14-cv-2485, 2015 U.S. Dist. LEXIS 18783 (Feb. 17, 2015).  47 U.S.C. § 227(b)(1)(A)(iii) imposes liability on the entity that “makes” a call in violation of the statute.  The District Court noted that the TCPA only imposes direct liability on the entity that made the call, which was AdSource.  Even if AdSource had sent the message on behalf of CCL, CCL could only be held vicariously liable for the calls. 

Jackson’s second amended complaint alleged that CCL was “responsible” for making the calls because it had contracted with AdSource.  The District Court rejected Jackson’s claim that this was sufficient to support a showing of vicarious liability, holding that “the existence of a contract between CCL and AdSource—even one that imposes certain constrains on AdSource—does not necessarily means that CCL had the power to given ‘interim instructions’ to AdSource, the hallmark of an agency relationship.” 

The District Court concluded that Jackson had failed to adequately plead vicarious liability against CCL, and granted CC’s motion to dismiss.  However, the court dismissed the claims without prejudice, and granted Jackson to amend the complaint “one last time” in order to try and state a plausible claim.