Larry v. Doctors Answers, LLC, No. cv-12-S-3510-NE, 2013 WL 987879 (N.D. Ala. March 8, 2013

An Alabama Plaintiff sued New Jersey Defendants for violating the TCPA by sending an unsolicited fax advertising material for answering services provided by Defendant. Defendant filed a Motion to Dismiss challenging Personal Jurisdiction, Venue and Plaintiff’s ability to state a claim upon which relief can be granted. The court denied the motion on all grounds.

With respect to Defendant’s challenge to the court’s personal jurisdiction, the court recited the United States Supreme Court’s express acknowledgement that “‘federal interest in regulating telemarketing to protect the privacy of individuals while permitting legitimate commercial practices’ ‘would be less well served if consumers had to rely on ‘the laws or rules of court of a State’ or the accident of diversity jurisdiction, to gain redress for TCPA violations.’ Thus, ‘federal courts [have] federal-question jurisdiction over private TCPA suits.’”

Addressing Defendants’ argument that venue was only proper in New Jersey, the court concluded that “‘venue is proper in the district where [plaintiff] resides because the injury did not occur’ when the facsimile was sent from New Jersey, it occurred when ‘the [facsimile] was received in Alabama,” declining to transfer the case for the convenience of the parties.

Finally, rejecting Defendants’ argument that they could not be personally liable for alleged wrong doing of the company, the court noted “‘[t]he fact that the persons . . . acting [in violation of federal law] are acting for a corporation also, of course, may make the corporation liable under the doctrine of respondeat superior. It does not relieve the individuals of their responsibility,’” adding that “an officer may be personally 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. Individuals who directly (and here, knowingly and willfully) violate the TCPA should not escape liability solely because they are corporate officers.’”

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.