Individual defendants continue to face personal liability pursuant to the Telephone Consumer Protection Act (TCPA), with a Texas federal court allowing claims against two individuals to move forward despite their motions to dismiss.
Alleging that she received telemarketing calls from individuals representing My Financial Solutions and Student Renew, Texas resident Maira Montelongo filed a putative class action against the companies as well as two individuals: Nick Caposio, a call center employee, and Angela Mirabella, who oversaw TCPA compliance for the companies.
Caposio and Mirabella moved to dismiss the complaint, arguing that the court lacked jurisdiction over them because they were both residents of California and that Montelongo failed to establish sufficient contacts to confer personal jurisdiction.
Concerning Caposio, U.S. District Judge Jason Pulliam determined the court lacked general jurisdiction because Caposio did not have “continuous and systematic” personal contacts with the state. However, the court had specific jurisdiction over Caposio, based on Montelongo’s allegations that he made four phone calls to her number (only one of which resulted in a conversation) and sent a follow-up email.
Turning to Mirabella, the court again found it lacked general jurisdiction but did have specific jurisdiction. According to the complaint, Mirabella is the responsible party for receiving, maintaining, investigating and responding to complaints about TCPA violations for the corporate entities and has been in the telemarketing business for years. Mirabella did not put a stop to the illegal calls being made by the companies, despite having the power to do so, and despite the fact that a TCPA class action had already been filed against the defendants in Massachusetts federal court, Montelongo added.
Judge Pulliam found that Montelongo sufficiently alleged that Mirabella is the central figure behind this telemarketing scheme and “sufficiently controlled the policies and practices to be the driving force behind the TCPA violations.” The court further found that Mirabella had accepted the benefits of doing business in the state and was subject to Montelongo’s action in Texas, as she has reason to anticipate going to court yet continued to direct telemarketing calls into Texas to solicit business from Texans.
To read the order in Montelongo v. My Financial Solutions LLC, click here.
Why it matters: The Texas court’s decision provides a cautionary tale about the dangers of personal liability for executives and employees named in TCPA actions, as the court found it had jurisdiction over both individuals named in the suit.