Date: 04-09-2018

Case Style:

Case Number: 15-17328

Judge: N.R. Smith

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Nevada (Clark County)

Plaintiff's Attorney: Matthew Righetti, John Glugoski and Michael Righetti

Defendant's Attorney: Richard L. Dreitzer and Donald P. Paradiso

Description: Charles Jones and Josh Watson seek to hold Royal
Administration Services, Inc. (“Royal”) liable for several
telephone calls made in violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, by telemarketers
employed by All American Auto Protection, Inc. (“AAAP”).
Though a broad range of agency theories may form the basis
4 JONES V. ROYAL ADMIN. SVCS.
for a principal’s liability for the actions of an agent, Jones and
Watson limit their appeal to two theories.
First, they assert that AAAP telemarketers were Royal’s
agents acting within their actual authority in placing the
unlawful calls. Any claim that AAAP had actual authority to
place the calls is precluded by the express language in
Royal’s contract with AAAP expressly prohibiting
telemarketingmethods that would violate state or federal law,
including laws governing robocalls.
Second, they assert that Royal had sufficient authority to
control the manner and means of AAAP’s telemarketing
activity that it may be held vicariously liable as if it were the
employer of the AAAP telemarketers. We adopt the ten nonexhaustive
factors set forth in the Restatement (Second) of
Agency § 220(2) (Am. Law Inst. 1958) for determining
whether a principal exercises sufficient control over an agent
to be held vicariously liable as if it were the agent’s
employer. Applying these factors here, we conclude that
Royal did not exercise the level of control necessary to be
subject to vicarious liability for the AAAP telemarketer’s
placement of the unlawful calls. Because the evidence is
insufficient to allow the issue of Royal’s liability to go to the
jury under either theory, we affirm.
I.
Royal sells vehicle service contracts (“VSC”). A VSC “is
a promise to perform (or pay for) certain repairs
or services [on an automobile].” Auto Service
Contracts and Warranties, FTC: Consumer Info.,
https://www.consumer.ftc.gov/articles/0054-auto-servicecontracts-and-warranties
(last updated August 2012). A VSC
JONES V. ROYAL ADMIN. SVCS. 5
is “[s]ometimes called an ‘extended warranty.’” Id. Royal
sells its VSCs through automobile dealers and through
“marketing vendors.” These marketing vendors sell Royal’s
VSCs “through direct mail or telemarketing.” Royal sells
VSCs through about 20 different marketing vendors.
AAAP sold VSCs for manycompanies like Royal through
telemarketing. When an AAAP telemarketer placed a call, he
or she would first “sell the concept of . . . a vehicle service
contract” to the consumer. Then, during the phone call, the
telemarketer would pick a particular service plan from one of
their many vendors to sell to the consumer, based on the
make, model, and mileage of the consumer’s car, and the
price and benefits in which the consumer expressed interest.
In October 2011, Royal entered into a marketing
agreement with AAAP.1
The agreement between Royal and
AAAP contained authorized sales and marketing
methodologies with which AAAP was required to comply.
The agreement “[e]xpressly excluded from these
methodologies . . . any act or omission that violates
applicable state or Federal law, including but not limited to
‘robo-calling.’”
Royal assigned Clayton Churchill to be the “agent of
record” for the AAAP account. Churchill provided training
to AAAP’s employees at AAAP’s call center in Azusa,
California. During this training, he provided information
about Royal’s VSCs, claim structure, coverage, pricing, and
customer service. Royal’s president, Richard McCabe,
visited the call center with Churchill about a dozen times
from 2011 to 2014. During these visits, AAAP’s officials
1
At the time AAAP was operating as Precise Enterprises, LLC.
6 JONES V. ROYAL ADMIN. SVCS.
(Harout Pambuchchyan, Raffi Sadejyan, and Jason Garcia)2
provided assurances that the telemarketers were “dialing
customers one at a time” and that they were “compl[ying]
with the Do Not Call list.”
Appellants are individuals living in Reno, Nevada, whose
cellular telephone numbers are registered on the national donot-call
registry. Jones asserts that he received four calls on
his cellular telephone from AAAP in March 2014. During
one of these calls, Jones spoke to Charlie Fort, who offered
to sell Jones a VSC called the “Diamond New Car” protection
plan. Jones was then transferred to Samuel Morris, who
confirmed that he was calling from AAAP. Watson asserts
that he received four calls to his cellular telephone from
AAAP in April and May of 2014. Jones and Watson believe
AAAP placed the calls using an “automatic telephone dialing
system.”
In April 2014, Jones filed a class-action law suit against
AAAP, Pambuckchyan, Sadejyan, and Garcia, asserting one
claim for violation of the TCPA. AAAP was originally
represented by counsel and filed an answer and a motion to
dismiss. However, AAAP’s attorneys all moved to withdraw
after AAAP terminated “its attorneys due to an anticipated
bankruptcyaction by[AAAP].” The district court granted the
motions to withdraw. On January 8, 2015, after the district
court and AAAP’s former attorneys had repeatedly advised
the company that it was “obligat[ed] to defend this action
through licensed counsel,” the district court entered default
2
It is not clear from the record what positions these three individuals
held at AAAP. They have been called officers, directors, employees, and
principals in both the record and briefs.
JONES V. ROYAL ADMIN. SVCS. 7
against AAAP, because it had failed to “otherwise defend”
this action.
Thereafter, the district court granted Jones leave to file an
amended complaint. In the First Amended Complaint, Jones
added Watson as a plaintiff and Royal as a defendant. The
First Amended Complaint asserted that Royal was liable for
AAAP’s calls that were made in violation of the TCPA and
the federal regulations implementing the TCPA. On June 17,
2015, Royal filed a motion for summary judgment. On
November 24, 2015, the district court granted the motion and
entered judgment in favor of Royal. This appeal followed.
II.
We review de novo a district court’s grant of summary
judgment. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095,
1098 (9th Cir. 2015). In analyzing a motion for summary
judgment, we must “must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). Within this analysis, we “[v]iew[] the
evidence ‘as a whole’ and ‘in the light most favorable to the
party opposing the motion.’” Id. (quoting Matsushita,
475 U.S. at 587). “An issue of material fact is genuine ‘if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
8 JONES V. ROYAL ADMIN. SVCS.
III.
The TCPA makes it unlawful for a person,
to make any call (other than a call made for
emergency purposes or made with the prior
express consent of the called party) using any
automatic telephone dialing system or an
artificial or prerecorded voice
. . .
to any telephone number assigned to a . . .
cellular telephone service . . . or any service
for which the called party is charged for the
call . . . .
47 U.S.C. § 227(b)(1)(A)(iii). In order for the statute to
apply, one of the parties to the call (either the caller or the
recipient) must be “within the United States.” § 227(b)(1).
The TCPA also directed the Federal Communications
Commission (“FCC”) to “prescribe regulations to implement
methods and procedures for protecting the privacy rights [of
consumers].” § 227(c)(2). The TCPA gives consumers “who
ha[ve] received more than one telephone call within any 12-
month period by or on behalf of the same entity in violation
of the[se] regulations” a private right of action. § 227(c)(5).
The regulations implementing the TCPA prohibit, among
other things, a “person or entity” from “initiat[ing] any
telephone solicitation to . . . [a] residential telephone
subscriber who has registered his or her telephone number on
the national do-not-call registry.” 47 C.F.R. § 64.1200(c)(2)
(2013).
JONES V. ROYAL ADMIN. SVCS. 9
The parties do not dispute the sufficiency of the evidence
in the record to determine that the AAAP’s telemarketers
violated the TCPA and its implementing regulations. Rather,
the parties dispute whether Royal can be held liable for
AAAP’s calls.
“Agency is the fiduciary relationship that arises when one
person (a ‘principal’) manifests assent to another person (an
‘agent’) that the agent shall act on the principal’s behalf and
subject to the principal’s control, and the agent manifests
assent or otherwise consents so to act.” Mavrix Photographs,
LLC v. LiveJournal, Inc., No. 14–56596, 2017 WL 4446029,
at *6 (9th Cir. Aug. 30, 2017) (as amended) (quoting
Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006)).
“For an agency relationship to exist, an agent must have
authority to act on behalf of the principal and ‘[t]he person
represented [must have] a right to control the actions of the
agent.’” Id. (quoting Restatement (Third) of Agency § 1.01
cmt. c).
As this case demonstrates, individuals or entities often
attempt to use an agency relationship as a basis for holding
principals liable for the conduct of their agents. “The legal
consequences of an agent’s actions may be attributed to a
principal” under a wide range of common law agency
theories. See Salyers v. Metro. Life Ins. Co., 871 F.3d 934,
939 (9th Cir. 2017); In re Joint Petition Filed by Dish
Network, LLC, 28 FCC Rcd. 6574, 6584 (2013) (noting that
a “broad range of agency principles” may be employed in
seeking to hold a principal liable for an agent’s TCPA
violations). The Restatement (Third) of Agency describes
various avenues through which a principal can be held liable
for the legal consequences of its agent’s conduct. See
Restatement (Third) of Agency § 7.04 (agent acts with actual
10 JONES V. ROYAL ADMIN. SVCS.
authority or the principal ratifies the agent’s conduct); id.
§ 7.07 (agent is an employee and commits a tort while acting
within the scope of employment); id. § 7.08 (agent commits
a tort when acting with apparent authority in its dealings with
a third party purportedly on behalf of the principal). These
various paths correspond with the bedrock theories of agency:
actual authority, apparent authority, ratification, and
employment (respondeat superior).
In granting Royal’s motion for summary judgment, the
district court held that no agency relationship existed between
Royal and AAAP that could give rise to Royal’s
liability—rejecting theories of actual authority, apparent
authority, and ratification. On appeal, Jones and Watson do
not address apparent authority or ratification. They have
limited their challenge to two theories of liability. First, they
assert that AAAP had actual authority as Royal’s agent to
place the unlawful calls. Second, they assert that Royal had
enough authority to control the manner and means of
AAAP’s telemarketing that it can be held vicariously liable
to the same degree that an employer may be held liable for
the acts of its employees. Accordingly, we limit our analysis
these theories and reject each of them in turn.3
3 To be clear, in limiting our analysis to actual authority and vicarious
liability under an employer-employee theory we are not foreclosing the
application of other principles from the common law of agency. See Dish
Network, 28 FCC Rcd. at 6584 (noting possible agency theories for
establishing TCPA liability including actual authority, apparent authority,
and ratification); see generally Restatement (Third) of Agency (Am. Law
Inst. 2006) (addressing additional theories for establishing a principal’s
liability). Our decision is limited to the facts and arguments properly
before the court. We simply do not address alternative theories because
they are not properly before us.
JONES V. ROYAL ADMIN. SVCS. 11
A.
First, the AAAP telemarketers did not have actual
authority to place calls in violation of the TCPA. The district
court held more broadly that Royal exercised insufficient
control over AAAP to establish any agency relationship
whatsoever. Jones and Watson spend a great deal of time in
their briefs faulting this conclusion, pointing to the district
court’s limited explanation and failure to acknowledge the
numerous provisions in the contract that they assert establish
Royal’s control. But to reverse summary judgment as to
actual authority, Jones and Watson must do more than
establish an agency relationship. They must also establish
actual authority to place the unlawful calls. They haven’t.
Accordingly, we assume for purposes of our actual
authority analysis that AAAP was Royal’s agent. Then we
address only Jones’s and Watson’s failure to identify
evidence that could sustain a jury’s finding of actual
authority.
Actual authority is limited to actions “specifically
mentioned to be done in a written or oral communication” or
“consistent with” a principal’s “general statement of what the
agent is supposed to do.” Salyers, 871 F.3d at 940 (quoting
NLRB v. Dist. Council of Iron Workers of the State of Cal.
and Vicinity, 124 F.3d 1094, 1098 (9th Cir. 1997)). In this
case, it is undisputed that the contract between Royal and
AAAP expressly prohibited “any act or omission that violates
applicable state or Federal law, including but not limited to
‘robo-calling.’”
Jones and Watson identify no record evidence
contradicting this limitation on AAAP’s authority. Instead,
12 JONES V. ROYAL ADMIN. SVCS.
they assert that this case fits the analogy made in Birchmeier
v. Carribean Cruise Line, Inc., No. 12 C 4069, 2012 WL
7062748 (N.D. Ill. Dec. 31, 2012), in which “A, a well-heeled
entity . . . stands next to B, an impecunious defendant, and
directs B to place unsolicited, prerecorded calls to consumers
on their cell phones.” Id. at *1. The opposite is true here.
Royal expressly prohibited AAAP from employing these
marketing tools. And AAAP’s impecuniosity and
unresponsiveness are immaterial to the issue of actual
authority. Accordingly, we reject the actual authority theory.
B.
Jones and Watson also argue that Royal exercised
sufficient control over the “manner and means” of AAAP’s
telemarketing work to establish vicarious liability. We
disagree. A defendant is vicariously liable for violations of
the TCPA where common law principles of agency would
impose it. See Kristensen v. Credit Payment Servs., Inc., No.
16-15823, 2018 WL 343758, at *2 (9th Cir. Jan. 10. 2018)
(actions under the TCPA “incorporate federal common law
agency principles of vicarious liability” as derived from the
Restatement (Third) of Agency) (citation omitted); Gomez v.
Campbell-Ewald Co., 768 F.3d 871, 878 (9th Cir. 2014),
aff’d, 136 S. Ct. 663 (2016), as revised (Feb. 9, 2016)
(construing the statute to accord with the “ordinary rules of
vicarious liability,” as expressed in the Restatement (Third)
of Agency) (citation and internal quotation marks omitted).
Vicarious liability stemming from control over “manner and
means” invokes the Restatement (Third) of Agency’s theory
of vicarious liability arising out of an employer-employee
relationship. Compare Thomas v. Taco Bell Corp., 582 Fed.
App’x 678, 679 (9th Cir. 2014) (affirming the district court’s
legal analysis that sufficient control over the “manner and
JONES V. ROYAL ADMIN. SVCS. 13
means” of a telemarketer’s work could provide the basis for
vicarious liability, and affirming the district court’s
conclusion that the evidence was insufficient to allege
control), with Restatement (Third) of Agency § 7.07(3)
(identifying “an employee [a]s an agent whose principal
controls or has the right to control the manner and means of
the agent’s performance of work”), and id. § 7.07(1) (stating
that “[a]n employer is subject to vicarious liability for a tort
committed by its employee acting within the scope of
employment”).
In determining whether vicarious liability may be
imposed, the “extent of control exercised by the [principal]”
is the “essential ingredient.” United States v. Bonds, 608 F.3d
495, 505 (9th Cir. 2010). Accordingly, we adopt the
following ten factors for determining whether a principal has
enough authority to control the actions of its agent such that
the principal may be held vicariously liable to the same extent
as an employer may be held liable for the conduct of its
employee:
1) the control exerted by the employer,
2) whether the one employed is engaged in a
distinct occupation, 3) whether the work is
normally done under the supervision of an
employer, 4) the skill required, 5) whether the
employer supplies tools and instrumentalities
[and the place of work], 6) the length of time
employed, 7) whether payment is by time or
by the job, 8) whether the work is in the
regular business of the employer, 9) the
subjective intent of the parties, and
10) whether the employer is or is not in
business.
14 JONES V. ROYAL ADMIN. SVCS.
Id. at 504 (citing Restatement (Second) of Agency § 220(2));
see also Restatement (Third) of Agency § 7.07 cmt. f
(identifying these same factors as useful in evaluating
whether a principal exercises sufficient control over an
agent’s work to establish vicarious liability to the same extent
as if an employer-employee relationship existed).4 These
factors are not exhaustive, but they guide our analysis. See
Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
751–52 (1989) (citing Restatement (Second) of Agency
§ 220(2) and listing additional factors, none of which “is
determinative,” that should be considering in deciding
“whether a hired party is an employee under the general
common law of agency”). Applying these factors, we find
AAAP and its telemarketers were not subject to sufficient
control to establish vicarious liability under this theory.
First, we acknowledge that Royal exercised some amount
of control over AAAP. AAAP was required to keep records
of its interactions with consumers who purchased Royal
VSCs, give Royal weekly reports on VSC sales, and provide
notice of requests to cancel Royal VSCs. AAAP was also
required to implement security measures to protect consumer
information, collect payments on behalf of Royal, and obtain
Royal’s approval before using sales literature to assist in the
sale of Royal VSCs. Moreover, AAAP was only permitted to
4 We emphasize that our decision to adopt these Restatement factors
is limited to the issue before the court. These factors are of use for
determining whether a principal, who has hired third-party telemarketers,
exercises sufficient control to be held vicariously liable under the TCPA
to the same degree that an employer may be held liable for the actions of
its employees. See Restatement (Third) of Agency § 7.07(1),(3), cmt. f
(Am. Law Inst. 2006). We express no opinion on the usefulness of these
factors in establishing other common law theories for holding a principal
liable for the conduct of its agent.
JONES V. ROYAL ADMIN. SVCS. 15
use the “scripts and materials” Royal approved and had to
comply with the “guidelines and procedures” Royal provided
when selling Royal products. These guidelines and
procedures generally required AAAP to “operate in
accordance with laws and regulations” and refrain from
making “false and misleading” representations. In fact, Royal
suspended its relationship with AAAP on one occasion after
it suspected AAAP telemarketers were violating Royal’s
standards and procedures. However, Royal did not have the
right to control the hours the telemarketers worked nor did it
set quotas for the number of calls or sales the telemarketers
had to make. See NLRB v. United Ins. Co. of Am., 390 U.S.
254, 258 (1968) (finding the fact that individuals “perform
their work primarily away from the company’s offices and fix
their own hours of work and work days” showed principal
had less control and supported the conclusion that the agents
were not employees). Thus, Royal had only limited control
of AAAP’s telemarketers.
Significantly, Royal did not have any control of a
telemarketer’s call until the telemarketer decided to pitch a
Royal VSC to the consumer. AAAP sold VSCs for multiple
companies (all of whom, presumably, had their own standards
and procedures AAAP telemarketers were required to comply
with). When telemarketers reached a consumer, they first had
to sell the consumer on the idea of a VSC. Royal did not
have control over this sales pitch. Only after the consumer
was sold on the idea of a VSC, would an AAAP telemarketer
pitch a specific VSC. If this specific VSC was a Royal VSC,
then Royal controlled the “scripts and materials” the
telemarketer was permitted to use in the sale. An AAAP
telemarketer pitched a VSC to Appellants during only one
call at issue in this case. During that call, a telemarketer
attempted to sell a “Diamond New Car” protection plan—a
16 JONES V. ROYAL ADMIN. SVCS.
plan not sold by Royal through AAAP. Thus, there is no
evidence that AAAP telemarketers ever tried to sell Royal
VSCs to Appellants. Accordingly, Royal never specifically
controlled any part of any of the calls at issue in this case.
Second, AAAPwas an independent business, separate and
apart from Royal, see id. at 258–59 (finding relevant whether
individuals “operate[d] their own independent businesses” or
“perform[ed] functions that are an essential part of the
company’s normal operations”), and it was engaged in the
“distinct occupation” of selling VSCs through telemarketing,
as demonstrated by the fact that it “had many different clients
and offered [the same] services to others during the same
period,” see Bonds, 608 F.3d at 505; cf. Alexander v. FedEx
Ground Package Sys., Inc., 765 F.3d 981, 995 (9th Cir. 2014)
(applying California law, which considers nearly identical
factors). Thus, this factor strongly suggests AAAP’s
telemarketers were not subject to sufficient control to
establish vicarious liability under this theory.
Third, the calls made by AAAP’s telemarketers were not
normally done under the supervision of Royal. Churchill
provided some training and oversight at AAAP’s Azusa call
center, and Richard McCabe, Royal’s president, visited the
call center about a dozen times over the course of three years.
However, as evidenced above, a Royal employee did not
directly supervise AAAP’s calls. Therefore, this factor also
favors finding AAAP’s telemarketers were not subject to the
requisite level of control.
As to the fourth factor, the record does not contain any
evidence regarding the skill required to place the calls or sell
a VSC. Therefore, we do not consider this factor in our
analysis.
JONES V. ROYAL ADMIN. SVCS. 17
Fifth, Royal provided AAAP with some “tools and
instrumentalities” necessary to complete the sales. For
example, Royal provided the contracts that were to be sold
and gave AAAP access to their “on-line Contract quote
manager.” Royal also trained the AAAP telemarketers in
how to sell Royal contracts. On the other hand, AAAP
provided far more tools and instrumentalities, including its
own phones, computers, furniture, and office space. In
addition, if AAAP wanted any “brochures [or] other sales
literature,” it had to develop and manufacture them itself.
Thus, AAAP supplied most of the “tools and
instrumentalities,” further evidencing that the telemarketers
were not controlled to the same degree as an employee. See
Reid, 490 U.S. at 752.
Sixth, the original contract was in effect for only one year,
with each party retaining the ability to cancel the contract at
any time on 30 days notice. Ultimately, AAAP sold VSCs
for Royal for three years, from October 2011 until October
2014. Three years is not a particularly short period of time,
but the limited nature of the original contract shows there was
a “contemplated end to the . . . relationship.” See Ruiz v.
Affinity Logistics Corp., 754 F.3d 1093, 1105 (9th Cir. 2014).
The designated impermanency of the relationship supports
the conclusion that Royal did not have enough control to be
vicariously liable as if it had an employer-employee
relationship with AAAP’s telemarketers. See N.L.R.B.,
390 U.S. at 259 (finding relevant that individuals had “a
permanent working arrangement with the company under
which they may continue as long as their performance is
satisfactory”); Bartels v. Birmingham, 332 U.S. 126, 130
(1947).
18 JONES V. ROYAL ADMIN. SVCS.
Seventh, AAAP was paid a commission for each sale,
rather than for the time the telemarketers worked. This is a
strong indicator that Royal lacked sufficient authority to
control the telemarketers. See Ruiz, 754 F.3d at 1104–05;
Bonds, 608 F.3d at 505.
Eighth, Royal specifically contracted out all its direct
sales to many different vendors and car dealerships instead of
hiring its own employees to sell its VSCs. However, Royal
is in the business of selling VSCs; accordingly, AAAP’s sales
are a regular part of Royal’s business. Thus, this factor tends
to show control akin to that found in an employer-employee
relationship. See Ruiz, 754 F.3d at 1105.
As to the ninth factor, the record does not clearly
evidence the subjective intent of the parties. Nevertheless,
the fact that AAAP sold VSCs for multiple companies
indicates that AAAP’s intent was to have its telemarketers
operate as independent contractors for many different
companies—not as Royal’s employees. See Dumas v.
Gommerman, 865 F.2d 1093, 1105 (9th Cir. 1989) (finding
relevant “whether the artist works for several buyers at a
time, or exclusively for one”), rejected on other grounds by
Reid, 490 U.S. 730.
Tenth, and finally, Royal is a business, which tends to
suggest a greater level of control.
Taking these factors into account, it is clear that Royal
did not have enough authority to control the AAAP
telemarketers’ work to hold Royal vicariously liable as if it
were an employer of the AAAP telemarketers. AAAP was its
own independent business that sold VSCs for multiple
companies without the direct supervision of a Royal
JONES V. ROYAL ADMIN. SVCS. 19
employee. AAAP provided its own equipment, set its own
hours, and only received payment if one of its telemarketers
actually made a sale. Finally, although Royal had some
control over AAAP’s telemarketers, it did not specifically
control the calls at issue in this case, because the
telemarketers never attempted to sell a Royal VSC during
those calls. Because AAAP’s telemarketers were not subject
to the requisite level of control, Jones and Watson cannot
establish vicarious liability under a “manner and means’
control theory.

Outcome: AAAP’s telemarketers did not have actual authority to
place the unlawful calls, and Royal exercised insufficient
control over the manner and means of the work to establish
vicarious liability under the asserted theory. Because Royal
cannot be held liable for the calls under either theory argued
on appeal, it was proper for the district court to grant Royal’s
motion for summary judgment.
AFFIRMED.

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