February.02.2018
An Orrick team this week secured the dismissal of a class action against client Sage Payment Solutions, Inc. (SPS), a Virginia-based provider of payment processing services.
Siding with our arguments, San Francisco U.S. District Judge Maxine Chesney dismissed putative class action claims against SPS for violation of the Telephone Consumer Protection Act (TCPA). The complaint alleged that SPS, which is now known as Paya, was vicariously liable for allegedly unsolicited fax advertisements that were sent by one of its independent contractors.
We moved to dismiss the complaint for lack of personal jurisdiction, arguing that the independent contractor’s alleged act of sending faxes to the class representative in California could not be imputed to SPS for purposes of establishing long-arm jurisdiction because the contractor was not an agent of SPS’s. Our motion relied on recent Ninth Circuit precedent, which made clear that although principals can be held vicariously liable for the TCPA violations of their agents, they cannot be held liable for violations committed by independent contractors.
As a result, personal jurisdiction over SPS in California could only be established if the contractor was acting as SPS’s agent when it sent the fax advertisements at issue. We argued that the complaint had to be dismissed because MSI was an independent contractor, not an agent, and, in any event, SPS never authorized or consented to MSI’s alleged sending of fax solicitations. The judge agreed with our arguments and dismissed the plaintiff’s complaint.
Orrick partner Elyse Echtman and senior associate Gregory Beaman represented SPS in the litigation.