Collector - February 2020 - 21

Curaden AG was not a "sender" subject
to the TCPA. Specifically, the court held
that a distribution agreement between
Curaden AG and Curaden USA to promote
and advertise Curaden AG's products
was insufficient to sustain a finding that
Curaden AG was a sender under the TCPA.
In support of this holding, the
Lyngaas court found that the evidence
demonstrated Curaden AG was not
involved whatsoever in creating or
approving the faxes.
Specifically, multiple witnesses testified
that Curaden AG never enforced a
provision in the distribution agreement
granting it the right to review its
subsidiaries' advertising materials. The
testimony also established that Curaden
USA never offered its advertising materials
to Curaden AG for its review or approval.
Overall, despite the "close relationship"
between Curaden AG and Curaden USA,
the court found that the plaintiff failed to
demonstrate any affirmative involvement
on the part of Curaden AG in creating or
sending the faxes at issue. Accordingly,
Curaden AG was not considered a "sender"
under either prong of the FCC definition.

LESSONS LEARNED
Vicarious liability remains a concern
for debt buyers and debt collectors,
but it is not a given for plaintiffs. As
shown in Lyngaas, in the TCPA context,
courts must evaluate whether an entity
whose goods or services are advertised
bears some responsibility for the
"conveyance or dispatch" of an unsolicited
communication even when a close
relationship or contractual agreement
exists between the defendants.
This standard is distinct from the Fair
Debt Collection Practices Act context,
where federal circuit courts that have
recognized vicarious liability have focused
more generally on whether both the

COLLECTOR 02.20

Although the
pharmaceutical
manufacturers knew
nothing about the faxes,
the plaintiff argued they
were liable as senders
under the TCPA because
the faxes advertised or
promoted their products.

principal and the agent satisfy the "debt
collector" definition.
Albeit within the advertising context,
the Lyngaas opinion provides a roadmap
for the reasonable application of vicarious
liability under the TCPA. Regardless, debt
buyers and collectors should continue to
vet vendors and servicers thoroughly and
never ignore non-compliant practices. For
example, see Henderson v. United Student
Aid Funds, Inc., 918 F.3d 1068, 1072 (9th Cir.
2019), which holds an original creditor liable
under the TCPA for calls made by a debt
collector with which the creditor had no
contractual relationship.
Ultimately, a detailed, properly
implemented vendor management plan
should limit liability more effectively than
trying to insulate oneself through willful
ignorance of a vendor's actions, particularly in
the debt collection realm.
David N. Anthony is a partner, Jonathan P.
Floyd is an associate and John E. "Jed" Komisin
is an associate at Troutman Sanders LLP.

1

The Lyngaas v. Curaden
AG opinion provides a
roadmap for the reasonable
application of vicarious
liability under the TCPA.

2

Under the TCPA, courts
must evaluate whether
an entity whose goods or
services are advertised
bears some responsibility
for the "conveyance or
dispatch" of an unsolicited
communication, even
when a close relationship
or contractual agreement
exists between the
defendants.

3

Be proactive: create
a detailed vendor
management plan to
limit your liability for a
vendor's actions.
21



Collector - February 2020

Table of Contents for the Digital Edition of Collector - February 2020

Presidents Page
Industry News
Best Practices
FYI
Collection Tips
Overlapping Responsibilities?
Taking on Tax Time
Making Connections in D.C.
Calendar
Honor Roll
Education Spotlight
Creative Solutions
Ask the Experts: Reaching Out
Legal Liability & the FDCPA
Advocacy and Parenthood: Not So Different
Your Opinion Matters
Beyond the Boundary of the Law
ACA SearchPoint
Membership
Ad Index
Last Word
Collector - February 2020 - Cover1
Collector - February 2020 - Cover2
Collector - February 2020 - 1
Collector - February 2020 - 2
Collector - February 2020 - 3
Collector - February 2020 - 4
Collector - February 2020 - Presidents Page
Collector - February 2020 - Industry News
Collector - February 2020 - 7
Collector - February 2020 - 8
Collector - February 2020 - 9
Collector - February 2020 - 10
Collector - February 2020 - 11
Collector - February 2020 - Best Practices
Collector - February 2020 - 13
Collector - February 2020 - FYI
Collector - February 2020 - 15
Collector - February 2020 - Collection Tips
Collector - February 2020 - 17
Collector - February 2020 - Overlapping Responsibilities?
Collector - February 2020 - 19
Collector - February 2020 - 20
Collector - February 2020 - 21
Collector - February 2020 - Taking on Tax Time
Collector - February 2020 - 23
Collector - February 2020 - 24
Collector - February 2020 - 25
Collector - February 2020 - Making Connections in D.C.
Collector - February 2020 - 27
Collector - February 2020 - 28
Collector - February 2020 - 29
Collector - February 2020 - 30
Collector - February 2020 - 31
Collector - February 2020 - Calendar
Collector - February 2020 - Honor Roll
Collector - February 2020 - Education Spotlight
Collector - February 2020 - 35
Collector - February 2020 - Creative Solutions
Collector - February 2020 - 37
Collector - February 2020 - Ask the Experts: Reaching Out
Collector - February 2020 - 39
Collector - February 2020 - Legal Liability & the FDCPA
Collector - February 2020 - 41
Collector - February 2020 - Advocacy and Parenthood: Not So Different
Collector - February 2020 - 43
Collector - February 2020 - Your Opinion Matters
Collector - February 2020 - 45
Collector - February 2020 - Beyond the Boundary of the Law
Collector - February 2020 - 47
Collector - February 2020 - ACA SearchPoint
Collector - February 2020 - 49
Collector - February 2020 - Membership
Collector - February 2020 - Ad Index
Collector - February 2020 - Last Word
Collector - February 2020 - Cover3
Collector - February 2020 - Cover4
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