and Submitted October 20, 2017 San Francisco, California
from the United States District Court for the District of
Nevada, D.C. No. 2:12-cv-00528-APG-PAL Andrew P. Gordon,
District Judge, Presiding
Alexander G. Tievsky (argued), Roger Perlstadt, and Ryan D.
Andrews, Edelson PC, Chicago, Illinois, for
M. Lord (argued) and Asher M.B. Ritmiller, Inman Flynn
Biesterfeld & Brentlinger P.C., Denver, Colorado, for
Defendants-Appellees Credit Payment Services Inc. and
P. O'Meara (argued), Kevin R. Malloy, Joanne R. Driscoll,
and Kevin M. Forde, Forde Law Offices LLP, Chicago, Illinois;
Dan R. Waite, Lewis Roca Rothgerber LLP, Las Vegas, Nevada;
for Defendant-Appellee Enova International Inc.
H. Dove and Chad R. Fears, Snell & Wilmer LLP, Las Vegas,
Nevada; Robert V. Spake Jr. and Russell S. Jones Jr.,
Polsinelli PC, Kansas City, Missouri; for Defendant-Appellee
Pioneer Services Inc.
H. Gutke and Tara H. Popova, Fox Rothschild LLP, Las Vegas,
Nevada, for Defendant-Appellant Click Media LLC.
Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit
Judges, and James S. Gwin, [*] District Judge.
Consumer Protection Act
panel affirmed the district court's grant of summary
judgment in favor of the defendants in a class action under
the Telephone Consumer Protection Act.
plaintiff received from AC Referral, a non-party, a text
message that violated the TCPA. The panel held that the
defendants, three lenders and two marketing companies, were
not vicariously liable for AC Referral's acts. Because AC
Referral was neither the agent nor purported agent of four of
the defendants, they could not have ratified AC
Referral's acts. Although one of the marketing companies
had an agency relationship with AC Referral, it was not bound
by AC Referral's acts because it lacked knowledge that AC
Referral was violating the TCPA and did not have knowledge of
facts that would have led a reasonable person to investigate
Kristensen received a text message from AC Referral that
violated the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227. In this class action against three lenders
and two marketing companies, Kristensen claims that they had
ratified the unlawful text messages. Because AC Referral
(which is not a party to this suit) was neither the agent nor
purported agent of four of the defendants, they cannot have
ratified AC Referral's acts. See Restatement
(Third) of Agency §§ 4.01 and 4.03 (Am. Law Inst.
2006). Although one of the marketing companies had an agency
relationship with AC Referral, it is not bound by AC
Referral's acts because it lacked knowledge that AC
Referral was violating the ...