This is a serious judgment.
A federal court in Pennsylvania just indicted an individual lawmaker. Personally You are responsible under the TCPA for calls you make in connection with official government business. For example, you can draw attention to annual events where you can learn about the services of nonprofit organizations and other government service providers.
This result is surprising and could have a variety of implications for the “official” behavior of legislators and executive branch officials. However, this could just be a case of a bad lawyer, and the impact of the lawsuit could be very limited. stay with me.
But there are a lot of interesting parts here, so let's break this down.
First, the verdict Perron vs. Matthew Bradford; 2:23-cv-00510-JDW (Document 54) (ED Pennsylvania May 13, 2024) brought by Andrew Perrong, a relitigator turned attorney.
Mr. Perron, who recently lost a case in the Third Circuit Court of Appeals that sought to expand the TCPA's autodialer definition, appeared to be barking up the wrong tree with his case against Mr. Bradford as well. The court had already dismissed several of Perron's claims against Bradford, including the autodialer claims, but the claims related to prerecorded calls remained.
This is the problem… Can a sitting lawmaker be sued individually if his office sends a prerecorded robocall? official government communications To the members?
This communication fee, paid for by political parties and perhaps questionably, is approved by the House Communications Office, which reviews the request with the House Law and Ethics Division, which determines that the underlying events are “a clear legislative purpose.'' and have a public interest. ”
The opinion explains:
Once an event has been vetted, House Communications staff will create a script describing the event, provide it to the Congressman's office, and coordinate the call details with the Congressman's office. Lawmakers will record the audio of the call and upload it to their website. The House Communications Office provides Cleo with audio to make the actual calls.
Mr. Perron sued Mr. Bradford, claiming he was responsible for the calls. Bradford, and a group of Democratic and Republican lawmakers who also joined the lawsuit and filed briefs in support of Bradford, said Bradford's office did not allow House rules that the messages must be official communications. Bradford argued that this was the case. , protected from liability by sovereign immunity.
The court disagreed.
In a somewhat shocking decision, the court ruled that as Bradford sued for damages, he The real stakeholder was not the Commonwealth of Pennsylvania. Therefore, sovereign immunity does not apply. In reaching this decision, the court extended the doctrine that individual government officials are not necessarily protected for their official actions.
“[i]It does not follow that every time a public official acts under state law, a lawsuit must necessarily be brought against that public official in his or her official capacity…. The fact that Rep. Bradford may have been acting within the scope of his role as a state legislator when he made the call does not make this a formal competency case. Any adverse judgment against Rep. Bradford is not binding on the Commonwealth. ”
get it?
The suit is not defeated by sovereign immunity because Mr. Perron sued Mr. Bradford personally, not the government.
If that sounds strangely oversimplified, it is.
Clearly government officials are acting on behalf of the government Just because someone is being sued individually doesn't necessarily mean they are the subject of an individual lawsuit, but that seems to be what the ruling means. (And ironically—but perhaps intentionally) such a doctrine would completely undermine President Trump's recent efforts to extend his immunity for official acts elsewhere. (And I wonder if that's really what's lurking here.)
After coming up with the approach that “litigation continues because individuals are being sued, not the government,'' the court analyzed whether some form of qualified immunity could still deter litigation.First, the court decides on qualified immunity. teeth The defenses available under the TCPA are presumed to be available in any federal action unless a statute applies carve-out, since none exist under the TCPA.
However, the court found that Mr. Bradford was not eligible because the TCPA provision that he allegedly violated was clear: no prerecorded voice calls may be used to contact a cell phone. It was easy to conclude that there was no exemption.
Of course, this issue is not at all obvious, as the FCC does the following: clearly It turns out that government communications are not subject to the TCPA. And since the messages in question appear to be government communications, it is inconceivable that Mr. Bradford could be held responsible for them. Therefore, the clarity of the application of the law to Bradford had not been established.
not similar that It was debated, or at least not brought up in court. Instead, the analysis focused on whether the TCPA's statutory principles were sufficiently clear, and the court found that they were.
In the end, the court concluded that Bradford's office could be personally liable for the calls it made, and TCPAWorld was shaken anew.
This is a large decision, but there are two fairly gaping holes in the analysis that could be uncovered on appeal or in future litigation.
- As mentioned earlier, qualified immunity clearly It exists here because the TCPA applies to seemingly government messages like the one at issue. peron It's uncertain to say the least. This is true because the FCC has specifically determined that such messages are not subject to the TCPA.and
- Bradford's lawyers seem to have missed a critical issue – who Did you make the call in the first place? They seem to accept that he made the calls for MSJ purposes (“There is no dispute, at least for purposes of this motion, that Congressman Bradford had the House Communications Office make the calls in question. “Not in this case.”) That feels like a big mistake. It is highly doubtful that Bradford personally instructed anyone to make the call. And if we zoom out, I think we can safely make an argument like this: Pennsylvania The caller was not the individual who sent the proposal to the House Communications Office. I think both arguments could have worked and resulted in a win here. But neither was made.
So, at the bottom, peron It can be interpreted as broadly as the meaning of “civil servant”. everytime Responsible for official calls from the office. Or, in a narrow sense, civil servants are only Responsible for official calls made by the firm if the attorney fails to properly assert that the call was actually made by a staff member and/or The government they serve.
So we still don't know if this will happen peron This case is as earth-shaking as it first seemed, or perhaps just another reminder that bad lawyers can produce bad results (again, I'm not sure if there was a bad lawyer here). I'm not saying that (I'm not sure, and I haven't gone back and read all the briefs to find out), but only on the narrow issues (too narrow in my view) that are addressed in the judgment itself. Focused. )
We will be monitoring this very closely.
