One of the most unfair rules in American jurisprudence is the one holding individuals personally liable under the TCPA for actions they take as part of their employment.

In almost every setting in the law if you do something at work and it turns out to be illegal you cannot be personally sued for that.

But under the TCPA, the person that runs the call center, or makes the phone call, or sets up a campaign, or even a CEO can all be sued PERSONALLY for TCPA violations. And it happens all the time.

Take the case of Judson Phillips and Preston Thompson.

Famous consumer advocate Diana Mey–who I invite onto my podcast but has not yet taken me up on it– sued these guys for alleged marketing calls that violated the TCPA and West Virginia state law and obtained a $1.5MM default judgment when they did not show up in court to defend themselves. (Protip: don’t do that.)

When these guys declared bankruptcy Mey went after them in BK court too and argued the court should not give these guys a fresh start because they acted maliciously in calling her without consent.

Now the Court ended up rejecting this argument– will explain why sortly– bt it held the door open to similar claims being found non-dischargaable, which is just wild.

Mey argued that because these violations were found to be “knowing and willful” by the court they must also be non-dischargeable in bankruptcy.

For a debt to be non-dischargeable, however, it must be one arising out of a “willful and malicious injury”– a bar that is quite high.

Unlike in the setting of the TCPA– where wilfullness is sometimes directed to the act of calling itself. For BK purposes an act is only “willful” if the debtor INTENDED TO INJURE the creditor by the actions it willfully engaged in.

In Mey’s case she could not demonstrate such an intent to injury from the robocalls at issue. The court looked at the volume of calls and facts such as Mey’s inviting some of the calls and concealing her identity in other calls to determine the callers likely had not been intending to harass Ms. Mey– just trying to reach her to discuss debt relief.

However the court noted that SOME of the calls might hae been made with the right level of intent to justify a finding of non-dischagabilty, but Mey had been too focused on getting ALL of the calls protected from BK:

Throughout these proceedings, Ms. Mey has taken an “all or nothing” approach to the litigation and the “willful and malicious” nature of the Judgment debt. No effort was made to prove that certain amounts of the Judgment should be excepted from discharge even if the full amount is not. That is true on issues such as “conscious disregard” versus “just cause” in the maliciousness analysis.

The Court concludes that it does not have sufficient evidence to determine what portion of the Judgment award for violation of the TCPA and/or the WVCCPA could be attributable to malicious versus non-malicious calls.

Get it?

If Mey had focused on certain calls made under certain circumstances, the court likely WOULD have found damages from some of the calls were not dischargeable!

Wow.

To my knowledge no court has ever found TCPA violations to be non-dischargable in BK but this court certain implies it is possible. One more ting for people to keep in mind!

Take aways:

1. Again, personal liability is always on the table in TCPA suits!;
2. Regular TCPA violations (i.e. accidents) can probably be wiped away in BK but intentionally violating someone’s TCPA rights might actually lead to non-dischargeable debt!
3. Diana Mey is NOT to be messed with. She is a proven winner, and even though she got to greedy here she just opened up a whole new avenue of attack in BK court.