Saunders v. Dyck O'Neal: A Debt Collector Can Be Liable for a Vendor's Direct-to-Voicemail Messages

Background

The defendant, a debt collection agency and mortgage servicer, contracted with a vendor for a "direct drop" voicemail service that placed prerecorded messages directly into recipients' voicemail. The vendor warranted that the service complied with the law and was not regulated under the Telephone Consumer Protection Act (TCPA), but the contract allowed either party to terminate if a court found otherwise. The court had earlier ruled in the case that direct drop voicemails are calls under the TCPA. The plaintiff, who received one of the messages, moved for class certification and summary judgment. The defendant argued that it could not be liable for initiating or making the calls.

Direct Liability

Relying on the Federal Communications Commission's 2013 DISH Network ruling, the court explained that a party initiates a call when it takes the steps necessary to physically place it. A party can also be so involved that it is directly liable, for example by giving the third party specific and comprehensive instructions on timing and manner.

That was "the precise situation here." The defendant prepared the list of numbers, chose the prerecorded message, selected the caller ID and controlled when calls were made. The vendor physically sent the messages, but the defendant's role was not clerical. It "maintained complete control and total involvement over the calls."

Vicarious Liability

The court ruled the defendant could also be vicariously liable.

Actual authority. The contract's disclaimer of agency was not dispositive, citing Krakauer v. Dish Network, LLC, 925 F.3d 643 (4th Cir. 2019). The defendant uploaded a "campaign" each day, designed the message and caller ID for its collection purpose, and directed that messages go out only at permissible times based on each debtor's location. The contract itself described the vendor as a "passive conduit."

Apparent authority. Any reasonable person who heard a debt collection message that began by citing the defendant would believe it came from the defendant.

The court did not reach ratification and expressly took no position on consent.

Practical Implications

For businesses using voicemail vendors. Vendor warranties and contract disclaimers do not transfer TCPA exposure. If you control the list, the script, the caller ID and the schedule, you may be the initiator. Consent records for every number remain the key defense.

For vendors. Contract language describing the platform as a passive conduit helped show the client was the caller. The ruling addressed only the liability of the client, not of the vendor.

For plaintiffs. Evidence of who chose the numbers, message, caller ID and timing can establish direct liability without deciding agency issues.

Context. The case was filed in 2017, and the ruling came on the class certification and summary judgment record. Whether the class is certified and whether recipients consented remain open.

Read the Western District of Michigan opinion and order in Saunders v. Dyck-O'Neal.