States Urge Court to Deny Excluding Corporate Officer From TCPA Blame

Eight plaintiff states in a robocalling lawsuit want the U.S. District Court for Southern Texas in Houston to deny the motion in limine of defendants Health Advisors of America (HAA) and its owner, Michael Smith, that would exclude arguments and evidence that Smith is personally liable for his Telephone Consumer Protection Act wrongdoing and dismiss him from the lawsuit, said the states in an opposition filing Monday (docket 4:20-cv-02021).

The motion in limine “misstates the law regarding who can be liable for a violation of the TCPA,” said Arkansas, Indiana, Michigan, North Carolina, North Dakota, Ohio and Texas in their filing. It also raises issues “akin to a motion to dismiss or summary judgment that are not proper relief for a motion in limine and would otherwise be untimely,” they said.

Smith has been sued in his “individual capacity” as the owner of HAA, said the states. “Evidence concerning his involvement in the robocalling scheme is fair game,” they said. The states “pled with specificity why Smith should be held liable in this case,” they said.

Case law shows that corporate officers can be held personally liable for TCPA violations, said the states. An officer is culpable under the TCPA “if he had direct, personal participation in or personally authorized the conduct found to have violated the statute, and was not merely tangentially involved,” they said. Individuals who directly, and knowingly and willfully, violate the TCPA “should not escape liability solely because they are corporate officers,” they said.

HAA and Smith “do not dispute" in their motion that Smith "had direct, personal participation in this illegal robocalling scheme,” said the states. They instead “rehash arguments more suited for a motion to dismiss,” they said. The relief they seek is that Smith should be dismissed from the lawsuit with prejudice, they said: “This is not proper relief for a motion in limine.” They also fail to identify “any specific evidence that they wish to exclude,” they said. “Such catch-all motions in limine are disfavored.”

Smith is a named defendant in the lawsuit where several of the claims are asserted against him “individually based on his direct involvement in an illegal robocalling scheme,” said the states. Contrary to the defendants’ motion in limine, the plaintiff states “emphatically pled facts and made allegations that Smith should be personally liable” because he used HAA “for illegal purposes,” they said. The states “also pled facts and made allegations that Smith is personally liable for his own fraudulent or tortious acts,” they said. They also named Smith as an individual defendant “outside of the entity” HAA, they said.

Yet Smith “remarkably argues” that the court should exclude any evidence or argument that he can be personally liable in this case, said the states. “This is simply not how the legal system works when you are accused of committing illegal acts.” Smith “directly participated” in the TCPA violations, as the states alleged in their motion for summary judgment, they said. The defendants “fail to acknowledge or reference Smith’s actions” after HAA was dissolved “when Smith continued to directly participate in the TCPA violations,” they said. “Smith also personally paid, from a non-corporate account, the robocallers.”

The defendants “already filed and lost” on their motion to dismiss, said the states. The defendants in that motion didn't argue that Smith shouldn't be held liable, they said. They similarly didn't make this argument in their motion for summary judgment, they said. Their failure “to file a timely dispositive motion seeking a dismissal of Smith cannot be cured via a motion in limine,” they said.