Whether vicarious liability must be assessed in light of the four bedrock theories of common law agency, or whether a contractual term imposing performance standards on a service provider is alone a sufficient basis for imposing vicarious liability?

QUESTION PRESENTED Federal law prohibits various telemarketing practices, including calls to numbers on the National DoNot-Call registry. The circuits are split on the basis for vicarious liability under the telemarketing laws. The Fourth and Ninth Circuits, in accordance with a declaratory ruling from the Federal Communications Commission, have held that vicarious liability under the federal telemarketing laws must be assessed in light of the four bedrock theories of common law agency: actual authority, apparent authority, respondeat superior (employment), and ratification. The Seventh Circuit, by contrast, has determined that a seller may be held vicariously liable for telemarketing violations committed by an independent company, with which the seller contracted to market its services or products, whenever that contract imposes any standards of performance on the marketer. The question presented is: Whether vicarious liability must be assessed in light of the four bedrock theories of common law agency, or whether a contractual term imposing performance standards on a service provider is alone a sufficient basis for imposing vicarious liability?