NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVENSON FISHER, No. 19-15471

Plaintiff-Appellant, D.C. No. 2:15-cv-00358-RFB-NJK v.

LE VIAN CORP., MEMORANDUM*

Defendant-Appellee,

and

MJ CHRISTENSEN JEWELERS, LLC,

Defendant.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted July 8, 2020** Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,*** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. Judge.

Stevenson Fisher appeals the district court’s summary judgment in favor of

Le Vian Corp. on Fisher’s claims for violations of the Telephone Consumer

Protection Act (“TCPA”) and the Nevada Deceptive Trade Practices Act

(“NDTPA”), for declaratory relief, and for attorneys’ fees. Fisher argues that the

district court erred in granting summary judgment because there exist genuine

issues of material fact as to whether MJ Christensen Jewelers, LLC (“MJC”) had

actual authority to act on behalf of Le Vian, whether Le Vian was vicariously

liable as an employer of MJC, and whether Le Vian ratified MJC’s acts. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Although the TCPA is “silent as to vicarious liability,” a “defendant may be

held vicariously liable for TCPA violations where the plaintiff establishes an

agency relationship, as defined by federal common law, between the defendant and

a third-party caller.” Gomez v. Campbell-Ewald Co., 768 F.3d 871, 877, 879 (9th

Cir. 2014); see Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010, 1014 (9th

Cir. 2018). “Whether an agency relationship exists is for a court to decide based

on an assessment of the facts of the relationship.” Henderson v. United Student

Aid Funds, Inc., 918 F.3d 1068, 1073 (9th Cir. 2019).

1. MJC did not possess actual authority to act on behalf of Le Vian. See

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009) (explaining we

2 review de novo a district court’s summary judgment and may affirm on any basis

supported by the record). Fisher argues that Le Vian exerted such control over

MJC that MJC became Le Vian’s agent. But control alone does not establish an

agency relationship; an agent must “act[] on behalf of [the principal] with power to

affect the legal rights and duties of the [principal].” Restatement (Third) of

Agency § 1.01 cmt. c. And no evidence suggests that MJC had the power to affect

Le Vian’s legal rights and duties with respect to the robocall. At most, MJC’s

contract with LX Publications, LLC had economic1 consequences for Le Vian.

Thus, Fisher has raised no genuine issue of material fact as to the existence of an

agency relationship between Le Vian and MJC.

Even accepting Fisher’s premise that a sufficiently high level of control can

create an agency relationship, the undisputed facts here do not establish such

control. The control inherent in a manufacturer-retailer relationship generally does

not give rise to an agency relationship. Restatement (Third) of Agency § 1.01 cmt.

g (“A purchaser who resells goods supplied by another is acting as a principal, not

an agent.”); see also Murphy v. DirecTV, Inc., 724 F.3d 1218, 1232 (9th Cir. 2013)

(“Generally, retailers are not considered the agents of the manufacturers whose

products they sell.”).

1 If the robocalls were persuasive, MJC might have increased sales at the trunk show, which in turn presumably would have increased Le Vian’s profits.

3 And the constraints imposed by Le Vian with respect to the trunk show did

not establish sufficient control because Le Vian did not retain authority to give

“interim instructions” to MJC. See Restatement (Third) of Agency § 1.01 cmt. f.

(explaining that the existence of “constraints on the service provider does not mean

that the service recipient has an interim right to give instructions”). The Event

Marketing Guide advertised a “menu of marketing tools [that LX] offer[ed],”

including robocalls; it did not require robocalls. The Retailer Handbook provided

that “[a]ll marketing and presentation of Le[] Vian’s brands . . . by Authorized

Retailer must be approved by Le Vian in writing prior to use and/or

dissemination.” But Le Vian’s control was limited to final approval before use or

dissemination. And the Training Manual, which generically stated that MJC’s

“[m]anagers and associates . . . [were] held accountable for the success of” the

trunk show, did not establish a high level of control.

Although Le Vian recommended that MJC use robocalls, and perhaps

pressured it to do so, it is unreasonable to conclude that Le Vian exerted such

control that it compelled MJC. It is undisputed that (1) Le Vian’s express

preference was for MJC to personally call customers rather than to use robocalls

and (2) LX (purportedly acting at the behest of Le Vian) characterized the

robocalls as “optional” on at least two occasions.

Fisher’s alternative argument that Le Vian and MJC were engaged in a joint

4 venture lacks merit. There was no “single” venture for “joint” profit; no

“community of interest” or a reciprocal agency relationship; and no “equal right to

control” or “mutual control . . . over the property engaged.” 12 Am. Jur. Proof of

Facts 2d 295 I § 1 (1977); Shell Oil Co. v. Prestidge, 249 F.2d 413, 415 (9th Cir.

1957). Nor did Le Vian and MJC form a legal partnership. See Restatement

(Second) of Agency § 14A; Blankenship v. Hearst Corp., 519 F.2d 418, 425 (9th

Cir. 1975).

2. Le Vian was not vicariously liable for MJC’s acts as MJC’s employer.

The district court engaged in our ten-factor test to evaluate whether a party “may

be held vicariously liable to the same extent as an employer may be held liable for

the conduct of its employee,” Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 450

(9th Cir. 2018), and ultimately concluded that Le Vian could not be held

vicariously liable as MJC’s employer.

We agree. The “control” factor is the “essential ingredient,” id., and here it

does not tend to establish employment. Further, Le Vian and MJC engaged in

different businesses; Le Vian did not supervise MJC’s work or supply equipment

to MJC; there is no evidence of any term of employment; payments flowed from

MJC to Le Vian; and there is no evidence that either Le Vian or MJC intended to

enter into an employment relationship.

5 3. Le Vian did not ratify the acts of MJC. Ratification is possible only if

“the act is ratifiable as stated in [Restatement (Third) of Agency] § 4.03,”

Kristensen, 879 F.3d at 1014 (quoting Restatement (Third) of Agency §4.01(3)(a)),

which provides that “[a] person may ratify an act [only] if the actor acted or

purported to act as an agent on the person’s behalf,” Restatement (Third) of

Agency § 4.03. Here, there is no evidence suggesting that MJC purported to act as

Le Vian’s agent in contracting with LX to place the robocall.2

Even assuming the act was ratifiable, Le Vian did not ratify it. A Le Vian

sales representative’s statement that the lawsuit “sound[ed] like a Le Vian

problem” does not constitute ratification of the particular act at issue. See

Restatement (Third) of Agency § 4.01(2)(a). Nor does the allegation that Le Vian

“reaped the benefits” of the trunk show constitute “conduct that justifies a

reasonable assumption that [Le Vian] . . . consent[ed]” to an act by MJC that

would affect its legal relations. Restatement (Third) of Agency § 4.01(2)(b)

(emphasis added).

AFFIRMED.

2 That MJC’s owner (who recorded the robocall) mentioned Le Vian in the robocall does not suggest otherwise.

6