Not through a contribution claim. Federal courts have held that the TCPA gives a sued business no right to make a lead vendor, call center, or texting platform share the damages, and relabeling that claim as negligence hasn’t worked. A written indemnity clause is different, and contract claims against vendors have survived. What a business can recover from its vendor depends on what the contract says and on which court will hear the claim.
Does the TCPA let a defendant seek contribution from its vendor?
No. The courts that have decided the question read the statute to leave contribution and implied indemnity out.
The starting point is federal law. In LeMieux v. Lender Processing Center, a mortgage lender sued in a TCPA class action filed a third-party complaint against the lead generators that had placed telemarketing calls for it. The Southern District of California dismissed those claims in January 2018 under a heading that reads “There is No Implied Right of Indemnity or Contribution Under the TCPA.” The order first held that “federal, not state law, applies to the causes of action” for indemnity and contribution, because the underlying liability is federal.
Once federal law governs, the question is whether Congress meant to create a right to share damages. The Supreme Court framed that test in Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77 (1981), a case about the Equal Pay Act and Title VII. It said “The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.” The TCPA sets out its own private actions and damages, and it says nothing about contribution among defendants.
The lender in LeMieux argued that the Ninth Circuit’s vicarious liability decision in Gomez and the FCC’s Dish Network ruling implied a matching right to recover from the vendor. The court disagreed. “Neither decision ultimately evinces any conclusion as to” a right to seek indemnity or contribution, it wrote, and it joined the other courts that had refused to create one.
An Illinois federal court reached the same result years earlier in Desai v. ADT Security Services, where ADT sued the marketing company in a chain of vendors that ended with the company placing the calls. The September 2012 order says “ADT cannot state a cause of action for indemnification or contribution under either the TCPA or the common law.”
Can a negligence claim against the vendor get around that rule?
Not so far. Courts look at what the claim asks for, and a negligence count that seeks to shift TCPA damages is treated as contribution.
The clearest example is Schmitendorf v. Juicy’s Vapor Lounge, Inc., a District of Kansas case decided March 6, 2024. A vape retailer was sued for marketing texts to numbers on the National Do Not Call Registry. It had sent the texts through a texting platform, and it filed a third-party complaint against the platform that included a negligence count alongside its contract claims. The retailer’s theory was specific. It said the platform sent one requested message several times and kept texting people after they opted out.
The Kansas court still saw a contribution claim. Because the negligence count sought to hold the platform responsible for violations that were, in the retailer’s words, the platform’s own, the court wrote: “This is contribution by another name.” On the proposed amendment, it added, “This is an effort to seek contribution that the TCPA does not permit.” The same order rejected the idea that the platform owed a duty to protect the retailer from its own legal risk, reasoning that it’s fair to “expect that users will monitor their own legal risks” when they send marketing through someone else’s software. The third-party complaint was dismissed without prejudice.
That reasoning should worry any business that hands its outreach to a vendor, because it treats TCPA compliance as the sender’s job even when the vendor’s software pressed the button and the vendor’s own mistakes produced the extra messages.
Does a written indemnity clause still work?
Yes, if the contract has one. Courts that throw out contribution claims have let contract claims go forward.
In Desai, the same order that rejected contribution kept the contract claim alive. It dismissed the common law indemnity and contribution counts, while ADT’s “claim for contractual indemnification remains.” The difference is the source of the right. A contract claim doesn’t ask the court to read anything into the TCPA. It asks the court to enforce a promise the vendor made.
The catch is the forum. In LeMieux, the plaintiff had already settled, and once the contribution and indemnity counts were gone, the lender’s breach of contract claim against the lead generators was all that remained. There was no diversity of citizenship, so the federal court’s only hook was supplemental jurisdiction. It declined to keep the contract claim, which left the lender to pursue it in another court. A business that wins the indemnity argument on paper can still end up filing a second lawsuit to collect.
The firm’s earlier post on vendor contracts and indemnity clauses covers what those clauses should say before any lawsuit arrives. This post picks up after the suit is filed.
How do these claims against vendors fare?
| Claim against the vendor | How courts have treated it | Example |
|---|---|---|
| Contribution under the TCPA | Dismissed, because the statute creates no such right | LeMieux (S.D. Cal. 2018); Desai (N.D. Ill. 2012) |
| Common law indemnity | Dismissed along with contribution | LeMieux; Desai |
| Negligence against a texting platform | Treated as contribution and dismissed | Schmitendorf (D. Kan. 2024) |
| Contractual indemnity | Survived a motion to dismiss | Desai |
| Breach of contract with no diversity, after the TCPA claims end | Federal court declined supplemental jurisdiction | LeMieux |
Should a defendant file a third-party complaint at all?
Usually not to share blame. A third-party complaint makes sense when there’s a real indemnity clause and a vendor with the money or insurance to pay.
Federal Rule of Civil Procedure 14 lets a defendant, “as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” The rule supplies the procedure, not the right, so if the TCPA doesn’t allow contribution in the first place, a defendant can’t use Rule 14 to bring a vendor into the case on that theory.
There’s a cost that rarely gets discussed. A third-party complaint against a lead vendor usually alleges that the vendor made the calls for the defendant and under the defendant’s contract. Those are the same facts a plaintiff needs to prove vicarious liability. A defendant whose main defense is that the vendor acted on its own shouldn’t sign a pleading that says otherwise. Read the third-party complaint as if the plaintiff’s lawyer will quote it back, because that’s likely.
The better first move is often a written tender of defense under the indemnity clause, sent as soon as the complaint arrives. If the vendor accepts, the business gets paid defense costs without a second front in the litigation. If it refuses, the business can decide whether to implead the vendor on the contract claim, sue it separately in state court, or work with it under a joint defense agreement while the TCPA case is pending.
A separate state court suit has one quiet advantage, which is that it keeps the dispute over who caused the calls out of the case the plaintiff is trying to certify as a class.
What should a business do when the calls came from a vendor?
Lock down the vendor’s records along with its own, and read the contract before deciding how to involve the vendor. The firm’s California TCPA defense lawyers page covers vendor disputes that come up early in a TCPA case.
- Put a litigation hold on internal call and text logs, and send the vendor a written preservation demand covering its dialing and lead records.
- Export opt-out and internal do-not-call records, plus any opt-out lists the vendor kept on its own platform.
- Pull the National Do Not Call Registry scrub records and the Registry version dates the vendor used, since vendors often run their own scrubs.
- Gather the vendor contract with its indemnity and insurance terms, together with the scripts or message files that went out.
- Talk to a lawyer before you respond to the complaint or contact the vendor about fault, and before any offer goes out.
Questions about claims against TCPA vendors
Can a business sue its lead vendor for contribution under the TCPA?
Courts that have decided the question say no. Federal district courts, including the Southern District of California in 2018, hold that the statute creates no right of contribution or implied indemnity among those who share liability. The reasoning is that federal law governs the question and Congress didn’t write that remedy into the statute. A business needs a contract or another independent basis to recover from its vendor.
Does it help to call the claim negligence instead?
It hasn’t so far. In the Kansas case, the court looked past the label and held that a negligence claim seeking to shift TCPA liability to a texting platform was contribution by another name. The court also found that the platform owed no duty to protect the business from its own compliance risk. The label matters less than what the claim asks for.
Will a federal court hear a breach of contract claim against the vendor?
Sometimes. If the business and the vendor are from different states and the amount is high enough, there’s diversity jurisdiction. Otherwise, the federal court hears the contract claim only through supplemental jurisdiction, and it can decline once the TCPA claims are gone. That’s what happened in the 2018 California case, where the court declined to hear the lender’s contract claim against its lead generators.
Is a tender of defense better than a third-party complaint?
Often it is. A tender letter invokes the indemnity clause without filing anything, so the business doesn’t put allegations about the vendor’s role on the public record. If the vendor accepts, the defense costs shift without a fight. If it refuses, the business still has the contract claim and can choose where to bring it.
Sued over calls a vendor made for your business?
If your company is facing TCPA claims over calls or texts that a lead vendor or platform sent, the vendor contract usually decides whether any of the cost can move. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving telemarketing by lead generators and texts sent through third-party platforms. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The district court decisions are LeMieux v. Lender Processing Center, No. 16-cv-01850, Dkt. 67 (S.D. Cal. Jan. 31, 2018), Desai v. ADT Security Services, Inc., No. 11 C 1925, Dkt. 217 (N.D. Ill. Sept. 26, 2012), and Schmitendorf v. Juicy’s Vapor Lounge, Inc., No. 22-cv-02293, Dkt. 66 (D. Kan. Mar. 6, 2024). The Supreme Court decision is Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77 (1981). The procedural rule is Federal Rule of Civil Procedure 14.
This post is general information about the Telephone Consumer Protection Act and related laws as of October 14, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.