FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES A. JONES; JOSH WATSON,

on behalf of themselves and all 

similarly situated persons,

Plaintiffs-Appellants,

v.

ROYAL ADMINISTRATION SERVICES,

INC.,

Defendant-Appellee,

and

ALL AMERICAN AUTO PROTECTION,

INC.; HAROUT PAMBUCKCHYAN;

RAFFI SADEJYAN; JASON GARCIA,

Defendants.

No. 15-17328

D.C. No.

3:14-cv-00199-

LRH-WGC

OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted June 15, 2017

San Francisco, California

Filed August 9, 2017
2 JONES V. ROYAL ADMIN. SVCS.

Before: Mary M. Schroeder, D. Michael Fisher,* and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

SUMMARY**

Telephone Consumer Protection Act

The panel affirmed the district court’s grant of summary

judgment in favor of the defendant in an action under the

Telephone Consumer Protection Act.

The panel held that Royal Administration Services, Inc.,

could not be held vicariously liable under the TCPA for

several phone calls made by telemarketers employed by All

American Auto Protection, Inc., because the telemarketers

were independent contractors and therefore did not act as

Royal’s agents, as defined by federal common law. 

* The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
JONES V. ROYAL ADMIN. SVCS. 3

COUNSEL

Matthew Righetti (argued), John Glugoski, and Michael

Righetti, Righetti Glugoski P.C., San Francisco, California,

for Plaintiffs-Appellants.

Richard I. Dreitzer (argued) and Donald P. Paradiso, Wilson

Elser Moskowitz Edelman & Dicker LLP, Las Vegas,

Nevada, for Defendant-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

Charles Jones and Josh Watson seek to hold Royal

Administration Services, Inc. (“Royal”) vicariously liable for

several telephone calls made in violation of the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by

telemarketers employed by All American Auto Protection,

Inc. (“AAAP”). Royal can only be held vicariously liable for

these calls if the telemarketers were acting as its agents, as

defined by federal common law, when the calls were placed. 

To determine whether the AAAP telemarketers were Royal’s

agents or independent contractors, we apply the ten nonexhaustive factors set forth in the Restatement (Second) Of

Agency § 220(2) (1958). Schmidt v. Burlington N. & Santa

Fe Ry. Co., 605 F.3d 686, 690 (9th Cir. 2010). After an

assessment of these factors, we find AAAP’s telemarketers

were acting as independent contractors rather than as Royal’s

agents. Therefore, Royal cannot be held vicariously liable for

these telephone calls. Accordingly, the district court properly

granted summary judgment in Royal’s favor.
4 JONES V. ROYAL ADMIN. SVCS.

I.

Royal sells vehicle service contracts (“VSC”). A VSC “is

a promise to perform (or pay for) certain repairs or services

[on an automobile].” Auto Service Contracts and

Warranties, Fed. Trade Comm’n: Consumer Info.,

https://www.consumer.ftc.gov/articles/0054-auto-servicecontracts-and-warranties (last updated August 2012). A VSC

is “[s]ometimes called an ‘extended warranty.’” Id. Royal

sells its VSCs through automobile dealers and through

“marketing vendors.” These marketing vendors sell Royal’s

VSCs “through direct mail or telemarketing.” Royal sells

VSCs through about 20 different marketing vendors.

AAAP sold VSCs for manycompanies like Royal through

telemarketing. When an AAAP telemarketer placed a call, he

or she would first “sell the concept of . . . a vehicle service

contract” to the consumer. Then, during the phone call, the

telemarketer would pick a particular service plan from one of

their many vendors to sell to the consumer, based on the

make, model, and mileage of the consumer’s car, and the

price and benefits in which the consumer expressed interest.

In October 2011, Royal entered into a marketing

agreement with AAAP.1 The agreement between Royal and

AAAP contained authorized sales and marketing

methodologies with which AAAP was required to comply. 

The agreement “[e]xpressly excluded from these

methodologies . . . any act or omission that violates

applicable state or Federal law, including but not limited to

‘robo-calling.’”

1

 At the time AAAP was operating as Precise Enterprises, LLC.
JONES V. ROYAL ADMIN. SVCS. 5

Royal assigned Clayton Churchill to be the “agent of

record” for the AAAP account. Churchill provided training

to AAAP’s employees at AAAP’s call center in Azusa,

California. During this training, he provided information

about Royal’s VSCs, claim structure, coverage, pricing, and

customer service. Royal’s president, Richard McCabe,

visited the call center with Churchill about a dozen times

from 2011 to 2014. During these visits, AAAP’s officials

(Harout Pambuchchyan, Raffi Sadejyan, and Jason Garcia)2

provided assurances that the telemarketers were “dialing

customers one at a time” and that they were “compl[ying]

with the Do Not Call list.”

Appellants are individuals living in Reno, Nevada, whose

cellular telephone numbers are registered on the national donot-call registry. Jones asserts that he received four calls on

his cellular telephone from AAAP in March 2014. During

one of these calls, Jones spoke to Charlie Fort, who offered

to sell Jones a VSC called the “Diamond New Car” protection

plan. Jones was then transferred to Samuel Morris, who

confirmed that he was calling from AAAP. Watson asserts

that he received four calls to his cellular telephone from

AAAP in April and May of 2014. Jones and Watson believe

AAAP placed the calls using an “automatic telephone dialing

system.”

In April 2014, Jones filed a class-action law suit against

AAAP, Pambuckchyan, Sadejyan, and Garcia, asserting one

claim for violation of the TCPA. AAAP was originally

represented by counsel and filed an answer and a motion to

2

It is not clear from the record what positions these three individuals

held at AAAP. They have been called officers, directors, employees, and

principals in both the record and briefs.
6 JONES V. ROYAL ADMIN. SVCS.

dismiss. However, AAAP’s attorneys all moved to withdraw

after AAAP terminated “its attorneys due to an anticipated

bankruptcyaction by[AAAP].” The district court granted the

motions to withdraw. On January 8, 2015, after the district

court and AAAP’s former attorneys had repeatedly advised

the company that it was “obligat[ed] to defend this action

through licensed counsel,” the district court entered default

against AAAP, because it had failed to “otherwise defend”

this action.

Thereafter, the district court granted Jones leave to file an

amended complaint. In the First Amended Complaint, Jones

added Watson as a plaintiff and Royal as a defendant. The

First Amended Complaint asserted that Royal was vicariously

liable for AAAP’s calls that were made in violation of the

TCPA and the federal regulations implementing the TCPA. 

On June 17, 2015, Royal filed a motion for summary

judgment. On November 24, 2015, the district court granted

the motion and entered judgment in favor of Royal. This

appeal followed.

II.

The Ninth Circuit reviews de novo a district court’s grant

of summary judgment. Pavoni v. Chrysler Grp., LLC,

789 F.3d 1095, 1098 (9th Cir. 2015). In analyzing a motion

for summary judgment, the panel must “must determine

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law.” Id. (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Within this

analysis, the panel must “[v]iew[] the evidence ‘as a whole’

and ‘in the light most favorable to the party opposing the

motion.’” Id. (quoting Matsushita, 475 U.S. at 587). “An
JONES V. ROYAL ADMIN. SVCS. 7

issue of material fact is genuine ‘if the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party.’” Id. (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).

III.

The TCPA makes it unlawful for a person,

to make any call (other than a call made for

emergency purposes or made with the prior

express consent of the called party) using any

automatic telephone dialing system or an

artificial or prerecorded voice

. . .

to any telephone number assigned to a . . .

cellular telephone service . . . or any service

for which the called party is charged for the

call . . . .

47 U.S.C. § 227(b)(1)(A)(iii). One of the parties to the call

(either the caller or the recipient) must be “within the United

States.” § 227(b)(1). The TCPA also directed the Federal

Communications Commission (“FCC”) to “prescribe

regulations to implement methods and procedures for

protecting the privacy rights [of consumers].” § 227(c)(2). 

The TCPA gives consumers “who ha[ve] received more than

one telephone call within any 12-month period by or on

behalf of the same entity in violation of the[se] regulations”

a private right of action. § 227(c)(5). The regulations

implementing the TCPA prohibit, among other things, a

“person or entity” from“initiat[ing] anytelephone solicitation
8 JONES V. ROYAL ADMIN. SVCS.

to . . . [a] residential telephone subscriber who has registered

his or her telephone number on the national do-not-call

registry.” 47 C.F.R. § 64.1200(c)(2).

Royal does not challenge whether there is sufficient

evidence in the record to create a genuine issue of material

fact as to whether AAAP’s telemarketers violated the TCPA

and its implementing regulations. Rather, Royal disputes

whether it can be held vicariously liable for AAAP’s calls.

We have previously clarified that “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, 878

(9th Cir. 2014), aff’d sub nom. Campbell-Ewald Co. v.

Gomez, 136 S. Ct. 663, 674 (2016) (“[U]nder federal

common-law principles of agency, there is vicarious liability

for TCPA violations.”). “Agency is the fiduciary relationship

that arises when one person (a ‘principal’) manifests assent to

another person (an ‘agent’) that the agent shall act on the

principal’s behalf and subject to the principal’s control, and

the agent manifests assent or otherwise consents so to act.” 

Mavrix Photographs, LLC v. LiveJournal, Inc., 853 F.3d

1020, 1029 (9th Cir. 2017) (quoting Restatement (Third) Of

Agency § 1.01 (Am. Law Inst. 2006)). “For an agency

relationship to exist, an agent must have authority to act on

behalf of the principal and ‘[t]he person represented [must

have] a right to control the actions of the agent.’” Id.

(quoting Restatement (Third) Of Agency § 1.01 cmt. c). One

theory of agency, actual authority, “arises through ‘the

principal’s assent that the agent take action on the principal’s
JONES V. ROYAL ADMIN. SVCS. 9

behalf.’”3Id. (quoting Restatement (Third) Of Agency

§ 3.01). “An agent acts with actual authority when, at the

time of taking action that has legal consequences for the

principal, the agent reasonably believes, in accordance with

the principal’s manifestations to the agent, that the principal

wishes the agent so to act.” Restatement (Third) Of Agency

§ 2.01.

Significantly, “[n]ot all relationships in which one person

provides services to another satisfy the definition of agency.” 

Id. § 1.01. An individual acting as an “independent

contractor,” rather than an agent, does not have the traditional

agency relationship with the principal necessary for vicarious

liability. See United States v. Bonds, 608 F.3d 495, 505–06

(9th Cir. 2010). Generally, a principal is not vicariously

liable for the actions of an independent contractor, because

the principal does not have sufficient control over an

independent contractor. Id.; see also Mavrix Photographs,

853 F.3d at 1030 (citing Hollingsworth v. Perry, — U.S. —,

133 S. Ct. 2652, 2657–58 (2013)); Bonds, 608 F.3d at 505

(holding that, in determining whether an agency relationship

exists, “a court will look to the totality of the circumstances,

but the ‘essential ingredient . . . is the extent of control

exercised by the employer’”).

Keeping in mind that the “extent of control exercised by

the [principal]” is the “essential ingredient,” Bonds, 608 F.3d

at 505, we adopt the following ten factors as relevant to the

3The district court analyzed whether Royal could be vicariously liable

under three different agency theories: actual authority, apparent authority,

and ratification. On appeal, Appellants assert that they are only pursuing

an actual authority theory, and have waived any argument under the other

two theories. Accordingly, we address only actual authority.
10 JONES V. ROYAL ADMIN. SVCS.

determination of whether an individual providing services for

a principal is an agent or an independent contractor:

1) the control exerted by the employer,

2) whether the one employed is engaged in a

distinct occupation, 3) whether the work is

normally done under the supervision of an

employer, 4) the skill required, 5) whether the

employer supplies tools and instrumentalities

[and the place of work], 6) the length of time

employed, 7) whether payment is by time or

by the job, 8) whether the work is in the

regular business of the employer, 9) the

subjective intent of the parties, and

10) whether the employer is or is not in

business.

Id. at 504 (citing Restatement (Second) Of Agency § 220(2)

(1958)). These factors are not exhaustive, but they guide our

analysis here. See Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730, 751 (1989) (citing Restatement (Second) Of

Agency § 220(2) and listing additional factors, none of which

“is determinative,” that should be considering in deciding

“whether a hired party is an employee under the general

common law of agency”). Applying these factors, we find

AAAP and its telemarketers were not acting as Royal’s

agents when they placed the calls at issue in this case.

First, we acknowledge that Royal exercised some amount

of control over AAAP. AAAP was required to keep records

of its interactions with consumers who purchased Royal

VSCs, give Royal weekly reports on VSC sales, and provide

notice of requests to cancel Royal VSCs. AAAP was also

required to implement securitymeasures to protect consumer
JONES V. ROYAL ADMIN. SVCS. 11

information, collect payments on behalf of Royal, and obtain

Royal’s approval before using sales literature to assist in the

sale of Royal VSCs. Moreover, AAAP was only permitted to

use the “scripts and materials” Royal approved and had to

comply with the “guidelines and procedures” Royal provided

when selling Royal products. These guidelines and

procedures generally required AAAP to “operate in

accordance with laws and regulations” and refrain from

making “false and misleading” representations. In fact, Royal

suspended its relationship with AAAP on one occasion after

it suspected AAAP telemarketers were violating Royal’s

standards and procedures. However, Royal did not have the

right to control the hours the telemarketers worked nor did it

set quotas for the number of calls or sales the telemarketers

had to make. See N.L.R.B. v. United Ins. Co. of Am., 390 U.S.

254, 258 (1968) (finding the fact that individuals “perform

their work primarily away from the company’s offices and fix

their own hours of work and work days” showed principal

had less control and supported independent contractor status). 

Thus, Royal had only limited control of AAAP’s

telemarketers.

Significantly, Royal did not have any control of a

telemarketer’s call until the telemarketer decided to pitch a

Royal VSC to the consumer. AAAP sold VSCs for multiple

companies (all of whom, presumably, had their own standards

and procedures AAAP telemarketers were required to comply

with). When an AAAP telemarketer reached a consumer,

they first had to sell the consumer on the idea of a VSC. 

Royal did not have control over this sales pitch. Only after

the consumer was sold on the idea of a VSC, would an AAAP

telemarketer pitch a specific VSC. If this specific VSC was

a Royal VSC, then Royal controlled the “scripts and

materials” the telemarketer was permitted to use in the sale. 
12 JONES V. ROYAL ADMIN. SVCS.

An AAAP telemarketer pitched a VSC to Appellants during

only one call at issue in this case. During that call, a

telemarketer attempted to sell a “Diamond New Car”

protection plan—a plan not sold by Royal through AAAP. 

Thus, there is no evidence that AAAP telemarketers ever tried

to sell Royal VSCs to Appellants. Accordingly, Royal never

specifically controlled any part of any of the calls at issue in

this case.

Second, AAAP was an independent business,separate and

apart from Royal, see id. at 258–59 (finding relevant whether

individuals “operate[d] their own independent businesses” or

“perform[ed] functions that are an essential part of the

company’s normal operations”), and it was engaged in the

“distinct occupation” of selling VSCs through telemarketing,

as demonstrated by the fact that it “had many different clients

and offered [the same] services to others during the same

period,” see Bonds, 608 F.3d at 505.; cf. Alexander v. FedEx

Ground Package Sys., Inc., 765 F.3d 981, 995 (9th Cir. 2014)

(applying California law, which considers nearly identical

factors). Thus, this factor strongly suggests AAAP’s

telemarketers were independent contractors rather than

employees.

Third, the calls made by AAAP’s telemarketers were not

normally done under the supervision of Royal. Churchill

provided some training and oversight at AAAP’s Azusa call

center, and Richard McCabe, Royal’s president, visited the

call center about a dozen times over the course of three years. 

However, as evidenced above, a Royal employee did not

directly supervise AAAP’s calls. Therefore, this factor also

favors finding AAAP’s telemarketers were independent

contractors.
JONES V. ROYAL ADMIN. SVCS. 13

As to the fourth factor, the record does not contain any

evidence regarding the skill required to place the calls or sell

a VSC. Therefore, we do not consider this factor in our

analysis.

Fifth, Royal provided AAAP with some “tools and

instrumentalities” necessary to complete the sales. For

example, Royal provided the contracts that were to be sold

and gave AAAP access to their “on-line Contract quote

manager.” Royal also trained the AAAP telemarketers in

how to sell Royal contracts. On the other hand, AAAP

provided far more tools and instrumentalities, including its

own phones, computers, furniture, and office space. In

addition, if AAAP wanted any “brochures [or] other sales

literature,” it had to develop and manufacture them itself. 

Thus, AAAP supplied most of the “tools and

instrumentalities,” further supporting a finding of

independent contractor status. See Reid, 490 U.S. at 752.

Sixth, the original contract was in effect for only one year,

with each party retaining the ability to cancel the contract at

any time on 30 days notice. Ultimately, AAAP sold VSCs

for Royal for three years, from October 2011 until October

2014. Three years is not a particularly short period of time,

but the limited nature of the original contract shows there was

a “contemplated end to the . . . relationship.” See Ruiz v.

Affinity Logistics Corp., 754 F.3d 1093, 1105 (9th Cir. 2014). 

The designated impermanency of the relationship supports a

finding of independent contractor status. See N.L.R.B.,

390 U.S. at 259 (finding relevant that individuals had “a

permanent working arrangement with the company under

which they may continue as long as their performance is

satisfactory”); Bartels v. Birmingham, 332 U.S. 126, 130

(1947).
14 JONES V. ROYAL ADMIN. SVCS.

Seventh, AAAP was paid a commission for each sale,

rather than for the time the telemarketers worked. This is a

strong indicator that the telemarketers were independent

contractors. See Ruiz, 754 F.3d at 1104–05; Bonds, 608 F.3d

at 505.

Eighth, Royal specifically contracted out all its direct

sales to many different vendors and car dealerships instead of

hiring its own employees to sell its VSCs. However, Royal

is in the business of selling VSCs; accordingly, AAAP’s sales

are a regular part of Royal’s business. Thus, this factor tends

to favor finding an agency relationship. See Ruiz, 754 F.3d

at 1105.

As to the ninth factor, the record does not clearly

evidence the subjective intent of the parties. Nevertheless,

the fact that AAAP sold VSCs for multiple companies

indicates that AAAP’s intent was to have its telemarketers

operate as independent contractors for many different

companies. See Dumas v. Gommerman, 865 F.2d 1093, 1105

(9th Cir. 1989) (finding relevant “whether the artist works for

several buyers at a time, or exclusively for one”).

Tenth, and finally, Royal is a business, which favors

finding an agency relationship.

Taking these factors into account, it is clear that AAAP’s

telemarketers were independent contractors rather than

agents. AAAP was its own independent business that sold

VSCs for multiple companies without the direct supervision

of a Royal employee. AAAP provided its own equipment, set

its own hours, and only received payment if one of its

telemarketers actually made a sale. Finally, although Royal

had some control over AAAP’s telemarketers, it did not
JONES V. ROYAL ADMIN. SVCS. 15

specifically control the calls at issue in this case, because the

telemarketers never attempted to sell a Royal VSC during

those calls. Because AAAP’s telemarketers were

independent contractors, rather than Royal’s agents, Royal

cannot be held vicariously liable for any calls the

telemarketers made in violation of the TCPA.

IV.

The district court correctly applied the relevant

substantive law to the undisputed facts when it concluded that

the AAAP telemarketers were not acting as Royal’s agents

when they placed the calls and, accordingly, that Royal could

not be held vicariously liable for the calls. Because Royal

cannot be held vicariously liable for the calls, it was proper

for the district court to grant Royal’s motion for summary

judgment.

AFFIRMED.