Compressor Engineering Corporation v. Manufacturers Financial Corporation et al
OPINION AND ORDER Granting 137 Motion for Summary Judgment; and Denying 140 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Compressor Engineering Corporation,
Case No. 09-14444
Manufacturers Financial Corporation, et al.,
Sean F. Cox
United States District Court Judge
OPINION & ORDER
GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS
In an Opinion & Order issued on April 7, 2016, this Court certified this Telephone
Consumer Protection Act (“TCPA”) case as a class action. Discovery has closed and the matter
is now before the Court on: 1) Plaintiff’s Motion for Summary Judgment; and 2) Defendants’
Motion for Summary Judgment. The motions have been fully briefed and the Court heard oral
argument on the motions on September 7, 2017.
As explained below, the law pertaining to TCPA cases has developed over the several
years during which this case has been pending before this Court. It is now undisputed that
Defendants cannot be held liable for the offending faxes in this case on a strict liability basis. In
order to prevail on the TCPA claims asserted against Defendants, Plaintiff and the Class must
establish, among other things, that the fax ads were sent “on behalf of” Defendants. In a TCPA
decision issued on May 9, 2016, the Sixth Circuit set forth the multi-factor “on behalf of”
standard that the parties agree applies to the fax ads at issue in this case.
As to Defendant Charity Marketing, LLC, there is no evidentiary basis for imposing
liability against that entity. This Defendant is entitled to summary judgment as to the claims
asserted by Plaintiff and the Class.
As to Defendant Richard Stephens (the individual who owns the two corporate
Defendants), Plaintiff’s Counsel acknowledges that there is no Sixth Circuit authority that
supports Plaintiff’s position that Stephens can be held personally liable under the TCPA.
Several district courts that have addressed the personal-liability issue have concluded that
individuals acting on behalf of a corporation may be held personally liable for violations of the
TCPA where they had “direct, personal participation in or personally authorized the conduct
found to have violated the statute.” But here, Plaintiff has failed to produce evidence that
Stephens had such involvement. Thus, Stephens is also entitled to summary judgment in his
favor as to Plaintiff and the Class.
Finally, as to the remaining Defendant, the Court concludes that it is also entitled to
summary judgment because Plaintiff and the Class cannot produce sufficient evidence at trial
such that a reasonable jury could conclude that the two fax ads at issue in this case were sent “on
behalf of” Defendant Manufacturers Financial Corporation.
Accordingly, the Court shall deny Plaintiff’s Motion for Summary Judgment and grant
Defendants’ Motion for Summary Judgment.
This case, filed in 2009, has a lengthy history that need not be repeated here. This
Court’s April 7, 2016 Opinion & Order contains a broad overview of the case. (D.E. No. 107).
On April 7, 2016, this Court certified the following class in this TCPA case:
All persons or entities who were sent one or more faxes on November 29, 2005,
or November 30, 2005, that contained a “Remove” Hotline number of (718) 6452
2018, Ext 2234 and a “Complaint” Hotline number of (718) 645-2021, Ext 232.
and offered either a “Limited Release Refinance Program” with a toll free number
of (800) 264-3898 or a “Fast Track Approval for Licensed Brokers! [sic] that
included contact information for Julia Kahn.”
(Id. at Pg ID 3871).
The Sixth Circuit issued a TCPA decision, Siding and Insulation Co. v. Alco Vending,
Inc., 822 F.3d 886 (6th Cir. 2016), on May 9, 2016. Plaintiff’s counsel were aware of that
decision, as class counsel Phillip Bock was also plaintiff’s counsel in that case and was involved
in the appeal.
This Court approved the class notice in this case in an order issued on June 6, 2016.
Thereafter, a few class members opted out.
The Court held a Status Conference on September 13, 2016. At that conference,
Plaintiff’s counsel advised that the only additional discovery desired was the deposition of
Caroline Abraham. On September 13, 2016, this Court issued an order that provided that
Plaintiff’s Counsel shall take the deposition of Caroline Abraham by December 14, 2016. (D.E.
No. 124). The order also allowed the parties to file summary judgment motions by that date.
At the request of the parties, the Court later extended the date for filing summary
judgment motions until May 2, 2017. (See 3/21/17 Minute Entry). Thereafter, both parties filed
summary judgment motions. The motions reflect that Plaintiff’s Counsel did not depose
Caroline Abraham in this action, despite efforts to do so.
Plaintiff’s Motion for Summary Judgment stresses that district courts often grant
summary judgment motions in TCPA cases. The motion asserts that the evidence is “un-refuted”
and that the Court should grant summary judgment “in favor of Plaintiff and the Class for the 14,
125 unsolicited fax advertisements Defendants sent to them,” and “enter summary judgment in
favor of the Class and against Defendants in the amount of $7,062,500 in statutory damages for
Defendants’ violations of the TCPA” and issue an appropriate injunction.
The body of Plaintiff’s Motion for Summary Judgment contains the following argument
Defendants violated the TCPA
The faxes at issue are “advertisements” for Defendants; business
Defendants’ fax advertisements were “unsolicited”
Defendants’ advertisements were successfully sent by fax to
14,137 different telephone numbers
The Class is entitled to statutory damages under the TCPA
The Court should enjoin Defendants from sending unsolicited fax
advertisements to Michigan consumers
(D.E. No. 140 at Pg ID 5711). Although the motion includes a sentence acknowledging that in
order to prevail Plaintiff and the Class must show that “Defendants’ faxes were sent on their
behalf” (Id. at Pg ID 5715), and Plaintiff’s Counsel was aware of the Sixth Circuit’s decision in
Siding & Insulation Co., and that its “on behalf of” standard applies to the fax ads at issue in this
case, Plaintiff’s motion for summary judgment does not include a section on that issue. It does
not even cite Siding & Insulation Co. or discuss the standard of liability set forth in that case.
In opposing Plaintiff’s Motion for Summary Judgment, Defendants stress that Plaintiff
did not depose Caroline Abraham in this case and that they presumably cannot produce her for
Defendants filed their own Motion for Summary, which asserts that all three Defendants
are entitled to summary judgment. Among other things, Defendants contend that, based upon the
Sixth Circuit’s decision in Siding & Insulation Co., Plaintiff and the Class cannot establish that
the faxes at issue were “sent on behalf of” the three Defendants (MFC, Stephens, and Charity
The evidence produced by the parties is rather extensive, and includes all of the
The Sole Named Plaintiff
Plaintiff Compressor Engineering Corporation (“Plaintiff” or “Compressor”) is the sole
named Plaintiff and Class Representative in this case. It is undisputed that Compressor received
a single fax ad, the one that it attached as an exhibit to the Complaint. (See D.E. No. 1 at Pg ID
11). As will be explained later, this is “Fax Ad Two.”
The Three Named Defendants
There are three different named Defendants in this action: 1) Manufacturers Financial
Corporation (“MFC”); 2) “Charity Marketing, LLC”; and 3) Richard Stephens.
Defendant Richard Stephens
Defendant Richard Stephens (“Stephens”) is an individual, who was the President and
sole owner of MFC and Charity Marketing, LLC.
MFC was a Michigan corporation and Stephens was its sole shareholder, President, and
Treasurer throughout its duration. (Stephens Dep. at 8-9). MFC had two locations, Farmington
Hills and Grosse Pointe, Michigan. (Id.). MFC was a financial company that offered residential
and commercial mortgages. (Id. at 10). Stephens testified that MFC began in 1991 and operated
until 2007 or 2008. (Id. at 9).
Stephens testified that all advertising at MFC was supposed to go through him.
(Stephens Dep. at 22).
It is undisputed that MFC employed Julia Kahn and Larry Brundage as loan officers and
account executives and that MFC’s telephone numbers were (248) 427-0800 and (248) 427-9800
(a fax line). (D.E. No. 144 at Pg ID 6193). Stephens testified that Kahn “wasn’t an ad man, she
was just a loan officer.” (Stephens Dep. at 53). Stephens testified that MFC itself did not
engage in fax marketing. (Stephens Dep. at 36).
Stephens testified that he does not recall: 1) him or anyone else at MFC communicating
with a fax marketing company to send fax ads on behalf of MFC; 2) having communicated with
someone named Kevin Wilson; or 3) any communications with a company called B2B in New
York regarding fax advertising. (Stephens Dep. at 40-41). Stephens does not recall anyone at
MFC having authorized Kahn to work with Charity Marketing Services, LLC to create a fax
advertising campaign. (Id. at 71).
Stephens testified that MFC “engaged marketing companies,” such as Charity Marketing
Services, LLC, and those marketing companies “could have had a fax campaign.” (Id. at 37).
Stephens recalls that Charity Marketing Services, LLC did some “lender to broker
industry” faxes, wherein it faxed “rate sheets” to brokers. (Id. at 38-42).
Stephens testified that he does not recall ever having employed a person named Jim
Busch or Joseph Busch. Stephen does not recall the name Joseph Busch as anyone he ever
communicated with. Stephens does not know if Charity Marketing Services, LLC or Ernie
Feigelman employed a person by that name. (Stephens Dep. at 32, 38-39, 48, 56, 57).
Defendant Charity Marketing, LLC
Stephens also owned and operated Charity Marketing, LLC. (Stephens Dep. at 13-16).
During the 2005-2006 time period, that entity engaged in marketing services, specifically direct
mail and telemarketing. (Id. at 13).
The entity was located in Farmington Hills, Michigan and had its own bank account, at
Metrobank. (Id. at 14). Stephens testified that Charity Marketing LLC did not have a bank
account at Flagstar bank, and Stephens was the only person authorized to sign checks for the
entity. (Id. at 14-15). The entity performed work for MFC (Id. at 24), had no employees and
hired independent contractors. (Id. at 14). It is undisputed that Charity Marketing, LLC never
operated under the name Charity Marketing Services, LLC. (D.E. No. 144 at Pg ID 6193).
Stephens testified that Charity Marketing, LLC never performed any fax campaigns that
utilized fax blasts. (Stephens at 84).
Cast Of Other Characters – None Of Whom Are Parties
There are other persons and entities that were involved in the events surrounding the fax
ads at issue in this case.
Non-party Yuliya Kahn was hired by Stephens as a loan officer for MFC. (Kahn Dep. at
14-16). Kahn’s native language is Russian and when Stephens hired her, Kahn’s “social skills
and language skills were very limited.” (Id. at 20). Kahn worked exclusively with residential
mortgages (Id. at 11) and was hired at MFC to obtain residential mortgage business from her
friends and family in the Russian community in Michigan. (Id. at 20).
Kahn testified that she “created flyers for” MFC and that Stephens “saw my flyers.” (Id.
at 22). Kahn testified that she does not recall if Stephens approved of the flyers or the language
or descriptions she put in them, but also testified that she would not have created a flyer without
his approval. (Id. at 22). Kahn testified that she created such “flyers” while working at MFC
and mailed them to her friends and family, and passed them out in neighborhoods. (Id. at 21).
Kahn did other advertising for herself while employed by MFC, such as putting her own ad in
the “Yellow Russian Pages.” (Id. at 22)
Kahn testified that all the advertising she did was with the knowledge and approval of
Stephens. (Id. at 23). But Kahn testified that her work “wasn’t so much advertisement as you
think,” explaining that she did two or three flyers and “that was it. It wasn’t a big campaign.”
(Id. at 23). As to her flyers, Kahn testified: “[s]o if I sent it to anybody, I usually had to talk to
someone to get the fax number or e-mail address or anything, or mail address.” (Id. at 23).
Kahn testified: “I was never involved in any marketing with anybody but my Russian
single people.” (Id. at 28). Kahn testified that she does not know if MFC engaged in fax
Okay. At any point in time while you worked at Manufacturers Financial
had they or did they engage in fax advertising?
I can’t remember that. And I wouldn’t even know, probably, even if they
(Kahn Dep. at 33-34). Kahn further testified that she does not have any recollection of having
spoken to or corresponded with a fax marketing company in New York, or a marketing company
by the name of Business to Business Solutions, or a company named Maxileads or Macaw. (Id.
Kahn testified that she was not “someone who was involved in anything that had to do
with the company. I was pretty much working for myself.” (Id. at 32-33). Kahn further
Okay. Did you, from time to time, follow up on interaction with
marketing or advertising companies that Mr. Stephens asked you to call or
follow through and communicate with?
No. He would never ask me. At that time my English wasn’t even that
They wouldn’t understand what I’m saying.
While you were working at Manufacturers Financial did Manufacturers
Financial ever purchase lists of names or telephone numbers?
I don’t remember. And again, I wasn’t involved, so they wouldn’t tell me
what they do.
During the period of time that you worked for Manufacturers Financial did
Manufacturers Financial maintain a database of names and phone numbers
or fax numbers of people that they were - had contracted or were hoping
to contact about their lending products?
It wasn’t available to me it they did. I have no idea.
Do you know of or have ever worked with anyone at Compressor
No. Is a Russian person there? Maybe it’s somebody Russian there, then,
you know, they could have contacted me, but other than that, I wouldn’t
know who they are.
(Id. at 33-34).
During her deposition, Kahn was shown various documents provided to Plaintiff by
Abraham and Kahn testified that she does not remember seeing the documents, that she has “no
idea who Kevin Wilson is,” and that the handwriting on most of the documents does not look
like her handwriting. (Id. at 36-49).
Caroline Abraham, B2B, And Macaw
Caroline Abraham, and two businesses she was associated with, are central to the events
in this case, and scores of others.1
Abraham operated a fax advertising business that catered to small businesses. See
Bridging Communities, Inc. v. Top Flite Fin. Incorp., 843 f.3d 1119, 1122 (6th Cir. 2016).
See Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 491 (7th Cir.
2013), which contains a detailed description of how scores of “B2B junk fax” cases originated
through Abraham and B2B.
Abraham’s Declaration2 states, “Business to Business (‘B2B’) is a d/b/a of mine that was
involved in the sending of fax advertising from approximately August 2005 until September
2007.” (Abraham Decl., D.E. No. 139-7 at Pg ID 5501).
“B2B assisted a Romanian business, Macaw, S.R.L.” (“Macaw”) and “Macaw was
directing fax broadcasting.” (Abraham Decl., D.E. No. 5501). B2B and Abraham provided a
variety of services to Macaw relating to fax broadcasting.
Abraham described how Macaw and B2B’s customary business operations regarding faxblasting were conducted. (D.E. No. 139-7 at Pg ID 5504). “First, Macaw sent its own fax
advertisements to thousands of businesses in an effort to offer to them fax broadcasting
services.” Second, after a potential customer expressed interest, some pertinent information
would be collected an assembled. (Id.). “We would request information from customers by
providing a form through fax correspondence that said, ‘tell us what to write in your free ads,’
and they would provide us with their pertinent information on that form.” (Id.). “Third, using
the customer’s provided information, one or more advertisements would be designed and drafted
by Macaw and myself and sent to the customer” and “[c]ustomers typically made some revisions
before approving the final form and content.” (Id.). “Fourth, the advertisement would be
finalized and approved, and payment or promise of payment would be requested and received
before the fax-campaign would begin.” (Id.). “Fifth, I would instruct Macaw’s computer and
database operators about how to construct the fax list to conduct the campaign in accordance
The parties dispute whether Abraham’s Declaration can be considered for purposes of
summary judgment, given that she likely will not testify at trial. The Court need not address that
argument because, even when considered, the Court concludes Defendants are still entitled to
with stated customer requests and directives.” (Id.). “Sixth, after receiving my instructions
based on customer requests, Macaw’s computer technicians (e.g., Ionut and Adrian) would
follow those instructions to compile the fax lists from the database once purchased from
InfoUSA. Then, the customer’s fax would be sent to that list using B2B’s computer system with
the HylaFax program.” (Id.).
Non-Party Charity Marketing Services, LLC
Stephens testified that MFC worked with a marketing company called Charity Marketing
Services, as well as other marketing companies. (Stephens Dep. at 25). As to Charity Marketing
Services, Stephens testified “that’s not my entity” and believes that Ernie Feigelman owned that
entity. (Id. at 25-26). Stephens testified that Charity Marketing Services provided marketing to
MFC. Specifically, that entity provided MFC with mortgage leads. Stephens cannot recall if
MFC had a contract with Charity Marketing Services. (Id.).
Stephens testified that the only thing he ever paid Charity Marketing Services for was if
it produced an actual mortgage lead for MFC. (Stephens Dep. at 83). He further testified that he
did not know the operation of that business and that they could have been performing their own
unsuccessful marketing without his knowing about it. (Id. at 83-84).
It is now undisputed that Charity Marketing Services, LLC is an entity formed and
owned by Larry Brundage (who is now deceased) and that Arnold Feigelman helped manage it.
(See D.E. No. 144 at Pg ID 6190-91). Charity Marketing Services, LLC lists Feigelman as its
registered agent and an address of 15075 Lincoln Apt. 229 Oak Park, MI. 48237. (See D.E. No.
137-9 at Pg ID 5235). It is undisputed that Charity Marketing Services, LLC had a bank account
at Flagstar Bank and that Brundage and Feigelman were the only persons authorized to write
checks on that account. (D.E. No. 144 at Pg ID 6191).
Joseph Busch And Kevin Wilson
Documents produced by Abraham to Plaintiff’s Counsel include documents referencing a
“Kevin Wilson” who is identified as being associated with “Maxileads” or Macaw.
Abraham’s Declaration asserts that a “Joseph Busch” was somehow associated with either
Charity Marketing Services, LLC or MFC but does not specify which entity. There are no
affidavits, declarations, or deposition transcripts from Wilson or Busch. The parties have
provided no evidence establishing who Busch or Wilson worked for or what work they did.
Defendants’ Interrogatory Responses
During discovery, Defendants submitted “Defendants’ Answers to Plaintiff’s First Set of
Interrogatories” that were answered by “Richard K. Stephens, President/CEO of Manufacturers
Financial Corp. and Managing Member of Charity Marketing, LLC, with assistance of counsel.”
(D.E. N. 139-6 at Pg ID 5492). Those Answers included:
State whether defendant, or any other entity acting on defendant’s behalf,
has utilized facsimile transmissions delivered by telephone during the
Relevant Time Period which either (1) were used for any advertising or
promotional purpose, or (2) which advertised any property, good or
services, and describe in detail the content of each document sent by such
transmissions and the time period each different document was sent.
At some point while the defendant corporations were still in
existence, defendants briefly utilized the services of some third
party company to perform a marketing campaign on behalf of
defendants. Defendants do not recall the name of this third party.
At that time, the third party represented that it had
permission/authorization to contact individuals as part of its
marketing campaign. Facsimile transmissions may or may not
have been part of this marketing campaign.
Fully identify each and every person who participated in defendant’s
decision to send facsimile transmissions identified in Interrogatory 2, and
state the extent and substance of each person’s participation therein.
If any entity other [sic] an defendant operated the equipment used to send
any facsimile transmissions to 3113-4912766 on behalf of defendant, state
the name, address, and telephone number of each such entity, identify how
defendant became aware of each such entity, and describe in detail the
contents of all communications between defendant and each such entity.
Julia Kahn, former loan officer, was in contact with the unknown
third party. Ms. Kahn’s whereabouts and contact information was
unknown to defendants.
Defendants do not recall the name of the third party but do recall
that the third party was brought to its attention by former
employee, Julia Kahn.
If you contend that any other entity or individual should be responsible for
the actions complained of in this lawsuit, fully identify each such entity or
individual and state all facts supporting such contention or regarding the
entity’s or individual’s role in the action complained of in this lawsuit.
Defendants sent no facsimile transmissions. Defendants
authorized some third party to perform a marketing campaign on
defendants’ behalf within their network. The third party
represented that they had permission/authorization to conduct
marketing with a select group of potential clients.
(Id. at Pg ID 5492-94 & 5497).
Declaration from Stephens
Defense Counsel submitted a Declaration from Stephens. (D.E. No. 137-12). In it,
Stephens states, “I personally had no knowledge of and nothing to do with the fax campaign at
issue in this lawsuit.” (Id. at ¶ 17). Stephens further states:
When I answered plaintiffs’ interrogatories, the only information I had was the
B2B documents produced in this action (Exhibit 25). We were in possession of
Khan Exhibits 2 and 21 which purportedly show Julia Khan sending faxes to a
Kevin Wilson who is an unknown “third party.” Julia Khan subsequently denied
knowledge of these documents at her deposition dated April 18, 2012. I had no
knowledge of these documents before the litigation.
(Id. at ¶ 11).
Stephens states “I was never informed that Julia Khan or Larry Brundage was in contact
with ‘B2B’” and neither Khan nor Brundage had authority to send out materials on behalf of
MFC without his approval. (Id. at ¶ 5& 9).
Stephens states that MFC would buy “leads” from Charity Marketing Services, LLC, and
that Charity Marketing Services was also free to sell leads or provide marketing services to
others. (Id. at ¶ 7).
Stephens states that, from time to time, he authorized Charity Marketing Services, LLC
to send out MFC’s “rate sheets” on a “broker to broker” or “industry to industry” basis. (Id. at ¶
8). Stephens states that “[a]ll such rate sheets were to go to businesses we had done business
with” and that Brundage “assured me he was in compliance with all laws governing this
Stephens states that when he answered “Interrogatories 2, 20, 16, and 23,” he was
referring to Charity Marketing Services as the third party who was authorized to send faxes
within its network. It was “only through discovery in this lawsuit that I learned that B2B was
involved. I did not authorize Larry Brundage to retain B2B to wage a fax campaign on behalf of
myself, Manufacturers Financial Corporation or Charity Marketing, L.L.C. If he did that, he did
it solely on behalf of” Charity Marketing Services, LLC. (Id. at ¶ 12).
Declaration from Abraham
Plaintiff submitted a Declaration from Caroline Abraham, dated February 13, 2014 that
states, in pertinent part, that: 1) “Manufacturers Financial Corp. and Charity Marketing Services,
LLC, through Joseph Busch and Julia Kahn, hired, authorized and paid B2B to send out
advertisements on their behalf,” 2) “Manufacturers Financial Corp. and Charity Marketing
Services, LLC, through Joseph Busch and Julia Kahn, provided B2B with the information they
wanted written in the fax advertisement and worked with B2B to finalize the fax advertisement
before delivery,” and 3) Manufacturers Financial Corp. and Charity Marketing Services, LLC,
through Joseph Busch and Julia Kahn, approved the form of the final fax advertisement and paid
B2B $598.00 to send out over 20,000 fax advertisements on its behalf.” (D.E. No. 139-5 at Pg
ID 5446-47) (emphasis added).
“Charity Marketing Services, LLC” is not named as a Defendant in this case.
Documents Provided By Abraham And Produced By Plaintiff
The records that Plaintiff’s Counsel states that they obtained from Caroline Abraham
consist of several documents and various versions of fax ads, some with unidentified
handwriting on them.
One of those documents is a communication from “Kevin Wilson” at “MaxiLeads,
Macaw, Inc. – Business to Business Solutions, Agent” to “Joe Busch” with “Client Number:
J102007” listed and stating:
Following, find one of more sample ads written for your business.
Select the ad you like best. If needed, make corrections, additions, or changes on
the selected fax itself and fax it back to use immediately at (800) 871-4211.
If the selected ad already meets with your approval, please write “Client Number:
J102007 – Ad Ok,” on it and fax the approved ad back to us! We will call you to
make the final arrangements for your advertising campaign.
(D.E. No. 139-4 at Pg ID 5420).
Another document produced by Plaintiff, via Caroline Abraham, is a “Free ‘Ad Details’
Form” that states:
For a FREE, professionally written, powerful, and effective advertising piece:
• You are under no obligation whatsoever
• Please complete this form, even if you attach additional details
• Fax it to (800) 871-4211
• You may add your own ad(s), other ad(s), additional notes, or suggestions
• We will not send your ad without your approval
(D.E. No. 139-4 at Pg ID 5414). The form then has blanks that can be filled in and this one
indicates it was filled out by “Joseph Busch,” list the company name as Manufactures Mortgage
Corp., and lists “Client Number: J102007.” (Id.) (emphasis added). This form has, in
handwriting, the “three main ‘selling points’ of your product or service:” 1) Bad credit, 2) Lower
Bills / Cash out, and 3) Lower House Payment. It indicates it is “Page 3 of 3,” but the first two
pages are not included.
Another document provided by Abraham is a one-page communication from “Kevin
Wilson,” with a header indicating it is from “Maxileads” and/or “Macaw, Inc – Business to
Business Solutions, Agent.” (D.E. No. 139-5 at Pg ID 5485). That documents states “Attention:
Julia Kahn” and states “Welcome aboard: We now have everything needed to start your faxing
campaign, except payment” and instructs how to authorize the sending of the “20,000 fax ads”
that it pertains to:
STARTING YOUR CAMPAIGN:
* Write a check payable to “Business to Business Solutions:
* In place of your signature write the word “Void”
* Write the “Client” Number (J102007) in the “memo field”
* Make a copy of this check
* Fax the check copy to (800) 871-4211
* Unless you tell us to wait, your campaign begins upon our receipt of your faxed
(Id.) (emphasis added).
The documents provided by Abraham indicate that those instructions were followed, and
that the check that authorized B2B/Macaw to send the faxes at issue in this case came from
Charity Marketings Services, LLC – not from any of the Defendants named in this action.
Among the records that Plaintiff’s Counsel obtained from Caroline Abraham are two
versions of checks made payable to Business to Business Solutions. (D.E. No. 139-4 at Pg ID
5431 & 5442). The handwritten one (Pg ID 5431) states it was issued on 11/28/05, in the
amount of $598.00 for “Client # J102007.” It was written on the account of Charity Marketing
Services, LLC with an address of 15075 Lincoln St. Apt 229 in Oak Park, Michigan. It has
“void” written on the signature line. It is undisputed that the handwriting on this check is that of
Brundage. (D.E. No. 144 at Pg ID 6192).
The other version of the check (Pg ID 5442) is dated November 29, 2005, from “Charity
Marketing Services, LLC” with an address of 15075 Lincoln St. Apt. 229 in Oak Park,
Michigan, made payable to “Business to Business Solutions.” The check indicates the account is
with Flagstar Bank. The amount of the check is $598.00 and the memo line of the check reads
“Client #J102007 – for 2 fax blasts.” The signature line says “This draft authorized by your
depositor, No Signature Required.”
The Fax Ads Sent
The parties agree that the two fax ads that were sent in this case are found at: 1) D.E. No.
139-4 at Pg ID 5443 (Exhibit 23 to the Kahn Dep.); and 2) D.E. No. 139-4 at Pg ID 5444
(Exhibit 24 to the Kahn Dep.) (See D.E. No. 144 at Pg ID 6189 wherein parties so stipulate).
Fax Ad One
The first fax ad (“Fax Ad One”) has “Manufacturers Financial Corporation” in large
letters at the top. It states “Fast Track Approval for Licensed Brokers!”, has a star burst
containing “100% LTV 580 Fico Special,” and has the following bullet points:
• 580 FICO, 100% Full Doc Only
• 620 FICO, 100% Stated
• Max DTI 50%
• No MI
• O x 30 MTG/Rent
• BK – must be discharged
• O/O SFR, PUD, condos, 2 units
• 2 month PITI reserves required for 80/20 loans
(Id.). It states, in large letters, “WE ARE ONE STOP SUB-PRIME LENDER” and then lists the
Julia Khan – Account Executive
Office 248-427-0800 ext. 202
(Id.). At the bottom of the fax, it includes a lengthy paragraph that includes the following: “This
message is the exclusive property of Macaw, SRL, 46 Match Factory St, Sec 5, Bue, Rom,
050183, 40723294564, which is solely responsible for its contents and destinations.” (Id.).
Richard Stephens’s name does not appear in Fax Ad One, nor does the name of Charity
Fax Ad Two
The second fax ad (“Fax Ad Two”) has a cartoon image at the top, with a woman saying
“PSSST . . . Check out for the Great Residential and Commercial Lending Below” and then
says, in large letters, “Limited Release Refinance Program.” (D.E. No. 139-4 at Pg ID 5444). It
The 1% Mortgage Payment for 37 states
» Pay Off Debt
» Lower Payment
» 2nd Mortgages Fixed
» Home Improvement
» Cash Out!
» Strip Malls
» LTVs up to 90%
» $100,000 to $50,000,000
(Id.). It then lists various loan amounts, next to payments. It also says “99% of Refinance
Applicants Will Qualify. We Love Bad Credit! Free No Obligation Quotes” and states “For
Details, Call (800) 264-3898, Ext 340.” (Id.). Like the other ad, at the bottom it states “This
message is the exclusive property of Macaw, SRL, 46 Match Factory St, Sec 5, Bue, Rom,
050183, 40723294564, which is solely responsible for its contents and destinations.” (Id.).
The names of Richard Stephens, MFC, and Charity Marketing, LLC do not appear
anywhere in Fax Ad Two.
It is undisputed that the telephone number (800) 264-3898 – the one featured in Fax Ad
Two – was not a number for either MFC or Charity Marketing, LLC. (D.E. No. 144 at Pg ID
The Sending Of The Faxes
It is undisputed that B2B sent the faxes at issue in this case to “fax numbers generated
through a target list acquired by B2B from a third-party vendor, InfoUSA.” (D.E. No. 139 at Pg
ID 5329). It is also undisputed that “Defendants did not provide B2B with the list of contacts to
receive the fax advertisements,” and “Defendants did not create the list of fax ad recipients.”
Rather, that was all done by Abraham/B2B or Macaw. (Id.; Abraham Decl., D.E. No.
139-7 at Pg ID 5505). It is undisputed that B2B – the entity whose business was dedicated to
performing fax-blast advertising services for others – “did not contact Plaintiff or any
companies or persons on the InfoUSA list for express permission or invitation to receive fax
advertisements.” (D.E. NO. 139 at Pg ID 5329).
STANDARD OF DECISION
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
Defendants Are Entitled To Summary Judgment In Their Favor.
In their motion, Defendants direct the Court to Siding & Insulation Co. and contend that
the Court should grant summary judgment in their favor because Plaintiff cannot show that the
fax ads in this case were “sent on behalf” of Defendants.
In response, Plaintiff’s Counsel agrees that, based on the date on which the faxes at issue
in this case were sent, the “on behalf of” standard set forth in Siding & Insulation Co. applies.
(See D.E. No. 143 at Pg ID 6176). Plaintiff argues, however, that “does not change the outcome
in this case where the record shows the faxes were sent on behalf of MFC and Stephens.” (Id.).
As with many aspects of TCPA cases, the law has changed over time, as the Sixth Circuit
has issued decisions on the TCPA. It is now undisputed that Defendants cannot be held liable
for the offending faxes in this case simply because their goods or services may have been
advertised in the faxes.
In order to prevail on the TCPA claims asserted against Defendants, Plaintiff must
establish, among other things, that the fax ads were sent “on behalf of” Defendants.
In Siding & Insulation Co., issued on May 9, 2016, the Sixth Circuit set forth the “on behalf of”
standard that the parties agree applies to the fax ads at issue in this case. Liability for sending
the faxes in this case must be “judged by that standard.” Id. at 898. Notably, Siding &
Insulation Co. was also a B2B junk fax case.
In that case, the Sixth Circuit explained that “[t]o decide whether one entity (such as B2B
in this case) broadcast a potentially unauthorized fax ‘on behalf of’ another entity (such as
[Defendants] in this case), courts have considered a variety of factors” which “include the degree
of control that the latter entity exercised over the preparation of the faxes, whether the latter
entity approved the final content of the faxes as broadcast, and the nature and terms of the
contractual relationship between the fax broadcaster and the latter entity.” Id. at 898. It noted
with approval that another court had summarized the “on-whose-behalf” inquiry as follows:
Circumstances to be considered include, but are not limited to, the degree of input
and control over the content of the fax(es), the actual content of the fax(es),
contractual or expressly stated limitations and scope of control between the
parties, privity of the parties involved, approval of the final draft of the fax(es)
and its transmission(s), method and structure of payment, overall awareness of the
circumstances (including access to and control over facsimile lists and
transmission information), and the existence of measures taken to ensure
compliance and/or to cure non-compliance with the TCPA.
Id. (citing Cin-Q Auto, 2014 WL 7224943, at *7).
In adopting this “on-whose-behalf” standard of liability for TCPA junk-fax cases, the
Sixth Circuit explained that:
These courts have applied the above-described factors with an eye toward
Congress’s intent in passing the fax-related provisions of the TCPA. In particular,
Congress intended to stop fax advertisers from (1) coopting advertisement
recipients’ fax machines in a way that interferes with legitimate business uses,
and (2) shifting advertising costs from the sender of the fax to the recipient of the
fax. Palm Beach Golf Ctr., 781 F.3d at 1257. Courts have therefore applied the
“on-whose-behalf” standard in a way that targets the entity primarily responsible
for such conduct. Id. (approving the “on-whose-behalf” standard because it
“place[s] liability at the source of the offending behavior that Congress intended
to curtail”); see also Cin-Q Auto., 2014 WL 7224943, at *7 (observing that the
“on-whose-behalf” standard is “aimed at establishing the origin of the offending
behavior”). These courts accordingly do not apply the “on-whose-behalf”
standard with a layperson’s understanding of what that phrase might mean;
instead, they treat the phrase “on whose behalf” as a term of art that should be
interpreted in a way that seeks to hold liable the entity ultimately at fault in
causing a TCPA violation.
Based on the foregoing, the phrase “on-whose-behalf” has been treated as a term
of art that blends (1) federal common-law agency principles, such as whether and
to what extent one entity controlled the other, and (2) policy considerations
designed to address which entity was most culpable in causing a TCPA violation,
such as whether and to what extent each entity investigated the lawfulness of the
fax broadcasts at issue. We agree that this interpretation of the “on-whose-behalf”
standard effectuates Congress’s intent in passing the TCPA. Accordingly, we now
adopt this interpretation and apply it to the present case.
Id. at 899.
In that case, the district court had granted summary judgment in the defendant’s favor,
because it did not have vicarious liability for the faxes sent by B2B. The district court also
denied the class certification motion as moot. The Sixth Circuit reversed the district court’s
summary judgment ruling and remanded for the district court to apply the “on-whose-behalf”
The Sixth Circuit did that, even though discovery had closed and even though it had
evidence before it relating to the factors to be considered.
The Sixth Circuit concluded that some of the factors to be considered “tended to show”
that B2B did not act on behalf of the defendant, explaining:
Several of the factors identified in cases such as Palm Beach Golf Center and
Cin–Q Automobiles indicate that B2B did not act on Alco’s behalf. First, Gajdos
testified during his deposition that B2B never provided any details about the list
of fax numbers to which it intended to send the faxes advertising Alco’s services.
Gajdos added that Alco never received information from B2B about the numbers
or businesses to which the faxes actually were transmitted. Alco therefore had
only limited “access to and control over facsimile lists and transmission
information,” see Cin-Q Auto., 2014 WL 7224943, at *7, with the implication that
B2B—rather than Alco—was the entity responsible for sending the faxes to
businesses that had not consented to the receipt of the advertisements.
Second, Gajdos testified that, when he received complaints from businesses to
which the faxes had been sent, he would call Wilson and notify him of the
complaints. According to Gajdos, Wilson then stated that he “would have to take
[the businesses] off his list” and promised that “he would take care of it.” This
exchange demonstrates that Alco took “measures ... to ensure compliance and/or
to cure non-compliance with the TCPA,” see id. at *7, because any violations that
occurred after Gajdos’s communications with Wilson could reasonably be
attributed not to Alco’s conduct, but to B2B’s failure to carry out Wilson’s
promises. B2B in these circumstances was thus potentially responsible for any
further TCPA violations that may have occurred.
Next, B2B assured Gajdos that any advertising that B2B conducted would be
“100 percent legal” because “[B2B] had a full and open relationship” with each of
the potential advertisement recipients. A factfinder could conclude that Alco
reasonably relied on these representations in deciding to enter an advertising
arrangement with B2B that Alco believed would not violate the TCPA or any
other laws. And that, in turn, would mean that B2B, rather than Alco, was the
actual origin of any conduct that violated the TCPA. See id. at *8 (“A reasonable
jury could conclude that [the defendant] relied on reasonable assurances by [the
fax broadcasters].... Such an analysis could lead a rational trier of fact to conclude
that the violative faxes were not sent on behalf of [the defendant] but, rather, [the
fax broadcasters]—the true sources of the offending behavior.”).
Finally, the sample advertisements that Wilson sent to Alco included a legend
stating that the message was “the exclusive property of Macaw ..., which is solely
responsible for its contents and destinations.” Similarly, the letter that B2B later
sent to Alco stated that B2B, rather than Alco, was “solely responsible for the
contents and destinations of [the] faxes.” These representations could be viewed
by a factfinder as tending to show that Alco lacked any significant “input and
control over the content of the fax(es),” id. at *7, thereby implying that B2B was
not acting on behalf of Alco.
Id. at 899-900.
The Sixth Circuit also concluded that other factors “tended to show” otherwise:
On the other hand, several factors tend to support the conclusion that B2B did in
fact act on Alco’s behalf. As an initial matter, Gajdos testified during his
deposition about the relationship between Alco and B2B. Siding’s counsel at that
time asked Gajdos whether B2B “actually sent any faxes on behalf of [Alco].”
Gajdos responded “Yes,” and added that he knew that B2B did so because Alco
“got a couple customers out of it.”
Siding reads this exchange as an admission that B2B sent the faxes “on behalf of”
Alco, arguing that this exchange alone is enough to render summary judgment in
favor of Alco inappropriate. We agree that this exchange is probative, but Siding
exaggerates the extent of its importance. The phrase “on whose behalf” is, as
noted above, a legal term of art. So by asking whether B2B sent any faxes “on
behalf of [Alco],” Siding’s counsel essentially asked Gajdos to make a legal
conclusion that—as a layperson—he was unlikely to understand. Gajdos, in other
words, was probably unaware of the legal ramifications of his affirmative
response, so we are unwilling to treat his answer in and of itself as sufficient to
preclude summary judgment in favor of Alco.
Nonetheless, other evidence supports the conclusion that B2B did in fact act on
Alco’s behalf. Gajdos, for example, provided information about Alco and three
“selling points” for inclusion in the advertisements that B2B prepared. Thus, even
though Macaw and B2B later represented that they were “solely responsible” for
the contents of the advertisements, Alco evidently did have at least some “degree
of input and control,” id. at *7, over their content.
Next, Alco reviewed and later approved the sample advertisements that B2B
prepared. Alco maintains that it approved the sample advertisements on the
condition that they be sent only to businesses that had previously consented to
receive such advertisements. Indeed, the sample advertisements that Alco
reviewed included a disclaimer stating “We will only send faxes to parties who
wish to receive them.” This implies that B2B deviated from Alco’s approval and
that B2B was therefore the entity responsible for any violations of the TCPA.
Nevertheless, the fact remains that Alco at the very least was substantively
involved in the preparation of the advertisements and ultimately approved their
content. This factor thus supports a finding that B2B was acting “on behalf of”
Alco. See id. (citing the “approval of the final draft of the fax(es)” as a relevant
Alco, moreover, does not dispute that the advertisements in this case promoted its
services. This fact, as discussed earlier, is not sufficient to impose strict liability
on Alco. See Part II.B.1. above. But “the actual content of the fax(es)” is
nonetheless a relevant consideration, see Cin-Q Auto., 2014 WL 7224943, at *7,
and the fact that the advertisements did promote Alco’s business thus weighs in
favor of a finding that they were sent on Alco’s behalf. See, e.g., Palm Beach Golf
Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1258 (11th Cir.
2015) (finding significance in the fact that the advertisement at issue “promot[ed]
[the defendant's] services”). Indeed, Gajdos himself testified that Alco obtained
several customers from B2B’s fax campaign, so Alco’s desire to advertise its
services seems to have played at least some role in the origin of the allegedly
unlawful conduct in this case.
Finally, the district court in ruling on a motion for summary judgment or a jury
assessing the evidence at trial may take into account the reasonableness of Alco’s
reliance on B2B’s representations that B2B would be solely responsible for the
contents of the advertisements and that the faxes would be sent only to businesses
that had previously consented to receive fax advertisements from B2B. The goal,
after all, is to determine “the source of the offending behavior that Congress
intended to curtail.” Palm Beach Golf Ctr., 781 F.3d at 1257. Alco’s efforts to
determine whether it was dealing with a reputable company or with a fly-by-night
outfit is therefore a relevant factor for the court or a jury to consider.
Id. at 901.
But the Sixth Circuit did not rule that an issue of fact existed for trial on this issue, nor
did it rule in favor of either party on the issue. Rather, it stated:
Based on the foregoing, a remand is required for the district court to apply the
correct legal standard. The court in doing so may allow further discovery to
determine whether, under that standard, a genuine dispute regarding any material
fact exists, and the court may in any event conduct such further proceedings as it
determines is necessary to effectuate the standard described above. In addition,
the court should reconsider whether, after conducting such proceedings, Siding’s
motion for class certification remains moot.
Id. at 901.
Thus, the panel was suggesting that the district court reopen discovery, so that the parties
could obtain discovery on the various factors they had outlined.
Here, however, we have a situation wherein some persons involved could not be deposed
in this action despite efforts to do so (e.g., Abraham), some persons directly involved are now
deceased (ie., Brundage, who actually paid for and authorized the fax blasts), some persons who
may have been involved are unknown (e.g., Wilson and Busch whose names appear in
documents but there is no evidence as to who they worked for), and others have already been
deposed and have exhausted their memories (e.g., Stephens and Kahn). So this Court does not
believe that “reopening discovery” in this 2009 case would accomplish anything, and no party
has requested that the Court reopen discovery.
Accordingly, this Court will proceed by analyzing the liability issue, based on the
evidence that has been presented by the parties.
Defendant Charity Marketing, LLC
As to Defendant Charity Marketing, LLC, there is simply no evidentiary basis for
imposing liability against that entity. It appears that Plaintiff’s Counsel may have sued the
wrong entity, suing “Charity Marketing, LLC” rather than the “Charity Marketing Services,
LLC” identified in Abraham’s Declaration.
Plaintiff and the Class cannot establish liability against Charity Marketing, LLC based
upon the evidence presented by the parties. Plaintiff’s own evidence, Abraham’s Declaration,
identifies “Charity Marketing Services, LLC” – not “Charity Marketing, LLC” as the second
entity that hired B2B to send the fax ads at issue in this case. (D.E. No. 139-5 at Pg ID 544647). In addition, the check that Plaintiff’s Counsel directs this Court to was issued by Charity
Marketing Services, LLC, not by Charity Marketing, LLC.
The Court concludes that Defendant Charity Marketing, LLC is entitled to summary
judgment in its favor, as to the claims asserted against it by Plaintiff and the Class.
Defendant Richard Stephens
Next, the Court considers whether there is any basis for imposing liability against
Stephens for the TCPA claims in this action.
Plaintiff’s complaint names Richard Stephens, an individual, as a Defendant in this
On information and belief, STEPHENS approved, authorized and participated in
the scheme to broadcast advertisements by facsimile by (a) directing a list to be
purchased or assembled; (b) directing and supervising employees or third parties
to send the advertisements by fax; (c) creating and approving the form of
advertisements to be sent; (d) determining the number and frequency of the
facsimile transmissions; and (e) approving or paying the employees or third
parties to send the advertisements by facsimile transmission.
(Compl., D.E. No. 1, at Pg ID 3).
At oral argument, Plaintiff’s Counsel acknowledged that the Sixth Circuit has not issued
any decisions that support Plaintiff’s position that Stephens can be held personally liable for any
faxes sent out on behalf of either of the corporate Defendants in this case.
Several district court decisions have noted that the Sixth Circuit “has yet to discuss the
issue of whether individual owners, shareholders, or employees of corporations may be held
liable for alleged violations of the TCPA” but several district courts “that have addressed the
personal-liability issue have concluded that individuals acting on behalf of a corporation may be
held personally liable for violations of the TCPA where they ‘had direct, personal participation
in or personally authorized the conduct found to have violated the statute.’” Sandusky Wellness
Center, LLC v. Wagner Wellness, Inc., 2014 WL 1333472 at * 3 (N.D. Ohio 2014) (citation
omitted); see also Van Sweden Jewelers, Inc., 2012 WL 4074620 at * 8 (W.D. Mich. 2012);
Jackson Five Star Catering, Inc., 2013 WL 5966340 at * 4 (E.D. Mich. 2013).
Stephens’s Declaration states, “I personally had no knowledge of and nothing to do with
the fax campaign at issue in this lawsuit.” (Id. at ¶ 17).
Plaintiff has not produced any evidence that could establish that Stephens had “direct,
personal participation in or personally authorized the conduct” that violated the TCPA in this
case. Indeed, Plaintiff’s own evidence, the Declaration from Abraham, asserts that MFC acted
through others, “Joseph Busch and Julia Kahn” and makes no reference to any involvement or
approval by Stephens.
Given this lack of evidence, Stephens is entitled to summary judgment in his favor, as to
Plaintiff and the Class.
That leaves the claims (by the named Plaintiff and the Class) asserted against the
remaining Defendant, MFC.
The Court must consider whether Plaintiff could present sufficient evidence at trial to
establish that the two fax ads at issue in this case were sent “on behalf of” Defendant MFC.
Fax Ad Two
Again, the sole named Plaintiff in this class action received only one fax ad and that was
Fax Ad Two. In addition to the above arguments about Stephens and Charity Marketing, LLC,
this Court fails to see how Plaintiff or the Class could possibly establish that any of the three
Defendants named in this action are liable for Fax Ad Two, the one that was sent to Compressor.
In order to establish liability at trial, Plaintiff has to show that Fax Ad Two was “sent on
behalf of” Defendants. That consideration looks at whole host of things, including: 1) the actual
content of the faxes; 2) the degree of input or control over the content of the faxes; 3) evidence
regarding payment for the faxes; and 4) overall awareness of the circumstances (including access
to and control over facsimile lists and transmission information). As to Fax Ad Two, we have
the following undisputed evidence:
An entity other than the three named Defendants (Charity Marketing Services, LLC) paid
for and gave final authorization for the fax ads at issue in this case to be sent out.
None of the three named Defendants are named, or referenced in any way, in the body of
Fax Ad Two.
The phone number that Fax Ad Two features, and prompts it audience to call, is not a
phone number that belonged to Defendants.
Fax Ad Two expressly states “This message is the exclusive property of Macaw, SRL, 46
Match Factory St, Sec 5, Bue, Rom, 050183, 40723294564, which is solely responsible
for its contents and destinations.” (Id.).
Given those undisputed facts, this Court fails to see how a reasonable jury could conclude that
Fax Ad Two was sent “on behalf of” any of these three Defendants, including MFC.
This Court therefore concludes that Defendants are entitled to summary judgment in their
favor with respect to all claims (Compressor’s own individual claim and the claims of the Class)
relating to Fax Ad Two.3
Fax Ad One
Even if the named Plaintiff had received Fax Ad One, the Court concludes that Plaintiff
cannot produce sufficient evidence at trial such that a reasonable jury could conclude that Fax
Ad One was sent “on behalf of” Defendant MFC.
Plaintiff has a somewhat stronger position as to Fax Ad One, because Defendant MFC is
Notably, Compressor is the sole named Plaintiff in this class action. If Compressor’s
individual claim is dismissed, then there would be no class representative who could proceed in
this action and pursue claims relating to Fax Ad One.
at least identified in the body of the fax ad. But the rest of the evidence is essentially the same as
that for Fax Ad Two, and collectively does not support a conclusion that the ad was sent on
behalf of MFC.
Plaintiff has not produced any evidence of a contract between B2B/Macaw/Maxileads
and MFC. Thus, there are no “nature and terms” of such a contractual relationship for the Court
There is no evidence that anyone acting on behalf of MFC approved the final draft of the
fax ads, paid for them, or authorized the faxes to be sent. To the contrary, the undisputed
evidence indicates that a third-party entity (Charity Marketing Services, LLC), which is not a
party to this case, paid for and gave final authorization for the fax ads at issue in this case to be
There is no evidence to establish that Stephens, or anyone else at MFC, authorized
Brundage or Charity Marketing Services, LLC to hire B2B, Maxileads, or Macaw.
While Plaintiff produced some correspondence documents that list the name of “Julia
Kahn,” Plaintiff cannot produce any witnesses at trial who could testify that Kahn helped
prepare, draft, or revise the fax ads at issue in this case. And Kahn testified that Stephens did not
ask her to communicate or interact with marketing or advertising companies for MFC (and that
he would not have done so given her language issues), that she has no recollection of having
communicated with B2B, Maxileads, or Macaw, and that she does not even know if MFC
engaged in any fax advertising.
Moreover, Fax Ad One itself expressly states “This message is the exclusive property of
Macaw, SRL, 46 Match Factory St, Sec 5, Bue, Rom, 050183, 40723294564, which is solely
responsible for its contents and destinations.”
Another relevant factor identified by the Sixth Circuit is the “overall awareness of the
circumstances (including access to and control over facsimile lists and transmission
information).” Siding and Insulation, 822 F.3d at 899. Here it is undisputed that: 1) B2B sent
the faxes at issue in this case to “fax numbers generated through a target list acquired by B2B
from a third-party vendor, InfoUSA.” (D.E. No. 139 at Pg ID 5329); 2) “Defendants did not
provide B2B with the list of contacts to receive the fax advertisements,” 3)“Defendants did not
create the list of fax ad recipients.” (Id.); and 4) that was all done by Abraham/B2B and/or
Macaw. (Id.; Abraham Decl., D.E. No. 139-7 at Pg ID 5505). It is also undisputed that B2B –
the entity whose entire business was dedicated to performing fax-blast advertising services for
others – “did not contact Plaintiff or any companies or persons on the InfoUSA list for express
permission or invitation to received fax advertisements.” (D.E. No. 139 at Pg ID 5329).
Given the collective evidence in this record, this Court fails to see how a reasonable jury
could conclude that Fax Ad One was sent “on behalf of” Defendant MFC such that it can be held
liable under the TCPA.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Plaintiff’s Motion for Summary
Judgment is DENIED and Defendants’ Motion for Summary Judgment is GRANTED as to all
claims asserted by Plaintiff and the Class.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: September 13, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 13, 2017, by electronic and/or ordinary mail.
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