Antitrust Law Daily Wrap Up, PRIVACY—7th Cir.: TCPA liability for unsolicited fax ads limited to authorized radius of owner’s business, (Mar 22, 2016)

By Michael Menzhuber, J.D., LL.M.

A federal district court decision that a small business owner was not liable, under the Telephone Consumer Protection Act (TCPA), for fax ads sent outside a 20-mile radius of his company’s location was affirmed by the U.S. Court of Appeals in Chicago. The appellate court also affirmed rulings that: (1) denied the named plaintiff’s attempt to impeach the owner’s testimony with an interrogatory answer; (2) refused to create a subclass of plaintiffs within the 20-mile radius; and (3) declined to decertify the class (Bridgeview Health Care Center, Ltd. v. Clark, March 21, 2016, Manion, D.)

After receiving an unsolicited fax ad for Affordable Digital Hearing (ADH) company’s services, Bridgeview Health Care Center, Ltd. filed a class action suit against Jerry Clark, the company’s owner, for violating the TCPA. The court determined that Clark authorized fax ads to plaintiffs within 20 miles of ADH. However, it determined that Clark was not liable for the fax ads sent to plaintiffs, including Bridgeview, that were located more than 20 miles from ADH because he only authorized Business to Business Solutions (B2B), the marketing company that sent the faxes, to send faxes within the 20-mile radius.

On appeal, Bridgeview argued that that the trial court erred in concluding that Clark was not liable for faxes sent outside the 20-mile radius from ADH. The appellate court, however, found no error because: (1) Clark did not confer express actual authority on B2B to send faxes beyond the 20-mile radius; (2) there was nothing inherent in the fax ads that implied B2B’s actual authority to do so; and (3) Clark did nothing to create apparent authority for B2B to send the faxes.

Bridgeview also argued that the trial judge committed reversible error by denying its attempt to impeach Clark’s trial testimony with one of his interrogatory answers. The appellate court, however, determined that there was no inconsistency between the Clark’s trial testimony and his interrogatory answer. Therefore, it concluded that the trial judge did not abuse her discretion in denying Bridgeview’s attempt to impeach Clark’s trial testimony.

Clark argued that the court should have created a subclass of plaintiffs within the 20-mile radius of ADH that was separate from class members that were outside the 20-mile radius. The appellate court disagreed because: (1) the vast majority of the fax ad recipients were outside the 20-mile radius; and (2) every class member had the same interest in obtaining the $500-per-recipient penalty for faxes violating the TCPA.

Clark also argued that the court erred in declining to decertify the class, limit liability to plaintiffs within the 20-mile radius, and vacate the money judgment. The appellate court concluded that there was no abuse of discretion because decertification would not affect Clark’s liability and the judgment was already limited to class members within the 20-mile radius.

The case is No: 14-3728 and 15-1793.

Attorneys: Phillip A. Bock (Bock & Hatch, LLC) for Bridgeview Health Care Center, Ltd. Vincent A. Lavieri (Gardiner Koch Weisberg & Wrona) for Jerry Clark d/b/a Affordable Digital Hearing.

Companies: Bridgeview Health Care Center, Ltd.; Affordable Digital Hearing

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