367 F. Supp. 3d 93
S.D. Ill.2019Background
- Bais Yaakov received an unsolicited advertising fax on Nov. 15, 2012 promoting ETS's Criterion service; Houghton Mifflin Harcourt (HMH) conceived, drafted, and transmitted the fax via WestFax using lists HMH obtained. 17,710 faxes were sent.
- ETS had an exclusive distribution agreement with HMH giving HMH rights to market Criterion to K–12; the agreement required HMH to comply with applicable laws and required ETS to review/approve new messaging and logo use.
- ETS employees reviewed and approved the fax's product description and ETS logo via a short email exchange, but ETS did not draft the fax, pay the transmitter, select recipients, or learn the campaign results; HMH did not inform ETS that the fax was sent.
- The fax contained an opt-out notice that failed to include several regulatory elements required by 47 C.F.R. § 64.1200(a)(4) (e.g., required statements about 30-day unlawful failure to comply and the required identification of fax numbers for effective opt-out).
- Plaintiff claims TCPA violations and seeks statutory damages; ETS moved for summary judgment. The court denied summary judgment on the TCPA claim (triable issue whether ETS was a “sender”) and granted summary judgment for ETS on New York GBL § 396-aa (because an established business relationship existed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury-in-fact) | Receipt of unsolicited fax caused concrete harm (paper, toner, time, annoyance) and risk from defective opt-out | No actual damages shown; statutory damages alone insufficient post-Spokeo | Plaintiff has concrete injury; standing satisfied (TCPA intended to prevent such harms) |
| Traceability / EBR carve-out | Harm traced to ETS because fax promoted ETS product and ETS approved content/logo | ETS had an established business relationship (EBR) with plaintiff and thus could lawfully send under TCPA carve-out | ETS did not meet all regulatory EBR conditions (opt-out defective), so harm is traceable to ETS |
| Prudential standing / zone of interests | Plaintiff (school) falls within class TCPA intended to protect from nuisance faxes | Plaintiff is an opportunistic serial litigant outside zone of interests | Plaintiff falls within TCPA's zone of interests; prudential standing satisfied |
| TCPA "sender" liability | ETS was the sender (fax promoted ETS product; ETS reviewed/approved fax content and logo) | HMH independently conceived, drafted, paid for, and sent the fax; ETS had limited involvement | Question of whether fax was sent on ETS's behalf is fact-intensive (control/approval factors); triable issue — summary judgment denied on TCPA claim |
| GBL § 396-aa (NY) | N/A (focused on TCPA) | ETS had prior business relationship with plaintiff, which is a complete defense under § 396-aa | Summary judgment for ETS on GBL § 396-aa claim (EBR defense applies) |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III injury-in-fact analysis for statutory violations)
- Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016) (procedural statutory violations can create concrete injury when they risk real harm to protected interests)
- Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (TCPA liability inquiry — factors for whether fax was sent on behalf of defendant; FCC letter guidance)
- Imhoff Investment, L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (entity whose goods/services are advertised can be directly liable under TCPA)
- Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935 (7th Cir. 2016) (advocating agency-law approach to "sender" but distinguished by FCC guidance)
- Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d 886 (6th Cir. 2016) (multi-factor "on-whose-behalf" standard for fax-sender determination)
- Talk Am., Inc. v. Michigan Bell Tel. Co., 564 U.S. 50 (2011) (deference to agency interpretation of its regulations)