Paldo Sign and Display Company v. Wagener Equities, Incorporated
825 F.3d 793
| 7th Cir. | 2016Background
- Wagener Equities (through Daniel Wagener) received a marketing proposal from a purported vendor (Marketing Research / B2B) and was promised final approval of the ad and recipient list before any fax campaign was sent.
- Wagener faxed a check as instructed but never received the promised contact list or final ad; he never sent the required “ad ok” approval.
- B2B (run by Caroline Abraham, with technical help from Macaw in Romania) nonetheless transmitted an unsolicited fax advertisement to ~10,145 recipients, including plaintiff Paldo Sign.
- District court granted Paldo Sign partial summary judgment on liability elements other than who qualified as the “sender” under the TCPA; the jury was tasked with whether Wagener/Wagener Equities were the “sender.”
- Jury found Wagener/Wagener Equities did not authorize the fax broadcast and that Daniel Wagener did not directly participate in authorizing it; judgment entered for defendants.
- Paldo Sign appealed contesting (1) the jury instruction on “sender”/authorization and (2) admission of testimony that Abraham previously ran a diploma mill as impeachment on credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper definition/instruction for “sender” under the TCPA/regulations | Court should have confined instruction to regulatory definition (strict reading): liable if ad promoted defendant’s goods/services (strict liability) | Agency principles apply; must prove defendant caused third-party to believe it approved sending (authorization/agency) | Affirmed: agency/authorization standard correct; court properly rejected strict liability per Clark and instructed jury to find words/conduct that caused B2B reasonably to believe Wagener approved sending |
| Whether Abraham’s testimony that she ran a diploma mill was admissible to impeach credibility | Exclusion required: prior unrelated bad-act testimony was character evidence barred by Rules 404(a) and 608(b) | Testimony was Abraham’s own admission bearing on honesty; admissible under Rules 607/608(a); limited cross allowed under 608(b) | Affirmed: district court did not abuse discretion; limited admission was probative of truthfulness and not improper extrinsic evidence |
Key Cases Cited
- Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935 (7th Cir. 2016) (applies agency principles to determine TCPA “sender” and rejects strict-liability reading of the regulations)
- United States v. Lawrence, 788 F.3d 234 (7th Cir. 2015) (standard of review for jury instruction challenges)
- United States v. Dvorkin, 799 F.3d 867 (7th Cir. 2015) (Rule 608(b) bars extrinsic evidence but allows cross-examination about prior conduct for impeachment)