`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`CITY SELECT AUTO SALES, INC.,
`a New Jersey corporation,
`individually and as the
`representative of a class of
`similarly situated persons,
`Plaintiff,
`
`v.
`
`DAVID RANDALL ASSOCIATES,
`INC., et al.,
`
`Defendants.
`
`Civil Action
`No. 11-2658 (JBS/KMW)
`OPINION
`
`APPEARANCES:
`Alan C. Milstein, Esq.
`SHEARMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC
`Eastgate Corporate Center
`308 Harper Drive, Suite 200
`Moorestown, NJ 08057
`-and-
`Daniel J. Cohen (pro hac vice)
`Tod A. Lewis (pro hac vice)
`BOCK & HATCH, LLC
`134 N. LaSalle St., Suite 1000
`Chicago, IL 60602
`Attorneys for Plaintiff
`F. Emmett Fitzpatrick, III, Esq.
`FLAMM BOROFF & BACINE PC
`794 Penllyn Pike
`Blue Bell, PA 19422
`Attorney for Defendants
`
`SIMANDLE, Chief Judge:
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 2 of 30 PageID: 9610
`
`I.
`
`INTRODUCTION
`This matter comes before the Court upon Plaintiff City
`Select Auto Sales, Inc.’s (hereinafter, “City Select” or the
`“Plaintiff”) motion for entry of judgment as final under Fed. R.
`Civ. P. 54(b) [Docket Number 242], and Plaintiff’s motion for a
`new trial pursuant to Fed. R. Civ. P. 59(a) [Docket Number 247].
`II.
`FACTUAL AND PROCEDURAL BACKGROUND
`The Court has summarized the detailed factual and procedural
`background of this case in its previous Opinions regarding this
`litigation, see City Select Auto Sales, Inc. v. David Randall
`Associates, Inc., No. 11-2658, 2014 WL 4755487 (D.N.J. Sept. 24,
`2014); City Select Auto Sales, Inc. v. David/Randall Assocs.,
`Inc., 96 F. Supp. 3d 403 (D.N.J. 2015); and City Select Auto
`Sales, Inc. v. David/ Randall Associates, Inc., 151 F. Supp. 3d
`508 (D.N.J. 2015), so a recount of only those facts relevant to
`the resolution of the instant motions will be provided.
`A. Pretrial Opinions In This Litigation
`In its September 24, 2014 Opinion, the Court denied
`Defendants’ motion for summary judgment with respect to Raymond
`Miley, III’s (hereinafter “Mr. Miley”) individual liability,
`holding that the record was “replete with factual disputes
`concerning Miley’s personal involvement in the junk faxes that
`form the predicate of this litigation,” as it specifically noted
`
`2
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 3 of 30 PageID: 9611
`
`the conflicting deposition testimony of Mr. Miley and Ms. April
`Clemmer, his office manager. City Select, 2014 WL 4755487 at *9.
`In its March 27, 2015 Opinion, the Court granted in part
`Plaintiff’s motion for classwide summary judgment, and entered
`Judgment in favor of Plaintiff and against Defendant
`David/Randall Associates, Inc. (hereinafter, “David/Randall”),
`in the amount of $22,405,000 for violations of the Telephone
`Consumer Protection Act, 47 U.S.C. § 227 (hereinafter, the
`“TCPA”). City Select, 96 F. Supp. 3d at 403. The Court denied
`Plaintiff’s motion for classwide summary judgment as to Mr.
`Miley’s individual liability. In the ensuing Order and
`Judgment, the Court ordered that Judgment “shall be entered in
`favor of the Plaintiff Class and against David/Randall
`Associates, Inc. in the amount of $22,405,000. [Docket Item
`152.] The Court did not make the Judgment final and appealable
`under Fed. R. Civ. P. 54(b); instead, the Court entered a stay
`of providing notice to the Class and for motions related to
`attorneys’ fees until further order of the Court, and ordered
`trial to commence to determine whether Mr. Miley was
`individually liable for the faxes at issue.
`Then, in its October 26, 2015 Opinion, the Court denied
`Plaintiff’s motion to certify the March 27, 2015 Judgment as
`final. City Select, 151 F. Supp. 3d at 510. The Court also
`
`3
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 4 of 30 PageID: 9612
`
`stayed class notice and briefing on any application for
`attorneys’ fees until further Order of the Court, and referred
`the matter to Magistrate Judge Karen Williams for a final
`pretrial/settlement conference relative to the individual
`liability claim against Mr. Miley.
`B. May 2016 Miley Jury Trial
`A jury trial on Mr. Miley’s individual liability commenced
`on May 23, 2016, and on May 26, 2016, the jury returned a
`verdict in favor of Miley, finding that (1) he did not have
`direct, personal participation in any of the four unsolicited
`fax campaigns, and (2) he did not personally authorize any of
`the four unsolicited fax campaigns. [Docket Item 240.] The
`Court then entered judgment on the verdict. [Docket Item 241.]
`C. Post-Trial Matters
`After trial, the Court asked counsel whether there were any
`matters precluding entry of final judgment against David/Randall
`in the amount of $22,405,000, and Plaintiff subsequently filed a
`motion for entry of judgment as final under Fed. R. Civ. P.
`54(b). [Docket Item 242]. Additionally, on June 24, 2016, given
`its disagreement on two of the Court’s jury instructions
`described infra, Plaintiff filed a motion for a new trial on
`Miley’s individual liability pursuant to Fed. R. Civ. P. 59(b).
`[Docket Item 247].
`
`4
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 5 of 30 PageID: 9613
`
`III.
`
`MOTION FOR CERTIFICATION OF JUDGMENT AGAINST DAVID/RANDALL
`AS FINAL
`
`First, Plaintiff seeks certification of the Judgment against
`David/Randall as final under Fed. R. Civ. P. 54(b) in the amount
`of $22,405,000, which is based on 44,810 successful unsolicited
`transmissions multiplied by the amount of statutory damages, or
`$500 each. (Pl.’s Br. at 5.)
`A. STANDARD OF REVIEW
`Federal Rule of Civil Procedure 54(b) provides that when an
`action involves more than a single claim for relief, as here,
`“the court may direct entry of a final judgment as to one or
`more, but fewer than all, claims or parties only if” the Court
`finds “no just reason for delay.” Fed. R. Civ. P. 54(b); see
`also City Select, 151 F. Supp. 3d at 510-512 (summarizing
`caselaw regarding 54(b)). Importantly, a district court must
`ensure that an immediate appeal actually advances the purposes
`of Rule 54(b), by evaluating (1) the relationship between the
`adjudicated and unadjudicated claims; (2) the possibility that
`the need for review might or might not be mooted by future
`developments in the district court; (3) the possibility that the
`reviewing court might be obliged to consider the same issue a
`second time; (4) the presence or absence of a claim or
`counterclaim which could result in a setoff against the judgment
`
`5
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 6 of 30 PageID: 9614
`
`to be made final; and (5) other factors, such as delay, economic
`and solvency considerations, shortening the time of trial,
`frivolity of competing claims, expense. See Berckeley Inv.
`Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 1996)).
`(hereinafter, the “Berckeley factors”).
`B. DISCUSSION
`1. Berckeley Factors
`In its October 26, 2015 Opinion denying Plaintiff’s motion to
`certify the March 27, 2015 judgment against David/Randall, the
`Court began its analysis by noting that the judgment
`“unquestionably constitutes a final determination of all claims
`against David/Randall other than for costs and attorney’s fees.”
`City Select, 151 F. Supp. 3d at 511-12. However, after
`reviewing Berckeley factors, the Court found the entry of final
`judgment to be premature because “the TCPA claim against Mr.
`Miley relies, in essence, upon the same facts and legal theories
`underpinning the now adjudicated TCPA claim against
`David/Randall.” Id. at 512. The Court was therefore concerned
`about the possibility of piecemeal and duplicative appeals if
`the David/Randall judgment was appealed first, and then the
`Miley verdict months later, since both matters involved so many
`common issues.
`
`6
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 7 of 30 PageID: 9615
`
`Since the October 2015 Opinion, as described supra, the Court
`conducted the Miley trial between May 23-26, 2016, and entered
`judgment on the verdict in favor of Mr. Miley on May 27, 2016.
`[Docket Item 241]. Now that both the David/Randall matter and
`the Miley trial have been fully adjudicated, there is no longer
`a concern about piecemeal appeals, so the Berckeley factors now
`call for entering judgment as final.
`David/Randall opposes the motion to certify the $22,405,000
`judgment as final because it is “inappropriate, unjust, and
`would not provide any actual benefit to any class member.” (Ex.
`A. to Def. Br. at 7.) Furthermore, they argue that certifying
`the judgment as final “would unquestionably put the Defendants
`out of business and into bankruptcy.” (Id.) As a result, they
`propose a procedure that “would calculate the final Judgment by
`taking the actual number of Class members who respond and are
`approved, multiplying it by the statutory $500 damages, and use
`that figure as the amount of the final Judgment, up to the
`$300,000 limit of the Class Fund.” (Id. at 10.)
`As Plaintiff notes, the Court has already rejected this
`argument, and Defendant has offered no new evidence justifying
`reconsideration.1 See City Select, 151 F. Supp. 3d at 512 n. 6
`
`1 Defendant David/Randall filed an untimely supplemental
`memorandum to its opposition papers where it argued that First
`7
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 8 of 30 PageID: 9616
`
`(“Moreover, even in the event the Court certified the March 27,
`2015 Judgment, the Court finds no support for David/Randall's
`position that the Judgment against David/Randall should, at this
`time, be confined to an amount less than $22,405,000. Nor has
`David/Randall provided any convincing authority in support of
`its position.”) The Court will therefore certify the March 27,
`2015 judgment against David/Randall as final under Rule 54(b).
`2. Stay Deferring Notice to the Class and Resolution of
`Attorneys’ Fees
`Plaintiff also requests a stay of Class notice under Fed. R.
`Civ. P. 23(d)(1)(B) and a deferral of briefing and ruling on
`attorneys’ fees until after the Third Circuit has resolved all
`likely appeals and monies are collected from David/Randall
`(and/or Mr. Miley) to benefit the Class. (Pl.’s Br. at 7.)
`Plaintiff offers a host of reasons for this request, including
`that (1) David/Randall must post an appeal bond, (2)
`David/Randall’s likely appeal must be briefed and argued before
`
`Mercury Ins. Co. v. Nationwide Sec. Servs., Inc., 2016 WL
`2927799 (Ill. App. May 18, 2016) supports the denial of
`Plaintiff’s motion. See L. Civ. R. 7.1(d)(2)(requiring
`opposition papers to be filed “at least 14 days prior to the
`original motion day, unless the Court otherwise orders, or an
`automatic extension is obtained”). The Court will exercise its
`discretion and consider this untimely submission under L. Civ.
`R. 7.1(d)(7). This unpublished decision of a foreign tribunal
`is unpersuasive; there is no basis in law for capping the class
`recovery ab initio in the absence of a settlement.
`8
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 9 of 30 PageID: 9617
`
`the Third Circuit and a decision rendered before any money might
`be available for distribution to the Class or to Plaintiff’s
`attorneys, (3) the total amount of any recovery against
`David/Randall is not yet ascertainable, (4) notice to the class
`would cause considerable confusion if a determination on fees
`and costs is made but circumstances surrounding the judgment
`collected change, (5) it is impossible to determine an
`appropriate attorney fee until monies are collected for the
`benefit of the Class, and (6) additional attorney time and
`expense will be incurred throughout the appeals process. (Pl.’s
`Br. at 5-6).
`David/Randall opposes Plaintiff’s request of a stay because
`it is “entirely based on a presumption for which there is no
`factual foundation – that the Defendant can afford to, and will
`decide to, take an appeal.” (Def. Br. at 2.) David/Randall
`therefore propose that “notice of Judgment should be provided to
`the class members at the present time.” (Id. at 11.)
`David/Randall has overlooked this Court’s language in the
`Court’s October 2015 Opinion in this matter – “[a]bsent a change
`in circumstances, the Court will require notice [to the Class]
`when funds become available for distribution and when Class
`Counsel makes its application for reasonable attorneys’ fees and
`costs.” City Select, 151 F. Supp. 3d at 513. The total amount
`
`9
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 10 of 30 PageID: 9618
`
`of the funds are not yet available for distribution to the
`Class, and Class Counsel has not applied for reasonable
`attorneys’ fees and costs. The Court also agrees with
`Plaintiff’s argument that “it is simply more efficient and less
`likely to confuse the class members if notice and applications
`for attorneys’ fees are provided to the Class after a sum
`certain is collected from David/Randall (or both Defendants) for
`the benefit of the Class.” (Reply Br. at 3.) Plaintiff may
`appeal this Court’s denial of its motion for new trial when
`final judgment is entered, see infra, and David/Randall may
`appeal the entry of final Judgment as well. As a result,
`continuing the stay for notice and attorneys’ fees is
`appropriate until further order from this Court.
`IV.
`MOTION FOR NEW TRIAL
`Plaintiff has also requested that the Court set aside the
`jury verdict and judgment in favor of Mr. Miley under Fed. R.
`Civ. P. 59(a). Plaintiff claims that the Court’s jury
`instructions were erroneous because they allegedly (1)
`improperly added a knowledge and/or state of mind requirement
`and (2) added an extra element of “significance” to Mr. Miley’s
`involvement in the fax campaign that is not required by law.
`The Court has reviewed both the jury instructions and the
`
`10
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 11 of 30 PageID: 9619
`
`verdict form and finds that it committed no error. For the
`reasons that follow, Plaintiffs’ motion will be denied.
`A. STANDARD OF REVIEW
`Federal Rule of Civil Procedure 59 permits a court to order a
`new trial “for any reason for which a new trial has heretofore
`been granted in an action at law in federal court.” Fed. R. Civ.
`P. 59(a)(1)(A). Whether to grant a new trial is a decision that
`is within the sole discretion of the district court. United
`States v. Skelton, 893 F.2d 40, 44 (3d Cir. 1990); see also
`Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995) (noting that
`the trial court has broad discretion to compose jury
`instructions that accurately reflect the law and that are
`appropriate for the facts of a given case). Courts have granted
`new trials when there have been prejudicial errors of law or
`when the verdict is against the weight of the evidence. See
`Maylie v. Nat'l R.R. Passenger Corp., 791 F. Supp. 477, 480
`(E.D. Pa. 1992), aff'd, 983 F.2d 1051 (3d Cir. 1992) (citations
`omitted).
`In considering claims of error with regard to jury
`instructions, the Court considers “whether the charge, taken as
`a whole and viewed in the light of the evidence, fairly and
`adequately submits the issues in the case to the jury.” United
`States v. Tiller, 302 F.3d 98, 104 n.3 (3d Cir. 2002) (citation
`
`11
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 12 of 30 PageID: 9620
`
`omitted); see also Savarese v. Agriss, 883 F.2d 1194, 1202 (3d
`Cir. 1989) (“Jury instructions are considered as a whole to
`determine whether they are misleading or inadequate.”). There
`is no error if “the challenged instructions accurately state the
`law relating to the particular issue under scrutiny.” Drames v.
`Sun River Inv., S.A., 820 F. Supp. 209, 215 (E.D. Pa. 1993),
`aff'd, 17 F.3d 1429 (3d Cir. 1994). Thus, “[n]o litigant has a
`right to a jury instruction of its choice, or precisely in the
`manner and words of its own preference.” Douglas, 40 F.3d at
`1233.
`When a jury instruction is erroneous, a new trial is
`warranted unless such error is harmless. See Advanced Med. v.
`Arden Med. Sys., Inc, 955 F.2d 188, 199 (3d Cir. 1992). An
`error is harmless if it is “highly probable” that the error did
`not contribute to the judgment. Id. An erroneous jury
`instruction may also be considered non-fundamental when, taking
`the instructions as a whole, the erroneous instruction is a
`“solitary misstatement of law” buried in an otherwise correct
`legal explanation. Ryder v. Westinghouse Elec. Corp., 128 F.3d
`128, 137 (3d Cir. 1997). “If there was an error, the court must
`then determine ‘whether that error was so prejudicial that
`refusal to grant a new trial would be inconsistent with
`
`12
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 13 of 30 PageID: 9621
`
`substantial justice.’” Id. (quoting Bhaya v. Westinghouse Elec.
`Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989)).
`B. DISCUSSION
`The Court will address both challenges to the jury
`instructions in turn.
`1. Significant Level of Involvement
`The Court and counsel crafted the Jury Verdict Form on
`which Question No. 1 asked for the jury’s determination of the
`following question:
`1. Did Raymond Miley III (“Miley”) have direct,
`personal participation in the first unsolicited fax
`campaign?
`[Docket Item 240.] Regarding this requirement for a
`finding of liability, the Court gave Instruction No. 17, which
`stated, in relevant part, as follows:
`As I instructed you at the beginning of this trial, a TCPA
`claim for sending an unsolicited fax generally requires
`proof that: (1) the defendant utilized or caused to be
`utilized a telephone facsimile machine to send one or more
`faxes; (2) that the transmissions constituted
`advertisements; (3) that the defendant sent the
`transmissions without the recipient’s consent and outside
`of any one of the statutory exceptions; (4) that the
`defendant qualifies as a “sender” for purposes of the TCPA,
`that is, the entity on whose behalf an unsolicited
`facsimile advertisement is sent or whose goods or services
`are advertised or promoted in the unsolicited
`advertisement, or a person acting on behalf of that entity;
`and, in the case of an individual, (5) that the individual
`defendant had a significant level of personal involvement
`in the unlawful fax transmissions, as explained below.
`
`13
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 14 of 30 PageID: 9622
`
`(emphasis added)[Docket Item 235 at 26.] After explaining
`that the first four elements were not in dispute, the Court
`stated:
`On the other hand, it is disputed whether Defendant Miley
`acted on behalf of David/Randall Associates, and whether he
`had a significant level of personal involvement in the
`unlawful fax transmissions. These issues will be for you
`to decide in accordance with these Instructions.
`[Id. at 27.]
`The Court further instructed regarding the requisite level
`of involvement that must be proved for an individual corporate
`director or officer, stating in Instruction 18, in relevant
`part:
`Direct Personal Participation in or Personal Authorization of
`the Unlawful Conduct
`As a general matter, if a corporation is found to have
`violated a federal statute, its officers will not be
`personally liable solely because of their status as
`officers. Under the TCPA, however, an individual acting on
`behalf of a corporation may, under certain limited
`circumstances, be held personally or individually liable
`for the corporation’s violation of the TCPA if the
`individual: (1) had direct, personal participation in the
`conduct found to have violated the TCPA, or (2) personally
`authorized the conduct found to have violated the TCPA.
`This requirement is phrased in the alternative; it is
`sufficient if Plaintiff proves either that Mr. Miley had
`direct, personal participation in the conduct found to have
`violated the TCPA, or that Mr. Miley personally authorized
`the conduct found to have violated the TCPA.
`Thus, the personal liability of a corporate director or
`officer must be founded upon his active oversight of, or
`control over, the conduct that violated the TCPA, rather
`than merely tangential involvement. Involvement is
`“tangential” if it is routine, passive or ministerial.
`14
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 15 of 30 PageID: 9623
`
`[Docket Item 235 at 28.] Plaintiff first takes issue with
`the Court’s initial and supplemental jury instruction regarding
`the degree of defendant Miley’s personal participation in the
`unsolicited fax campaign found in Instruction Number 17. First,
`in the jury instruction conference, Plaintiff’s counsel
`expressed to the Court that describing Mr. Miley’s conduct as a
`“high” level of personal involvement improperly added to their
`burden beyond the TCPA and the caselaw. 5/25/16 Tr. at 103:15-
`17. After the Court suggested replacing the word “high” with
`“significant,” Plaintiff’s counsel responded: “[i]f the Court
`substituted ‘significant’ for ‘high,’ and added at the end of
`the sentence, ‘as more specifically defined hereinafter,’ it
`would be tying whatever significant level means to the objective
`criteria that are truly the standard for liability, and then I
`would not have an objection to it.” Id. at 103:21-25 to 104:1.
`Instead of adding “as more specifically defined hereinafter,”
`the Court added “as explained below,” thereby “tying” the word
`“significant” to the criteria for liability expressed in the
`rest of the instructions. [Docket Item 235.] Plaintiff’s
`counsel did not object to the finalized jury instructions as
`discussed in the conference. 5/26/16 Tr. 44:8-10.
`The jury then received the verdict form asking if Miley had
`“direct, personal participation” in the unsolicited fax
`
`15
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 16 of 30 PageID: 9624
`
`campaigns [Docket Item 240], and the Jury Instructions,
`specifically Instruction No. 17, discuss whether Miley had “a
`significant level of personal involvement” in the campaigns.
`[Docket Item 235.]
`The jury asked the following question to the Court:
`Please provide clarification for the degree of personal
`participation for question #1, for the first unsolicited
`fax campaign. Our instructions indicate we have to
`determine if Miley had a “significant level” of personal
`involvement in the unlawful fax transmission, or active
`oversite (sic), not routine or passive. This is not the
`wording of question #1, where it only state personal
`participation.
`[Docket Item 237.] The Court answered in a supplemental jury
`instruction:
`The requirement of a “significant level of personal
`involvement in the unlawful fax transmissions” applies to
`determining both whether he (1) had direct, personal
`participation in the conduct found to have violated the
`TCPA, or (2) personally authorized the conduct found to
`have violated the TCPA.
`As explained in Instruction No. 18, such significant level
`of personal involvement requires the officer’s active
`oversight of, or control over, the conduct that violated
`the TCPA, rather than merely tangential, routine, passive
`or ministerial involvement. He must, at a minimum, have
`knowledge that he is directly participating in or
`authorizing the fax advertising, or his involvement will
`not be significant.
`Thus, for example, if you find, in considering Question 1
`[of the Jury Verdict Form], that Mr. Miley had direct,
`personal participation at a level of involvement that was
`“significant,” then your answer will be Yes. Otherwise,
`your answer will be No.
`
`16
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 17 of 30 PageID: 9625
`
`[Id.] Plaintiff objected to this supplemental instruction at
`the conference because it “improperly increased” Plaintiff’s
`burden of proof in that it required Plaintiff to prove “some
`additional ‘significance’ to Miley’s involvement.” (Pl.’s Br. at
`9.) Plaintiff, relying on federal common law principles,
`believes that the jury only needed to find that Miley “directly,
`personally participated in or personally authorized the conduct
`at issue.” (Pl.’s Br. at 15.) Plaintiff argues that “the
`standard for determining Miley’s individual liability under the
`TCPA was the same standard that has existed for decades in the
`federal common law for determining the individual liability of
`corporate officers under a number of federal statutes.” (Pl.’s
`Br. at 14.) As a result, Plaintiff argues, there is “no legal
`basis for inserting that additional [“significant”] element and
`evidentiary requirement into Plaintiff’s burden of proof. (Id.
`at 15.)
`Plaintiff’s argument that the Court was incorrect in
`assessing the standard for determining Miley’s individual
`liability to be a TCPA-specific issue versus a federal common
`law issue is unavailing. The use of the word “significant” was
`appropriate explanatory commentary in the same fashion as
`explaining what the instruction means. In the discussion
`
`17
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 18 of 30 PageID: 9626
`
`between counsel and the Court over how to respond to the
`question from the jury, the Court explained that:
`The words ‘direct personal participation” are not self-
`defining. The concept of significant level of personal
`involvement was added to these instructions to make clear
`that it’s not enough to have simply personally
`participated. A lot of people may participate in this, but
`the ones that are going to be liable are the ones that had
`a significant level of personal involvement when they did
`participate. And I believe that there’s a requirement of
`due process. I don’t believe that a person who is a mere
`participant is to be found liable if they didn’t engage in
`significant participation. I think fundamental fairness
`requires it and if this is the first case to say so, so be
`it. But otherwise, I believe there would be almost
`unlimited liability for a person who merely had personal
`participation in drafting the ad or paying for it.
`Tr. 5/26/16 48:16-25 to 49: 1-7. The Court later added:
`What I am attempting to do through this instruction as I
`did in the original instructions, is no more and no less
`than to help the jury to determine what’s meant by the
`words “direct personal participation” in the conduct and
`the words “personally authorized the conduct.” Those words
`are of such generality that unless any jury is given more
`substance to apply, that they would be at a loss because of
`the ambiguity of such terms. In a case of this sort, as
`I’ve explained several times, individual liability for
`potentially tens of millions of dollars should require that
`the jury finds that there is a level of direct personal
`participation that is not insignificant, that is not
`passive, that it’s not ignorant of the fact that faxes were
`being authorized. This doesn’t erect some high barrier, it
`simply assures that on the spectrum of personal
`participation, from one percent participation to a hundred
`percent participation, that the jury is informed of the
`proper point on that spectrum where liability begins to
`attach. This doesn’t say, for instance, that he has to be
`the sole participant in the conduct. It doesn’t say that he
`has to be the decisionmaker. It simply says that he – for
`purposes of question 1, has to have a significant level of
`direct and personal participation.
`
`18
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 19 of 30 PageID: 9627
`
`Id. at 51:22-25 to 52:1-16.
`The Court is not convinced that it inserted an additional
`element and evidentiary requirement into Plaintiff’s burden of
`proof by using the word “significant” in its initial and
`supplemental jury instructions. It used the word “significant”
`to clarify that the Defendant could not merely be tangentially
`involved in the operation. Instructing the jury that a
`“significant level of personal involvement requires the
`officer’s active oversight of, or control over, the conduct that
`violated the TCPA, rather than merely tangential, routine,
`passive or ministerial involvement” falls in line with the
`relevant TCPA caselaw on individual liability and does not add
`any extra elements or additional requirements that Plaintiff had
`to prove. It essentially reminds the jury of the guidance from
`Instruction 18, supra. It is unclear how one could either (1)
`directly and personally participate in a campaign or (2)
`personally authorize a campaign without a “significant level of
`involvement” in it. Instead, Plaintiff’s counsel cites to a
`host of cases explaining the federal common law understanding of
`individual liability of corporate officers, without explaining
`how clarifying in a supplemental instruction that Mr. Miley’s
`involvement needed to be “significant” was actually an added
`element for Plaintiff to prove.
`
`19
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 20 of 30 PageID: 9628
`
`Plaintiff’s motion also ignores that there was a
`significant discrepancy in the evidence about Mr. Miley’s
`involvement that the jury had to resolve at trial. If the jury
`had believed the testimony of witness April Clemmer, Mr. Miley’s
`office manager, they easily could have found that Mr. Miley was
`“significantly” involved in the fax advertising at issue. In
`this Court’s March 27, 2015 Opinion denying summary judgment on
`Mr. Miley’s individual liability, the Court credited the fact
`that Ms. Clemmer testified at her deposition that Mr. Miley
`approved the ads, selected the ads, determined the distribution
`lists, etc. See City Select, 96 F. Supp. 3d at 431 (explaining
`that Ms. Clemmer testified that Mr. Miley acted as “the ultimate
`decisionmaker in approving the” ads’ forms, “determined the
`number of faxes” to be disseminated, and the time within which
`to transmit such faxes). Unfortunately for Plaintiff, by the
`time Ms. Clemmer finished her trial testimony, there was little
`or no credible evidence that Mr. Miley approved the ads,
`selected the ads, or determined the distribution lists, and Mr.
`Miley further specifically denied such participation.
`Furthermore, on cross examination at trial, in direct
`conflict with her direct testimony, Ms. Clemmer testified that
`she had essentially made the decisions related to the ads, and
`could not recall the ways in which Mr. Miley took part in any
`
`20
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 21 of 30 PageID: 9629
`
`part of the fax advertising. She confirmed that nobody from
`David/Randall ever communicated with any person from any third
`parties except for her, see 5/24/16 Tr. at 122:10-13, that she
`could not remember Mr. Miley specifically giving her a list of
`ZIP codes to send faxes to, id. at 124:13-16, that she sent
`payment to B2B for the ads, id. at 125:23-24, that she
`negotiated prices with B2B, id. at 126:2-6, that she
`communicated to B2B about removing fax numbers from broadcast
`lists, id. at 126:13-16, and that Mr. Miley was never copied on
`any of her outgoing faxes sent to B2B, id. at 137:19-25 to
`138:1-6.
`On the other hand, Mr. Miley gave largely consistent and
`exculpatory testimony, and his version of having only incidental
`involvement and no realization of the details of the advertising
`plan was directly at odds with Ms. Clemmer’s original testimony.
`He testified at trial that he never corresponded with anyone
`from B2B or Maxi-Leads, see 5/25/16 Tr. at 69:21-25, that he had
`no communications, involvement, participation or oversight of
`any of the relevant fax broadcast activities, id. at 69:1-5,
`that he never assigned Ms. Clemmer the task of finding an
`advertising or marketing company, id. at 62:5-7, that he never
`discussed anything about fax advertising with Ms. Clemmer, id.
`at 70:1-3, and that he never saw any emails or faxes between Ms.
`
`21
`
`
`
`Case 1:11-cv-02658-JBS-KMW Document 260 Filed 03/28/17 Page 22 of 30 PageID: 9630
`
`Clemmer and Kevin Wilson of B2B, id. at 69:10-18. In sum, Mr.
`Miley testified that he “authorized no fax” and that he “spent
`no time [and] no energy at all in this project.” Id. at 70:14,
`75:20-22.
`The jury quite apparently credited Mr. Miley’s testimony
`over Ms. Clemmer’s, as defense counsel effectively impeached
`her. If Ms. Clemmer had not recanted her prior testimony on
`cross examination, the jury without question could have found
`that Mr. Miley had a significant level of personal involvement
`in the unlawful fax transmi