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Bridgeview Health Care Center, Ltd. v. Clark

United States Court of Appeals, Seventh Circuit

March 21, 2016

Bridgeview Health Care Center, Ltd., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff-Appellant,
v.
Jerry Clark, d/b/a Affordable Digital Hearing Defendant-Appellee.

Argued November 5, 2015.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division No. 09-cv-05601 - Maria G. Valdez, Magistrate Judge.

Before Flaum, Manion, and Rovner, Circuit Judges.

Manion, Circuit Judge.

This appeal arises out of unsolicited fax ads that were blasted across multiple states in violation of the Telephone Consumer Protection Act (TCPA). While the parties agree that the TCPA was violated, they dispute who was responsible for sending the fax ads: Jerry Clark, whose Affordable Digital Hearing company was advertised in the faxes, or the Business to Business Solutions (B2B) marketing company that actually sent the faxes. After Bridgeview Health Care Center received an Affordable Hearing ad in the Chicago area, Bridgeview brought this class-action lawsuit against Clark.

When the district court granted partial summary judgment in the plaintiffs' favor, Clark was held liable for violating the TCPA by authorizing fax ads to plaintiffs within 20 miles of Affordable Hearing. The district court also conducted a bench trial on Clark's liability to plaintiffs more than 20 miles from Affordable Hearing, however, and concluded that Clark was not liable to them. These cross-appeals ask how far his liability extends. We affirm.

I. Background

Jerry Clark runs Affordable Digital Hearing, a small company in Terre Haute, Indiana. In June 2006, Clark received calls from B2B employee Conor Melville.[1] Melville told Clark that B2B could market Affordable Hearing's services by faxing advertisements to potential business customers. Although Clark said that he was not interested, Melville placed a follow-up call, assuring Clark that many local businesses were using fax advertisements. As a result, Clark agreed to give the fax-advertising program a try. Clark edited and approved the language of the ad.

Clark verbally instructed B2B to send about 100 faxes to local businesses within a 20-mile radius of Terre Haute. He did not know what it cost to send a fax, but thought the quoted $279 was a reasonable charge for this quantity of advertisements. Because he trusted that Melville would send the 100 faxes as authorized, Clark never asked to see the list of fax numbers that B2B was using. Clark did not realize that B2B actually faxed 4, 849 ad flyers to businesses across Indiana, Illinois, and Ohio. According to B2B's records, it faxed Clark a letter stating that it would send 6, 000 ads on his behalf, but the record shows that Clark neither received nor saw this letter.

After Bridgeview received a fax ad at its location outside Chicago, it sued under the TCPA, which, unbeknownst to Clark, outlaws unsolicited fax ads. This litigation was overseen in district court by Magistrate Judge Maria Valdez, who certified all fax recipients as a class. In granting summary judgment for class members located within 20 miles of Terre Haute, she gave the statutory penalty of $500 per recipient to 32 recipients within that 20-mile radius. This resulted in a $16, 000 judgment against Clark. Judge Valdez then conducted a bench trial on Clark's liability to recipients, including Bridgeview, who were more than 20 miles away. This bench trial resulted in a judgment that Clark is not liable for the junk faxes sent more than 20 miles from Terre Haute.

Bridgeview now challenges the trial outcome, along with one of Judge Valdez's evidentiary rulings at trial. Clark cross-appeals her rulings on class certification.

II. Discussion

These appeals raise four issues: Bridgeview appeals two of the district court's rulings and Clark appeals two. We begin with the ...


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