Paldo Sign and Display Company v. Wagener Equities, Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1267
PALDO SIGN AND DISPLAY COMPANY,
Plaintiff-Appellant,
v.
WAGENER EQUITIES, INCORPORATED
and DANIEL WAGENER,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cv-07299 — John J. Tharp, Jr., Judge.
ARGUED MARCH 30, 2016 — DECIDED JUNE 16, 2016
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Paldo Sign and Display Company
(“Paldo Sign”) filed suit under the Telephone Consumer
Protection Act (the “Act”), 47 U.S.C. § 227(b)(1)(C), against
Wagener Equities, Inc. and Daniel Wagener, seeking statutory
damages after Paldo Sign received an unsolicited facsimile
2 No. 15-1267
advertisement promoting Wagener Equities’ services. After the
district court certified a class of more than ten thousand
plaintiffs who had received the offending ad, a jury returned
a special verdict finding that Wagener Equities had not
“authorize[d] the fax broadcast transmission,” and that Daniel
Wagener did not “have direct, personal participation in the
authorization of the fax broadcast transmission.” On the basis
of those findings, the court entered judgment in favor of the
defendants. Paldo Sign appeals, claiming error in the jury
instructions and also in an evidentiary ruling. We affirm.
I.
In late 2006, Daniel Wagener received a telephone call from
a man who identified himself as a representative of Marketing
Research Center, a provider of advertising services. The man
offered to create and send drafts of advertisements for
Wagener Equities. Wagener agreed to accept and review any
proposed ads. Wagener then received a four page fax from
Marketing Research, consisting of a cover page, a pricing chart,
and two sample fax advertisements for Wagener Equities. The
cover page stated that Marketing Research would not send out
any ads unless Wagener returned an advertisement to Market-
ing Research with the words “ad ok” and a client number
written on the approved ad. After Wagener received the
proposal, a man who identified himself as Kevin Wilson from
Marketing Research called. Wagener told Wilson that he did
not like either of the sample ads.
Wilson then agreed to provide Wagener with a contact list
of potential recipients of the ad, as well as a new ad based on
a rough draft mailer that Wagener provided. Wilson instructed
No. 15-1267 3
Wagener to fax a copy of a check written to Marketing Re-
search as a show of good faith, and Wilson would then send
the draft contact list. Wagener wished to review it to verify that
the potential recipients were businesses that would be inter-
ested in the type of services Wagener Equities provides, and
that they were located in the relevant geographical region.
Wagener also wanted to review the final ad before any faxes
were sent to ensure the quality. After faxing a copy of a check
as instructed, Wagener did not receive a draft contact list or a
final ad for his approval. And although Wagener never sent
Marketing Research an approved ad with the words “ad ok”
and a client number, he was surprised to find that a fax
advertisement had been transmitted to thousands of recipients
without his approval. The ad consisted of the rough draft
mailer that he had provided to Wilson as well as ads for
“Business-to-Business Solutions” or “B2B,” another name
under which Marketing Research operated. Wagener immedi-
ately tried to contact Wilson but could not reach him and
received no response from him. When Wagener then learned
that an employee of Wagener Equities had mistakenly mailed
the check to Marketing Research, he instructed the employee
to issue a stop order for the check. Wagener’s bank successfully
implemented the stop order and Wagener never heard from
Marketing Research again.
But the damage had been done. The ad had been faxed to
more than ten thousand recipients, including Paldo Sign, the
plaintiff here. Marketing Research, which sometimes went by
the name B2B, was not a company at all, but was actually a
one-woman operation run by Caroline Abraham out of her
home with the technical assistance of a Romanian company
4 No. 15-1267
named Macaw.1 Kevin Wilson was an alias for Conor Melville,
the nephew of Abraham’s husband, and Wilson was an
independent contractor for Macaw. Another sales representa-
tive known to Wagener as “Steve Brennan” was Terence
Melville, who worked for Macaw as well. Business-to-Business
Solutions, also known as B2B, was an alias originally created
by Abraham to accept funds paid to Macaw in the United
States. She eventually began to use the name for her fax
advertising business, which grew out of her relationship with
Macaw. Macaw had been sending fax advertisements from
Romania, but with Abraham’s assistance, they were able to
facilitate fax advertising services out of her Brooklyn home.
Sending unsolicited fax advertisements is generally
prohibited by the Telephone Consumer Protection Act,
47 U.S.C. § 227(b)(1)(C), which subjects the sender to a statu-
tory penalty of $500 per violation. With more than ten thou-
sand recipients of the unsolicited fax, Wagener was thus
exposed to potential damages exceeding five million dollars.
The Act provides, in relevant part, that it is unlawful for any
person to send an unsolicited fax advertisement unless (1) the
sender of the unsolicited ad has an established business
relationship with the recipient; (2) the recipient voluntarily
made its fax number available to the sender through statutorily
specified means; and (3) the unsolicited advertisement contains
a statutorily-compliant notice allowing the recipient to opt out
of receiving future fax advertising. The fax ads sent in this case
did not comply with these statutory requirements.
1
Abraham testified that Marketing Research Center did not exist at all as
a business entity but was just a name used on letterhead.
No. 15-1267 5
Prior to trial, the district court granted Paldo Sign’s motion
for partial summary judgment, finding as a matter of law that
the fax sent was an “advertisement” as that term is defined by
the Act, that the fax was sent to 10,145 fax numbers, and that
it was sent without the recipients’ consent. The only issue that
remained for trial was whether Wagener and Wagener Equities
were liable under the Act as the “senders” of the fax even
though it was actually transmitted by Caroline Abraham doing
business as B2B.
There were only two witnesses at trial. Paldo Sign pre-
sented the testimony of Caroline Abraham by having her
deposition read to the jury and called Daniel Wagener to testify
during the plaintiff’s case-in-chief. Daniel Wagener also
testified for the defense on behalf of himself and Wagener
Equities. Documentary evidence included the faxes sent to
Wagener, including sample ads, prices, and a “Welcome
Aboard” letter with instructions on starting up the fax cam-
paign. As we noted above, a jury concluded that Wagener and
Wagener Equities were not liable for sending the faxes, and the
court entered judgment for the defendants. Paldo Sign appeals.
II.
On appeal, Paldo Sign challenges the jury instructions
regarding sender liability and also contends that the district
court abused its discretion in allowing testimony by Caroline
Abraham that, prior to running B2B, she operated a diploma
mill. We review de novo whether a challenged jury instruction
fairly and accurately summarized the law, but the trial court's
decision to give a particular instruction is reviewed for an
abuse of discretion. United States v. Lawrence, 788 F.3d 234, 245
6 No. 15-1267
(7th Cir. 2015). We will reverse only if the instructions, taken
as a whole, misled the jury. United States v. Curtis, 781 F.3d 904,
907 (7th Cir. 2015). We review the district court's evidentiary
rulings for abuse of discretion. Griffin v. Bell, 694 F.3d 817, 826
(7th Cir. 2012); Everroad v. Scott Truck Sys., Inc., 604 F.3d 471,
475 (7th Cir. 2010).
A.
The regulations implementing the Act specify that “[n]o
person or entity may … [u]se a telephone facsimile machine,
computer, or other device to send an unsolicited advertisement
to a telephone facsimile machine, unless” certain conditions are
met. 47 C.F.R. § 64.1200(a)(4). In turn, the regulations define
the “sender” as “the person or entity on whose behalf a
facsimile unsolicited advertisement is sent or whose goods or
services are advertised or promoted in the unsolicited adver-
tisement.” 47 C.F.R. § 64.1200(f)(10). After the district court
granted partial summary judgment prior to trial, the only issue
remaining for the jury was whether Daniel Wagener and
Wagener Equities qualified as “senders” of the faxes when B2B
was the entity that actually transmitted the faxes.
In instructing the jury on the meaning of “sender,” the
district court rejected a reading of the statute and regulations
that imposed strict liability. The court instructed:
In this case, Paldo Sign claims that Wagener
Equities and Dan Wagener violated the Tele-
phone Consumer Protection Act on or about
November 9th, 2006, by authorizing a third-
party sender, Business to Business Solutions,
also known as B2B, to send a facsimile advertise-
No. 15-1267 7
ment on behalf of Wagener Equities to approxi-
mately 20,000 recipients, one of which was
Paldo Sign. I will refer to the sending of that
facsimile advertisement as the fax broadcast
transmission.
As I told you at the outset of this trial, there are
two issues that you must decide in this case. The
first is whether defendant Wagener Equities
authorized the fax broadcast transmission, and
the second is whether defendant Dan Wagener
had direct, personal participation in the authori-
zation of the broadcast transmission.
As used in these instructions, the word “autho-
rized” or the word “authorization,” and you will
see that authorization is in brackets, authorized
means caused by words or conduct the fax
broadcaster, B2B, to believe reasonably that
Wagener Equities approved the sending of the
fax broadcast transmission. It does not mean
that Wagener Equities approved the recipients
of the fax broadcast transmission.
Similarly, authorization means the causing of by
words or conduct the fax broadcaster, B2B, to
believe reasonably that Wagener Equities ap-
proved the sending of the fax broadcast trans-
mission. It does not mean that Wagener Equities
approved the recipients of the fax broadcast
transmission.
R. 319 at 247-48.
8 No. 15-1267
Paldo Sign argues that the court should have confined the
definition of “sender” to the language of the regulation.
According to Paldo Sign, the court’s instruction instead
imported a common law vicarious liability standard through
the use of the word “authorized,” which required the jury to
find something more than B2B sending the advertisements “on
behalf of” Wagener and Wagener Equities. Paldo Sign also
contends that the court’s use of agency analysis conflicts with
cases from other circuits.
After the appeal was briefed, we issued an opinion in a
very similar case that also involved sender liability for a
company that used the services of B2B for fax advertising. See
Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935 (7th Cir.
2016). In Clark, we rejected a reading of the regulations that
would impose strict liability on a company whose goods or
services were advertised, recognizing that this would lead to
absurd and unintended results. 816 F.3d at 938. For example,
if a competitor of Wagener Equities sent out ten thousand
unsolicited fax advertisements promoting Wagener’s services,
the resulting lawsuit could bankrupt Wagener even though
Wagener played no part in sending the faxes. Although the
literal language of the regulation suggests that such a result is
possible, we noted that to be liable as a sender, a person must
have done something to advertise goods or services. Citing
47 C.F.R. § 64.1200(f)(10), we ultimately held that “agency rules
are properly applied to determine whether an action is done
‘on behalf’ of a principal.” 816 F.3d at 938.
The instruction given by the district court required the
plaintiffs to prove that Wagener and Wagener Equities “caused
by words or conduct the fax broadcaster, B2B, to believe
No. 15-1267 9
reasonably that Wagener Equities approved the sending of the
fax broadcast transmission.” R. 319 at 247-48. That language is
consistent with the agency analysis we applied in Clark. We
noted in Clark that for the plaintiff to prove express, actual
authority, the defendant “must have directly spoken or written
to B2B, telling it to send … fax ads across multiple states.”
Paldo Sign’s theory of the case2 was that Wagener took all the
steps listed in B2B’s “Welcome Aboard” fax to initiate the
advertising campaign, and that Wagener is therefore liable as
a sender. Wagener defended by noting that the initial fax
indicated that no advertisement would be sent without his
final approval, that he had an agreement with Wilson to
review the contact list and final ad before any faxes went out,
and that the faxes were sent without an opportunity to review
the contact list or to approve the final content and form of the
ad. The jury apparently credited Wagener’s testimony that he
had told B2B not to send any ads without his final approval
and an opportunity to review the contact list. As in Clark,
“[b]ecause B2B expressly contradicted [defendant’s] actual
instructions, this is clearly not express actual agency.” Clark,
816 F.3d at 939. Paldo Sign did not argue that the faxes were
sent under Wagener’s implied or apparent authority, and so
the jury instructions given were a correct and complete
statement of the law. Paldo Sign gives us no reason to doubt
the holding of Clark. We conclude that the challenged jury
2
Paldo Sign initially also pursued a strict liability theory, that Wagener was
liable because Wagener Equities’ goods and services were promoted in the
faxes. Paldo Sign appears to have dropped that argument on appeal. In any
case, we clearly rejected strict liability in Clark, and so we need not address
that theory further.
10 No. 15-1267
instruction fairly and accurately summarized the law, and that
the trial court did not abuse its discretion in giving this
particular instruction. Lawrence, 788 F.3d at 245; Curtis, 781 F.3d
at 907.
B.
In seeking to prove its case, Paldo Sign relied on documen-
tary evidence and the testimony of Abraham and Wagener.
Abraham, whose testimony was presented by deposition, was
the sole proprietor of the fax advertising business that she ran
under the names B2B, Business to Business Solutions and
Marketing Research Center. Paldo Sign called Wagener as an
adverse witness in hopes of establishing that he was the person
who caused the faxes to be disseminated, that he was the
“sender” as that term is used in the statute and regulations.
Needless to say, Abraham’s testimony was key to Paldo Sign
proving its case.
Abraham testified extensively about how she ran her fax
advertising business with the assistance of a Romanian
company, Macaw, and their independent contractor sales
personnel, including Kevin Wilson. She explained the sales
process and the regular business practices of the enterprise.
Abraham drafted all of the business documents for the
venture, including the sales materials that were transmitted to
potential customers such as Wagener. At various points in her
testimony, counsel asked Abraham whether she strove to be
truthful and accurate in her business communications, and she
consistently affirmed that she did. R. 318 at 67 (“I’m assuming
you wanted to be truthful in your representations of the
wording on those documents, correct?” “Yes.”); R. 318 at 68
No. 15-1267 11
(“And all of those documents that provided the process for
those fax advertisement services were accurate and truthful,
correct?” “Yes.”); R. 318 at 70 (“Again, you wanted to be
truthful and make accurate representations about the process
in that [payment] letter, correct?” “Yes.”). Abraham also
testified that she sent out the payment letter to Wagener under
Wilson’s name and that she did not show the letter to Wilson
first. The payment letter instructed the recipient on the steps to
take to initiate the fax campaign. When asked whether there
was any indication from Wilson that he agreed that the
payment letter set forth the terms of his arrangement with
Wagener, she replied, “Only the fact that I wrote it based on
what he told me about. I wouldn’t have written anything else.”
R. 318 at 99. Paldo Sign never called Wilson to testify. Aside
from Wagener’s testimony, the only information presented to
the jury regarding agreements between Wilson and Wagener
came from inferences that could be drawn from Abraham’s
testimony and from faxes sent to Wagener purportedly by
Wilson (which were actually sent by Abraham). The plaintiff
thus made Abraham’s credibility the centerpiece of its case.
In questioning Abraham about her business background,
counsel engaged in the following exchange with Abraham:
Q. Did you have any involvement in something
called university degree program?
A. Yes. Years before that.
Q. What was that business about?
12 No. 15-1267
A. That was a diploma mill selling diplomas to
people based on work experience and life expe-
rience as opposed to classes.
Q. Were you the owner of that business entity?
A. No.
Q. Who was the owner of that business entity?
A. There were a number of different companies
connected different ways. I don’t remember
being an actual owner, but I was in charge of a
lot of it.
Q. Who was the owner? Do you know?
A. I don’t know. I don’t remember how it was
set up. My husband and I, we were the people
running the whole thing.
Q. You indicated you were the sole employee of
or owner representative for that entity, correct?
A. Yes.
R. 318 at 63. The exchange occupied less than one page in
testimony lasting fifty-eight pages.
Prior to trial, Paldo Sign moved to exclude Abraham’s
testimony that she had run a diploma mill, arguing that the
testimony amounted to inadmissible character evidence of a
prior bad act, that it was unrelated to the events at issue in the
case, and that it was too remote in time to be relevant. On
appeal, Paldo Sign adds that, although the testimony con-
cerned a prior unrelated business, and did not suggest that the
business was deceitful to its customers, the defendants used
No. 15-1267 13
the evidence to argue that Marketing Research and its employ-
ees were generally inclined to defraud clients. Paldo Sign
contends that the court should have excluded the evidence
under Federal Rules of Evidence 404(a), which generally
prohibits evidence of a person’s character to prove that on a
particular occasion the person acted in accordance with that
character, and 608(b), which prohibits the use of extrinsic
evidence to prove specific instances of a witness’s conduct in
order to attack the witness’s character for truthfulness.
The district court did not abuse its discretion in admitting
the diploma mill evidence. The court ruled that the disputed
testimony was admissible
because Abraham admitted that the business
was a diploma mill which is a term that I don’t
find to be ambiguous as to its import. I think it
clearly refers to an acknowledgment that the
operation issued illegitimate diplomas. There
was an argument, well, they weren’t defrauding
the customer, certainly, but I don’t think that’s
the point. The point of a diploma mill is to issue
diplomas that are going to be used to misrepre-
sent the academic achievements of the people
who are buying them. She was in a business, by
her own admission, I think, that was facilitating
that process. I do find that to be quite probative
of her character for honesty. It’s not remote in
time.… It’s limited. This is the only excerpt I am
permitting on this subject, even though several
others were proposed that also touched on this.
And this will be brief. It does not require the
14 No. 15-1267
introduction and I am not permitting the intro-
duction of any further extrinsic evidence on the
point.
R. 305-3 at 9-10.
In arguing for the inadmissibility of the diploma mill
evidence, the plaintiff relies in part on Rule 404(a), but that rule
contains an exception for evidence admitted under Rules 607
and 608. Rule 607 provides that any party may attack a wit-
ness’s credibility. And Rule 608(a) provides in relevant part
that a witness’s credibility may be attacked by testimony about
the witness’s reputation for having a character for untruthful-
ness. The evidence admitted here comes squarely within those
two rules. Abraham’s testimony demonstrated a character for
untruthfulness because she admitted running a business whose
sole product was a deceitful document misrepresenting the
credentials of the person presenting it.3 She ran a business that,
in essence, sold lies. That evidence was highly relevant to her
character for untruthfulness, and her credibility was the key to
Paldo Sign’s case. Abraham emphasized in her testimony that
she sought to be truthful in all of her business documents. She
3
The Federal Trade Commission warns consumers that “there are some
organizations that peddle bogus degrees. A ‘diploma mill’ is a company
that offers ‘degrees’ for a flat fee in a short amount of time and requires
little to no course work. Degrees awarded through diploma mills are not
legitimate, and can cost you more than just your money.” See
https://www.consumer.ftc.gov/articles/0206-college-degree-scams (last
visited May 25, 2016). The FTC goes on to warn that persons using “a
so-called ‘degree’ from a diploma mill to apply for a job or promotion …
risk not getting hired, getting fired, and possible prosecution.”
No. 15-1267 15
testified that she wrote the payment letter according to the
terms communicated to her by the sales person, Kevin Wilson,
and that she would not have written it any other way. The
payment letter purportedly instructed Wagener on how to
commence the ad campaign, but the terms differed from those
to which Wagener said he agreed.
The plaintiff’s argument that the evidence somehow
violated Rule 608(b) misses the mark. Rule 608(b) prohibits
only the use of extrinsic evidence, not lines of questioning.
United States v. Dvorkin, 799 F.3d 867, 883 (7th Cir. 2015). And
the rule expressly affords the trial judge broad discretion to
allow such questioning regarding prior instances of conduct if
they are probative of the character for truthfulness or untruth-
fulness of the witness. Fed. R. Evid. 608(b); United States v. Holt,
486 F.3d 997, 1002 (7th Cir. 2007). As the district court noted,
no extrinsic evidence was allowed to prove specific instances
of misconduct. For example, there was no testimony by a
customer who purchased a diploma from Abraham’s business,
or a company that was defrauded when it hired an employee
on the basis of a fake diploma. The evidence was limited to
Abraham’s own admission that she ran a “diploma mill,” a
term that the district court acknowledged is not ambiguous.
This evidence was not extrinsic and so Rule 608(b) does not bar
it. See also United States v. Abair, 746 F.3d 260, 263-64 (7th Cir.
2014) (noting that Rule 608(b) bars extrinsic evidence of prior
conduct to undermine a witness’s credibility but gives trial
judges discretion to allow counsel to ask questions about that
conduct on cross-examination, subject to Rule 403). Nor did the
court abuse its discretion under Rule 403, which provides that
the “court may exclude relevant evidence if its probative value
16 No. 15-1267
is substantially outweighed by a danger of … unfair preju-
dice.” The court carefully limited the testimony to one brief
instance of Abraham’s prior conduct that the court found most
probative of her character for untruthfulness, and concluded
on balance that admission of this evidence was fair.
Paldo Sign also misses the mark in complaining that the
diploma mill testimony was used to undermine Wilson’s
credibility. Wilson never testified and so his credibility was not
at issue. In fact, it was Abraham who wrote the documents that
were sent under Wilson’s name. Wilson’s only role was to
engage in sale calls with Wagener, and Wagener was the only
witness presented by Paldo Sign with personal knowledge of
the content of those conversations. By relying so heavily on
Abraham’s testimony regarding the deal between B2B and
Wagener, Paldo Sign placed Abraham’s credibility, not Wil-
son’s, at the center of the case. The court did not abuse its
discretion in admitting her own limited testimony that she
previously ran a diploma mill, an admission that fairly called
her credibility into question.
AFFIRMED.