Michigan Court Holds Business Owner Individually Liable For TCPA Violation But Denies Request For Treble Damages

by Burr & Forman
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Jackson Five Star Catering, Inc. v. John R. Beason and Tax Connection Worldwide, LLC, No. 10-10010, 2013 WL 5966340 (E.D. Mich. Nov. 8, 2013)

Pending before the Court were several motions, including Defendant business owner’s motion for summary judgment, contending he could not be held individually liable for unsolicited fax advertisements sent by a third party on behalf of his company.  Defendant argued that he could only be held individually liable if Plaintiff pierced the corporate veil.  Rejecting this argument, the court noted that though the Sixth Circuit Court of Appeals has not yet ruled on the issue, many courts have held that corporate actors can be individually liable for TCPA violations “where they ‘had direct, personal participation in or personally authorized the conduct found to have violated the statute.’”

In this case, the business owner confirmed he was the only person authorized to issue a check for the business. The check contained a memo line that stated “5,000 fax ads,” “Client No. J121317? and was issued to the third party in the amount of $268. The check was drawn on an account for the business owner and signed by him. As a result, the court concluded the business owner was individually liable for violation of the TCPA.

The court did, however, deny Plaintiff’s Motion for an award of treble damages, which contended that because “the faxes were sent on purpose, rather than accidentally, [. . .] treble damages are warranted.” Specifically, the Court stated that “[i]n its discretion, the Court will decline this request. The facts of this case mirror those of Bridgeview Health Care Ctr. Ltd. v. Clark, 90 C 5601, 2013 WL 1154206 (N.D. Ill. Mar. 19, 2013). The Bridgeview court noted that defendant was a small business owner who never sought a fax marketing company to send out faxes. As it did with many businesses, Business Solutions contacted the defendant and offered to conduct a faxing campaign to generate business leads, despite the fact that this conduct is prohibited by the TCPA. Business Solutions has recently been involved in dozens of cases where it illegally broadcast faxes for its solicited clients. As a result, the court declined to issue an award for treble damages. This reasoning is both persuasive and applicable to this case. In the Court’s determination, an award of treble damages is not appropriate.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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