May 25, 2020

Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case

We have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA. Id. at 1254.

As we have previously reported, the FCC’s letter brief (and now Sarris) appear to be inconsistent with the FCC’s position in the voice call context, where it has ruled that a “seller” of goods or services is not directly liable for calls made by a “telemarketer” on its behalf, and instead the seller’s possible vicarious liability turns on the application of federal common law agency principles. See In re Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574 (2013) (“Dish Network”) (limiting direct liability to “telemarketers” that “initiate” calls and applying agency principles to determine vicarious liability of “sellers” for calls made on their behalf). Notwithstanding this apparent divide, district courts within the Eleventh Circuit have followed Sarris (granted, they must). See, e.g., Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, No. 12-22330-CIV, 2015 WL 1257983, at *1 (S.D. Fla. Mar. 18, 2015).

The reach of Sarris has extended beyond the Eleventh Circuit, on two occasions thus far. The first was a decision from the District of Minnesota. See Bais Yaakov v. Varitronics, LLC, No. CIV. 14-5008 ADM/FLN, 2015 WL 1529279, at *5 (D. Minn. Apr. 3, 2015) (citing Sarris and noting “a plaintiff is not required to establish vicarious liability … when a third party sends the unsolicited fax advertisements”). More recently, the Northern District of Illinois applied the Sarris court’s broad definition of “sender” and denied a defendant’s motion to dismiss. See Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc., No. 14 CV 10127, 2015 WL 2330197 (N.D. Ill. May 14, 2015) (“Darden”).

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About this Author

Justin Kay, class action lawyer, Drinker Biddle

Justin O. Kay focuses on defending complex civil matters in federal court, state court, and before federal agencies. He is a regular contributor to the TCPA blog, a defense-oriented resource analyzing TCPA-related litigation and regulatory developments. Justin is a Vice Chair of the firm’s Class Actions Team and a member of the Telephone Consumer Protection Act Team. Justin is also the Chair of the firmwide National Hiring Committee, which oversees the recruiting and hiring of associates.

Matthew J. Adler, attorney, Drinker Bilddle, San Francisco, healthcare, telecommunications

Matthew J. Adler represents clients across a broad range of industries, including health care, retail and telecommunications. He focuses his practice on complex commercial disputes, multi-state consumer class actions and product liability litigation. Matt has litigated cases in state and federal court, at both the trial and appellate level, and he is particularly skilled in pre-trial motion practice.

Matthew is a regular on the firm's Associates Committee and a regular contributor to Drinker Biddle’s Telephone Consumer Protection Act (“TCPA”) Blog, which regularly provides news and insights concerning TCPA. Prior to joining the firm, Matt worked as a staff attorney for the Supreme Court of California. He also served as a judicial extern while in Law School for Honorable Kathryn M. Werdegar, Associate Justice of the Supreme Court of California.