October 16, 2021

Volume XI, Number 289

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Summary Judgment Denied in Lawsuit Over Unsolicited Fax Advertisements

The Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227, took center stage in a recent opinion by the U.S. District Court for the Western District of Michigan in  Van Sweeden Jewelers, Inc. v. 101 VT, Inc., Case No. 1:10-cv-253 (Hon. Janet T. Neff, presiding).   The TCPA prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement" and provides for statutory damages of $500 per violation or the actual monetary loss from the violation, whichever is greater, to a TCPA plaintiff.  47 U.S.C. § 227(b)(1)(C) and (b)(3). 

In this case, Plaintiff Van Sweeden Jewelers, Inc. filed a class action lawsuit against Defendant 101 VT, Inc. (a jewelry design and manufacturing company) and Defendants Vatche and Vahe Keledjian (officers / employees of 101 VT), in the Western District of Michigan.  Plaintiff alleged that Defendants faxed unsolicited advertisements for jewelry services to Plaintiff and nearly 5,000 other recipients in violation of the TCPA.

Defendants moved for Summary Judgment on a number of theories, including that:  (1) Plaintiff had no evidence that it received a fax from Defendants; (2) Defendant Keledjian is not individually liable for Defendant 101 VT's corporate conduct; and (3) the faxes were not violations of the TCPA because "the sender of the fax has an established business relationship (EBR) with the recipient" under 47 U.S.C. § 227(b)(1)(C).

The Court rejected Defendants' arguments and denied the Motion.  First, the Court clarified that the TCPA prohibits the mere sending of an unsolicited advertisement.  Thus, a TCPA plaintiff does not need to prove that the advertisement was successfully received.  Second, the Court held that "individuals acting on behalf of a corporation may be held personally liable for violations of the TCPA where they had direct, personal participation in or personally authorized the conduct found to have violated the statute."  Therefore, "If Plaintiff can prove that Defendant Vatche Keledjian directly participated in or authorized the statutory violations, [he] may be personally liable under the TCPA."  Third, the Court held that Defendants failed to meet their burden of showing that there was no genuine issue of material fact concerning the alleged EBR with Plaintiff.

© 2021 Varnum LLPNational Law Review, Volume II, Number 181
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Our commercial and corporate attorneys work daily on a variety of contract matters, including supplier contracts, licensing, procurement, sales contracts and contract administration.

Varnum attorneys serve our business clients’ needs in complex transactions governed by the Uniform Commercial Code, which includes Article 2 (Sales of Goods) and Article 9 (Secured Transactions). We have expertise in all facets of commercial sales, including drafting of purchase orders, quotes, and acknowledgments to protect the rights of buyers and sellers...

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