palm beach versus seris which is an opinion the eleventh circuit issued in two thousand and fifteen so in two thousand and fifteen we have this this this court and the eleventh circuit all all agree both agreeing that the advertiser in the facts advertisement is considered the sender of its own advertisement and principles of vicarious liability do not apply the district court had ruled that because the defendant outsourced its facts campaign to third party the defendant was not the sender of the facts that somebody else physically sent it and also ruled that point of couldn't show vicarious liability because that was somehow assured by this broadcaster that it was okayed for them to send faxes to people that they had prior relationships with five thousand plus in ohio  five before the faxes were sent the f c c issued a binding interpretation of the word sender because there was some statute doesn't say who can be sued when it says it's that you can that it's unlawful to use a fax machine to send an unsolicited advertisement doesn't say who can be sued when one is sent so in one thousand nine hundred five the f c c issues an order saying the entity quote the entity on whose behalf facsimiles or transmitted ultimately liable for compliance unquote and quote facts broadcasters are not liable for compliance unquote so in one thousand nine hundred five the f c c says in a binding order that the advertiser is liable and the broadcaster is  interpretation so im off was about faxes that were that occurred after the regulation and palm beach versus sirius was about faxes like in this case that occurred before the regulation but the point is since one thousand nine hundred five the c made it clear that if your goods are advertised on a fax and you hired somebody to send a fax you as the advertiser are ultimately liable with compliance with the statute not somebody else you can't delegate it to somebody else sort of a leading question sort of a legal term of art i'm not sure i mean people talk about all the all the time did somebody do something on your behalf i mean it's not really a legal term under the i don't know ultimately we would contend that the class should be certified in summary judgment should be entered for the class there's no question that these facts you filed a motion for summary judgment to know we didn't because rule twenty three requires that class or vacation occur first so the defendant moves for judgment and we come here and if this court reverses and we go back to trial court and they'll say well plaintiff can't get summary judgment the sixth circuit already said no summary judgment is appropriate but legally they're the district court was wrong and defendant is wrong legally as a matter of law the defendant is liable for these faxes and then factually i'm just trying to give you some background that he decided that i mean to say i agree with you that mr quirke applied the wrong equals standard can we rule today need to be resolved if we ruled in your favor i really don't think there is an issue of fact it's just a question of the phone it hasn't admitted conceded liability of the cases pleaded as a class action the rules say we're supposed to resolve that issue  first but of course the defendant can always file but your honor cancer question i'm not really sure because you know parties file cross motions all the time sometimes a judge says look i don't need to do that i can in a declaratory judgment about insurance coverage and we need one and all rule understand i mean i don't know i might be that might be the easiest thing for you but the point of me getting into some of the factual background is this to show you that it's also the right result i mean some of these cases they start from the perspective of this poor guy just didn't know what was going on and he was tricked into sending faxes or whatever but this guy says look i didn't even i didn't even if they told me it was legal because they sent it to their former customers and we asked were you even thinking about legality no did you even know there was a law about advertising fax advertising no and if somebody is telling you that something about advertising is legal why doesn't that put the guy on some kind of notice to that he should probably look at it because i if i'm going to go to wal mart and buy something they say it's legal to buy this i say what i mean what i mean w why would you tell me it's legal and in fact be to be itself is basically ignorant of the law to they say gee we thought if we faxed people repeatedly and told them they couldn't make it stop if they asked us to stop then it whoever didn't  is given permission for faxes so he kind of tries to outsource his not just the faxing but his compliance with the law but then even the broadcaster says gee we don't know and in this case this is a unique factual situation because after he sends the first fa broadcast he gets letters from ohio lawyers he's in law in ohio ohio letter boyer's saying you violated the statute here's the statute here's what it says even one of them you had a draft complaint he got calls and then he says he talked to b to  don't worry about it there are they don't know what they're talking about and so i sense three or four thousand more and the but the district court said you know erred by applying these vicarious liability principles and said well how can you ever prove that they acted within the scope of their things and to the define it also said that it made it clear why he sent these it was beef because for a couple hundred dollars you got some you got some new customers out of it and fax advertising really is one of the cheapest forms of advertising unless an except this illegal and if you get caught it's then it's really expensive but the district court should be reversed because it applied the wrong legal standard and should should have followed cyrus and definitely should follow this court's opinions so if there's no the questions i'd like to reserve duped by an unscrupulous business b to be lied to my client and intentionally met misled my client not about statements of of the law or the legality of the faxing they misrepresented the facts what they told my client is the that these faxes would only be sent to persons who had previously agreed to send the faxes and that they had permission to send these faxes that's undisputed it's not just my client's testimony it's in multiple documents that be to be provided to my client i'm in also to documents that the be to be sent to lawyers who raised a complaint about the  fact that's undisputed in this case the b to b to b knew when it made these representations that the representations were not true this isn't a mistake of fact by b two b it's an intentional misrepresentation designed to further their scheme of getting my client to retain their services so in dispute so a b to b knew it was not true but unfortunately my client did not so i believe that the question really for the court in question raised by plaintiff's counsel is what standard what legal standard applies to this conduct and whether the congress and the f c c intimidate a client took decision addressed factors that occurred after august one two thousand and six these faxes both occurred before august one two thousand and six why does it matter because there's an f c c regulation that first becomes effective after august one two thousand and six now plaintiff claims look there was no change between what was said in one thousand nine hundred five and what was said in two thousand and six it's all consistent it's all the same rule it's been the rule senator the term senator means the person or into the on whose behalf a facsimile advertisement or sent or whose goods or services are advertised or promoted in the unsolicited advertisement so for the first time effective august one two thousand and six the f c c regulation ads or whose goods or services are advertised or promoted in the unsolicited advertising the f c c prior to that time the f c c had never indicated that the mere presence of your name in an ad would be sufficient to hold you liable so regulated parties would have no way of knowing this petition no your honor i'm not i'm arguing that they should've applied vicarious liability why are you arguing this well because i want to show the difference first between the regulation effective after after two thousand and six say they don't apply either one of  the consolidated class action there were fourteen different class actions all the defendants in that class action were challenging the constitutionality of the t c p with respect to faxing it just record here so leave the common law right correct you're you're saying district court came to the right result for the wrong reason even if the district court it looked to the ninety five regulation that the district court would have ruled the same way or that brief filed in april of two thousand and four where they said the t c p a incorporates the bedrock legal principle of common law vicarious liability my thought is also the meier united states supreme court which says when a statute is silent we assume that it incorporates principles of common law vicarious liability my authority is best foods versus united states where courts had adopted a standard of liability for circle cases that went beyond calm all principles of vicarious liability in the eleventh circuit in that palm beach call center case reject your argument your honor they did reject vicarious liability i don't what with the eleventh circuit they didn't go into detail about the fact that the faxes were sent prior to august one two thousand and six the f c c in the letter brief that it provided to the eleventh circuit relied on the august one two thousand and six and i believe that the eleventh circuit repeated that mistake in terms of relying on the new regulation despite the fact that the faxes were sent honor but what the dish network brings to my argument is the fact that the f c c is construing on whose behalf language and they say that on whose behalf at least with respect to the t c p a as it relates to telemarketing on whose behalf means vicarious liability so all we have when we send these faxes we have the nine hundred ninety five memorandum in order that says on whose behalf believe before we send the first faxes maybe a little over a year they said it's consistent with that's what they said subsequently that's not what they said in that april  thousand and four brief they say it incorporates common law principles of liability they say that the t c p a does in light of its silence and that's how the the f c c gets around the vagueness challenge to the constitutionality of  a so you have the f c c to survive a constitutional challenge saying no no the t c p a with respect to faxing incorporates common law principles of liability then years later long after we've sent the fa they say know what we meant when we said on whose behalf it is actually some broader form an unknown standard that courts are still struggling with to understand what on who behalf means in terms of the standard in terms of what plaintiff relies on to argue merely that the goods and services being advertised is enough first of all the impost decision that decision relies on the regulation that didn't become effective until after the fact that issue were sent it relies on the f c c regulation itself which plaintiff acknowledges in its response page eleven does not apply to the fact is that were sent and it relies on the letter to  c is letter to the eleventh circuit which again referenced and relied on the plain language of the august one two thousand and six regulation and there is obviously a big difference between what was s and the question is are we do it is the standard proper standard vicarious liability which is what the disregard said or is that this on behalf of which would almost certainly require us to remain and let the district court sort that out in the first instance you're no no but i do believe that it should give insight into what the f c c meant by on whose behalf should also give insight into what regulated parties might construe on whose behalf to meet so if you're regulated proprietorship and that a romanian company called mccall or something like that with a guy using a pseudonym and i mean is was it reasonable for out or client to rely on b to be sure this was all legal well certainly in hindsight it was not your honor at the time there was no reason i don't think there were red flags you know you're not spending a lot of time thinking about who you're engaging to do advertising with they had experience with the faxes they made representations about the fact is there's nothing in particular at least in my mind as it's occurring that would give rise to concerned that's correct your honor there were in the first broadcast in november of two thousand and five there were three thousand three hundred sixty five factors that were sex successfully transmitted according to the plaintiff we received three complaints two from the same attorney  so you have three total complaints you have b to be say don't worry if you get complaints will take care of him we send him to b to b b to b takes care of as far as we know b to b doesn't pay a dime on these and the attorneys go away just as v two b s letter predicts that they're going to do and certainly there's no despite the threats of a lawsuit there was no lawsuit against my client there was no settlement paid by my client no money was paid at all by my client so the complaints first of all it's less than one zero point one percent complaints theirs and we believe at the time there's five thousand faxes sent you get three mourners listening to my my brother this morning i make your question your honor about the on behalf of i think it really is more of a i think it's clear that it is it doesn't mean if you hire somebody to send advertising by unsolicited fax ads and fax broadcasters are not what their argument is that if the facts doesn't comply with the rule then it's not on behalf of but that turns it around that says if the fax is sent on your behalf then you must make sure it com with the rule they say well it didn't comply with the rule therefore it wasn't on our behalf that that really makes it very difficult in this i mean if you can't prove these guys violated this law how can you everybody should outsource it the macaw and in romania he says there's no no red flags but if you read the facts itself at the bottom it says this is document thirty nine dish two in the record at page nine if you do not remove your number it will certify that you give permission to continue to send faxes to this number was not a proper state that's not true that's not it's not a negative option statute you don't get the facts until people beg you to stop or sue you to stop or hire heigho lawyers to threaten you  it also says the fax the guy approved and said this is my fax it says things like the above sponsor is not affiliated with it's about helping flood victims and it talks about some company in romania nothing comes up nothing nothing because it's so cheap and he doesn't care and he just sticks his head in the sand essentially and now i'm hearing an argument that the guys are relying on the accounting outsourcing brief filed by the d o j witch in an argument that was rejected by the district court but it doesn't follow the law read the law research a large google junk fat you know facts advertising doesn't do any of that but should be defended by the d o j is brief that argued the statute is constitutional the issue wasn't who is the sender it was about the constitutionality of the thing and the d o j doesn't overrule a binding order of the f c c and the fact that you can have vicarious liability too doesn't mean you can't have direct the liability of somebody who send somebody who hire somebody to send advertisements by fax is directly primarily liable ultimately liable according to the f c c for compliance what if you just hire somebody a marketing crew and you think well the pride just do some t v ads or maybe something on the bus or whatever and they send some junk faxes and you say well i didn't i never agreed to faxes those early goal they could be vicariously liable if you can prove that and that and that's why you can have room for both vicariously it doesn't make it's not inconsistent for the f t c you see to have a lawyer say in in two thousand and four that vicarious liability is available because the the is it's this the advertisers always liable and sometimes the broadcaster can be jointly and severally liable but but the and quot in parentheses it says with the advertiser so it's not about who do we have to sue because we can sue b to be in this case instead and they would say well gee we thought we thought it was ok to send these faxes because of this and because of that and then i guess you know then we just put all of the people who have fax machines in the should be up to them to prevent that you know but that but not really in our society where congress passed a law twenty years as ago that says don't do this and the f c c keeps saying don't do it don't do it courts keep saying don't do it people are still doing it  undisputed that b to be said anything about consent or permission i've read the gods of those depositions several times i don't see he never says they told him permission or consent he's asked did they tell you permission or consent he says they said it was legal because they know these people or they send them faxes all the time or but at the end of the day that your honors the court should reverse the district court for following the palm beach versus sarah's district court opinion that was reversed by by the eleventh circuit and for saying the vicarious liability principles govern this case when the f c c said in one thousand nine hundred five that it's direct liability on the advertiser regardless of the regulation two thousand and six we don't have to hang our hat on does this does this fax advertise their stuff because we have the primary the first part of that is that they hire them to send it he says that's my fix them to send this on my behalf now on my behalf legally or versus