PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

Nos. 16-3000 & 17-1851

______________

CITY SELECT AUTO SALES INC., A NEW JERSEY 

CORPORATION, INDIVIDUALLY AND AS THE 

REPRESENTATIVE OF A CLASS OF 

SIMILARLY SITUATED PERSONS,

Appellant

v.

DAVID RANDALL ASSOCIATES, INC.; 

RAYMOND MILEY, III

v.

CAROLINE ABRAHAM, d/b/a Business to Business 

Solutions; JOEL ABRAHAM, d/b/a Business to Business 

Solutions

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 1-11-cv-02658)

District Judge: Honorable Jerome B. Simandle

______________
2

Argued January 24, 2018

Before: HARDIMAN, VANASKIE, and SHWARTZ, 

Circuit Judges.

(Filed: March 16, 2018)

Daniel J. Cohen [ARGUED]

Todd A. Lewis

Bock Hatch Lewis & Oppenheim

134 North La Salle Street

Suite 1000

Chicago, IL 60602

Alan C. Milstein

Sherman Silverstein Kohl Rose & Podolsky

308 Harper Drive

Suite 200, Eastgate Corporate Center

Moorestown, NJ 08057

Counsel for Appellant

F. Emmett Fitzpatrick, III [ARGUED]

Flamm Walton

794 Penllyn Pike

Suite 100

Blue Bell, PA 19446

Counsel for Appellees
3

_____________

OPINION

______________

HARDIMAN, Circuit Judge.

Plaintiff City Select Auto Sales, Inc. received 

unsolicited fax transmissions advertising the services of 

Defendant David Randall Associates, Inc. (David Randall). 

Claiming that those faxes were sent in violation of the 

Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, 

City Select sued David Randall and its former president and 

co-owner, Raymond Miley, III. The case against Miley was 

tried to a jury and he was found not liable under the TCPA.

After the United States District Court for the District of New 

Jersey entered judgment in favor of Miley and denied City 

Select’s motion for a new trial, City Select filed this timely 

appeal.

I

A

At all relevant times, David Randall was a 

Pennsylvania-based commercial roofing company. Miley was 

its president and, with his wife, owned 90 percent of the 

company. The company’s office manager, April Clemmer, 

reported to Miley and her responsibilities included “[b]asic 

secretarial duties” and “work with the service department.”

App. 354.

In March, April, and May 2006, David Randall hired

Business to Business Solutions (Business Solutions) to fax
4

unsolicited advertisements to thousands of fax numbers. The 

first transmissions were sent on March 29 after Clemmer, with 

Miley’s handwritten approval, confirmed by fax the content of 

the ad, the quantity of faxes to be sent, and the areas to be 

targeted. David Randall received complaints in response to that 

initial foray into fax advertising, and Clemmer contacted 

Business Solutions to have several fax numbers removed from 

the list. On March 31, Business Solutions sent a second wave 

of faxes, which prompted several recipients to ask that their fax 

numbers be taken off the list. Two days later came a third burst 

of transmissions and on May 15, 2006, Business Solutions sent 

a fourth and final “blast” of 12,000 faxes. 

B

1

City Select (on behalf of itself and a class of similarlysituated fax recipients) sued both David Randall and Miley in 

the United States District Court for the District of New Jersey. 

City Select’s complaint alleged that the four fax campaigns had 

violated the TCPA’s prohibition against unsolicited fax 

advertising. After discovery, the parties filed summary 

judgment motions. The Court denied David Randall’s and 

Miley’s motion for summary judgment. City Select Auto Sales, 

Inc. v. David Randall Assocs., Inc., 2014 WL 4755487, at *1, 

*4–10 (D.N.J. Sept. 24, 2014). It also denied City Select’s 

motion for summary judgment against Miley. It granted City 

Select’s motion against David Randall, however, and entered 

judgment against the company in the amount of $22,405,000.
5

City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., 96 

F. Supp. 3d 403, 416–22, 427–28 (D.N.J. 2015).

1

 

The case proceeded to trial on the question of Miley’s 

personal liability under the TCPA. The evidence on that point 

was mixed. On direct examination, Clemmer testified that 

Miley first suggested fax advertising through Business 

Solutions and instructed her to contact the company to inquire 

about its services. Clemmer said she contacted Business 

Solutions on Miley’s behalf, reported back to him, and needed 

his approval to engage such advertising services. She also 

testified that Miley reviewed proposed advertisements, 

authorized payment for the same, and generally acted as the 

“ultimate decision-maker” in approving the content, quantity, 

timing, and targeting of the transmissions. App. 361. On crossexamination, however, Clemmer admitted that she had no 

actual recollection of the fax campaigns or Miley’s 

involvement in them and that her testimony was based on 

“[t]he way things worked.” App. 444. She also stated that she 

was the only David Randall employee who communicated 

directly with Business Solutions, and that Miley, in the 

ordinary course, would not have seen or reviewed all of 

Clemmer’s outgoing fax communications.

The jury also heard Miley’s response to an 

interrogatory, Miley’s pretrial stipulations, and Miley’s own

testimony. In his interrogatory response, Miley conceded that 

David Randall was “aware that . . . Miley participated in 

 

1 David Randall filed a third-party complaint and 

obtained a default judgment for $22,405,000 against Caroline 

and Joel Abraham, d/b/a Business to Business Solutions. City 

Select Auto Sales, Inc. v. David/Randall Assocs., Inc., 2015 

WL 4507995, at *4–5 (D.N.J. July 23, 2015).
6

decisions to send some facsimile transmissions.” App. 644.

Moreover, the jury was told that Miley stipulated that: 

(1) Miley was in charge of David Randall’s marketing and 

advertising; (2) Miley instructed Clemmer to investigate 

Business Solutions’s fax services; (3) Clemmer contacted 

Business Solutions on the company’s and Miley’s behalf and 

relayed the information she received to Miley; and (4) with 

Miley’s help, Clemmer sent information to Business Solutions 

about the fax advertisements David Randall wished to send. 

Miley testified in person, however, that he did not: create the 

advertisement Business Solutions sent; discuss anything 

related to the campaigns with Clemmer; review any 

communications to or from Clemmer relating to the fax blitzes;

communicate with Business Solutions; or authorize any of the 

conduct at issue in the case. Indeed, he stated that although he

generally signed checks on behalf of David Randall, he “had 

no involvement in this at all, none,” App. 618; see also App 

624 (“I’ve had no involvement, meaningful or not.”).

2

Based on the evidence presented at trial, the District 

Court produced a set of draft jury instructions. As originally 

proposed, draft Instruction 17 required the jury to find that 

Miley had a “high level” of personal involvement to hold him 

liable. App. 651. City Select objected to that language during 

the charge conference. It then consented to the District Court’s 

suggestion to change “high” to “significant” and to include a 

reference to Instruction 18 after the term “significant.” App. 

652–53.

City Select also objected to draft Instruction 18, which 

stated that to hold a corporate officer liable under the TCPA,

“[t]he officer must have knowledge that he is directly 
7

participating in or authorizing the conduct in question.” App. 

654. City Select asserted that there was no authority for such a 

knowledge requirement. The District Court disagreed, 

explaining that “[t]he reason I believe the individual liability 

of a corporate officer requires that the person have knowledge, 

that what they’re doing is authorizing fax advertising, is 

because of the enormous liability . . . that can trigger for the 

person.” App. 655.

The District Court then gave the jury the following 

instruction (Instruction 17) as to TCPA liability:

As I instructed you at the beginning of this 

trial, a TCPA claim for sending an unsolicited 

fax generally requires proof that: (1) the 

defendant utilized or caused to be utilized a 

telephone facsimile machine to send one or more 

faxes; (2) that the transmissions constituted 

advertisements; (3) that the defendant sent the 

transmissions without the recipient’s consent and 

outside of any one of the statutory exemptions; 

(4) that the defendant qualifies as a “sender” for 

purposes of the TCPA, that is, the entity on 

whose behalf an unsolicited facsimile 

advertisement is sent or whose goods or services 

are advertised or promoted in the unsolicited 

advertisement, or a person acting on behalf of 

that entity; and, in the case of an individual, 

(5) that the individual defendant had a significant 

level of personal involvement in the unlawful fax 

transmissions, as explained below.
8

App. 307. The Court described the requirements for personal 

liability (Instruction 18) as follows:

As a general matter, if a corporation is 

found to have violated a federal statute, its 

officers will not be personally liable solely 

because of their status as officers. Under the 

TCPA, however, an individual acting on behalf 

of a corporation may, under certain limited 

circumstances, be held personally or individually 

liable for the corporation’s violations of the 

TCPA if the individual: (1) had direct, personal 

participation in the conduct found to have 

violated the TCPA, or (2) personally authorized 

the conduct found to have violated the TCPA.

This requirement is phrased in the alternative; it 

is sufficient if Plaintiff proves either that Mr. 

Miley had direct, personal participation in the 

conduct found to have violated the TCPA, or that 

Mr. Miley personally authorized the conduct 

found to have violated the TCPA.

Thus, the personal liability of a corporate 

director or officer must be founded upon his 

active oversight of, or control over, the conduct 

that violated the TCPA, rather than merely 

tangential involvement. Involvement is 

“tangential” if it is routine, passive or ministerial.

The officer must have knowledge that he 

is directly participating in or authorizing the fax 

advertising, but he need not know that the 

conduct violates the TCPA. Whether the 
9

corporate officer knows that the conduct violates 

the TCPA is not relevant to your consideration.

App. 309–10. The jury also was given a verdict sheet that asked 

them, in Question 1, to decide whether Miley “ha[d] direct, 

personal participation in the . . . unsolicited fax campaign[s].”

App. 320–21.

During its deliberation, the jury requested 

clarification for the degree of personal 

participation for question #1, for the first 

unsolicited fax campaign. Our instructions 

indicate we have to determine if Miley had a 

“significant level” of personal involvement in 

the unlawful fax transmissions, or active oversite 

[sic], not routine or passive. This is not the 

wording of question #1, where it only states 

personal participation. Thank you.

App. 318. After considering the parties’ positions, the Court 

told the jury that

The requirement of a “significant level of 

personal involvement in the unlawful fax 

transmissions” applies to determining both 

whether he (1) had direct, personal participation 

in the conduct found to have violated the TCPA, 

or (2) personally authorized the conduct found to 

have violated the TCPA.

As explained in Instruction No. 18, such 

significant level of personal involvement 

requires the officer’s active oversight of, or 
10

control over, the conduct that violated the TCPA, 

rather than merely tangential, routine, passive or 

ministerial involvement. He must, at a minimum, 

have knowledge that he is directly participating 

in or authorizing the fax advertising, or his 

involvement will not be significant.

Thus, for example, if you find, in considering 

Question 1, that Mr. Miley had direct, personal 

participation at a level of involvement that was 

“significant,” then your answer will be Yes.

Otherwise, your answer will be No.

App. 319. The jury answered “No,” absolving Miley of 

personal liability.

City Select moved for a new trial pursuant to Rule 59(a) 

of the Federal Rules of Civil Procedure, arguing that the 

District Court erred in instructing the jury and in responding to 

the jury’s question. The Court denied the motion. City Select 

Auto Sales, Inc. v. David Randall Assocs., Inc., 2017 WL 

1170828, at *4–10 (D.N.J. Mar. 28, 2017). As to Instruction 

17, it reasoned that “[t]he use of the word ‘significant’ was 

appropriate explanatory commentary,” id. at *6, and it used 

that word “to clarify that the Defendant could not merely be 

tangentially involved in the operation,” id. at *7. The Court 

also noted that had the jury believed Clemmer’s testimony, it 

“easily could have found that Mr. Miley was ‘significantly’ 

involved.” Id. The Court also declined to reconsider its 

inclusion of the knowledge requirement in Instruction 18, 

reasoning that “[i]t is unclear how one could have direct and 

personal participation in a campaign if one did not have any 

knowledge of his or her actions,” and again that if the jury had 
11

believed Clemmer’s testimony, it would not have had a 

problem finding the required level of knowledge. Id. at *10.

II2

A

City Select appeals the District Court’s instructions as 

to personal liability under the TCPA. As an initial matter, we 

note that there is a real question as to whether Miley can be 

held liable under the statute at all. 

We start with the text of the TCPA and its implementing 

regulations. The TCPA declares it “unlawful for any person

within the United States . . . to use any telephone facsimile 

machine . . . or other device to send, to a telephone facsimile 

machine, an unsolicited advertisement.” 47 U.S.C. 

§ 227(b)(1)(C) (emphasis added). The statute delegates to the 

Federal Communications Commission (FCC) authority to 

“prescribe regulations to implement the requirements of . . . 

subsection [227(b)].” Id. § 227(b)(2). And pursuant to that 

authority (which includes the power to make rules enforceable 

through the TCPA’s express private right of action, Id.

§ 227(b)(3)(A)), the agency has clarified that the sender 

subject to liability under the statute is the person “on whose 

behalf [the faxes] are transmitted,” In re Rules and Regulations 

 

2 The District Court had jurisdiction under 28 U.S.C. 

§ 1331. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 

376, 386–87 (2012). Our jurisdiction lies under 28 U.S.C. 

§ 1291.
12

Implementing the Telephone Consumer Protection Act of 1991, 

10 FCC Rcd. 12391, 12407 (1995) [hereinafter 1995 Order].

3

City Select’s argument that Miley is a “sender” relies on 

language from the 1995 Order stating that liability falls on the 

“author or originator” of the faxes, and from the Eleventh 

Circuit’s statement in Palm Beach Golf Center-Boca, Inc. v. 

John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015),

that the “on whose behalf” standard is meant to place liability 

“at the source of the offending behavior.” City Select Supp. Br. 

1–2 (quoting 1995 Order, 10 FCC Rcd. at 12407; Palm Beach 

Golf Ctr., 781 F.3d at 1257). Miley is a sender, City Select 

asserts, “because [he] was the ‘author or originator’” of the 

relevant faxes. Id. at 2.

City Select’s argument is questionable. To the extent 

Miley planned and executed a fax campaign, he did so in his 

corporate capacity rather than his personal one. “[I]ndividuals 

ordinarily are shielded from personal liability when they do 

business in a corporate form, and . . . it should not lightly be 

inferred that Congress intended to disregard this shield.” 

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 

1313 (11th Cir. 2013) (quoting Baystate Alt. Staffing, Inc. v. 

Herman, 163 F.3d 668, 677 (1st Cir. 1998)) (discussing direct 

liability of corporate officers under the Fair Labor Standards

Act). The question is not whether Miley was an “author” of 

unsolicited faxes in the colloquial sense, but whether Congress 

and the FCC intended that we look behind the corporate form

and impose personal liability on officers who act on the 

corporation’s behalf rather than their own.

 3 City Select relies on this interpretation, and neither 

party questions whether we should defer to it.
13

We question whether Congress intended as much in 

cases like this one. Only one court of appeals has explored the 

“on whose behalf” standard in a precedential opinion. In Siding 

and Insulation Co. v. Alco Vending, Inc., 822 F.3d 886 (6th Cir. 

2016), the Sixth Circuit confronted another case in which a 

company had hired Business Solutions to conduct fax 

advertising. Synthesizing existing authority on the point, the 

court explained that “on whose behalf” should not be 

interpreted “with a layperson’s understanding of what that 

phrase might mean.” Id. at 899. Rather, it is a “term of art that 

should be interpreted in a way that seeks to hold liable the 

[actor] ultimately at fault in causing a TCPA violation.” Id.

Alco Vending involved determining which of two 

companies—Business Solutions or the defendant—would be 

held liable for a violation, not allocating liability between a 

corporation and its own officer as this case does. So, in addition 

to addressing the concerns raised by the Sixth Circuit in Alco 

Vending, courts facing situations like ours will have to give 

some weight to federal law’s general presumption of respect 

for the corporate form.

One possibility is that courts will account for that 

presumption by considering whether the relationship between 

the corporation and the individual defendant was “eccentric 

under accepted norms” of corporate conduct such that faxes 

were really sent on behalf of the individual instead of the entity. 

Cf. United States v. Bestfoods, 524 U.S. 51, 72 (1998) (holding 

that notwithstanding the presumption that parent corporations 

are not liable for the acts of their subsidiaries, a parent may be 

directly liable under the Comprehensive Environmental 

Response, Compensation, and Liability Act as an “operator” of 

a subsidiary’s facility when its “actions . . . are eccentric under 

accepted norms of parental oversight”). We think the result of 
14

this case under that test would be straightforward: Miley was 

not in privity with Business Solutions, only David Randall was. 

The faxes advertised David Randall’s services, not Miley’s. 

The company—not Miley—paid Business Solutions. And 

most importantly, there is no allegation, much less any 

evidence, that Miley disregarded or violated corporate norms 

with respect to David Randall. Under these circumstances, the 

faxes were sent on behalf of David Randall, so it is hard to see 

how Miley could be deemed a “sender” under the TCPA.

The question of whether Miley was a “sender,”

however, was never presented to the District Court, and it was 

raised here only on our order requesting supplemental briefing.

Prior to our mention of the issue, the parties and the District 

Court relied on the longstanding consensus among district 

courts that the contours of corporate officer liability under the 

TCPA are defined by federal common law rather than by the 

text of the statute. On that view, an officer is personally liable 

for an illegal fax if he “had direct, personal participation in or 

personally authorized the conduct found to have violated the 

statute.” Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 898 

(W.D. Tex. 2001). As initially briefed, this appeal was about 

whether the District Court properly instructed the jury on that 

theory.

We doubt as well, however, whether such common-law 

personal-participation liability is available against corporate 

officers under the TCPA. To be sure, the idea that Congress 

may establish statutory liability without expressly providing 

for it is not without precedent. Courts generally assume that 

“when Congress creates a tort action, it legislates against a 

legal background of ordinary tort-related . . . liability rules and 

consequently intends its legislation to incorporate those rules.”

Meyer v. Holley, 537 U.S. 280, 285 (2003) (discussing 
15

vicarious liability). But the United States Code abounds with 

examples of Congress expressly authorizing personalparticipation liability or something quite like it. For example, 

corporate antitrust violations are “deemed to be also that of the 

individual directors, officers, or agents . . . who shall have 

authorized, ordered, or done any of the acts constituting in 

whole or in part such violation.” 15 U.S.C. § 24. Because

Congress has demonstrated in many statutes that it “kn[ows] 

how to impose” personal-participation liability “when it 

cho[oses] to do so,” the argument that Congressional silence 

indicates an intent to do so here is a weak one at best. Cent. 

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 

511 U.S. 164, 176–77 (1994).

Moreover, to the extent that some of our cases appear to 

hold that traditional forms of common-law personal liability

remain available under federal statutes by default, that 

assumption may no longer be valid. More than 20 years ago, 

the Supreme Court held in Central Bank of Denver that where 

“the text of the 1934 Act [did] not itself reach those who aid 

and abet a § 10(b) violation,” “that conclusion resolve[d] the 

case” because “[i]t is inconsistent with settled methodology in 

§ 10(b) cases to extend liability beyond the scope of conduct 

prohibited by the statutory text.” Id. at 176–77.

Central Bank of Denver addressed aiding-and-abetting 

liability rather than personal-participation liability, but we see 

little reason why its reasoning would not apply with equal force 

here. Under the circumstances just described, the fact that 

personal-participation liability was available against corporate 

officers at common law (emphasized by our colleague’s 

concurring opinion) would not seem dispositive. As the Court 

made clear in Central Bank of Denver, it would have reached 

the same result “[e]ven assuming . . . a deeply rooted 
16

background of aiding and abetting tort liability.” Id. at 184. Put 

simply, in the wake of Central Bank of Denver, “statutory 

silence” as to the continuing availability of common-law

liability arguably “means there is none.” Boim v. Holy Land 

Found. for Relief and Dev., 549 F.3d 685, 689 (7th Cir. 2008)

(en banc) (Posner, J.).

We may, of course, affirm for any basis supported by 

the law and the record. See, e.g., Migliaro v. Fidelity Nat’l 

Indemnity Ins. Co., 880 F.3d 660, 664 n.6 (3d Cir. 2018). And 

carried to their logical ends, our doubts as to the existence of 

either a statutory or common-law basis for Miley’s liability 

would permit us to affirm the judgment of the District Court on 

the ground that Miley cannot be held liable under the TCPA at 

all. Yet we are reluctant to decide such an important question

when it was neither litigated in the District Court nor fully 

briefed and argued on appeal. Accordingly, we will assume

without deciding that Miley may be held liable for David 

Randall’s TCPA violations under a personal-participation 

theory. For the reasons that follow, however, we will affirm the 

judgment of the District Court because we perceive no 

reversible error in the jury instructions. 

B

We exercise plenary review of a district court’s jury 

instruction to determine whether the instruction misstated the 

applicable law. Egan v. Del. River Port Auth., 851 F.3d 263, 

269 (3d Cir. 2017). City Select argues that the Court erred in 

instructing the jury that it needed to find that Miley’s 

involvement was “significant,” that he exercised “active 

oversight,” and that he had “knowledge that he [was] directly 

participating in or authorizing the fax advertising.” City Select 

Br. 25–26. We disagree.
17

Assuming that personal-participation liability is in fact 

available under the TCPA, a corporation’s officer “may be 

personally liable under the [statute] if he had direct, personal 

participation in or personally authorized the conduct found to 

have violated the statute, and was not merely tangentially

involved.” Am. Blastfax, 164 F. Supp. 2d at 898; see also, e.g.,

Ott v. Mortg. Inv’rs Corp. of Ohio, Inc., 65 F. Supp. 3d 1046, 

1060 (D. Or. 2014); Balt.-Wash. Tel. Co. v. Hot Leads Co., 584 

F. Supp. 2d 736, 745 (D. Md. 2008). In other words, a 

corporate officer can be personally liable if he “actually 

committed the conduct that violated the TCPA, and/or [he] 

actively oversaw and directed this conduct.” Am. Blastfax, 164 

F. Supp. 2d at 897.

4

The District Court’s instructions did not misstate the 

applicable law. First, Instruction 17’s use of the words 

“significant level,” App. 307, plainly referred to Instruction 

18’s provisions that Miley could be liable if he “(1) had direct,

personal participation in the conduct found to have violated the 

TCPA, or (2) personally authorized the conduct found to have 

violated the TCPA,” and its additional statement that liability 

for an officer “must be founded upon his active oversight of, 

or control over, the conduct that violated the TCPA, rather than 

merely tangential involvement,” App. 309. Those 

requirements were simply concrete descriptions of what 

 

4 Some courts have required more, holding that “[s]ome

showing of intentional misconduct or gross failure to 

implement policies that comply [with the TCPA] should be 

required.” Appelbaum v. Rickenbacker Grp., Inc., 2013 WL 

12121104, at *3 (S.D. Fla. July 31, 2013) (quoting Mais v. Gulf 

Coast Collection Bureau, Inc., 2013 WL 1283885, at *4 n.1 

(S.D. Fla. Mar. 27, 2013)).
18

constitutes a “significant” level of involvement, and the word 

“significant” did not impose a higher burden of proof.

Second, the District Court appropriately answered the 

jury’s question about the word “significant” because, in its 

response, the Court tied that word to the requirement that the 

officer exercised “active oversight of, or control over, the 

conduct that violated the TCPA, rather than merely tangential, 

routine, passive or ministerial involvement.” App. 319. Third, 

that other courts have not used the word “significant” does not 

mean that the District Court’s instructions were contrary to 

those decisions. Indeed, the use of the word “significant” is 

consistent with cases that have held that corporate officers can 

be personally liable when they “actively oversaw and directed 

th[e] conduct.” Am. Blastfax, 164 F. Supp. 2d at 897. Fourth, 

the District Court did not erroneously add an element of proof 

regarding a defendant’s state of mind. Requiring a finding that 

the defendant-officer had “knowledge that he [was] directly 

participating in or authorizing the fax advertising,” App. 309, 

was simply part of proving direct participation. An officer 

could not have directly and personally participated in a fax 

advertising campaign without having knowledge of his actions.

Accordingly, the District Court did not err in instructing the 

jury.5

 

5 Even assuming the District Court erred in instructing 

the jury, any error was harmless because it is “highly probable 

that the error did not contribute to the judgment.” Egan, 851 

F.3d at 276 (citation and internal quotation marks omitted). As 

the District Court noted, Clemmer’s and Miley’s testimonies 

differed in significant ways. In finding in favor of Miley, the 

jury necessarily rejected Clemmer’s testimony.
19

C

City Select also contends that the District Court erred in 

denying its motion for a new trial. A court may grant a new 

trial “for any reason for which a new trial has heretofore been 

granted in an action at law in federal court,” Fed. R. Civ. P. 

59(a)(1)(A), but “it should do so only when the great weight of 

the evidence cuts against the verdict and . . . a miscarriage of 

justice would result if the verdict were to stand,” Leonard v. 

Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir. 2016) 

(alteration, citation, and internal quotation marks omitted). We 

review an order denying a motion for a new trial pursuant to 

Rule 59 for abuse of discretion. Id. Because the District Court 

did not err in instructing the jury, it did not abuse its discretion 

in refusing to grant a new trial based on those instructions.

III

For the reasons stated, we will affirm the District 

Court’s judgment and order.
1

SHWARTZ, Circuit Judge, concurring.

I agree with my colleagues that the District Court’s jury 

instructions were not erroneous and its judgment should be 

affirmed. However, the majority questions—in dicta—

whether a corporate officer may be held personally liable under 

the TCPA. I write separately because a corporate officer

indeed may be held personally liable under the TCPA for 

sending unsolicited fax advertisements for the officer’s 

corporation.

I

Like the majority, I start with the statute’s text. The 

TCPA makes it “unlawful for any person within the United 

States . . . to use any telephone facsimile machine . . . to 

send[ ] to a telephone facsimile machine[ ] an unsolicited 

advertisement[.]” 47 U.S.C. § 227(b)(1)(C). Any “person” 

includes individuals and corporations. 1 U.S.C. § 1. The 

statute is silent, however, “as to who should be classified as a 

sender of unsolicited fax advertisements.” Palm Beach Golf 

Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 

1245, 1256 (11th Cir. 2015). Faced with this silence, the FCC 

addressed the question of whether fax broadcasters can be 

liable under the TCPA for sending unwanted faxes on behalf 

of another. The FCC stated that “the entity or entities on whose 

behalf facsimiles are transmitted are ultimately liable for 

compliance with the rule banning unsolicited facsimile 

advertisements, and that fax broadcasters are not liable for 

compliance with this rule.” Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 

1991, 10 FCC Rcd. 12391, 12407 (1995). That interpretation, 

however, does not address whether individuals such as 
2

corporate officers who authorized a broadcaster to send fax 

advertisements may be held liable. 

Given the statute’s and FCC’s silence on this particular 

question, we look to the legislative backdrop to the TCPA. The 

TCPA codifies common law torts such as invasion of privacy, 

nuisance, and trespass to chattels. See Mims v. Arrow Fin. 

Servs., LLC, 565 U.S. 368, 372 (2012) (stating that Congress 

enacted the TCPA to, among other things, curtail “intrusive 

invasion[s] of privacy” (citation and internal quotation marks 

omitted)); Maryland v. Universal Elections, Inc., 729 F.3d 370, 

376-77 (4th Cir. 2013) (explaining that the TCPA is meant to 

protect privacy); Bell v. Survey Sampling Int’l, LLC, No. 3:15-

CV-1666 (MPS), 2017 WL 1013294, at *3 (D. Conn. Mar. 15, 

2017) (explaining that the TCPA embodies the common-law 

tort of invasion of privacy); Klein v. Hyundai Capital Am., No. 

8:16-cv-01469-JLS-JCGx, 2016 WL 10519281, at *2 (C.D. 

Cal. Dec. 6, 2016) (stating that “‘[t]he TCPA codifies one 

application of the long-recognized common law tort of 

invasion of privacy’ as well as ‘the tort of nuisance.’” 

(alterations omitted) (quoting LaVigne v. First Cmty. 

Bancshares, Inc., No. 1:15-CV-00934-WJ-LF, 2016 WL 

6305992, at *7 (D.N.M. Oct. 19, 2016)); Mey v. Got Warranty, 

Inc., 193 F. Supp. 3d 641, 645, 647 (N.D.W. Va. 2016) (stating 

that “the TCPA can be seen as merely liberalizing and 

codifying the application of th[e] common law tort [of 

intrusion-upon-seclusion as invasion of privacy] to a 

particularly intrusive type of unwanted telephone call” and that 

unwanted calls bear “a close relationship” to the “ancient 

common law tort” of trespass to chattels). “[W]hen Congress 

creates a tort action, it legislates against a legal background of 

ordinary tort-related . . . liability rules and consequently 

intends its legislation to incorporate those rules.” Meyer v. 
3

Holley, 537 U.S. 280, 285 (2003). A statute’s silence as to 

those background rules “cannot show that [Congress] intended 

to apply an unusual modification of those rules.” Id. at 286.

Thus, we consider the TCPA’s language in light of commonlaw tort principles. 

The most relevant tort principle here is that corporate 

officers can be personally liable for their own torts. 

Specifically, “[a] corporate officer is individually liable for the 

torts he personally commits and cannot shield himself behind 

a corporation when he is an actual participant in the tort.”

Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir. 

1978); see also, e.g., Zubik v. Zubik, 384 F.2d 267, 275 (3d 

Cir. 1967) (“The general, if not universal, rule is that an officer 

of a corporation who takes part in the commission of a tort by 

the corporation is personally liable therefor; but that an officer 

of a corporation who takes no part in the commission of the tort 

committed by the corporation is not personally liable to third 

persons for such a tort . . . unless he specifically directed the 

particular act to be done, or participated, or cooperated 

therein.” (quoting 3 Fletcher Cyclopedia of the Law of 

Corporations § 1137 (perm. ed. rev. 1965)); Hitchcock v. Am. 

Plate Glass Co., 259 F. 948, 953 (3d Cir. 1919) (holding that 

an officer of a corporation is a joint tortfeasor, along with the 

corporation, as to torts “which he actually brings about” and 

“in which he actually participates”). Applying this commonlaw rule to TCPA claims is consistent with the FCC’s 

interpretation of “sender” because, as long as the officer is 

sufficiently involved in the illegal fax transmissions, liability 

lies with him or her as a “person” who is the source of the 

wrongful conduct. See Palm Beach Golf Center-Boca, 781 

F.3d at 1257 (“By construing the sender as the party ‘on whose 

behalf facsimiles are transmitted,’ the FCC has placed liability 
4

at the source of the offending behavior that Congress intended 

to curtail.” (citation omitted)). Moreover, other statutes that 

use the term “any person” also have been interpreted to apply 

to corporate officers. See, e.g., Maryland v. Universal 

Elections, 787 F. Supp. 2d 408, 416 (D. Md. 2011) (noting 

several statutes that impose liability on “any person,” including 

corporate officers in their personal capacity). Thus, corporate 

officers who personally engage in or authorize actions that 

violate the TCPA may be held liable for those violations.

Miley argues that he cannot be liable under the 

personal-participation theory because it is equivalent to an 

aiding-and-abetting claim. His argument fails. Aiding-andabetting liability “create[s] secondary liability in persons other 

than the violator of the statute,” id. at 184 (citation and internal 

quotation marks omitted), and thereby extends liability to those 

who aid the violator, id. at 176. Personal-participation liability 

differs from aiding-and-abetting liability. The former 

penalizes a tortfeasor for conduct that violates or causes the 

violation of the statute, while the latter penalizes conduct that 

does not itself violate the statute. See Balt.-Wash. Tel. Co. v. 

Hot Leads Co., 584 F. Supp. 2d 736, 745-46 (D. Md. 2008) 

(rejecting a claim for aiding-and-abetting a TCPA violation but 

stating that individual corporate defendants can be liable under 

the TCPA because of their involvement in sending unsolicited 

faxes or causing such faxes to be sent); cf. Elec. Lab. Supply 

Co. v. Cullen, 977 F.2d 798, 803-08 (3d Cir. 1992) (rejecting 

an aiding-and-abetting theory of liability under the Lanham 

Act’s ex parte seizure provision because the provision

specifically governs the “applicant” whose trademark was 

violated, and the term “applicant” is narrower than the term 

“any person” under § 43(a) of the Lanham Act, which provides 

a basis for personal liability of corporate officers). The fact 
5

that a statute does not explicitly provide for aiding-andabetting liability does not mean that it forecloses personal 

liability for violations of the statute. 

Accordingly, notwithstanding the TCPA’s silence as to 

personal liability for corporate officers and the FCC’s 

interpretation concerning whether a fax broadcaster can be 

liable, a corporate officer can face personal liability under the 

TCPA for actions he personally authorized or took. The 

District Court’s instructions properly informed the jury of this 

basis for liability. 

II

For these reasons, I concur.