PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________

No s. 16

- 3000 & 17

- 1851

______________

CITY SELECT AUTO SALES INC

. , A NEW JERSEY

CORPORATION, INDIVIDUALLY AND AS THE
REPRESENTATIVE OF A CLASS OF
SIMILARLY S I TUATED 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: Hon orable 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 Appellees3 _____________

OPINION

______________

HARDIMAN

, Circuit Judge

.

Plaintiff City Select Auto Sales, Inc. received
unsolicited fax transmissions advertising the services of
Defendant David Randall As sociates, Inc

. (David Randall). Claiming that those faxes were sent in violation of the Telephon e 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 t he 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 a nd , 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 fax4 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 receiv ed 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 similarly

situated fax recipient s ) 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, t he parties filed summary judgment motions. The Court denied David Randall’s and Miley’s motion for summary judgment. City Select Auto Sal es, 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 judg ment 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

– 2 2, 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 th e 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 cross

examination, 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
di rectly with Business Solutions

, and that Miley, in the ordinary course, would not have seen or reviewe d 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 t o 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
abo ut the fax advertisements David Randall wished to send

. Miley testified in person , however, that he did not : create the
advert isement Business Solutions sent; discuss anything
relate d to the c ampaigns with Clemmer; review any
communications to or from Clem mer relating to the fax blitzes;

comm unicate 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 i nvolvement 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, d raft I nstru ction 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 Distric t Court’s suggestion to change “high” to “significant ” and to include a
reference to I nstruction 18 after the term “significant

. ” App.
652

– 53

.
City Select also objected to draft I nstruction 18, which
stated that to hold a corporate officer liable under the TCPA

, “[t]he officer must have knowledge that he is directly7 participating in or auth orizing 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
be cause of the enormous liability

. . . th at can trigger for the person.” App. 655.

T he District Court then gave the jury the following instruction (I nstruction 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. T he Court described the requirements for personal liability (I nstruction 18) as follows:

As a general matter, if a corporation is found to have violated a federal statute, its
officer s will not be personally liable solely
because of their status as officer s. 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 violation s of the
TCPA if the individual: (1) had direct

, personal partici pation in the conduct found to have
violated the TCPA

, or (2) personally authorized
the conduct found to have violated the TCPA. This requirement is phrase d in the alternative; it
is sufficient if P laintiff 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 o f

, 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 au thorizing the fax advertising , but he need not know that the
conduct violates the TCPA. Whether the9 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 oversi te [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

, t he Court told the jury that

T he 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, or10 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 partic ipation at a level of involvement that was “significant,” then your answer will be Yes. Otherwise, your answer will be No.

App. 319

. The jury answer ed “No

, ” absolving Miley of personal liability

.
City Select moved for a new trial pursuant to Rule 59(a)
of the Federal Rule s 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 mo tion

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

, 2017 WL 1170828, at * 4

– 10 (D.N.J. Mar. 28, 2017). As to I nstruction 17, i t 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 tange ntially 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 I nstruction 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 had11 believed Clemmer’s testimon y, it would not have had a problem finding the required level of knowledge. Id. at *10.

II 2

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). T he 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
beh alf [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, 3 86

– 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. Sar r is , 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 be havior.” City Select Supp. Br.
1

– 2 (quoting 1995 Order , 10 FCC Rcd. at 12407; Palm Beach Golf Ctr. , 781 F.3d a t 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 thi s 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 b ehalf 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
“o n 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 condu ct fax advertising . Synthesizing existing authority on the point, the court explained that “on whose behalf” should not be
int erpreted “with a layperson’s understanding of what that phrase might mean.” Id. at 89 9. Rather, it is a “term of a rt that should be interpreted in a way that seeks to hold liable the [actor] ultimately at fault in causing a TCPA violation.” Id

.

Alco Vendi ng involved det ermining which of two companies

— Business Solutions or the defendant

— would be held liable for a violation, not allocating liability between a

corp oration 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

presum ption by consider ing 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 Stat es 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 C omprehensive E nvironmental
R esponse, C ompensation, and L iability A ct as an “operator” of a subsidiary’s facility when its “actions

. . . are eccentric under accepted norms of parental overs ight ”). W e think the result of14 this case under that test would be straightforward: Miley was not in privi ty with Business Solutions , only David Randall was.
The faxes advertise d David Randall’s services, not Miley’s

. T he 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. Und er 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 “se nder

, ” 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 par ticipation 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 j ury on that theory.

We doubt as well , however, whether such common

- law personal

- participation liability is available a gainst corporate
officers under the TCPA

. To be sure, t he idea that Congress may establish statutory liability without expressly providing
f

or 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) (discussing15 vicarious liability). But the United States Code abounds with examples of Congress expressly authorizing pers onal

participation liability or something quite like it

. For example,

c orporate 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 Congr ess 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 int ent 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 liabilit y 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

p rohibited 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 w as 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 rooted16 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.” B oim 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. 201 8 )

. 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 j udgment of the District C ourt on the ground that Miley cannot be held liable under the TCPA at
all. Yet w e are reluctant to decide such an important question
when it was neither litigated in the D istrict C ourt nor fully briefed and argued on appeal

. Accordingly, we will assume

w ithout deciding that Miley may be held liable for David
Rand a ll’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

pers onally liable under the [statute] if he had direct, personal participation in or personally authorized the conduct found to have violated the statute, and was n ot 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 d id not misstate the applicable law. First, Instruction 17’s use of the words “significant level,” App. 307, plainly referred to I nstruction 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. T hose 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 Dis trict 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

. F ourth

, the District Court did not err oneously 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 p articipation

. A n officer
could not have directly and personally participate d 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 om itted). 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 ju ry instructions were not errone ous 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 advert ise men t s 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 fa csimile advertisements, and that fax broadcasters are not liable f or 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 add ress whether individuals such as2 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. T he
TCP A 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 pri vacy” (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. V a . 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] t o 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 legisla tion 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 a n unusual modification of those rules.” Id. at 286. Thus, we consider the TCPA ’s language in light of common

law tort principles.

The most relevant tort principle here is that corporate
officers can be personally liable for their own torts

. Specific ally , “[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 corporat ion 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.” (quotin g 3 Fletcher Cyclopedia of the Law of Corporations § 1137 (perm. ed. r ev. 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 “whi ch he actually brings about” and “in which he actually participates”). Applying this common

law 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 transmi ssions, 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 liab ility4 at the source of the offending behavior that Congress intended to curtail.” (citation omitted)). Moreover, o ther statutes that use the term “any person” also have been interpreted to apply to corporate officers. See, e.g.

, Maryland v. Universal
Ele ctions , 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 th e 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 . A iding

- and

abetting liability “create[s] seconda ry 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 sta tute. 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 involveme nt 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 fact5 th at a statute does not explicitly provide for aiding

- and

abetting 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 officer s 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 instruction s properly informed the jury of this basis for liability.

II

For these reasons, I concur.