IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

 

CITY SELECT AUTO SALES, INC., 

a New Jersey corporation, 

individually and as the 

representative of a class of 

similarly situated persons, 

 Plaintiff, 

 v. 

DAVID RANDALL ASSOCIATES, 

INC., et al., 

 Defendants. 

Civil Action 

No. 11-2658 (JBS/KMW) 

OPINION

APPEARANCES: 

Alan C. Milstein, Esq. 

Sherman, Silverstein, Kohl, Rose & Podolsky, PC 

Eastgate Corporate Center 

30 Harper Drive 

Suite 200 

Moorestown, NJ 08057 

 -andTod Lewis, Esq. 

Jonathan Piper, Esq. 

Bock & Hatch, LLC 

134 N. La Salle St., Ste. 1000 

Chicago, IL 60602 

 Attorneys for Plaintiff City Select Auto Sales, Inc. 

F. Emmett Fitzpatrick, III, Esq. 

Flamm Boroff & Bacine PC 

794 Penllyn Pike 

Blue Bell, PA 19422 

Attorney for Defendants and Third Party Plaintiffs David 

Randall Associates, Inc. and Raymond Miley, III 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 1 of 31 PageID: 4709
2 

SIMANDLE, Chief Judge: 

I. INTRODUCTION 

In this Telephone Consumer Protection Act (hereinafter, the 

“TCPA”) class action concerning transmission of unsolicited fax 

advertisements, Defendant David Randall Associates, Inc. 

(hereinafter, “David Randall”) and its owner, Defendant Raymond 

Miley, III (hereafter “Miley” and collectively with David 

Randall, the “Defendants”), move for summary judgment on all 

claims.1 [Docket Item 114.] Defendants specifically assert that 

the undisputed facts in this litigation fail to support 

Plaintiff’s TCPA, state law conversion, and individual liability 

claims. Plaintiff generally asserts in opposition that factual 

disputes concerning Defendants’ liability for the facsimile 

advertisements in this litigation preclude the entry of summary 

judgment. 

The parties do not dispute that a third-party entity, 

Business to Business Solutions (hereinafter, “B2B”), transmitted 

the facsimile advertisements that form the predicate for this 

action. Nor do the parties genuinely dispute that B2B 

broadcasted and distributed the facsimile advertisements on 

 

1

 Plaintiff also filed three motions for leave to submit 

supplemental authority in opposition to Defendants’ motion for 

summary judgment. [Docket Items 119, 126, & 128.] Defendants 

have filed no opposition. The Court will therefore grant the 

motions. 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 2 of 31 PageID: 4710
3 

behalf of Defendants. Rather, the parties primarily dispute 

whether the definition of “sender” under the TCPA envelops 

solely the entity that physically transmitted the facsimile 

advertisement, or whether such definition also includes the 

entity whose goods and/or services are subject to the 

advertisements. The principal issues before the Court are 

therefore whether the TCPA limits liability to only those who 

directly transmit facsimile advertisements and, relatedly, 

whether triable issues of fact exist with respect to whether, 

and to what extent, Miley bore personal involvement in the 

disputed transmissions. 

For the reasons explained below, the Court finds that 

factual disputes preclude the entry of summary judgment in 

Defendants’ favor with respect to all claims set forth in 

Plaintiff’s Complaint. The Court will therefore deny Defendants’ 

motion for summary judgment.2

II. BACKGROUND 

A. Factual Background 

In the spring of 2006—the time period relevant to the 

pending action—Defendant Raymond Miley, III acted as President 

 

2

 The Court exercises subject matter jurisdiction over 

Plaintiff’s TCPA claims pursuant to 28 U.S.C. § 1332(d), and 

exercises supplemental jurisdiction over Plaintiff’s state law 

claims under 28 U.S.C. § 1367(a). 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 3 of 31 PageID: 4711
4 

of Defendant David Randall Associates, Inc., a commercial 

roofing company organized under the laws of the Commonwealth of 

Pennsylvania. (Defs.’ SMF [Docket Item 114], ¶¶ 1-2 (citation 

omitted).) During the same period, Third Party Defendants 

Caroline Abraham and Joel Abraham “operated an unincorporated 

advertising business” named “‘Business to Business Solutions’” 

(as defined above, “B2B”).3

 (Pl.’s SMF [Docket Item 116], 4 

(citation omitted).) 

B2B “solicited” David Randall’s business, and specifically 

offered to market David Randall’s roofing services through B2B’s 

fax broadcasting program. (Id. at 6 (citing Ex. C at 66:1-68:5 

(deposition of Raymond H. Miley, III)).) Upon receipt of B2B’s 

solicitation, April T. Clemmer, Miley’s administrative assistant 

(Ex. C. at 14:14-18), contacted B2B to inquire into the specific 

 

3

 Though Plaintiff failed to furnish a responsive statement of 

undisputed material facts, Plaintiff’s opposition brief contains 

detailed citations to the record that make clear certain 

disputed facts. Although Plaintiff failed to comply with Local 

Civil Rule 56.1, the Court declines to ignore Plaintiff’s 

citations. However, to the extent Plaintiff failed to make clear 

any dispute of material fact in Defendants’ Rule 56.1 statement, 

the Court will deem any such fact undisputed for purposes of the 

pending motion. See L. CIV. R. 56.1(a) (“[A]ny material fact not 

disputed shall be deemed undisputed for purposes of the summary 

judgment motion.”). Consequently, though the Court will not 

ignore counter-stated facts that are readily apparent from 

Plaintiff’s brief, the Court need not comb the record in search 

of disputed facts that should have been part of Plaintiff’s 

response to Defendants’ Rule 56.1 statement. 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 4 of 31 PageID: 4712
5 

pricing and distribution details of B2B’s fax marketing 

services. (Ex. A at 10:5-11:7, 14:11-15:16.) David Randall, 

with Miley’s authorization, then contracted with B2B “‘to 

develop and conduct a fax advertising campaign on its behalf’” 

(Pl.’s SMF at 4), and provided certain information concerning 

David Randall’s services, in addition to information concerning 

the targeted radius for advertisement dissemination. (See Ex. A 

at 17:1-18:14; Ex. B; Ex. C at 35:1-25; Ex. D at 17 on the 

docket (Miley’s advertisement approval).) 

B2B thereafter sent multiple fax advertisements on David 

Randall’s behalf to “‘a list of persons’” purchased by B2B. 

(Defs.’ SMF at ¶ 5 (citation and emphasis omitted).) The 

advertisements, ultimately transmitted to “29,113 unique fax 

numbers[,]” described the roofing services provided by David 

Randall, provided its contact information, and generally stated 

“Roof Leaks??? Repairs Available.” (Id. at ¶ 5; Exhibit B 

[Docket Item 116-2].) 

B. Procedural History 

Plaintiff filed the initial Complaint in this action on May 

10, 2011. (See Class Action Compl. [Docket Item 1], ¶ 1.) In 

its Complaint, Plaintiff generally alleges that Defendants have 

a “policy and practice of faxing unsolicited advertisements” in 

contravention of the TCPA and state tort law. (Id. at ¶ 1.) In 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 5 of 31 PageID: 4713
6 

accordance with this purported policy, Plaintiff alleges that, 

on April 4, 2006 and May 15, 2006, Defendants sent two (2) such 

advertisements to Plaintiff, without its “prior express 

permission or invitation.” (Id. at ¶¶ 13, 29.) Plaintiff also 

states that Defendants similarly transmitted the identical “form 

facsimile” 44,832 times “without error to 29,113 unique fax 

numbers” from March 29, 2006 to May 16, 2006. (Id. at ¶ 14.) 

Plaintiff therefore contends that Defendants’ unsolicited 

transmissions violated the TCPA and also “improperly converted” 

Plaintiff’s fax machine, toner, paper, and employees’ time for 

Defendants’ “unauthorized purpose.” (Id. at ¶¶ 30-41.) 

Plaintiff therefore seeks, on behalf of all persons who received 

such fax advertisements during the spring of 2006, declaratory 

and injunctive relief and monetary damages, jointly and 

severally, against David Randall and Miley. (Id. at ¶¶ 29, 41.) 

Thereafter, Defendants moved to dismiss Plaintiff’s 

Complaint, asserting that the applicable limitations period and 

New Jersey’s entire controversy doctrine collectively barred 

Plaintiff’s claims. [Docket Item 8.] The Court’s February 7, 

2012 Opinion denying Defendants’ motion found the entire 

controversy doctrine inapplicable and further concluded that the 

pendency of a state court action had tolled the limitations 

period and, accordingly, effected no bar of Plaintiff’s claims. 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 6 of 31 PageID: 4714
7 

City Select Auto Sales, Inc. v. David Randall Assocs., Inc., No. 

11-2658, 2012 WL 426267, at *5 (D.N.J. Feb. 7, 2012). 

Defendants thereafter answered Plaintiff’s Complaint, and 

filed third party claims against the operators of B2B, Caroline 

Abraham and Joel Abraham (hereinafter, the “Abrahams”). [Docket 

Item 23.] Though Defendants effectuated service of the Third 

Party Complaint on March 22, 2012 [Docket Items 32 & 33], the 

Abrahams filed no response. Defendants therefore moved for 

default [Docket Item 42], which the Court granted on December 

17, 2012. [Docket Item 53.] 

On January 30, 2013, Plaintiff moved to certify its TCPA 

claim under Federal Rule of Civil Procedure 23(b)(3) on behalf 

of the following class:4 

 

4

 On December 17, 2012, the Court dismissed Plaintiff’s initial 

motion for class certification, and directed that any renewed 

motion “incorporate briefing on the effect of 47 U.S.C. § 

227(b)(3), and the application of New Jersey’s laws and rules of 

court,” particularly with respect to the Third Circuit’s 

decision in Landsman & Funk PC v. Skinder-Strauss Assocs., 09-

3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012). [Docket Item 

53.] Plaintiff’s renewed motion to certify followed on January 

30, 2013. [Docket Item 60.] On March 5, 2013, the Court stayed 

this action and administratively terminated Plaintiff’s renewed 

motion, pending the Third Circuit’s consideration of an 

interlocutory appeal in Bais Yaakov of Spring Valley v. 

Peterson’s Nelnet, LLC, No. 11-00011 (AET), 2013 WL 663301 

(D.N.J. Feb. 21, 2013), a case involving a TCPA issue directly 

relevant to this litigation. [Docket Item 72.] On May 21, 

2013, however, Plaintiff informed the Court that the Third 

Circuit declined to certify the interlocutory appeal and the 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 7 of 31 PageID: 4715
8 

All persons who were successfully sent one or more 

faxes during the period March 29, 2006, through May 

16, 2006, stating, “ROOF LEAKS??? REPAIRS AVAILABLE 

Just give us a call and let our professional service 

technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.” 

City Select Auto Sales, Inc. v. David Randall Assocs., Inc., 296 

F.R.D. 299, 308 (D.N.J. 2013). By Opinion dated December 20, 

2013, the Court found that the proposed class satisfied the 

requirements of Federal Rule of Civil Procedure 23 and, 

therefore, granted Plaintiff’s motion for class certification. 

See generally id. In so concluding, the Court rejected 

Defendants’ argument that state, rather than federal, law 

applied to class certification in the TCPA context, and that 

Plaintiff lacked standing to pursue its claims. Id. at 311-12. 

By Memorandum Opinion dated February 3, 2014, the Court then 

approved, subject to certain revisions, Plaintiff’s proposed 

class notice form. See City Select Auto Sales, Inc. v. David 

Randall Assocs., Inc., No. 11-2658, 2014 WL 413533, at *3 

(D.N.J. Feb. 3, 2014.) The Court also found Plaintiff’s 

proposed method of dissemination, i.e., by fax, “most 

practicable” under the circumstances. Id. at *8. In permitting 

notice by such method, the Court noted “the irony of using faxes 

to disseminate class notice in a lawsuit regarding unsolicited 

 

Court, accordingly, lifted the stay and restored Plaintiff’s 

motion to the Court’s active docket. [Docket Item 74.] 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 8 of 31 PageID: 4716
9 

fax advertisements.” Id. at *2. The Court found, however, 

notification by facsimile to be most practicable under the 

circumstances, particularly in light of the sheer quantity of 

“distinct recipients” (“more than 29,000”), the relative speed 

and cost of notification by fax, and the easily verifiable 

nature of a successful transmission. Id. at *3. 

C. Parties’ Arguments 

 Defendants generally argue that summary judgment must be 

granted with respect to Plaintiff’s TCPA claim because 

Defendants cannot, as a matter of law, “be held directly liable” 

for the acts of a third party. (Defs.’ Br. at 5-6.) Defendants 

specifically assert that the Federal Communications Commission 

(hereinafter, the “FCC”) has concluded, in a decision “binding 

upon [] District Courts,” that “a seller cannot be held directly 

liable for a TCPA violation unless the seller itself perform[ed] 

the acts[.]” (Id. at 6 (citation omitted).) Defendants 

therefore argue that the FCC ruling compels the Court to find 

Defendants entitled to judgment, as a matter of law, on 

Plaintiff’s TCPA claims. (Id. at 7.) Defendants also assert 

that Plaintiff’s state law conversion claim, which rests upon 

allegations identical to Plaintiff’s TCPA claim, fails for the 

same reasons. (Id. at 9-12.) Moreover, though Defendants 

concede that undisputed facts support a theory of vicarious 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 9 of 31 PageID: 4717
10 

liability, Defendants argue that Plaintiff’s failure to 

“specifically” plead such theory constitutes a “fatal pleading 

deficiency” that cannot now be cured in response to Defendants’ 

motion for summary judgment. (Id. at 8-9.) Rather, Defendants 

assert that summary judgment must be granted with respect to any 

and all claims of liability against David Randall. (Id.) 

Finally, Defendants argue that summary judgment must be granted 

with respect to Plaintiff’s “individual liability” claim against 

Miley, because the record fails to demonstrate Miley’s “personal 

involvement in the commission of any tort of the violation of 

any statute[,]” nor Miley’s awareness of the “unlawful” nature 

of the disputed solicitations. (Id. at 12-14.) 

Plaintiff counters that the FCC’s decision constitutes mere 

guidance to District Courts, and that the decision cannot trump 

or otherwise contravene the statutory and regulatory definition 

of “sender” under the TCPA. (Pl.’s Opp’n [Docket Item 116], 7-

11.) Rather, Plaintiff asserts that liability under the TCPA 

expressly attaches to any “‘entity on whose behalf a facsimile 

unsolicited advertisement is sent’” and/or any entity “‘whose 

goods or services are advertised or promoted in the unsolicited 

advertisement.’” (Id. at 7 (citing 47 C.F.R. § 64.1200(f)(10)) 

(emphasis omitted).) Plaintiff also argues that it has 

“sufficiently pleaded liability against Defendants[,]” 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 10 of 31 PageID: 4718
11 

particularly to the extent Plaintiff’s Complaint “clearly 

articulate[s]” that third party actions form the basis for 

Plaintiff’s liability claims. (Id. at 12 (emphasis and 

citations omitted).) Lastly, Plaintiff argues that the record 

“clearly” demonstrates that Miley “authorized, directed, and 

facilitated” the TCPA violations alleged in this action, and 

that he cannot now exculpate himself from liability by 

“outsourcing [] telemarketing activities to unsupervised third 

parties[.]’” (Id. at 14, 16, 18.) 

III. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 56(a) generally provides 

that the “court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact” such 

that the movant is “entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact 

exists where a reasonable jury’s review of the evidence could 

result in “a verdict for the non-moving party” or where such 

fact might otherwise affect the disposition of the litigation. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Disputes over irrelevant or unnecessary facts, however, fail to 

preclude the entry of summary judgment. Id. In evaluating a 

motion for summary judgment, the Court must view the evidence in 

the light most favorable to the non-moving party, and must 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 11 of 31 PageID: 4719
12 

provide that party the benefit of all reasonable inferences. 

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 

750 F.3d 273, 287 (3d Cir. 2014). However, any such inferences 

“must flow directly from admissible evidence[,]” because “‘an 

inference based upon [] speculation or conjecture does not 

create a material factual dispute sufficient to defeat summary 

judgment.’” Halsey, 750 F.3d at 287 (quoting Robertson v. 

Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990); 

citing Anderson, 477 U.S. at 255). 

IV. DISCUSSION 

A. TCPA Claim 

“Enacted in 1991 as part of the Federal Communications 

Act,” the TCPA seeks to address “an increasingly common 

nuisance—telemarketing.” Erienet, Inc. v. Velocity Net, 156 F.3d 

513, 514 (3d Cir. 1998). The TCPA prohibits the “use of any 

telephone facsimile machine, computer, or other device to send, 

to a telephone facsimile machine,” an advertisement without the 

recipient’s prior express invitation or permission, unless the 

“sender” of such transmission meets certain exceptions. 47 

U.S.C. §§ 227(a)(4), (b)(1)(C). The ban on unsolicited 

facsimile advertisements specifically does not apply if: (1) the 

sender has an “established business relationship” with the 

recipient, 47 U.S.C. § 227(b)(1)(C)(i); (2) the sender obtained 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 12 of 31 PageID: 4720
13 

the recipient's facsimile number from “a directory, 

advertisement, or site on the Internet to which the recipient 

voluntarily agreed to make available its facsimile number for 

public distribution,” 47 U.S.C. § 227(b)(1)(C)(ii); or (3) the 

advertisement contains a disclosure statement that easily 

enables the recipient to unsubscribe from any future 

distributions, 47 U.S.C. § 227(b)(1)(C)(iii). 

The TCPA accordingly enables an aggrieved individual or 

entity to bring a private right of action to recover the greater 

of the party’s “actual monetary loss” from the TCPA violation, 

or “$500 in damages for each such violation[.] 47 U.S.C. § 

227(b)(3)(A)-(C). In addition, the Court “may, in its 

discretion,” award treble damages for each statutory damage. 47 

U.S.C. § 227(b)(3). However, the plaintiff must specifically 

demonstrate that: (1) the defendant utilized a “telephone 

facsimile machine, a computer, or other devise to send one or 

more faxes to the plaintiff’s facsimile machine[;]” (2) the 

transmissions constituted “‘advertisements[;]’” and (3) the 

defendant sent the transmissions without the plaintiff’s prior 

express invitation or permission. Brodsky v. HumanaDental Ins. 

Co., No. 10-C-3233, 2014 WL 2780089, at *6 (N.D. Ill. June 12, 

2014) (citation omitted). 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 13 of 31 PageID: 4721
14 

a. The Undisputed Facts do not Entitle Defendants to 

the Entry of Judgment as a Matter of Law 

Defendants argue that they do not constitute a “sender” 

under the TCPA, thereby exculpating Defendants from any 

liability under the TCPA. (Defs.’ Br. at 5-7.) The FCC’s TCPA 

regulations define “sender” as “the person or entity on whose 

behalf a facsimile unsolicited advertisement is sent or whose 

goods or services are advertised or promoted in the unsolicited 

advertisement.” 47 C.F.R. § 64.1200(f)(10); see also In Re 

Rules and Regulations Implementing the Tel. Consumer Prot. Act 

of 1991, 10 F.C.C.R. 12391, 12407–08 (1995) (clarifying that 

“the entity or entities on whose behalf facsimiles are 

transmitted are ultimately liable for compliance with the rule 

banning unsolicited facsimile advertisements”). The parties do 

not dispute that B2B acted as the actual sender of the 

facsimiles that give rise to this litigation. (See Defs.’ SMF; 

Pl.’s SMF.) The Court must therefore turn to whether B2B sent 

the facsimile transmissions on Defendants’ behalf and/or for the 

purpose of advertising or promoting Defendant’s “goods or 

services”—either of which would, as explained below, render 

Defendants potentially liable under the TCPA. 47 C.F.R. § 

64.1200(f)(10). 

The TCPA, by its own terms, “‘creates a form of vicarious 

liability making an entity liable when a third party sends 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 14 of 31 PageID: 4722
15 

unsolicited communications on its behalf in violation of the 

Act.’” Brodsky, 2014 WL 2780089, at *6 (quoting Bridgeview 

Health Care Ctr. v. Clark, No. 09-C-5601, 2013 WL 1154206, at *4 

(N.D. Ill. Mar. 19, 2013)). Moreover, defendants cannot 

exculpate themselves from “‘liability simply by hiring an 

independent contractor’” for the purposes of transmitting 

“‘unsolicited facsimiles on their behalf.’”  ̈Brodsky, 2014 WL 

2780089, at *6 (citations omitted). 

The parties do not dispute that, in 2006, April T. Clemmer, 

a former David Randall employee, corresponded with B2B 

concerning a potential fax broadcasting advertisement of David 

Randall’s roofing services. (See Ex. A at 10:5-11:7, 14:11-

15:16.) The parties further agree that David Randall ultimately 

contracted with B2B precisely for the purpose of advertising 

and/or promoting David Randall’s services on Defendants’ behalf. 

(See id. at 17:1-18:14; Ex. B, Ex. C at 35:1-25; Ex. D at 17 on 

the docket.) Indeed, the disputed facsimiles solely concern 

David Randall’s roofing services, and nowhere advertise the 

goods, services, or products of any other individual or entity. 

(See Ex. D.) Moreover, Defendants do not dispute that certain 

facts support an “on behalf of” theory of liability against 

Defendants for B2B’s acts. (See generally Defs.’ Br. at 5-9.) 

Rather, the parties present primarily a legal dispute concerning 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 15 of 31 PageID: 4723
16 

whether liability passes to Defendants under the TCPA solely by 

virtue of B2B’s undisputed transmission of Defendants’ 

advertisement. 

i. Liability under the TCPA 

The TCPA prescribes two parallel, and often blended, 

theories of liability relevant to this litigation: the first 

applies to “the person or entity” on “whose behalf” a third 

party transmits an unsolicited facsimile advertisement; the 

other applies to the person or entity “whose goods or services 

are advertised or promoted in the unsolicited advertisement.” 

47 C.F.R. § 64.1200(f)(10). The “scope of ‘on behalf of’ 

liability” remained initially unsettled. Avio, Inc. v. 

Alfoccino, Inc., ___ F. Supp. 2d ____, No. 10-10221, 2014 WL 

1870108, *10 (E.D. Mich. May 9, 2014) (citation omitted). The 

FCC’s order relied upon by Defendants, however, addressed 

whether a “seller[,]” but not the entity that “‘initiates’” 

calls under the TCPA, may be held vicariously liable under 

agency principles for TCPA violations committed by third-party 

telemarketers. In re Joint Petition filed by DISH Network LLC, 

28 F.C.C. 6574 (2013) (hereinafter, the “FCC’s DISH Network 

ruling”). In addressing provisions of the TCPA applicable in 

that instance, the FCC expressly rejected the notion that the 

TCPA creates strict liability, and instead concluded that a 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 16 of 31 PageID: 4724
17 

“principal” may be liable under the TCPA for acts of a third 

party if the party acted in accordance with a formal agency 

relationship, possessed “apparent (if not actual) authority” for 

its conduct, or if the principal “ratifie[d]” the third-party’s 

acts “by knowingly accepting their benefits.” Id. at 6586-87. 

In so concluding, the FCC found incorporation of “general common 

law agency principles of vicarious liability” concordant with 

the TCPA’s statutory text and legislative purpose and, 

accordingly, read such “baseline agency principles” into its 

interpretation of the telemarketing provisions of the TCPA. Id. 

at 6587. Consequently, though the FCC stated that “an action 

taken for the benefit of a seller by a third-party” fails, 

without more, “to trigger” liability, the FCC found “no reason” 

to exculpate a seller for the acts of a “third-party” where the 

seller “authorized” or otherwise possessed some supervisory 

authority over the third party’s conduct. Id. at 6593. 

The parties acknowledge the interpretive relevance of the 

FCC’s ruling, albeit to significantly varied extents, but 

dispute the effect of such ruling on the Court’s resolution of 

the pending motion. Defendants assert that the ruling compels 

the Court to grant summary judgment in its favor (Defs.’ Br. at 

5-7); Plaintiff counters, however, that the ruling bears only 

marginal relevance to the pending dispute because the statutory 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 17 of 31 PageID: 4725
18 

language at issue in the ruling—the telemarketing provisions 

that reference the initiation of telephone calls—differs, in 

material respects, from the junk-fax provisions implicated in 

this litigation, (Pl.’s Opp’n at 7-11). 

The Court finds both positions somewhat unconvincing. The 

Court first notes that the Hobbs Act, 28 U.S.C. § 2342(1), 

requires the Court to apply a final order of the FCC, to the 

extent such order squarely addresses the disputed issue. See 

Avio, Inc., 2014 WL 1870108, at *11 (“Because Dish Network is an 

on-point final order, this Court must, under the Hobbs Act, find 

its reasoning controlling.”) (citations omitted); Savanna Grp., 

Inc. v. Trynex, Inc., No. 10-7995, 2013 WL 4734004, at *5 (N.D. 

Ill. Sept. 3, 2013) (“Under the Hobbs Act, the Court must apply 

a final FCC order if it governs the matter at issue.”) 

(citations omitted); Addison Automatics, Inc. v. RTC Grp., Inc., 

No. 12-9869, 2013 WL 3771423, at *4 (N.D. Ill. July 16, 2013) 

(noting that the court had “no authority” to “disregard” the 

FCC’s ruling); CE Design, Ltd. v. Prism Bus. Media, Inc., 606 

F.3d 443, 446 (7th Cir. 2010) (“[T]he Hobbs Act prevents the 

district court from reviewing the validity of FCC 

regulations.”). District Courts must consequently follow the 

FCC’s orders if, but only if, such orders actually dispose of 

the issue disputed in the litigation. See Dobkin v. Enterprise 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 18 of 31 PageID: 4726
19 

Fin. Grp., No. 14-1989, 2014 WL 4354070, at *3 (D.N.J. Sept. 3, 

2014). 

In the wake of the FCC’s DISH Network ruling, numerous 

courts rejected arguments that the FCC’s interpretation of the 

TCPA’s telemarketing provisions had no application to the 

interpretation of the TCPA’s junk-fax provisions. Avio, Inc., 

2014 WL 1870108, at *11 (collecting cases); compare 47 C.F.R. § 

64.1200(f)(9) (“The term seller means the person or entity on 

whose behalf a telephone call or message is initiated for the 

purpose of encouraging the purchase or rental of, or investment 

in, property, goods, or services, which is transmitted to any 

person.”), with 47 C.F.R. § 64.1200(f)(10) (“The term sender for 

purposes of paragraph (a)(4) of this section means the person or 

entity on whose behalf a facsimile unsolicited advertisement is 

sent or whose goods or services are advertised or promoted in 

the unsolicited advertisement.”). Indeed, the majority of 

courts expressly imputed the FCC’s DISH Network interpretation 

into courts’ interpretations of the TCPA’s junk-fax provisions. 

See, e.g., Avio, Inc., 2014 WL 1870108, at *11 (citing Imhoff 

Inv., LLC v. SamMichaels, Inc., No. 10-10996, 2014 WL 172234, at 

*6 (E.D. Mich. Jan. 15, 2014) (“Even though the FCC's 

declaratory ruling addressed the definition of seller within the 

telemarketing context, not sender within the faxing context, the 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 19 of 31 PageID: 4727
20 

definitions are similar and the ruling has been applied to 

senders as well.”); Savanna Grp., Inc., 2013 WL 4734004, at *5 

(“Given the substantial similarity between the definitions of 

‘seller’ and ‘sender’ and the broad language of the ruling 

concerning violations of § 227(b), [the FCC’s declaratory 

ruling] is controlling in this case.”)) (citation omitted). 

However, in an amicus letter dated July 17, 2014 and filed 

in connection with a pending appeal before the Eleventh Circuit, 

Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 13-14013 (11th 

Cir. 2013), the FCC squarely stated that its DISH Network ruling 

“applies only to liability for telemarketing calls and neither 

addresses nor alters the [FCC’s] pre-existing regulatory 

treatment of unsolicited facsimile advertisements.” [Docket 

Item 126-2 at 6.] Moreover, because DISH Network solely 

concerned telemarketing calls, the FCC specifically stated that 

it “had no occasion to opine on direct or vicarious liability” 

in the context of such facsimile transmissions. [Docket Item 

126-2 at 6.] Rather, the FCC emphasized that the junk-fax 

provisions of the TCPA “clearly ‘allow[] a plaintiff to recover 

damages [under a theory of direct liability] from a defendant 

who [transmitted] no facsimile to the plaintiff, but whose 

independent contractor did,’” provided that “the transmitted fax 

constitutes an unsolicited facsimile advertisement promoting the 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 20 of 31 PageID: 4728
21 

defendant’s goods or services” in accordance with the “binding 

regulatory definition” of “sender” set forth in 47 C.F.R. § 

64.1200(f)(1). [Docket Item 126-2 at 6-7.] Consequently, even 

if the FCC’s DISH Network ruling could have been construed to 

preclude any assertion of direct liability under the TCPA for 

the acts of a third-party, as argued by Defendants (Defs.’ Br. 

at 5-7), the FCC’s subsequent amicus letter unambiguously 

rejects such interpretation, and the Court need not apply the 

FCC’s DISH Network ruling in this instance. [Docket Item 126-

2.] Rather, the Court finds Defendants’ position that the TCPA 

precludes a finding of liability against Defendants without 

merit, particularly because the record contains no dispute that 

the fax transmissions advertised Defendants’ roofing services 

and that B2B transmitted such advertisements on behalf of 

Defendants. See 47 C.F.R. § 64.1200(f)(10) (defining a liable 

“sender” under the TCPA as “the person or entity on whose behalf 

a facsimile unsolicited advertisement is sent or whose goods or 

services are advertised or promoted in the unsolicited 

advertisement”) (emphasis added). Indeed, Defendants concede 

such facts. (See, e.g., Defs.’ SMF at ¶ 5 (“‘B2B successfully 

sent 44,832 faxes for Defendants to 29,113 unique fax numbers. . 

. . the junk fax was sent ‘on behalf of’ [] Defendants’”) 

(emphasis in original).) Consequently, the undisputed facts 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 21 of 31 PageID: 4729
22 

fail to demonstrate Defendants’ entitlement to judgment as a 

matter of law on Plaintiff’s TCPA claim. The Court therefore 

denies Defendants’ motion for summary judgment with respect to 

such claim.5

 

5

 Defendants also challenge Plaintiff’s TCPA claim on the basis 

that Plaintiff failed “to plead vicarious liability[.]” (Defs.’ 

Br. at 8.) Plaintiff asserts, however, that Plaintiff 

“explicitly pled” vicarious liability under the statute, “by 

stating that Defendants: ‘approved, authorized and participated 

in a scheme to broadcast faxes by (a) directing a list to be 

purchased and assembled; (b) directing and supervising employees 

and third parties to send the faxes; (c) creating and approving 

the form of the faxes to be sent; (d) determining the number and 

frequency of the facsimile transmissions; and (e) approving and 

paying third parties to send the faxes.’” (Pl.’s Opp’n at 12 

(citing Class Action Compl. at ¶ 12).) Moreover, even if 

insufficiently plead, Plaintiff argues that its allegations 

concerning the “‘sending’” of faxes expressly incorporate the 

“‘on behalf of’” definition of “‘sender’” under the TCPA. 

(Pl.’s Opp’n at 12.) Other courts that have addressed vicarious 

liability under the TCPA have, in reliance on the FCC’s DISH 

Network ruling, applied federal common law agency principles to 

determine vicarious seller liability for violations of the TCPA. 

See, e.g., Siding & Insulation Co. v. Combined Ins. Grp., Ltd., 

No. 11-1062, 2014 WL 1577465, at *3 (N.D. Ohio Apr. 17, 2014); 

Imhoff Inv., LLC., 2014 WL 172234, at *6-*7. Certain of those 

courts, however, also recognized that “the application of the 

heightened standard of agency liability does not entirely square 

with 47 C.F.R. § 64.1200(f)(10).” Savanna Grp., 2013 WL 

4734004, at *5; see also Addison Automatics, Inc. v. RTC Grp., 

Inc., No. 12-9869, 2013 WL 3771423, at *4 (N.D. Ill. July 16, 

2013) (finding the cases requiring plaintiffs to “establish the 

existence of an agency relationship in order to hold” defendants 

vicariously liable under the TCPA unpersuasive, particularly in 

light of the FCC’s regulatory definition of “‘senders’”). Here, 

however, vicarious liability constitutes an alternative theory 

of liability over which the Court need not belabor, particularly 

given the FCC’s most-recent, and unequivocal, expression 

concerning liability under 42 U.S.C. § 227(b)(1)(C). [Docket 

Item 126-2.] 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 22 of 31 PageID: 4730
23 

B. Factual Disputes Preclude Summary Judgment with respect 

to Plaintiff’s State Law Conversion Claim 

Defendants assert that Plaintiff’s conversion claim fails 

as a matter of law because the facsimile transmissions in this 

litigation resulted in harm too “trivial” and “de minimis” to be 

compensable in the context of a conversion claim. (Def.’s Br. 

at 10 (emphasis omitted).) Defendants specifically assert that 

the conversion of “‘fax machines, toner and paper[]’” fails to 

constitute cognizable legal damage, particularly because the 

Court permitted the dissemination of class notice by fax.6

 (Id. 

at 10-11.) 

“Under New Jersey law, ‘t]he tort of conversion is the 

wrongful exercise of dominion and control over property owned by 

another in a manner inconsistent with the owner's rights.’” D & 

D Tech., Inc. v. CytoCore, Inc., No. 14-4217, 2014 WL 4367314, 

at *4 (D.N.J. Sept. 2, 2014) (quoting Advanced Enters. 

 

6

 The Court rejects Defendants’ reliance upon the Court’s 

February 3, 2014 Order as a basis to find the damages derived 

from the unsolicited facsimile advertisements de minimis. 

(Defs.’ Br. at 11.) It is readily apparent from the Court’s 

Order that the Court permitted “notice via fax” primarily 

because “the original list of class members” set forth fax 

numbers, not “names and addresses.” City Select Auto Sales, 

Inc., 2014 WL 413533, at *1. The Court therefore concluded that 

notice be facsimile best comported with Federal Rule of Civil 

Procedure 23(c)(2)(B)’s requirement that class notice be the 

most “‘practicable under the circumstances’” to advise class 

members of the pendency of this litigation. Id. at *3 (citation 

omitted). 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 23 of 31 PageID: 4731
24 

Recycling, Inc. v. Bercaw, 869 A.2d 468, 472 (N.J. Super. Ct. 

App. Div. 2006)). The theory of conversion therefore envisions 

interference of “‘such a major and serious’” degree that the law 

permits, in essence, a forced “‘judicial sale of the chattel 

upon the defendant.’” Arcand v. Brother Int’l Corp., 673 F. 

Supp. 2d 282, 311 (D.N.J. 2009) (quoting LaPlace v. Briere, 962 

A.2d 1139, 1145 (N.J. Super. Ct. App. Div. 2009)). New Jersey 

law accordingly requires “an interference” that either destroys 

a person’s property, or otherwise materially alters its 

“quality[.] Knox v. Samsung Elecs. Am., Inc., No. 08-4308, 2009 

WL 1810728, at *10 (D.N.J. 2009) (citation omitted). 

The Court finds Defendants’ de minimis argument unavailing, 

particularly in light of the fact that New Jersey courts permit 

conversion claims for only nominal damages and, in certain 

instances, even permit an award of punitive damages in the 

absence of compensatory damages. See Winkler v. Hartford 

Accident & Indem. Co., 168 A.2d 418, 422 (N.J. Super Ct. App. 

Div. 1961) (finding in an action for conversion that, “the 

better view appears to be that exemplary damages may be awarded” 

even if “compensatory damages cannot be proved beyond a nominal 

sum”), certif. denied, 170 A.2d 544 (1961). In that regard, 

Defendants’ position conflates “‘two separate inquiries: first, 

the degree to which the property at issue (paper and ink/toner) 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 24 of 31 PageID: 4732
25 

was converted, and second, the value of the property at issue.’” 

Bell v. Money Res. Corp., No. 08-639, 2009 WL 382478, at *4 

(E.D. Pa. Feb. 13, 2009) (citation omitted). Moreover, various 

courts have recognized that “unwanted fax[es]” result in the 

permanent destruction of paper, ink, and toner, therefore 

completely depriving the owner of their use. See id. (citing 

Centerline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F. 

Supp. 2d 768, 782 (N.D. Ill 2008)). Here, however, in addition 

to alleging that the facsimile transmissions “misappropriated” 

fax machines, toner,” and paper, Plaintiff also alleges that the 

transmissions “converted Plaintiff’s employees’ time” in 

connection with the review and processing of the faxes. (Class 

Action Compl. at ¶ 35.) Plaintiff’s allegations therefore 

clearly suffice to demonstrate cognizable legal damage. (See 

id.) Moreover, factual disputes clearly exist with respect to 

the actual amount of Plaintiff’s damages, particularly because 

Plaintiff received more than one disputed transmission, and 

because Plaintiff also seeks compensation for the employee time 

necessarily expended as a result of its receipt of unsolicited 

faxes. (See Defs.’ SMF at ¶ 4 (noting that Defendants “‘sent 

the same form of facsimile’ 44,832 times to 29,113 unique fax 

numbers”) (citation omitted).) See also Old Town Pizza of 

Lombard, Inc. v. Corfu-Tasty Gryo’s Inc., No. 11-6959, 2012 WL 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 25 of 31 PageID: 4733
26 

638765, at *4 (N.D. Ill. Feb. 23, 2012) (applying the de minimis 

doctrine where plaintiff “only alleged damage from conversion 

for a single sheet of paper and the toner used to produce the 

message on the paper”). Consequently, even if the Court 

accepted application of the de minimis doctrine, factual 

disputes concerning the extent (or, the de minimis nature) of 

the transmissions preclude entry of summary judgment with 

respect to Plaintiff’s state law conversion claim.7 See Bell, 

2009 WL 382478, at *5 (rejecting application of the de minimis 

 

7

 The Court is, of course, mindful that Plaintiff’s conversion 

claim seeks relief that mirrors in part the relief sought by 

Plaintiff’s TCPA claims. (See generally Class Action Compl. 

[Docket Item 1].) See also Klein v. Vision Lab. Telecomm., 399 

F. Supp. 2d 528, 540 (S.D.N.Y. 2005) (“The TCPA provides for 

injunctive and compensatory relief in order to stop and/or 

compensate the plaintiff for the annoyance, the conversion of 

paper and ink and the effective preemption of his fax machine 

during the intervals when it is receiving advertisement 

transmissions.”) (citation omitted). Indeed, one court has 

stated that the legislative history of the TCPA indicates that 

the statute directly endeavors to address the injury derived 

from “the cost of the paper and ink” borne by the owner, in 

addition to “the fax machine owner’s loss” of the machine’s use. 

Compressor Eng’g Corp. v. Mfrs. Fin. Corp., 292 F.R.D. 433, 447-

48 (E.D. Mich. 2013). The arguably duplicative nature of 

Plaintiff’s conversion claim does not, however, dictate the 

entry of summary judgment in Defendants’ favor with respect to 

such claim. The Court would point out, however, that if the 

TCPA claim were not present, the remaining conversion claim 

would likely not satisfy the $5 million threshold for 

jurisdiction under 28 U.S.C. § 1332(d). With only 29,113 unique 

fax numbers receiving either one or two fax transmissions, even 

if we assumed the toner, paper, and labor associated with two 

sheets of paper added up to one dollar, the monetary dispute is 

$29,113 in damages, with no shifting of attorney fees on the 

conversion claim. 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 26 of 31 PageID: 4734
27 

doctrine in the TCPA context, and declining “to dismiss a 

conversion claim that could, if successful, recover nominal 

damages”). The Court, therefore, also denies Defendants’ motion 

for summary judgment as to Plaintiff’s state law conversion 

claim. 

C. Factual Disputes Preclude Summary Judgment with respect 

to Plaintiff’s Claim of Individual Liability against 

Miley 

Finally, Defendants argue that summary judgment must be 

granted with respect to Plaintiff’s personal liability claim 

against Miley, because the record purportedly fails to 

demonstrate Miley’s “personal involvement in the commission of 

any tort or the violation of any statute.” (Defs.’ Br. at 13.) 

The Court finds Defendants’ argument unpersuasive. Numerous 

district courts have concluded that individuals acting on behalf 

of a corporation may be held personally liable for violations of 

the TCPA where they “had direct, personal participation in or 

personally authorized the conduct found to have violated the 

statute.” Connor v. Lifewatch, Inc., No. 13-3507, 2014 WL 

4198883, at *5 (D.S.C. Aug. 20, 2014) (collecting cases). 

Indeed, one such district court observed that any contrary 

interpretation would effectively erode “much of [the TCPA’s] 

force.” Md. v. Universal Elections, 787 F. Supp. 2d 408, 415–16 

(D. Md. 2011) (citation omitted). 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 27 of 31 PageID: 4735
28 

Moreover, the factual record in this instance is replete 

with factual disputes concerning Miley’s personal involvement in 

the junk faxes that form the predicate of this litigation. In 

support of Defendants’ argument that Plaintiff’s claim of 

individual liability fails, Defendants rely, almost exclusively, 

on Miley’s allegedly “undisputed testimony.” (Defs.’ Br. at 

13.) Miley’s testimony concerning his involvement, however, is 

certainly not without dispute. Indeed, as correctly noted by 

Plaintiff, Miley’s deposition testimony contains little more 

than “broad memory failures and general denials” concerning his 

involvement in the dissemination of the facsimile transmissions. 

(Pl.’s Opp’n at 16.) 

For example, Miley specifically testified that, though he 

authorized payment of marketing-related expenses, he had no 

responsibility for the oversight of David Randall’s marketing 

materials, nor any knowledge of the individual responsible for 

the advertising and marketing of David Randall’s roofing 

services. (Ex. C at 16:17-17:19.) Miley further acknowledged 

his signature on correspondence approving the disputed facsimile 

transmission in this instance, but otherwise stated that he 

recalled no additional details concerning the contracting for, 

and design of, the advertisement. (Id. at 35:5-40:19.) Miley 

also testified that he had no personal contact with B2B, but 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 28 of 31 PageID: 4736
29 

that he assumed, without support, that B2B conducted a lawful 

and “legitimate” operation. (Id. at 66:1-68:5.) 

Notwithstanding Miley’s testimony, the testimony of April 

T. Clemmer, Miley’s former administrative assistant during the 

relevant period, clearly depicts Miley as intimately involved 

(albeit through Clemmer) in the discussions and negotiations 

with B2B concerning the fax broadcasting program. (See 

generally Ex. A [Docket Item 116-1].) Clemmer explicitly 

testified that Miley commended B2B’s initial correspondence to 

her attention, and thereafter directed Clemmer, on numerous 

occasions, to contact B2B on Miley’s behalf concerning various 

aspects of the proposed facsimile advertisement. (Id. at 9:22-

16:1.) Indeed, Clemmer testified that Miley acted as “the 

ultimate decision-maker in approving the” ads’ forms, 

“determined the number of faxes” to be disseminated, the time 

within which to transmit such faxes, and authorized payment for 

B2B’s services. (Id. at 20:4-21:8.) 

The Court therefore concludes that factual disputes 

preclude the entry of summary judgment as to Plaintiff’s 

individual liability claim against Miley. See Sandusky Wellness 

Ctr., LLC v. Wagner Wellness, Inc., No. 12-2257, 2014 WL 

1333472, at *3 (N.D. Ohio Mar. 28, 2014) (finding disputed facts 

precluded the entry of summary judgment with respect to 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 29 of 31 PageID: 4737
30 

plaintiff’s claim of personal liability against defendant’s 

officer for any violations of the TCPA); Jackson Five Star 

Catering, Inc. v. Beason, No. 10-10010, 2013 WL 5966340, at *4 

(E.D. Mich. Nov. 8, 2013) (granting plaintiff’s motion for 

summary judgment where the record contained no dispute that the 

individual corporate officer participated in the payment of and 

authorization for the fax ads). 

Nor does the Court find that Miley’s purported lack of 

knowledge concerning the legality of the fax advertisements 

compels any contrary conclusion. (See Defs.’ Br. at 13-14.) 

Indeed, the TCPA does not absolve individuals of culpability 

simply because such individual “‘hir[ed] an independent 

contractor’ to send unsolicited facsimiles on [his] behalf[,]’” 

without first engaging in the requisite degree of due diligence. 

Bridgeview Health Care Ctr., 2013 WL 1154206, at *4 (citations 

omitted). Here, Miley testified that he presumed that B2B 

presented an offer to disseminate “legitimate” fax 

advertisements, but concedes that he never personally contacted 

B2B nor engaged in any investigation into B2B’s operation. (Ex. 

C at 66:23-68:5.) Clemmer, however, testified that Defendants 

received numerous requests to be removed from the fax 

broadcasts, and that Miley authorized subsequent fax broadcasts, 

notwithstanding Defendants’ receipt of such requests. (See Ex. 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 30 of 31 PageID: 4738
31 

A at 73:14-77:17 (Clemmer’s testimony concerning Miley’s 

approval of a May 15, 2006 fax broadcast, despite receipt of 

requests for removal from the fax dissemination); Ex. B at 50, 

62 on the docket (requests dated March 29, 2006 and April 5, 

2006, requesting that certain numbers be removed from B2B’s fax 

broadcasting). The TCPA, however, affords no relief to 

individuals who turn a blind eye to the conduct of third parties 

with whom they contract. See Compressor Eng’g Corp., 292 F.R.D. 

at 436. Consequently, because factual disputes concerning the 

level of Miley’s personal involvement pervade the record, the 

Court will deny Defendants’ motion for summary judgment on this 

claim as well. 

D. CONCLUSION 

In sum, the Court concludes that factual disputes preclude 

the entry of summary judgment in Defendants’ favor with respect 

to Plaintiff’s claims. Consequently, the Court will deny 

Defendants’ motion for summary judgment in its entirety. An 

appropriate Order will be entered. 

 September 24, 2014 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge 

Case 1:11-cv-02658-JBS-KMW Document 129 Filed 09/24/14 Page 31 of 31 PageID: 4739