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. 

SHEARMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC 

Eastgate Corporate Center 

308 Harper Drive, Suite 200 

Moorestown, NJ 08057 

-andDaniel J. Cohen (pro hac vice) 

Tod A. Lewis (pro hac vice) 

BOCK & HATCH, LLC 

134 N. LaSalle St., Suite 1000 

Chicago, IL 60602 

Attorneys for Plaintiff 

F. Emmett Fitzpatrick, III, Esq.

FLAMM BOROFF & BACINE PC

794 Penllyn Pike

Blue Bell, PA 19422

Attorney for Defendants 

SIMANDLE, Chief Judge:

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I. INTRODUCTION

This matter comes before the Court upon Plaintiff City 

Select Auto Sales, Inc.’s (hereinafter, “City Select” or the 

“Plaintiff”) motion for entry of judgment as final under Fed. R. 

Civ. P. 54(b) [Docket Number 242], and Plaintiff’s motion for a 

new trial pursuant to Fed. R. Civ. P. 59(a) [Docket Number 247]. 

II. FACTUAL AND PROCEDURAL BACKGROUND

The Court has summarized the detailed factual and procedural 

background of this case in its previous Opinions regarding this 

litigation, see City Select Auto Sales, Inc. v. David Randall 

Associates, Inc., No. 11-2658, 2014 WL 4755487 (D.N.J. Sept. 24, 

2014); City Select Auto Sales, Inc. v. David/Randall Assocs., 

Inc., 96 F. Supp. 3d 403 (D.N.J. 2015); and City Select Auto 

Sales, Inc. v. David/ Randall Associates, Inc., 151 F. Supp. 3d 

508 (D.N.J. 2015), so a recount of only those facts relevant to 

the resolution of the instant motions will be provided. 

A. Pretrial Opinions In This Litigation

In its September 24, 2014 Opinion, the Court denied 

Defendants’ motion for summary judgment with respect to Raymond 

Miley, III’s (hereinafter “Mr. Miley”) individual liability, 

holding that the record was “replete with factual disputes 

concerning Miley’s personal involvement in the junk faxes that 

form the predicate of this litigation,” as it specifically noted 

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the conflicting deposition testimony of Mr. Miley and Ms. April 

Clemmer, his office manager. City Select, 2014 WL 4755487 at *9. 

In its March 27, 2015 Opinion, the Court granted in part 

Plaintiff’s motion for classwide summary judgment, and entered 

Judgment in favor of Plaintiff and against Defendant 

David/Randall Associates, Inc. (hereinafter, “David/Randall”), 

in the amount of $22,405,000 for violations of the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 (hereinafter, the 

“TCPA”). City Select, 96 F. Supp. 3d at 403. The Court denied 

Plaintiff’s motion for classwide summary judgment as to Mr. 

Miley’s individual liability. In the ensuing Order and 

Judgment, the Court ordered that Judgment “shall be entered in 

favor of the Plaintiff Class and against David/Randall 

Associates, Inc. in the amount of $22,405,000. [Docket Item 

152.] The Court did not make the Judgment final and appealable 

under Fed. R. Civ. P. 54(b); instead, the Court entered a stay 

of providing notice to the Class and for motions related to 

attorneys’ fees until further order of the Court, and ordered 

trial to commence to determine whether Mr. Miley was 

individually liable for the faxes at issue. 

Then, in its October 26, 2015 Opinion, the Court denied 

Plaintiff’s motion to certify the March 27, 2015 Judgment as 

final. City Select, 151 F. Supp. 3d at 510. The Court also 

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stayed class notice and briefing on any application for 

attorneys’ fees until further Order of the Court, and referred 

the matter to Magistrate Judge Karen Williams for a final 

pretrial/settlement conference relative to the individual 

liability claim against Mr. Miley. 

B. May 2016 Miley Jury Trial

A jury trial on Mr. Miley’s individual liability commenced 

on May 23, 2016, and on May 26, 2016, the jury returned a 

verdict in favor of Miley, finding that (1) he did not have 

direct, personal participation in any of the four unsolicited 

fax campaigns, and (2) he did not personally authorize any of 

the four unsolicited fax campaigns. [Docket Item 240.] The 

Court then entered judgment on the verdict. [Docket Item 241.] 

C. Post-Trial Matters

After trial, the Court asked counsel whether there were any 

matters precluding entry of final judgment against David/Randall 

in the amount of $22,405,000, and Plaintiff subsequently filed a 

motion for entry of judgment as final under Fed. R. Civ. P. 

54(b). [Docket Item 242]. Additionally, on June 24, 2016, given 

its disagreement on two of the Court’s jury instructions 

described infra, Plaintiff filed a motion for a new trial on 

Miley’s individual liability pursuant to Fed. R. Civ. P. 59(b). 

[Docket Item 247]. 

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III. MOTION FOR CERTIFICATION OF JUDGMENT AGAINST DAVID/RANDALL

AS FINAL

First, Plaintiff seeks certification of the Judgment against 

David/Randall as final under Fed. R. Civ. P. 54(b) in the amount 

of $22,405,000, which is based on 44,810 successful unsolicited 

transmissions multiplied by the amount of statutory damages, or 

$500 each. (Pl.’s Br. at 5.) 

A. STANDARD OF REVIEW

Federal Rule of Civil Procedure 54(b) provides that when an 

action involves more than a single claim for relief, as here, 

“the court may direct entry of a final judgment as to one or 

more, but fewer than all, claims or parties only if” the Court 

finds “no just reason for delay.” Fed. R. Civ. P. 54(b); see 

also City Select, 151 F. Supp. 3d at 510-512 (summarizing 

caselaw regarding 54(b)). Importantly, a district court must 

ensure that an immediate appeal actually advances the purposes 

of Rule 54(b), by evaluating (1) the relationship between the 

adjudicated and unadjudicated claims; (2) the possibility that 

the need for review might or might not be mooted by future 

developments in the district court; (3) the possibility that the 

reviewing court might be obliged to consider the same issue a 

second time; (4) the presence or absence of a claim or 

counterclaim which could result in a setoff against the judgment 

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to be made final; and (5) other factors, such as delay, economic 

and solvency considerations, shortening the time of trial, 

frivolity of competing claims, expense. See Berckeley Inv. 

Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 1996)). 

(hereinafter, the “Berckeley factors”). 

B. DISCUSSION

1. Berckeley Factors

In its October 26, 2015 Opinion denying Plaintiff’s motion to 

certify the March 27, 2015 judgment against David/Randall, the 

Court began its analysis by noting that the judgment 

“unquestionably constitutes a final determination of all claims 

against David/Randall other than for costs and attorney’s fees.” 

City Select, 151 F. Supp. 3d at 511-12. However, after 

reviewing Berckeley factors, the Court found the entry of final 

judgment to be premature because “the TCPA claim against Mr. 

Miley relies, in essence, upon the same facts and legal theories 

underpinning the now adjudicated TCPA claim against 

David/Randall.” Id. at 512. The Court was therefore concerned 

about the possibility of piecemeal and duplicative appeals if 

the David/Randall judgment was appealed first, and then the 

Miley verdict months later, since both matters involved so many 

common issues. 

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Since the October 2015 Opinion, as described supra, the Court 

conducted the Miley trial between May 23-26, 2016, and entered 

judgment on the verdict in favor of Mr. Miley on May 27, 2016. 

[Docket Item 241]. Now that both the David/Randall matter and 

the Miley trial have been fully adjudicated, there is no longer 

a concern about piecemeal appeals, so the Berckeley factors now 

call for entering judgment as final. 

David/Randall opposes the motion to certify the $22,405,000 

judgment as final because it is “inappropriate, unjust, and 

would not provide any actual benefit to any class member.” (Ex. 

A. to Def. Br. at 7.) Furthermore, they argue that certifying

the judgment as final “would unquestionably put the Defendants 

out of business and into bankruptcy.” (Id.) As a result, they 

propose a procedure that “would calculate the final Judgment by 

taking the actual number of Class members who respond and are 

approved, multiplying it by the statutory $500 damages, and use 

that figure as the amount of the final Judgment, up to the 

$300,000 limit of the Class Fund.” (Id. at 10.) 

As Plaintiff notes, the Court has already rejected this 

argument, and Defendant has offered no new evidence justifying 

reconsideration.1 See City Select, 151 F. Supp. 3d at 512 n. 6 

1 Defendant David/Randall filed an untimely supplemental 

memorandum to its opposition papers where it argued that First 

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(“Moreover, even in the event the Court certified the March 27, 

2015 Judgment, the Court finds no support for David/Randall's 

position that the Judgment against David/Randall should, at this 

time, be confined to an amount less than $22,405,000. Nor has 

David/Randall provided any convincing authority in support of 

its position.”) The Court will therefore certify the March 27, 

2015 judgment against David/Randall as final under Rule 54(b). 

2. Stay Deferring Notice to the Class and Resolution of

Attorneys’ Fees

Plaintiff also requests a stay of Class notice under Fed. R. 

Civ. P. 23(d)(1)(B) and a deferral of briefing and ruling on 

attorneys’ fees until after the Third Circuit has resolved all 

likely appeals and monies are collected from David/Randall 

(and/or Mr. Miley) to benefit the Class. (Pl.’s Br. at 7.) 

Plaintiff offers a host of reasons for this request, including 

that (1) David/Randall must post an appeal bond, (2) 

David/Randall’s likely appeal must be briefed and argued before 

Mercury Ins. Co. v. Nationwide Sec. Servs., Inc., 2016 WL 

2927799 (Ill. App. May 18, 2016) supports the denial of 

Plaintiff’s motion. See L. Civ. R. 7.1(d)(2)(requiring 

opposition papers to be filed “at least 14 days prior to the 

original motion day, unless the Court otherwise orders, or an 

automatic extension is obtained”). The Court will exercise its 

discretion and consider this untimely submission under L. Civ. 

R. 7.1(d)(7). This unpublished decision of a foreign tribunal

is unpersuasive; there is no basis in law for capping the class

recovery ab initio in the absence of a settlement.

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the Third Circuit and a decision rendered before any money might 

be available for distribution to the Class or to Plaintiff’s 

attorneys, (3) the total amount of any recovery against 

David/Randall is not yet ascertainable, (4) notice to the class 

would cause considerable confusion if a determination on fees 

and costs is made but circumstances surrounding the judgment 

collected change, (5) it is impossible to determine an 

appropriate attorney fee until monies are collected for the 

benefit of the Class, and (6) additional attorney time and 

expense will be incurred throughout the appeals process. (Pl.’s 

Br. at 5-6). 

David/Randall opposes Plaintiff’s request of a stay because 

it is “entirely based on a presumption for which there is no 

factual foundation – that the Defendant can afford to, and will 

decide to, take an appeal.” (Def. Br. at 2.) David/Randall 

therefore propose that “notice of Judgment should be provided to 

the class members at the present time.” (Id. at 11.) 

David/Randall has overlooked this Court’s language in the 

Court’s October 2015 Opinion in this matter – “[a]bsent a change 

in circumstances, the Court will require notice [to the Class] 

when funds become available for distribution and when Class 

Counsel makes its application for reasonable attorneys’ fees and 

costs.” City Select, 151 F. Supp. 3d at 513. The total amount 

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of the funds are not yet available for distribution to the 

Class, and Class Counsel has not applied for reasonable 

attorneys’ fees and costs. The Court also agrees with 

Plaintiff’s argument that “it is simply more efficient and less 

likely to confuse the class members if notice and applications 

for attorneys’ fees are provided to the Class after a sum 

certain is collected from David/Randall (or both Defendants) for 

the benefit of the Class.” (Reply Br. at 3.) Plaintiff may 

appeal this Court’s denial of its motion for new trial when 

final judgment is entered, see infra, and David/Randall may 

appeal the entry of final Judgment as well. As a result, 

continuing the stay for notice and attorneys’ fees is 

appropriate until further order from this Court. 

IV. MOTION FOR NEW TRIAL

Plaintiff has also requested that the Court set aside the 

jury verdict and judgment in favor of Mr. Miley under Fed. R. 

Civ. P. 59(a). Plaintiff claims that the Court’s jury 

instructions were erroneous because they allegedly (1) 

improperly added a knowledge and/or state of mind requirement 

and (2) added an extra element of “significance” to Mr. Miley’s 

involvement in the fax campaign that is not required by law. 

The Court has reviewed both the jury instructions and the 

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verdict form and finds that it committed no error. For the 

reasons that follow, Plaintiffs’ motion will be denied. 

A. STANDARD OF REVIEW

Federal Rule of Civil Procedure 59 permits a court to order 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). Whether to grant a new trial is a decision that

is within the sole discretion of the district court. United 

States v. Skelton, 893 F.2d 40, 44 (3d Cir. 1990); see also 

Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995) (noting that 

the trial court has broad discretion to compose jury 

instructions that accurately reflect the law and that are 

appropriate for the facts of a given case). Courts have granted 

new trials when there have been prejudicial errors of law or 

when the verdict is against the weight of the evidence. See

Maylie v. Nat'l R.R. Passenger Corp., 791 F. Supp. 477, 480 

(E.D. Pa. 1992), aff'd, 983 F.2d 1051 (3d Cir. 1992) (citations 

omitted). 

In considering claims of error with regard to jury 

instructions, the Court considers “whether the charge, taken as 

a whole and viewed in the light of the evidence, fairly and 

adequately submits the issues in the case to the jury.” United 

States v. Tiller, 302 F.3d 98, 104 n.3 (3d Cir. 2002) (citation 

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omitted); see also Savarese v. Agriss, 883 F.2d 1194, 1202 (3d 

Cir. 1989) (“Jury instructions are considered as a whole to 

determine whether they are misleading or inadequate.”). There 

is no error if “the challenged instructions accurately state the 

law relating to the particular issue under scrutiny.” Drames v. 

Sun River Inv., S.A., 820 F. Supp. 209, 215 (E.D. Pa. 1993), 

aff'd, 17 F.3d 1429 (3d Cir. 1994). Thus, “[n]o litigant has a 

right to a jury instruction of its choice, or precisely in the 

manner and words of its own preference.” Douglas, 40 F.3d at 

1233. 

When a jury instruction is erroneous, a new trial is 

warranted unless such error is harmless. See Advanced Med. v. 

Arden Med. Sys., Inc, 955 F.2d 188, 199 (3d Cir. 1992). An 

error is harmless if it is “highly probable” that the error did 

not contribute to the judgment. Id. An erroneous jury 

instruction may also be considered non-fundamental when, taking 

the instructions as a whole, the erroneous instruction is a 

“solitary misstatement of law” buried in an otherwise correct 

legal explanation. Ryder v. Westinghouse Elec. Corp., 128 F.3d 

128, 137 (3d Cir. 1997). “If there was an error, the court must 

then determine ‘whether that error was so prejudicial that 

refusal to grant a new trial would be inconsistent with 

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substantial justice.’” Id. (quoting Bhaya v. Westinghouse Elec. 

Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989)). 

B. DISCUSSION

The Court will address both challenges to the jury 

instructions in turn. 

1. Significant Level of Involvement

The Court and counsel crafted the Jury Verdict Form on 

which Question No. 1 asked for the jury’s determination of the 

following question: 

1. Did Raymond Miley III (“Miley”) have direct,

personal participation in the first unsolicited fax

campaign?

[Docket Item 240.] Regarding this requirement for a 

finding of liability, the Court gave Instruction No. 17, which 

stated, in relevant part, as follows: 

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 exceptions; (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. 

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(emphasis added)[Docket Item 235 at 26.] After explaining 

that the first four elements were not in dispute, the Court 

stated: 

On the other hand, it is disputed whether Defendant Miley 

acted on behalf of David/Randall Associates, and whether he 

had a significant level of personal involvement in the 

unlawful fax transmissions. These issues will be for you 

to decide in accordance with these Instructions. 

[Id. at 27.] 

The Court further instructed regarding the requisite level 

of involvement that must be proved for an individual corporate 

director or officer, stating in Instruction 18, in relevant 

part: 

Direct Personal Participation in or Personal Authorization of 

the Unlawful Conduct 

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 violation 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. 

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[Docket Item 235 at 28.] Plaintiff first takes issue with 

the Court’s initial and supplemental jury instruction regarding 

the degree of defendant Miley’s personal participation in the 

unsolicited fax campaign found in Instruction Number 17. First, 

in the jury instruction conference, Plaintiff’s counsel 

expressed to the Court that describing Mr. Miley’s conduct as a 

“high” level of personal involvement improperly added to their 

burden beyond the TCPA and the caselaw. 5/25/16 Tr. at 103:15-

17. After the Court suggested replacing the word “high” with

“significant,” Plaintiff’s counsel responded: “[i]f the Court 

substituted ‘significant’ for ‘high,’ and added at the end of 

the sentence, ‘as more specifically defined hereinafter,’ it 

would be tying whatever significant level means to the objective 

criteria that are truly the standard for liability, and then I 

would not have an objection to it.” Id. at 103:21-25 to 104:1. 

Instead of adding “as more specifically defined hereinafter,” 

the Court added “as explained below,” thereby “tying” the word 

“significant” to the criteria for liability expressed in the 

rest of the instructions. [Docket Item 235.] Plaintiff’s 

counsel did not object to the finalized jury instructions as 

discussed in the conference. 5/26/16 Tr. 44:8-10. 

The jury then received the verdict form asking if Miley had 

“direct, personal participation” in the unsolicited fax 

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campaigns [Docket Item 240], and the Jury Instructions, 

specifically Instruction No. 17, discuss whether Miley had “a 

significant level of personal involvement” in the campaigns. 

[Docket Item 235.] 

The jury asked the following question to the Court: 

Please provide 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 transmission, or active 

oversite (sic), not routine or passive. This is not the 

wording of question #1, where it only state personal 

participation. 

[Docket Item 237.] The Court answered in a supplemental jury 

instruction: 

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 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 

[of the Jury Verdict Form], 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. 

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[Id.] Plaintiff objected to this supplemental instruction at 

the conference because it “improperly increased” Plaintiff’s 

burden of proof in that it required Plaintiff to prove “some 

additional ‘significance’ to Miley’s involvement.” (Pl.’s Br. at 

9.) Plaintiff, relying on federal common law principles, 

believes that the jury only needed to find that Miley “directly, 

personally participated in or personally authorized the conduct 

at issue.” (Pl.’s Br. at 15.) Plaintiff argues that “the 

standard for determining Miley’s individual liability under the 

TCPA was the same standard that has existed for decades in the 

federal common law for determining the individual liability of 

corporate officers under a number of federal statutes.” (Pl.’s 

Br. at 14.) As a result, Plaintiff argues, there is “no legal 

basis for inserting that additional [“significant”] element and 

evidentiary requirement into Plaintiff’s burden of proof. (Id. 

at 15.) 

Plaintiff’s argument that the Court was incorrect in 

assessing the standard for determining Miley’s individual 

liability to be a TCPA-specific issue versus a federal common 

law issue is unavailing. The use of the word “significant” was 

appropriate explanatory commentary in the same fashion as 

explaining what the instruction means. In the discussion 

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between counsel and the Court over how to respond to the 

question from the jury, the Court explained that: 

The words ‘direct personal participation” are not selfdefining. The concept of significant level of personal 

involvement was added to these instructions to make clear 

that it’s not enough to have simply personally 

participated. A lot of people may participate in this, but 

the ones that are going to be liable are the ones that had 

a significant level of personal involvement when they did 

participate. And I believe that there’s a requirement of 

due process. I don’t believe that a person who is a mere 

participant is to be found liable if they didn’t engage in 

significant participation. I think fundamental fairness 

requires it and if this is the first case to say so, so be 

it. But otherwise, I believe there would be almost 

unlimited liability for a person who merely had personal 

participation in drafting the ad or paying for it. 

Tr. 5/26/16 48:16-25 to 49: 1-7. The Court later added: 

What I am attempting to do through this instruction as I 

did in the original instructions, is no more and no less 

than to help the jury to determine what’s meant by the 

words “direct personal participation” in the conduct and 

the words “personally authorized the conduct.” Those words 

are of such generality that unless any jury is given more 

substance to apply, that they would be at a loss because of 

the ambiguity of such terms. In a case of this sort, as 

I’ve explained several times, individual liability for 

potentially tens of millions of dollars should require that 

the jury finds that there is a level of direct personal 

participation that is not insignificant, that is not 

passive, that it’s not ignorant of the fact that faxes were 

being authorized. This doesn’t erect some high barrier, it 

simply assures that on the spectrum of personal 

participation, from one percent participation to a hundred 

percent participation, that the jury is informed of the 

proper point on that spectrum where liability begins to 

attach. This doesn’t say, for instance, that he has to be 

the sole participant in the conduct. It doesn’t say that he 

has to be the decisionmaker. It simply says that he – for 

purposes of question 1, has to have a significant level of 

direct and personal participation. 

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Id. at 51:22-25 to 52:1-16. 

The Court is not convinced that it inserted an additional 

element and evidentiary requirement into Plaintiff’s burden of 

proof by using the word “significant” in its initial and 

supplemental jury instructions. It used the word “significant” 

to clarify that the Defendant could not merely be tangentially 

involved in the operation. Instructing the jury that a 

“significant level of personal involvement requires the 

officer’s active oversight of, or control over, the conduct that 

violated the TCPA, rather than merely tangential, routine, 

passive or ministerial involvement” falls in line with the 

relevant TCPA caselaw on individual liability and does not add 

any extra elements or additional requirements that Plaintiff had 

to prove. It essentially reminds the jury of the guidance from 

Instruction 18, supra. It is unclear how one could either (1) 

directly and personally participate in a campaign or (2) 

personally authorize a campaign without a “significant level of 

involvement” in it. Instead, Plaintiff’s counsel cites to a 

host of cases explaining the federal common law understanding of 

individual liability of corporate officers, without explaining 

how clarifying in a supplemental instruction that Mr. Miley’s 

involvement needed to be “significant” was actually an added 

element for Plaintiff to prove. 

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Plaintiff’s motion also ignores that there was a 

significant discrepancy in the evidence about Mr. Miley’s 

involvement that the jury had to resolve at trial. If the jury 

had believed the testimony of witness April Clemmer, Mr. Miley’s 

office manager, they easily could have found that Mr. Miley was 

“significantly” involved in the fax advertising at issue. In 

this Court’s March 27, 2015 Opinion denying summary judgment on 

Mr. Miley’s individual liability, the Court credited the fact 

that Ms. Clemmer testified at her deposition that Mr. Miley 

approved the ads, selected the ads, determined the distribution 

lists, etc. See City Select, 96 F. Supp. 3d at 431 (explaining 

that Ms. Clemmer testified that Mr. Miley acted as “the ultimate 

decisionmaker in approving the” ads’ forms, “determined the 

number of faxes” to be disseminated, and the time within which 

to transmit such faxes). Unfortunately for Plaintiff, by the 

time Ms. Clemmer finished her trial testimony, there was little 

or no credible evidence that Mr. Miley approved the ads, 

selected the ads, or determined the distribution lists, and Mr. 

Miley further specifically denied such participation. 

Furthermore, on cross examination at trial, in direct 

conflict with her direct testimony, Ms. Clemmer testified that 

she had essentially made the decisions related to the ads, and 

could not recall the ways in which Mr. Miley took part in any 

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part of the fax advertising. She confirmed that nobody from 

David/Randall ever communicated with any person from any third 

parties except for her, see 5/24/16 Tr. at 122:10-13, that she 

could not remember Mr. Miley specifically giving her a list of 

ZIP codes to send faxes to, id. at 124:13-16, that she sent 

payment to B2B for the ads, id. at 125:23-24, that she 

negotiated prices with B2B, id. at 126:2-6, that she 

communicated to B2B about removing fax numbers from broadcast 

lists, id. at 126:13-16, and that Mr. Miley was never copied on 

any of her outgoing faxes sent to B2B, id. at 137:19-25 to 

138:1-6. 

On the other hand, Mr. Miley gave largely consistent and 

exculpatory testimony, and his version of having only incidental 

involvement and no realization of the details of the advertising 

plan was directly at odds with Ms. Clemmer’s original testimony. 

He testified at trial that he never corresponded with anyone 

from B2B or Maxi-Leads, see 5/25/16 Tr. at 69:21-25, that he had 

no communications, involvement, participation or oversight of 

any of the relevant fax broadcast activities, id. at 69:1-5, 

that he never assigned Ms. Clemmer the task of finding an 

advertising or marketing company, id. at 62:5-7, that he never 

discussed anything about fax advertising with Ms. Clemmer, id. 

at 70:1-3, and that he never saw any emails or faxes between Ms. 

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Clemmer and Kevin Wilson of B2B, id. at 69:10-18. In sum, Mr. 

Miley testified that he “authorized no fax” and that he “spent 

no time [and] no energy at all in this project.” Id. at 70:14, 

75:20-22. 

The jury quite apparently credited Mr. Miley’s testimony 

over Ms. Clemmer’s, as defense counsel effectively impeached 

her. If Ms. Clemmer had not recanted her prior testimony on 

cross examination, the jury without question could have found 

that Mr. Miley had a significant level of personal involvement 

in the unlawful fax transmissions, thereby finding him 

individually liable. It is apparent that the jury did not 

credit Ms. Clemmer’s initial testimony about Mr. Miley’s 

involvement in the fax campaign, probably due to her recanting 

on cross examination and Mr. Miley’s consistent denials of 

direct personal involvement. If the jury believed Ms. Clemmer’s 

initial version, it would have had no doubt that Mr. Miley had 

active oversight of, or control over, the fax campaigns, and 

thus had a significant level of personal involvement. The jury 

was free to accept Mr. Miley’s testimony of passive and 

inadvertent participation, for which no standard would impose 

personal liability. 

Finally, as the Court has already addressed in its prior 

Opinions, see, e.g., City Select, 2014 WL 4755487 at *9, 

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numerous district courts that have addressed the personalliability issue in the TCPA context 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, and was not merely 

tangentially involved.” Texas v. Am. Blastfax, Inc., 164 F. 

Supp. 2d 892, 898 (W.D. Tex. 2001); see also Sandusky Wellness 

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

1333472, at *3 (N.D. Ohio Mar. 28, 2014)(holding that an 

individual defendant who “purchased and directed the 

distribution of fascimilies” can be held personally liable for 

TCPA violations); McGee v. Halsted Financial Services, LLC, No. 

13-1555, 2014 WL 1203138, at *1 (D. Del. Mar. 19, 2014) (“[T]he

TCPA may hold individuals personally liable if they developed or 

authorized the policies and procedures that led to violations of 

the TCPA.”); Baltimore–Washington Tel. Co. v. Hot Leads Co., 584 

F. Supp. 2d 736, 745 (D. Md. 2008) (observing that if the

individual defendants “actually committed the conduct that 

violated the TCPA, and/or ... actively oversaw and directed the 

conduct,” they could be held individually liable for the 

statutory violations); Covington & Burling v. Int'l Mktg. & 

Research, Inc., No. CIV. A. 01–0004360, 2003 WL 21384825, at *6 

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(D.C. Super. Apr. 17, 2003) (holding that corporate executives 

were personally liable because they “set company policies and 

[oversaw] day-to-day operations” and were “clearly involved in 

the business practices” that violated the TCPA). The Court’s 

jury instructions were perfectly consistent with the law 

emanating from these cases. 

2. State of Mind Instruction

Plaintiff next contests the portion of jury instruction 

Number 18 explaining that “[t]he officer must have knowledge 

that he is directly participating in or authorizing the fax 

advertising[.]” [Pl.’s Br. at 6.]2 The full text of Instruction 

18 appears in the margin.3 Plaintiff had argued for a more 

2 Plaintiff curiously omits the rest of the sentence in its 

briefing, that the officer “need not know that the conduct 

violates the TCPA.” [Docket Item 235, No. 18.] The Court 

emphasized the importance of this language in the jury 

instruction conference, noting that Mr. Miley “could be unaware 

that it violates the TCPA and still be liable, but he can’t be 

unaware that what he’s doing is authorizing fax advertising and 

still be held liable.” 5/25/16 Tr. 107:17-20. Thus, the Court 

made it clear to the jury that while Plaintiff must demonstrate, 

by a preponderance of the evidence, that Mr. Miley knew he was 

directly participating in or authorizing the fax advertising, it 

was not necessary to show that Mr. Miley knew what he was doing 

was wrongful or illegal. Not only does Plaintiff fail to 

consider the Court’s instructions as a whole, but Plaintiff 

seizes upon an incomplete clause of the contested instruction by 

omitting the important qualifying language. 

3 Instruction No. 18, titled “Direct Personal Participation in or 

Personal Authorization of the Unlawful Conduct,” states: 

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relaxed instruction that Mr. Miley could be held individually 

liable for David/Randall’s TCPA violations “even if he did not 

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 violation 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 corporate officer knows that the conduct violates the 

TCPA is not relevant to your consideration. 

Your job as the jury will be to determine whether Plaintiff 

has proved that Mr. Miley acted on behalf of David/Randall, 

and whether Mr. Miley’s activities relative to the unlawful 

facsimile advertisements meet these requirements, based 

upon the evidence presented to you during this trial. 

If the Plaintiff Class fails to prove any of these 

elements, your verdict must be for Defendant Miley. If, 

however, you find that the Plaintiff Class has met these 

elements, you must then determine the facsimile campaigns 

for which Mr. Miley is liable. 

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know that he was participating in or authorizing fax 

advertising.” (Pl.’s Br. at 6.) In other words, Plaintiff 

preferred that if Mr. Miley had inadvertently authorized the fax 

advertising, he could be found liable. The fact that the Court 

allegedly created an additional “actual knowledge” element, 

Plaintiff argues, improperly increased its burden of proof at 

trial. (Pl.’s Br. at 18.) 

This jury instruction was correct. As the Court explained 

in the jury instruction conference: 

The 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 that can trigger for 

the person. If it was somehow tangential, that is, routine 

or passive or ministerial, then it simply wouldn’t be fair 

to impose liability on someone who happens to be a 

corporate officer that signed off on fax advertising. But 

where there’s discussions, for instance, of the type that 

Ms. Clemmer described and it went back and forth, where 

there was personal involvement, some degree of reflection, 

then it rises to the level that the act requires, and that 

level is active oversight and control over the – over the 

conduct. 

5/25/16 Tr: 106:19-25 to 107:1-8. It 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. As 

Plaintiff’s counsel acknowledged at the jury instruction 

conference, “the Court inferred from the use of the words 

‘direct personal participation and personal authorization’ 

corollary of knowledge of what one is doing.” Id. at 105:20-22. 

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Again, if the jury believed Ms. Clemmer’s direct testimony, it 

would have had no problem finding the requisite modest level of 

knowledge, i.e., that he knew he was directly participating in 

or authorizing the fax advertisements at issue. It is evident 

that the jury did not accept Ms. Clemmer’s direct testimony and 

instead was persuaded by her cross-examination and by Mr. 

Miley’s direct testimony that he lacked such knowledge. 

The cases that Plaintiff cites are inapposite. Plaintiff 

conflates knowledge and specific intent. Plaintiff cites 

Lopresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir. 1997) for the 

proposition that “[w]rongful intent simply is not an element of 

an otherwise valid conversion claim.” Here, the jury instruction 

does not ask the jury to find wrongful intent; instead, 

Plaintiff was required to merely demonstrate that Mr. Miley knew 

he was directly participating in or authorizing the fax 

advertising campaigns at issue. Plaintiff cites Aeroglive Corp. 

v. Zeh, 301 F.2d 420 (2d Cir. 1962) for the proposition that

“[t]he tort of conversion requires no intent or fault,” but 

again, the jury instruction does not ask the jury to find that 

Mr. Miley intended to commit a wrongful act, just that he knew 

that he was authorizing a particular activity, whether legal or 

illegal. Finally, Plaintiff cites Tillman v. Wheaton-Haven 

Recreation Ass’n, Inc., 517 F.2d 1141, 1144 (4th Cir. 1975) for 

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the proposition that a corporate officer’s state of mind is 

irrelevant to his individual liability unless a particular state 

of mind is an element to the tort itself, but Plaintiff fails to 

explain why the Court should borrow the framework utilized in 

tort law to individual liability under the TCPA analysis. 

Accordingly, Plaintiff’s motion for a new trial will be denied. 

C. Final Judgment as to Defendant Miley

No issues remain to be determined as to Defendant Miley, who 

has prevailed upon the verdict of the jury. Meanwhile it is 

possible that this verdict in favor of Mr. Miley might not be 

viewed as final and appealable under 28 U.S.C. § 1291 because 

claims for attorneys’ fees and against co-defendant David 

Randall Associates, Inc., remain to be determined, as well as 

the scope and content of notice to the class and the 

determination of the recovery upon the verdict against David 

Randall Associates. The Court finds no just reason for delay, 

pursuant to Rule 54(b), Fed. R. Civ. P. Evaluating the 

Berckeley factors (see Part III.A, supra), it is even more clear 

that the Miley trial verdict is ripe for appeal now, at the same 

time as the Judgment for Plaintiff against Defendant David 

Randall Associates. All that remains is the determination of 

costs and attorney’s fees, which is necessarily stayed (see Part 

III.B.2, supra). It bears repeating that Class Counsel is not

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in a position to apply for counsel fees and costs as prevailing 

party against David/Randall because the amount of recovery – 

against which the reasonableness of any attorney’s fee award 

must be measured4 – is presently unknown. An immediate appeal by 

Plaintiff will ascertain whether the Plaintiff Class has one 

judgment debtor or two to look toward for payment. Given 

David/Randall’s status approaching insolvency (according to 

Defendant’s counsel), the presence or absence of Mr. Miley as a 

target defendant may be dispositive, as a practical matter, 

whether the class recovers. The Court will therefore certify 

the May 26, 2016 judgment in favor of Raymond Miley, III [Docket 

Item 241] as final under Rule 54(b). 

4 The Third Circuit has outlined nine factors to consider when 

determining the fairness of a proposed class action settlement: 

(1) the complexity, expense and likely duration of the

litigation; (2) the reaction of the class to the settlement; (3)

the stage of the proceedings and the amount of discovery

completed; (4) the risks of establishing liability; (5) the

risks of establishing damages; (6) the risks of maintaining the

class action through the trial; (7) the ability of the

defendants to withstand a greater judgment; (8) the range of

reasonableness of the settlement fund in light of the best

possible recovery; and (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the

attendant risks of litigation. Girsh v. Jepson, 521 F.2d 153,

157 (3d Cir. 1975)(internal quotation marks and ellipses

omitted).

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V. CONCLUSION

In sum, the Court concludes that the Judgment against 

David/Randall should be certified as final under Fed. R. Civ. P. 

54(b), and that Plaintiff has failed to demonstrate that it is 

entitled to a new trial regarding the individual liability of 

Mr. Miley. The judgment in favor of Raymond Miley, III, will 

likewise be certified as final under Fed. R. Civ. P. 54(b). 

Finally, the continued stay of the filing of any motion by Class 

Counsel for attorney’s fees and costs as prevailing party 

against David/Randall Associates will be granted, pending these 

appeals. An accompanying Order will be entered. 

 March 28, 2017 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

Chief U.S. District Judge 

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