Collector - February 2020 - 20

was a "sender" of faxes within the meaning
of the TCPA.
At trial, although Lyngaas established
that Curaden USA violated the TCPA by
faxing two unsolicited advertisements to
him individually and by broadcasting the
advertisements in two mass fax campaigns,
the court held that Lyngaas failed to
establish Curaden AG's liability under
the TCPA.

VICARIOUS LIABILITY
UNDER THE TCPA
The TCPA does not statutorily limit
vicarious liability, instead imposing liability

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20

upon "any person." A plaintiff may establish
a defendant's vicarious liability under the
TCPA through an agency relationship
pursuant to federal common law principles.
In Lyngaas, the plaintiff and the unnamed
class members claimed damages arising
from the defendants' alleged violation of the
TCPA. In relevant part, the TCPA states:
It shall be unlawful for any person within
the United States, or any person outside
the United States if the recipient is
within the United States ... (C) to use any
telephone facsimile machine, computer,
or other device to send, to a telephone
facsimile machine, an unsolicited
advertisement ...
The parties disputed whether Curaden
AG was subject to liability under the
TCPA as a sender of the faxes. A "sender"
is defined by a Federal Communications
Commission regulation as the person
or entity on whose behalf a facsimile
unsolicited advertisement is sent or whose
goods or services are promoted in the
unsolicited advertisement.
Lyngaas argued that Curaden AG was
strictly liable for the transmission of
the faxes because the faxes advertised a
toothbrush manufactured by Curaden
AG, or alternatively, that the faxes were
sent on behalf of Curaden AG, given its
involvement in Curaden USA's advertising.
The plaintiff relied heavily on Siding &
Insulation Co. v. Alco Vending, Inc., 822
F.3d 886 (6th Cir. 2016), to argue that the
FCC definition of "sender" imposes strict
liability on defendants whose goods or
services are advertised in a fax, regardless
of whether the defendant was responsible
in some capacity for sending the fax.
However, the 6th Circuit reevaluated the
scope of TCPA liability under the FCC
definition in Health One Medical Center v.
Mohawk, Inc., 889 F.3d 800 (6th Cir. 2018).
In that case, a pharmaceutical wholesaler
sent unsolicited faxes advertising discount

prices on various drugs to the plaintiff.
Although the pharmaceutical manufacturers
knew nothing about the faxes, the plaintiff
argued they were liable as senders under
the TCPA because the faxes advertised or
promoted their products.
The 6th Circuit rejected this argument,
explaining "the regulation does not
purport to impose liability upon parties
that did not 'send' the fax at all."
(Emphasis in original.) Rather, "the
regulation purports to allocate liability in
cases where the party that physically sends
(i.e., dispatches) the fax and the party that
causes it to be sent are not one and the
same." (Emphasis in original.) Because
the manufacturers "neither dispatched the
faxes nor caused them to be sent," they
could not be held liable under the TCPA.
Determining whether a party is a
"sender" because its "goods or services
are advertised or promoted," therefore,
involves consideration of factors that can
also be relevant to whether faxes were
sent "on behalf of " a party. Specifically,
in determining on whose behalf a fax
was sent, the 6th Circuit approved the
following standard:
Circumstances to be considered include,
but are not limited to, the degree of
input and control over the content of
the fax(es), the actual content of the
fax(es), contractual or expressly stated
limitations and scope of control between
the parties, privity of the parties involved,
approval of the final draft of the fax(es)
and its transmission(s), method and
structure of payment, overall awareness
of the circumstances (including access
to and control over facsimile lists and
transmission information), and the
existence of measures taken to ensure
compliance and/or to cure non-compliance
with the TCPA.
Under the lens of Health One, the
District Court found in Lyngaas that

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Collector - February 2020

Table of Contents for the Digital Edition of Collector - February 2020

Presidents Page
Industry News
Best Practices
FYI
Collection Tips
Overlapping Responsibilities?
Taking on Tax Time
Making Connections in D.C.
Calendar
Honor Roll
Education Spotlight
Creative Solutions
Ask the Experts: Reaching Out
Legal Liability & the FDCPA
Advocacy and Parenthood: Not So Different
Your Opinion Matters
Beyond the Boundary of the Law
ACA SearchPoint
Membership
Ad Index
Last Word
Collector - February 2020 - Cover1
Collector - February 2020 - Cover2
Collector - February 2020 - 1
Collector - February 2020 - 2
Collector - February 2020 - 3
Collector - February 2020 - 4
Collector - February 2020 - Presidents Page
Collector - February 2020 - Industry News
Collector - February 2020 - 7
Collector - February 2020 - 8
Collector - February 2020 - 9
Collector - February 2020 - 10
Collector - February 2020 - 11
Collector - February 2020 - Best Practices
Collector - February 2020 - 13
Collector - February 2020 - FYI
Collector - February 2020 - 15
Collector - February 2020 - Collection Tips
Collector - February 2020 - 17
Collector - February 2020 - Overlapping Responsibilities?
Collector - February 2020 - 19
Collector - February 2020 - 20
Collector - February 2020 - 21
Collector - February 2020 - Taking on Tax Time
Collector - February 2020 - 23
Collector - February 2020 - 24
Collector - February 2020 - 25
Collector - February 2020 - Making Connections in D.C.
Collector - February 2020 - 27
Collector - February 2020 - 28
Collector - February 2020 - 29
Collector - February 2020 - 30
Collector - February 2020 - 31
Collector - February 2020 - Calendar
Collector - February 2020 - Honor Roll
Collector - February 2020 - Education Spotlight
Collector - February 2020 - 35
Collector - February 2020 - Creative Solutions
Collector - February 2020 - 37
Collector - February 2020 - Ask the Experts: Reaching Out
Collector - February 2020 - 39
Collector - February 2020 - Legal Liability & the FDCPA
Collector - February 2020 - 41
Collector - February 2020 - Advocacy and Parenthood: Not So Different
Collector - February 2020 - 43
Collector - February 2020 - Your Opinion Matters
Collector - February 2020 - 45
Collector - February 2020 - Beyond the Boundary of the Law
Collector - February 2020 - 47
Collector - February 2020 - ACA SearchPoint
Collector - February 2020 - 49
Collector - February 2020 - Membership
Collector - February 2020 - Ad Index
Collector - February 2020 - Last Word
Collector - February 2020 - Cover3
Collector - February 2020 - Cover4
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