The U.S. Court of Appeals for the Third Circuit has ruled that the former president of a roofing company is not personally liable for a $22 million judgment entered against his firm for sending junk faxes in violation of the Telephone Consumer Protection Act.

Affirming a 2016 jury verdict that found no individual liability against Raymond Miley III for ordering a blast of advertising faxes, the appeals court rejected the plaintiff's claim that the trial judge gave faulty jury instructions on the issue.

But the appeals court split by a 2-1 margin on whether a corporate officer could, under any circumstances, be found personally liable under the TCPA.

Judges Thomas Hardiman and Thomas Vanaskie said in dicta that “there is a real question as to whether Miley can be held liable under the statute at all.” Judge Patty Shwartz concurred that the District Court's instructions were not erroneous and its judgment finding Miley not liable should be affirmed. But Shwartz wrote separately because she feels a corporate officer can face personal liability under the TCPA for actions he took or authorized, notwithstanding the statute's silence as to personal liability for corporate officers.

The case, captioned City Select Auto Sales v. David Randall Associates, was brought by a used-car dealer in Burlington, New Jersey, on behalf of a class of recipients of unsolicited advertising faxes from a Harleysville, Pennsylvania, roofing company. The complaint said a vendor named B2B Business Solutions sent 44,382 faxes on behalf of David Randall Associates in 2006. The TCPA provides statutory damages of $500 per junk fax.

Certification was granted in December 2013. In 2014, U.S. District Judge Jerome Simandle granted City Select's motion for summary judgment against the company for $22,41 million but denied summary judgment against Miley. At trial, jurors found Miley was not personally liable. Simandle denied a motion for a new trial.

On appeal, lawyers for City Select asserted that Miley is liable because he met the definition of “sender” in the statute, but the appeals court disagreed. Any actions he took to plan and execute a fax campaign were carried out in Miley's corporate capacity, not his personal one, the panel said.

City Select argued that Simandle erred in instructing the jury that it needed to find Miley's involvement was “significant,” that he exercised “active oversight,” and that he had “knowledge that he [was] directly participating in or authorizing the fax advertising.”

But the appeals court said Simandle did not misstate the applicable law. First, his use of the term “significant level” plainly referred to a provision that he could be liable if he had direct personal participation in the conduct that violated the TCPA, or personally authorized the conduct that violated the TCPA, the court said.

In addition, the panel said Simandle appropriately answered the jury's question about the word “significant,” because, in its response, the court tied that word to the requirement that the officer exercised “active oversight of, or control over, the conduct that violated the TCPA, rather than merely tangential, routine, passive or ministerial involvement.”

Shwartz noted that the TCPA statute and FCC regulations fail to state whether a corporate officer who sent junk faces can be held liable.

“The fact that a statute does not explicitly provide for aiding-and-abetting liability does not mean that it forecloses personal liability for violations of the statute,” Shwartz said. “Accordingly, notwithstanding the TCPA's silence as to personal liability for corporate officers and the FCC's interpretation concerning whether a fax broadcaster can be liable, a corporate officer can face personal liability under the TCPA for actions he personally authorized or took.”

F. Emmett Fitzpatrick III of Flamm Walton in Blue Bell, Pennsylvania, who represented Miley and David Randall Associates, did not return a call about the ruling.

Todd Lewis of Bock, Hatch, Lewis & Oppenheim in Chicago, who represented City Select and the class, also did not return calls seeking comment.