United States District Court, E.D. Michigan, Southern Division
BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff,
CURADEN AG, et al., Defendants.
OPINION & ORDER CONTAINING FINDINGS OF FACT AND
CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL AND DIRECTING
SUBMISSION OF PROPOSED JUDGMENT
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
class action, Plaintiff Brian Lyngaas, D.D.S., on behalf of
himself and similarly situated class members, asserts that on
March 8 and March 28, 2016, he received unsolicited fax
advertisements from Defendants Curaden AG and Curaden USA, in
violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. The Court
conducted a non-jury trial on September 18 and September 19,
2019. The parties have submitted post-trial briefs and
proposed findings of fact and conclusions of law (Dkts. 118,
119, 120), as well as responses to the post-trial briefing
(Dkts. 123, 124). Defendants contend that Lyngaas did not
meet his burden of proving the total number of unsolicited
faxes allegedly sent class-wide. They also contend that
Lyngaas did not establish that Curaden AG was a sender of
faxes within the meaning of the TCPA.
discussed below, Lyngaas has established that Curaden USA
violated the TCPA by sending two unsolicited fax
advertisements to him individually and by broadcasting the
advertisements in two mass fax campaigns. However, because
Lyngaas has not established the total number of faxes
successfully sent class-wide, the Court requires a claims
administration process that affords potential class members
the opportunity to establish their receipt of Curaden
USA's unsolicited fax advertisements. As for Curaden AG,
Lyngaas has failed to establish its liability under the TCPA.
In accordance with the direction set forth below, a judgment
will be entered embodying these rulings.
March 8 and March 28, 2016, Lyngaas, a dentist whose practice
is located in Livonia, Michigan, received faxes advertising
the Curaprox Ultra-Soft CS 5460 toothbrush. Joint Final
Pretrial Order (“JFPO”), Stipulation of Fact
(“SoF”) ¶ 1 (Dkt. 114). Lyngaas owns and
operates a fax machine for use within his dental practice,
and he did not expressly invite or permit either Defendant to
send him any advertisement by fax. Id. at
AG is a Swiss entity that manufactures toothbrushes,
including the Curaprox Ultra-Soft 5460. Id. at
¶ 2. Curaden USA is a subsidiary of Curaden AG. Patrice
LeMaire Dep. at 30. Curaden USA is authorized to promote
Curaden AG products, including the Curaprox Ultra-Soft 5460,
throughout the United States, SoF ¶ 5. While Curaden AG
has a form Distribution Agreement, which it uses as a
template for written agreements with its subsidiary
distributors, it never executed such a written agreement with
Curaden USA. Id. at ¶ 20. At all times
relevant, Curaden USA has operated on an oral agreement with
Curaden AG. Id. at ¶ 21.
Curaden USA and Curaden AG have an oral agreement, many of
the tenets of the written Distribution Agreement that was
exchanged-but not executed-have been observed by the parties.
Id. For example, Curaden USA acted as Curaden
AG's exclusive distributor of Curaden products within the
United States, consistent with § 2.1 of the Distribution
Agreement. Trial Tr. II at 78 (Dkt. 116). However, some of
the provisions of the Distribution Agreement were not
observed. Clifford Zur Nieden Dep. at 13; LeMaire Dep. at
53-54. Under the Distribution Agreement, Curaden AG had the
right to approve all marketing materials developed by its
distributors. Distribution Agreement at §§ 5.7,
5.8, Pl. Trial Ex. 9 (Dkt. 121-5). However, this right was
never enforced, and Curaden USA never presented its
advertising materials to Curaden AG for review or approval.
Zur Nieden Dep. at 16-17, 46; Trial Tr. II at 83-84, 123-124.
Thomas is the managing director of Curaden UK, Curaden
AG's distributor in the United Kingdom. Zur Nieden Dep.
at 21; Trial Tr. II at 97-98. Thomas served as an advisor to
Curaden AG subsidiaries, including Curaden USA. Dale Johnson
Dep. at 83; Trial Tr. II at 98, 103. Curaden USA did not seek
Thomas's approval on marketing or business plans, nor did
it seek Thomas's approval of the advertisements before
directing that they be sent. Trial Tr. II at 98, 103, 135;
3/8/16 E-mails, Pl. Trial Ex. 19 (Dkt. 121-11).
USA purchased a database, or “target list, ” of
fax numbers to be used in a fax campaign. SoF ¶ 9. The
target lists contain tens of thousands of fax numbers
connected to dental professionals. Target Lists, Pl. Trial
Exs. 17, 18, 20, 21 (Dkts. 121-9, 121-10, 121-12, and
121-13). Curaden USA did not send the faxes itself, but
instead hired a company called AdMax Marketing
(“AdMax”) to do so. SoF ¶ 8. AdMax
Marketing's primary business is “fax blasting,
” or fax broadcasting. Id. at ¶ 24.
AdMax, in turn, had hired a company called WestFax to send
the faxes but did not disclose to Curaden USA that it had
hired WestFax. Id. at ¶ 9.
USA employee Diane Hammond created the two fax advertisements
at issue in this case. Id. at ¶¶ 4, 30.
Both advertisements promoted the Curaprox Ultra-Soft CS 5460
toothbrush, were directed to “dental professionals,
” and provided Curaden USA's contact information,
including a fax number, phone number, e-mail address,
website, and social media accounts. 3/8/16 Fax, Pl. Trial Ex.
2 (Dkt. 121-1); 3/28/16 Fax, Pl. Trial Ex. 3 (Dkt. 121-2).
This contact information was connected to and was exclusively
maintained by Curaden USA. Trial Tr. II at 86-88, 91-93. The
advertisements did not mention Curaden AG and referred all
communications to Curaden USA. SoF ¶ 39. Curaden USA did
not provide these advertisements to Curaden AG for review
before directing that the faxes be sent. Trial Tr. II at
105-106; Zur Nieden Dep. at 45-46.
February 23, 2016, Dale Johnson, Curaden USA's vice
president and managing director, approved the advertisement
and directed Hammond to arrange to have the faxes
broadcasted; Hammond, in turn, instructed Curaden USA
employee Magen James to have the faxes sent to the attached
target list of “close to 46, 000” fax numbers
purchased by Curaden USA. 3/8/16 E-mails, Pl. Trial Ex. 19.
On March 8, James directed AdMax to send the faxes that day.
Id. Likewise, on March 23, 2016, Hammond instructed
James to send out an updated version of the advertisement to
an attached list of over 46, 000 fax numbers. 3/28/16
E-mails, Pl. Trial Ex. 38 (Dkt. 121-15). James again directed
AdMax to broadcast the faxes the following Monday, March 28,
2016. Id. Accordingly, the faxes were sent at the
direction of Curaden USA. SoF ¶ 3. Once the faxes were
transmitted, AdMax invoiced Curaden USA, and Curaden USA paid
the invoices. Id. at ¶ 38. All communications
regarding the creation and transmission of the advertisements
were between Curaden USA and AdMax. Id.
initial matter, Curaden AG contends that this Court lacks
personal jurisdiction over it under either Michigan's
long-arm statute or Federal Rule of Civil Procedure 4(k)(2),
as the elements of due process are not met. Specifically,
Curaden AG argues that (1) it did not purposely avail itself
of the privilege of acting in Michigan because it did not
require that Curaden USA target its marketing efforts toward
dental practices in Michigan; (2) Lyngaas's claims do not
arise out of Curaden AG's alleged contacts with Michigan
because Curaden AG was not involved in sending the faxes; and
(3) it is unreasonable to exercise jurisdiction over Curaden
AG because Curaden AG was not involved in sending the faxes.
AG has previously advanced the same arguments before the
Court in its motion to dismiss for lack of personal
jurisdiction, see Def. Mot. to Dismiss at 18-21
(Dkt. 16), and in its motion for summary judgment,
see Def. Mot. Summ. J. at 18-25 (Dkt. 60). The Court
rejected these arguments in its opinions resolving these
motions, holding that its exercise of personal jurisdiction
over Curaden AG comports with due process. See
3/12/18 Op. at 8-15 (Dkt. 44); 5/23/19 Op. at 7-9 (Dkt. 89).
For the reasons set forth in those opinions, the Court's
exercise of jurisdiction over Curaden AG does not violate
principles of due process.
Defendants contend that under Bristol-Myers Squibb Co. v.
Cal. Superior Court, __U.S.__, 137 S.Ct. 1773 (2017),
the Court lacks jurisdiction over the claims of any class
members residing outside of Michigan. Again, Defendants
advanced the same argument in their opposition to
Lyngaas's motion for class certification. Defs. Resp. to
Mot. for Class Certification at 6-10 (Dkt. 73). The Court
rejected that argument in its opinion granting Lyngaas's
motion for class certification, stating that it “has
jurisdiction over the claims brought by unnamed class
members, whether they received faxes in Michigan or
out-of-state.” 5/23/19 Op. at 34-37. For the reasons
set forth in that opinion, the Court has jurisdiction over
the claims of all unnamed class members.
and the unnamed class members' claim arises from
Defendants' alleged violation of the TCPA, 47 U.S.C.
§ 227. Under the TCPA,
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 . . . .
47 U.S.C. § 227(b)(1)(C). An “unsolicited
advertisement” is defined as “any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any
person without that person's prior express invitation or
permission, in writing or otherwise.” § 227(a)(5).
The Faxes Were Advertisements
uncontested by Defendants that the two faxes at issue in this
case qualify as “advertisements.” The parties
stipulate that “[t]he faxes depict products which
Curaden USA sells in the United States” and that
Lyngaas “received faxes advertising the Curaprox
Ultra-Soft CS 5460 toothbrush.” SoF ¶¶ 1, 28;
3/8/16 Fax, Pl. Trial Ex. 2 (Dkt. 121-1); 3/28/16 Fax, Pl.
Trial Ex. 3 (Dkt. 121-2). Consistent with the above
definition, the faxes advertise the commercial availability
of the Curaprox toothbrush and are, therefore, subject to the
The Established Business Relationship Exemption And The
Express Permission Defense Do Not Apply
TCPA sets forth an exemption to its restrictions where the
following conditions are met: (1) a fax was sent to a
recipient with whom the sender has an established business
relationship, (2) the sender obtained the recipient's fax
number either through a voluntary communication of the number
or through a public source on which the recipient voluntarily
made the number available, and (3) the fax contained an
opt-out notice meeting the requirements of 47 U.S.C. §
227(b)(2)(D). § 227(b)(1)(C). This exemption, however,
does not apply in this case. First, the parties stipulate
that the notices contained within the two faxes at issue do
not meet the requirements of § 227(b)(2)(E), SoF ¶
36, compliance with which is necessary to apply the exemption
under § 227(b)(2)(D)(iii). Second, Defendants do not
contend they had established business relationships with any
the defense of express permission, although Defendants
previously indicated their intent to present such a defense,
see JFPO at 12, they advanced no argument during
trial or in their post-trial briefing regarding any class
member granting express permission to receive the faxes.
Therefore, neither the established-business-relationship
exemption nor the express-permission defense applies in the
“E-Faxes” Are Actionable
dispute whether a TCPA violation may be established if an
advertisement is received by a computer as an “e-fax,
” as opposed to receipt by a traditional fax machine.
Under the TCPA, it is unlawful “to use any telephone
facsimile machine, computer, or other device to send, to
a telephone facsimile machine, an unsolicited
advertisement . . . .” 47 U.S.C. § 227(b)(1)(C)
(emphasis added). Relying on this language, Defendants
maintain that Lyngaas cannot establish that each class member
received the faxes on a fax machine as opposed to a computer.
The Court previously rejected this argument, stating that
“the Court agrees with Lyngaas that the TCPA covers
claims brought by individuals who received an unsolicited
e-fax advertisement.” 5/23/19 Op. at 30. For the
reasons set forth in that opinion, the Court again holds that
e-faxes are actionable under the TCPA.
Receipt Of A Fax May Be Established Through Evidence Of
parties dispute whether a plaintiff must demonstrate that a
fax was received to succeed on a TCPA claim. Case law on this
question is mixed. In Holtzman v. Turza, 728 F.3d
682, 684 (7th Cir. 2013), the defendant objected to class
certification on the ground that individual issues
predominated, as each putative class member “must prove
that his fax machine or computer received the fax.” The
Seventh Circuit stated that the defendant was
“right on the law but wrong on the
facts, ” because the fax broadcasting service supplied
logs reporting which faxes were delivered successfully.
Id. at 685 (emphasis added). Thus, electronic
confirmation of a successful fax transmission sufficed as
proof of receipt. Id. Similarly, the Sixth Circuit
evaluated a defendant's challenge to a class definition
incorporating “[a]ll persons who were successfully sent
a facsimile . . . .” Am. Copper & Brass, Inc.
v. Lake City Indus. Prods., Inc., 757 F.3d 540, 542 (6th
Cir. 2014). The defendant argued that “a fax might be
‘successfully sent' without being received by its
intended recipient.” Id. at 545. The Sixth
Circuit held that the evidence adduced by the plaintiff did
not support such a distinction, as the plaintiff's expert
opined that “successful transmissions of a complete fax
were successfully sent to and received by 10, 627 unique fax
numbers.” Id. Likewise, the Sixth Circuit has
since found that an expert report establishing the number of
successful fax transmissions was adequate to establish
receipt of the faxes. Imhoff Investment, L.L.C. v.
Alfoccino, Inc., 792 F.3d 627, 634 (6th Cir. 2015).
cases have expressly held that “[t]he TCPA ‘does
not specifically require proof of receipt.'”
City Select Auto Sales, Inc. v. David Randall Assocs.,
Inc., 296 F.R.D. 299, 309 (D.N.J. 2013) (quoting CE
Design Ltd. v. Cy's Crabhouse N., Inc., 259 F.R.D.
135, 142 (N.D. Ill. 2009)). But ultimately City
Select and CE Design premised their conclusions
on the same ground as the case law cited above-fax logs
indicating successful transmission provided circumstantial
evidence that the plaintiffs received the faxes.
Id.; CE Design Ltd., 259 F.R.D. at 142.
Similarly, another case states, “[G]iven the plain
reading and statutory intent of the TCPA, a violation of the
TCPA simply requires that an unsolicited fax be sent, not
that Plaintiff must prove that it was received, ” as
Congress intended to make evidence of transmission of a fax
sufficient to state a claim under the statute. Bridgeview
Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2013 WL
1154206, at *3 (N.D. Ill. Mar. 19, 2013) (internal quotation
marks omitted). The court rejected the defendant's
contention that a plaintiff was required to prove receipt to
demonstrate injury-in-fact and noted that “the attempt
to transmit an unsolicited facsimile can be injurious either
by tying up the recipient's phone or fax line or, for
repeated attempts, by prompting a potential recipient to turn
off the fax machine altogether when it would otherwise remain
on.” Id. at *3 nn.3-4; see also Am.
Copper, 757 F.3d at 544 (“[U]nsolicited fax
advertisements impose costs on all recipients, irrespective
of ownership and the cost of paper and ink, because such
advertisements waste the recipients' time and impede the
free flow of commerce.”).
authority, therefore, is mixed regarding whether a plaintiff
must prove actual receipt of a fax. However, the case law
uniformly holds that a plaintiff may establish receipt of a
fax through evidence of its successful transmission. Because
Lyngaas established his claim through receipt of faxes, as
class members will have to do as well, the Court need not
determine whether proof of actual receipt is necessary.
Curaden AG Is Not Liable As A “Sender”
parties dispute whether Curaden AG is subject to liability
under the TCPA as a “sender” of the faxes, as
defined by an FCC regulation: “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). Lyngaas contends that (1) Curaden AG is
strictly liable for the transmission of the faxes because the
faxes advertised a toothbrush manufactured by Curaden AG, or
alternatively, that (2) the faxes were sent on behalf of
Curaden AG, given its involvement in Curaden USA's
relies heavily on Siding & Insulation Co. v. Alco
Vending, Inc., 822 F.3d 886 (6th Cir. 2016), in arguing
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. In
Alco, the Sixth Circuit considered whether
retroactive application of the FCC's definition of
“sender”-promulgated in 2006- would impermissibly
expand a party's liability for conduct occurring prior to
2006. Id. at 892. Before 2006, TCPA liability for
sending unsolicited faxes was limited to parties “on
whose behalf facsimiles [were] transmitted.”
Id. at 893 (internal quotation marks omitted). Under
the new FCC definition, the Sixth Circuit determined that a
party whose goods or services were advertised could be held
strictly liable, thus expanding TCPA liability. Id.
at 892. Because retroactive application of the FCC regulation
would have increased the defendant's liability, the Sixth
Circuit concluded, “Alco therefore cannot be held
liable simply because its goods or services were advertised
in the offending faxes.” Id. at 896. Applying
the interpretation set forth in Alco, Lyngaas
maintains that Curaden AG may be considered a
“sender” simply because the faxes advertised its
Sixth Circuit, however, 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 to the plaintiff
unsolicited faxes advertising discount prices on various
drugs, including one manufactured by Bristol-Meyers Squibb
(“Bristol”) and another manufactured by Pfizer.
Id. at 801. Although Bristol and Pfizer knew nothing
about the faxes, the plaintiff argued they were liable as
senders under the TCPA because the faxes “advertised or
promoted” their drugs. Id. The Sixth Circuit
rejected this argument, explaining “the regulation does
not purport to impose liability upon parties that
did not ‘send' the fax at all.” Id.
at 802 (emphasis in original). Rather, “the regulation
purports to allocate liability in cases where the party that
physically sends (i.e., dispatches) the fax ...