               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0415n.06

                                      Case Nos. 17-2228

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                              Aug 16, 2018
COMPRESSOR ENGINEERING                              )
                                                                          DEBORAH S. HUNT, Clerk
CORPORATION,                                        )
                                                    )
       Plaintiff-Appellant,                         )     ON APPEAL FROM THE UNITED
                                                    )     STATES DISTRICT COURT FOR
v.                                                  )     THE EASTERN DISTRICT OF
                                                    )     MICHIGAN
MANUFACTURERS FINANCIAL                             )
CORPORATION, et al.,                                )
                                                    )
       Defendants-Appellees.                        )


       BEFORE: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

       GIBBONS, Circuit Judge. Compressor Engineering Corp. appeals the district court’s grant

of summary judgment in favor of the appellee, Manufacturers Financial Corp (“MFC”), in its

Telephone Consumer Protection Act class action. Because a reasonable juror could find that the

faxed ads were sent “on behalf of” MFC, we reverse. Additionally, we remand the case for the

district court to decide in the first instance whether the Abraham declarations are inadmissible

hearsay.

                                               I.

       This case is one of many lawsuits filed in connection with a company known as Business

to Business Solutions (“B2B”). B2B was a fax advertising business operated by Carolyn Abraham

that catered to small businesses. See Bridging Communities, Inc. v. Top Flite Fin. Incorp.,
Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


843 F.3d 1119, 1122 (6th Cir. 2016). For a fee, B2B faxed clients’ advertisements to hundreds of

numbers in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b).1

Id. These faxes from B2B have led to over 100 lawsuits. Siding & Insulation Co. v. Alco Vending,

Inc., No. 1:11-CV-1060, 2017 WL 3686552, at *1 (N.D. Ohio Aug. 25, 2017).

         The current case involves two faxes advertising MFC sent by B2B in November of 2005.

Fax One contained the name and contact information for MFC and an MFC employee, Julia Khan.

Fax Two did not contain any MFC-specific information. Both faxes included the statement: “This

message is the exclusive property of [B2B], which is solely responsible for its contents and

destinations.” DE 139-4, Stephens Dep. Exhibits, Page ID 5443–44. MFC did not provide B2B

with the list of contacts to receive the fax advertisements.

         Richard K. Stephens owns MFC and another company called Charity Marketing, LLC.

MFC employed both Julia Kahn and Larry Brundage.                            Brundage also owned a company

confusingly called Charity Marketing Services, LLC (“CMS”). CMS operated in the evenings to

make cold calls and generate leads for mortgages. CMS was initially located in the top floor of

MFC’s building but later moved down the street. CMS generated mortgage leads for MFC. Kahn

contends that she was not affiliated with CMS.

         In an affidavit, Abraham explained that B2B keeps regular records of its business with its

clients in a “Client Table.” One entry on this “Client Table” lists MFC,2 with “Julia Kahn”

recorded as a contact. These records show that on October 20, 2005, B2B first made contact with


1
  The TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement,” unless the sender and recipient have “an established business
relationship,” the recipient voluntarily made its fax number available, and the unsolicited fax contains a notice meeting
certain statutory and regulatory requirements. 47 U.S.C. § 227(b)(1)(C), (b)(2)(D); 47 C.F.R. § 64.1200(a)(4).

2
  B2B records actually list “Manufactures Mortgage Corp.” rather than “Manufacturers Financial Corporation” but
given that the court needs to consider all evidence in the light most favorable to the non-moving party, we assume that
these records refer to MFC. Moreover, defendants do not contend that this record refers to any other company.

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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


MFC and sent MFC information. These B2B records further detail dates throughout the next

couple of months when B2B received information to draft an ad for MFC, when the ad was faxed

for MFC’s approval, when MFC approved the ad, when B2B was paid, and when the faxes were

sent out.

        B2B also received faxes regarding the ads that contained MFC’s header from both MFC’s

Grosse Pointe and Farmington offices. Specifically, on November 11, 2015, B2B received a fax

from the MFC Farmington office that included a “Free ‘Ad Details’ Form” on which Kahn had

corrected her telephone number and written in “see attached.” The attachments included two

advertising flyers. Although Kahn testified that the hand-marked changes on the flyers were not

her handwriting, she did identify the second attached flyer as one that MFC had used previously.

        Additionally, on November 23, 2005, B2B received another fax from the MFC Farmington

office. This fax included earlier versions of the ads that were eventually faxed to the plaintiffs, in

violation of the TCPA, with handwritten edits. Kahn identified the edits on one of the ads as her

handwriting but also stated that she did not remember working with these ads. These edits in

Kahn’s handwriting were ultimately incorporated into Fax Two, which was received by the

plaintiffs from B2B. The November 23 fax also included an attached letter, with Kahn’s signature

block, stating that she “didn’t like the ad, so here is a different one.” Kahn stated in her deposition,

however, that she did not remember ever working with B2B on a fax advertisement campaign.

        Finally, the check that was used to pay B2B for the two ads was issued by CMS and signed

by Brundage. But the faxed version of the check was sent from MFC’s fax machine and included

the header for MFC’s Farmington office. The date of this faxed check also corresponded with the

date listed in the client table for when MFC paid B2B. Both Stephens and Kahn testified that they

did not recall authorizing or working on this fax campaign.



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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


       On November 13, 2009, Compressor filed a class action against MFC, Stephens, and

Charity Marketing, LLC, alleging violations of the TCPA relating to Fax One and Fax Two. The

class was eventually certified and both parties subsequently moved for summary judgment on May

2, 2017. The district court granted summary judgment in favor of all three defendants. The

plaintiffs appeal only as to defendant MFC.

                                                II.

       This court reviews a district court’s grant of summary judgment de novo. Minadeo v. ICI

Paints, 398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is appropriate only where there is

“no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). There exists no genuine issue of material fact where “the

record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In considering a

motion for summary judgment, the court should “view the evidence and draw all reasonable

inferences in the light most favorable to the non-moving party.” Minadeo, 398 F.3d at 756.

                                                A.

       The TCPA provides that a person may not “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). At the time Fax One and Fax Two were sent, the FCC “defined the

‘sender’ of a fax as ‘the entity or entities on whose behalf facsimiles are transmitted.’” Siding

& Insulation Co. v. Alco Vending, Inc., 822 F.3d 886, 895 (6th Cir. 2016) (quoting 1995 Order,

10 FCC Rcd. 12391, 12407). Therefore, to succeed on its TCPA claim, Compressor must show

that the offending faxes were sent “on behalf of” MFC.




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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


        Under this circuit’s precedent, the “on behalf of” standard requires that the plaintiff “more

than simply show that the defendant’s goods or services were advertised in the offending fax, but

need not establish a complete agency relationship between the defendant and the fax broadcaster.”

Id. at 898. Thus, the “on behalf of” standard is a middle ground between strict and vicarious

liability. Id. In deciding whether the faxes sent by B2B were on behalf of MFC, this court

considers a variety of factors including:

        [1] the degree of input and control over the content of the fax(es), [2] the actual
        content of the fax(es), [3] contractual or expressly stated limitations and scope of
        control between the parties, [4] privity of the parties involved, [5] approval of the
        final draft of the fax(es) and its transmission(s), [6] method and structure of
        payment, [7] overall awareness of the circumstances (including access to and
        control over facsimile lists and transmission information), and [8] the existence of
        measures taken to ensure compliance and/or to cure non-compliance with the
        TCPA.

Id. at 899.

        Here, the district court found these factors to favor MFC, stating that “[t]here is no evidence

that anyone acting on behalf of MFC approved the final draft of the fax ads, paid for them, or

authorized the faxes to be sent.” DE 149, Op., Page ID 6299. However, this statement is

inaccurate. Taking all evidence in the light most favorable to Compressor, a reasonable juror could

have concluded that MFC edited the fax ads, approved the final drafts, and paid for them. For

example, there is evidence showing that Kahn, an MFC employee, provided edits on Fax Two and

that those edits were incorporated in the final version that was sent out. Although Kahn claims

that she never authorized nor remembered working on an advertisement campaign with B2B, she

did admit that her handwriting was on faxes that were sent between B2B and MFC. Additionally,

records show repeated correspondence between the two companies, including faxes from MFC

offices to B2B, and B2B’s client table recorded dates on which B2B sent the ads to MFC for final




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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


approval. From this evidence, a reasonable juror could find that MFC contracted with B2B, had

input and control over the content of the faxes, and approved the final drafts.

       Moreover, a jury could reasonably find that it was really MFC, rather than CMS, that paid

B2B for the ads. Although B2B was technically paid by a CMS check, the faxed version of the

check was sent from a MFC office, during MFC’s business hours. Moreover, the check was signed

by Brundage, a MFC employee. Additionally, the corporate divide between MFC and CMS is

questionable: CMS generated leads only for MFC, was owned by a MFC employee, and resided

in the same building as MFC for a period of time. From the totality of these facts, a reasonable

juror could conclude MFC paid B2B for the ads and also had input and final say in the ads. Thus,

there exists a genuine dispute of material fact as to whether the ads were sent on behalf of MFC.

       The Eleventh Circuit’s decision in the factually similar Palm Beach Golf Center-Boca, Inc.

v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), supports our conclusion. In Palm

Beach, the defendant, Dr. Sarris owned his dental practice and hired a marketing manager, giving

the manager “free rein” to market the dental practice. Id. at 1249. That marketing manager hired

B2B, who then sent out faxes advertising Dr. Sarris’s practice. Id. Although there was evidence

that Dr. Sarris never approved the ads, the Palm Beach court concluded that “there [was] sufficient

record evidence to support having a jury decide whether the fax was sent on behalf of [Dr. Sarris].”

Id. at 1258. Here, CMS generated leads only for MFC, essentially acting as a marketing manager

for it. And CMS worked directly with B2B and eventually paid B2B to send out the faxes

advertising for MFC that are at issue. Therefore, under the reasoning of Palm Beach, although

MFC may not have explicitly approved the final draft, the faxes could still have been sent on

MFC’s behalf.




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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


        MFC argues that Palm Beach is distinguishable from the current case because the

defendant there paid B2B, while here, CMS, not MFC, paid B2B. However, as discussed above,

CMS seems closely linked with MFC and the payment was faxed from one of MFC’s offices.

Therefore, the sole fact that the check was issued from CMS does not necessitate a finding that the

faxes were not sent on behalf of MFC.3

        Looking at the content of the faxes themselves, the district court noted that Fax Two did

not contain any information identifying MFC and that Compressor did not testify that it received

Fax One. But Fax One did include all of MFC’s information, and the district court erred in

assessing Fax One and Two independently of each other. All of the correspondence between MFC

and B2B shows that the two ads were discussed together as one transaction and, in fact, the

payment to B2B specifically stated that it was for both faxes. Furthermore, although Compressor

never showed that it received Fax One, an expert witness can establish that Fax One was sent to

Compressor and the other class members. See Palm Beach, 781 F.3d at 1249 (holding that

summary judgment was inappropriate even though “no employee of [the plaintiff] could recall

actually seeing or printing the fax advertisement” because “the expert report [confirmed] the

successful fax transmission . . . to Plaintiff’s fax machine”).

        Lastly, the district court pointed to the fact that the faxes all contained the message that

they were the exclusive property of B2B to find that the ads were not sent “on behalf of” MFC.

However, this message was present on the faxes in all the B2B TCPA cases, including ones where

the claims survived summary judgment. See, e.g., Siding, 822 F.3d at 900–02. Thus, this fact is




3
 It is also irrelevant that CMS is not technically an employee of MFC, as was the marketing manager of Dr. Sarris’s
practice in Palm Beach, because the “on behalf of” standard does not require that the person contracting with B2B be
“an employee acting within the scope of his employment.” Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,
P.A., 781 F.3d 1245, 1249 (11th Cir. 2015). That requirement is only for vicarious liability.

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Case No. 17-2228, Compressor Eng’g Corp. v. Manufacturers Fin. Corp. et al.


not determinative of the “on behalf of” question, and the district court erred in granting summary

judgment.

                                                B.

       MFC also asks that the panel affirm the district court’s grant of summary judgment on

alternative grounds—that the Abraham declarations are inadmissible hearsay and thus cannot be

considered to support Compressor. The district court did not rule on this admissibility issue below,

and “[a]s a general rule, appellate courts do not consider any issue not passed upon below.” Sutton

v. St. Jude Med. S.C., Inc., 419 F.3d 568, 575 (6th Cir. 2005) (quoting Dubuc v. Mich. Bd. of Law

Exam’rs, 342 F.3d 610, 620 (6th Cir. 2003)). MFC argues that the panel should rule on this

admissibility issue because the appellate court makes “an independent review of the evidence” on

summary judgment. CA6 R. 20, Appellee Br., at 26. However, in other cases, this court has

remanded to the district court to rule on alternative arguments at the summary judgment stage.

See, e.g., InterRoyal Corp. v. Sponseller, 889 F.2d 108, 112 (6th Cir. 1989). Moreover, evidentiary

rulings are normally reviewed under an abuse of discretion standard. United States v. Ford, 761

F.3d 641, 651 (6th Cir. 2014). Thus, we remand for the district court to decide the admissibility

of the Abraham declarations in the first instance.

                                                III.

       Accordingly, we reverse the grant of summary judgment and remand to the district court

for further proceedings consistent with this opinion.




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