Bridgeview Health Care Center, Ltd. v. Clark

Dist. Ct. did not err in granting partial summary judgment in favor of certain class members in plaintiff’s class action against defendant for violating Telephone Consumer Protection Act by authorizing unsolicited fax ads to be sent to class members within 20-mile radius of subject of ad, and then finding in bench trial that defendant was not liable for fax ads sent to class members located more than 20 miles from subject of ad. Record showed that defendant verbally instructed third-party to send about 100 fax ads to businesses within 20 miles of subject of Terre Haute, Ind. and did not realize that third-party sent 4,849 fax ads to businesses in three state area. Moreover, plaintiffs failed to show that third-party had either express actual authority, implied actual authority, or apparent authority to send fax ads beyond 20-mile limitation set forth by defendant. Also, Ct. rejected defendant’s arguments that: (1) class members within 20-mile radius should have been classified as separate sub-class under Rule 23(c)(5); and (2) fact that class representative did not prevail in instant action because it was located beyond 20-mile award radius did not require vacatur of $16,000 award to those class members inside said radius.