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United States Court of Appeals for the Sixth Circuit
January 13, 2021, Argued; March 24, 2021, Decided
File Name: 21a0069p.06
[*417] RONALD LEE GILMAN, Circuit Judge. This case involves two unsolicited fax advertisements received by Brian Lyngaas, D.D.S., in March 2016. Lyngaas asserts, on behalf of himself and all similarly situated class members, that Curaden AG and its U.S. subsidiary, Curaden USA, violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by sending the advertisements.
At the summary-judgment [**2] stage of the case, the district court ruled that Lyngaas could not pierce the corporate veil to hold Curaden AG liable for Curaden USA's action, that faxes received by a computer over a telephone line (in addition to faxes received by traditional fax machine) violated the TCPA, and that it had personal jurisdiction over both defendants. Following a bench trial, the district court held that Curaden USA violated the TCPA by sending the two unsolicited fax advertisements to Lyngaas, but that Curaden AG was not liable as a "sender" under the TCPA. The court further held that Lyngaas's evidence and expert-witness testimony as to the total number of faxes successfully sent by Curaden USA were inadmissible due to unauthenticated fax records. It therefore established a claims-administration process for class members to verify their receipt of Curaden USA's unsolicited fax advertisements.
Both Lyngaas and Curaden USA appeal the judgment of the district court, and both Lyngaas and Curaden AG cross-appeal. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. FACTUAL BACKGROUND
Lyngaas is a dentist who practices in Livonia, Michigan. On March 8 and again on March 28, [**3] 2016, Lyngaas received on his workplace fax machine unsolicited faxes advertising the Curaprox Ultra Soft CS 5460 toothbrush. The toothbrush in question is manufactured by Curaden AG, a privately owned Swiss entity. Curaden USA, an Ohio corporation headquartered in Arizona, is a subsidiary of Curaden AG that promotes Curaden AG products, including the Curaprox Ultra Soft CS 5460 toothbrush, throughout the United States.
Although a standard written distribution agreement typically governs the practices of Curaden AG's subsidiary distributors, Curaden AG and Curaden USA operated instead under an oral agreement. This is because the written distribution agreement was exchanged but never formally executed. But since "[e]verybody ha[d] assumed it ha[d] been signed," according to the managing director of Curaden AG, many of the tenets of the standard written distribution agreement have been observed in practice by both entities. For example, Curaden USA was the exclusive distributor of Curaden AG products within the United States, consistent with § 2.1 of the distribution [*418] agreement, and Curaden USA "use[d] its best endeavours to promote the sale of the [Curaden AG] [p]roducts throughout the Territory," [**4] consistent with § 5.1.
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992 F.3d 412 *; 2021 U.S. App. LEXIS 8601 **; 2021 WL 1115870
BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff-Appellee/Cross-Appellant (20-1199/20-1200), Plaintiff-Appellant/Cross-Appellee (20-1200/20-1243), v. CURADEN AG, Defendant-Appellee/Cross-Appellant (20-1200/20-1243), CURADEN USA, INC., Defendant-Appellant/Cross-Appellee (20-1199/20-1200).
Prior History: [**1] Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-10910—Mark A. Goldsmith, District Judge.
Lyngaas v. Curaden AG, 2019 U.S. Dist. LEXIS 201986, 2019 WL 6210690 ( E.D. Mich., Nov. 21, 2019)Lyngaas v. Curaden AG, 2019 U.S. Dist. LEXIS 86880, 2019 WL 2231217 ( E.D. Mich., May 23, 2019)Lyngaas v. Curaden AG, 2018 U.S. Dist. LEXIS 39805, 2018 WL 1251754 ( E.D. Mich., Mar. 12, 2018)
fax, personal jurisdiction, district court, advertisements, absent class members, class member, class action, facsimile, contacts, machine, state court, telephone, dentists, logs, class certification, federal court, unsolicited, nationwide class, parties, bind, out-of-state, courts, cases, entity, evidentiary, products, sender, general jurisdiction, telephone line, claims-administration
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