Category Archives: Faxes

Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes

September 5, 2023
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Faxes, Healthcare

The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if the fax also refers to a related offer to sell another product or service.  2023 WL 509070, *6 (7th Cir. 2023).

Smith is a decision driven by its particular facts.  The plaintiff, a chiropractor1, received two unsolicited faxes from First Hospital Laboratories (FHL), a company that provides health monitoring and screening services through a network of medical providers who act as independent contractors.  Id. at *1. The faxes invited plaintiff to join FHL’s network of preferred medical providers.  Id.  The faxes also stated that FHL would pay plaintiff a fixed rate for each service he rendered to one of FHL’s clients.  Id.  FHL would refer clients to the plaintiff only if he agreed to allow FHL to invoice the clients directly for the services and neither attempted to obtain more than the fixed rate nor disclosed to the clients the fixed rates that FHL was paying the plaintiff for the services.  Id. at *4.  The clear implication was that FHL would profit by charging the clients more than the fixed rate it was paying the plaintiff to render the services.  Id.

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Eastern District of Pennsylvania Holds That Differentiating Service Is an “Advertisement” and Defendant’s Intent in Sending Fax Is Irrelevant

May 5, 2023
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Faxes, Healthcare, Junk Fax Prevention Act

The Eastern District of Pennsylvania recently reaffirmed that an objective “four corners” standard governs whether faxes are “advertisements” that must meet the TCPA’s consent requirement. Separately, any fax that compares the sender’s product or service to others could constitute an “advertisement” under the Court’s decision.

Background

In Steven A. Conner DPM, P.C. v. Fox Rehabilitation Services, P.C., 2023 WL 2226781 (E.D. Pa. Feb. 24, 2023), Plaintiff (a podiatrist) alleged that Defendant sent unsolicited faxes to his office during the onset of the COVID-19 pandemic to promote its in-home physical therapy services. Plaintiff had never had contact with or made a referral to Fox Rehab before receiving the faxes. Fox Rehab testified at trial that it had sent the faxes to Plaintiff as part of a blast campaign to inform referring healthcare providers that it was adhering to recently issued public guidelines for stemming the spread of coronavirus. Since Fox Rehab admitted to having sent the faxes, the sole issue for the Court was whether they were “unsolicited advertisements” under the TCPA.

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Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

December 5, 2022
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Faxes

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA.  The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients.  The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit.  Caremark (and its vendor that sent the fax at issue) moved for summary judgment.  The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA.  The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

November 8, 2022
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Class Certification, Faxes, Professional Plaintiffs, Standing

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley.  See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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Second Circuit Diverges from Third, Holds that an Unsolicited Invitation to Participate in a Survey is Not Actionable Under the TCPA

February 15, 2022
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Faxes, Telemarketing

The Second Circuit recently addressed whether a faxed invitation to participate in a market research survey is an “unsolicited advertisement” actionable under the TCPA.  In Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022), the Court of Appeals held that under the plain text of the TCPA, an offer to participate in a survey, without more, is not an advertisement because it does not communicate the “availability or quality of any property, goods, or services.”  Id. at 372.

The dispute arose from defendant Focus Forward LLC’s two faxes to plaintiff Bruce Katz, M.D., P.C., a medical services company.  Id. at 370.  The faxes offered $150 in exchange for participation in a market research study.  Id.  Plaintiff initiated a putative class action lawsuit in the Southern District of New York alleging violations of the TCPA, but the federal district court dismissed the complaint, agreeing with Defendant that an invitation to participate in a market research survey was not an unsolicited advertisement within the bounds of 47 U.S.C. § 227.  Id.

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PBM’s Policy Update Fax Not TCPA “Advertisement,” Says Eastern District of Missouri

November 17, 2021
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Faxes, Healthcare, Junk Fax Prevention Act, Summary Judgment

Earlier this week, the U.S. District Court for the Eastern District of Missouri granted summary judgment for a pharmacy benefit manager (PBM) that allegedly violated the TCPA by sending unsolicited advertisements via fax to thousands of healthcare providers. The defendant was entitled to judgment as a matter of law, the court concluded, because the fax simply notified recipients of changes to insured patients’ coverage and did not promote any products or services.

The case began when a St. Louis healthcare provider (BPP) filed a complaint alleging that defendant CaremarkPCS Health, LLC, violated the TCPA when it sent an unsolicited fax to over 55,000 providers notifying them of new limits on insurance coverage for opioid prescriptions for pediatric and adolescent patients in plans sponsored by Caremark’s clients. BPP v. CaremarkPCS Health, LLC, No. 4:20-cv-126, 2021 WL 5195785, at *1 (E.D. Mo. Nov. 9, 2021). Caremark, which manages prescription drug benefits for various health insurers, asked for summary judgment on the ground that the fax was not an “advertisement” under the TCPA and that plaintiff’s claim therefore failed as a matter of law. Id.

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District Court Weighs in On TCPA Fax Liability Standards in the Eighth Circuit

June 10, 2021
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Faxes

The Eastern District of Missouri recently granted a plaintiff’s motion for summary judgment against three defendants in a TCPA fax case.  Levine Hat Co. v. Innate Intelligence, LLC, No. 16-cv-01132, 2021 WL 1889869 (E.D. Mo. May 11, 2021).  The court’s opinion discusses two areas of law with limited Eighth Circuit authority and illustrates the uncertainty regarding how district courts in the jurisdiction may rule on these issues in the future.  Id. at *3-5.  Specifically, the opinion discusses the analysis a court may apply to determine if a fax is an “unsolicited advertisement.”  Id. at *3-4.  The opinion also enumerates the factors a court may consider when assessing whether a “fax broadcaster” demonstrates a sufficiently “high degree of involvement” in the transmission of a fax to render it liable for the transmission.  Id. at *3-5.

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District Court Finds Seminar Invitation Faxes Are Not Advertisements

March 19, 2021
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Faxes

Recently, the Northern District of Illinois dismissed a TCPA putative class action without prejudice, finding that faxes inviting recipients to attend free continuing education veterinary seminars did not constitute advertisements on their face because they did not promote products or services and they were not sufficiently alleged to be a pretext for an underlying commercial purpose.  Ambassador Animal Hosp., Ltd. v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021 WL 633358 (N.D. Ill. Feb. 18, 2021).

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Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

November 5, 2020
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Actual Harm, Faxes, Junk Fax Prevention Act, Jurisdiction, Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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Divided Third Circuit Panel Holds that Offers to Buy Can Qualify as “Advertisements” Under the TCPA

July 6, 2020
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Faxes

A divided panel of the Third Circuit Court of Appeals recently reversed the dismissal of TCPA claims, finding that the faxes at issue were advertisements within the meaning of the TCPA. Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). The Court made this finding even though the faxes at issue did not attempt to sell anything, but rather contained offers to buy the recipients’ services.

In Fischbein, the Third Circuit heard two consolidated appeals in which plaintiffs alleged that the defendants had violated the TCPA by sending them faxes that offered money in exchange for responses to market research surveys. Id. at 561. In both cases, the trial court dismissed the claims because the faxes were not an attempt to sell anything, and thus were not “advertisements” such that the sender needed a recipient’s prior express consent. A divided panel of the Third Circuit disagreed because, in its view, an offer to buy products, goods, or services can also qualify as an advertisement under the TCPA. Id. at 561.

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