By: On February 11, 2019, the Hon. Judge John Z. Lee issued an impactful opinion (msj opinion Case 114-cv-05602) in high-stakes class action litigation that has been pending for more than four years, ruling on a Motion for Summary Judgment that the Defendant’s faxed prescription requests were not unsolicited advertisements in violation of the Federal Telephone Consumer Protection Act (“TCPA”).
Here is some background on the case: Over the period of several months in 2013, the Defendant, a DME/pharmacy supplier, sent six prescription requests via facsimile to a doctor for breathing medication on behalf of a patient. Problem was, unbeknownst to the Defendant, the prescription requests were being sent to the wrong doctor.
The inadvertent recipient (a Chiropractic Practice) alleged that the faxed prescription requests were a clever ruse- that they were truly unsolicited advertisements in violation of the TCPA that were otherwise masquerading as something legitimate.
In 2014 the Chiropractic Practice filed a lawsuit in Federal Court in the Northern District of Illinois against both the DME/pharmacy supplier as well as its president individually, alleging violations of the TCPA on behalf of the recipient and an unknown class of those who may have received a similar fax.
Turns out that a lot of other doctors had received similar fax requests – tens of thousands. That’s because the Defendant was a nationally licensed mail-order medical supplier and it used a template for each of the medication requests it sent out to physicians on behalf of its patients to.
Because so many others received a similar fax, at the Plaintiff’s request the Judge certified a class of tens of thousands of others that received a total of 46,051 faxes.
If the certified class of 46,051 faxes were then found to have been indeed violative of the TCPA there would have been a whopping minimum statutory liability of $23,025,500.00. All for sending out prescription requests via fax on behalf of its prospective patients.
With a class of fax recipients having been certified back in 2017, all that needed to be determined was whether those faxes were (unsolicited) advertisements, and thus violative of the TCPA, or not. Both the Plaintiff and Defendant each respectively filed a Motion for Summary Judgement exactly on that point.
In accordance with Monday’s ruling, these faxes were not unsolicited advertisements in violation of the TCPA. Indeed, as Hon. John z. Lee observed, “[t]he Court agrees that the faxes, on their face, do not contain advertising material . . . Rather, they provide a physician with information about his or her patient and ask the physician to perform a service—signing off on the prescription.”
Not only were the faxes ruled to be non-violative of the TCPA, but assuming arguendo, that they were, the Judge ruled further that the individual president of the corporate Defendant that was also being sued was not personally liable as he did not have direct, personal participation in or personally authorize the conduct at issue. The duration and cost of this TCPA Class Action Litigation epitomizes why it’s imperative to take proper precautions and to implement appropriate safeguards in your business practices.
