The Third Circuit gave Dr. Robert Morte some bad news as he pursued his latest case through the Court of Appeals.the case is Mauthe v. Millennium Health LLC, No. 20-2265, 2023 US App. LEXIS 1267 (3rd Cir. January 19, 2023) states that the defendant, a company that operates laboratories that provide drug testing and drug monitoring services, offers Dr. Mauthe (the customer) his one page on a free educational program. was submitted after sending a fax of seminar.
The free seminar “highlighted national trends in opioid misuse and abuse and discussed the role of drug monitoring as a valuable tool in providing objective and actionable information during the care of injured workers.” increase.” millennium health, 2023 US App. *2 is Lexis 1267. The fax did not mention any specific services offered by the defendants, nor did it contain pricing information, discount offers, coupons, or product images. Did not advertise property. The sender did not follow up with registrants or attendees either. Nonetheless, Dr. Mauthe sued under his TCPA’s fax provisions, alleging that the faxes were unsolicited advertisements.
Although defendants were unsuccessful in dismissing the action at the pleading stage, the district court found only “whether the fax was an advertisement or a pretext, i.e., was part of a larger advertising scheme.” Ditto. *4. And the discovery confirmed that the fax did not violate TCPA.
“[N]o Reasonable Recipients…Readable [the fax] as an facilitator for the purchase or sale of goods, services, or property,” the Third Circuit explained. Ditto. At six o’clock. fax:
- We didn’t talk about goods, services, or property.
- It did not contain testimonials, product images, or coupons.When
- did not include contact information to purchase the products or services sold by the defendants;
Ditto.
And even if that test were applied, the fax was not a “pretext” for advertising. This is because the seminar did not actually promote a product, service, or property. Ditto. at 7 o’clock. As a result, the Third Circuit concluded that summary judgment in favor of the defendants was the correct outcome.
This case is a sad reminder that professional plaintiffs continue to target even harmless faxes. Consent remains the best protection, but senders can also protect enterprising plaintiffs by offering little to cooperate. For example, this fax didn’t include a price, it was just for information. I dismissed this lawsuit.
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