Robert W. Mauthe, M.D., P.C. v. Optum Inc.
| Decision Date | 28 May 2019 |
| Docket Number | No. 18-2894,18-2894 |
| Citation | 925 F.3d 129 |
| Parties | ROBERT W. MAUTHE, M.D., P.C., Individually and on behalf of all others similarly situated v. OPTUM INC., OptumInsight, Inc., Robert W. Mauthe, M.D., P.C., Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
925 F.3d 129
ROBERT W. MAUTHE, M.D., P.C., Individually and on behalf of all others similarly situated
v.
OPTUM INC., OptumInsight, Inc., Robert W. Mauthe, M.D., P.C., Appellant
No. 18-2894
United States Court of Appeals, Third Circuit.
Argued March 8, 2019
Filed: May 28, 2019
Phillip A. Bock (argued), Daniel J. Cohen, Molly F. Stemper, David M. Oppenheim, James M. Smith, Bock Hatch Lewis & Oppenheim, 134 North La Salle Street, Suite 1000, Chicago, IL 60602, Richard E. Shenkan, Shenkan Injury Lawyers, 6550 Lakeshore Street, West Bloomfield, MI 48323, Attorneys for Appellant
Kathryn M. Ali, Jessica L. Ellsworth (argued), Benjamin A. Field, Kaitlyn Golden, Adam K. Levin, Hogan Lovells US, 555 Thirteenth Street, N.W., Columbia Square, Washington, DC 20004, Stephen A. Loney, Jr., Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, Attorneys for Appellee
BEFORE: AMBRO, RESTREPO, and GREENBERG, Circuit Judges
OPINION
GREENBERG, Circuit Judge
I. INTRODUCTION
This matter comes on before this Court on the appeal of plaintiff Robert W. Mauthe M.D. P.C. challenging the District Court’s grant of summary judgment against its complaint brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). We consolidated this case for argument with Mauthe v. Nat'l Imaging Assocs., Inc., No. 18-2119, 767 Fed. Appx. 246, 2019 WL 1752591 (3d Cir. Apr. 17, 2019) (" NIA "), a case that the same plaintiff filed against a different defendant under the TCPA because the two cases raised similar issues. Although the plaintiff in both cases is a professional corporation, we will refer to the plaintiff as Robert W. Mauthe, as though an individual, as we did in NIA. In this case, Mauthe alleged that he received an unsolicited advertisement via fax from defendants Optum, Inc. and OptumInsight, Inc., related entities, in violation of the TCPA and included in his complaint a supplemental state law claim for common law conversion. Defendants moved for summary judgment, and the Court granted their motion on the TCPA claim and dismissed the state law claim without prejudice, as it declined to exercise jurisdiction over it. Robert Mauthe, M.D. PC v. Optum, Civ. No. 17-1643, 2018 WL 3609012 (E.D. Pa. July 27, 2018) (" Optum "). For the reasons stated below, we will affirm the order of the Court in both respects.
II. FACTUAL BACKGROUND
The facts of this case are essentially undisputed. Defendants maintain a national database of healthcare providers, containing providers' contact information, demographics, specialties, education, and related data. Defendants market, sell, and license the database typically to health care, insurance and pharmaceutical companies, who use it to update their provider directories, identify potential providers to fill gaps in their network of providers, and validate information when processing
insurance claims. Obviously, it is important that the information contained in the database be accurate and Mauthe, who is a healthcare provider, does not contend otherwise.
One of the ways defendants update and verify the information in their database is to send unsolicited faxes to healthcare providers listed in the database, requesting them to respond and correct any outdated or inaccurate information. The faxes inform the recipients that:
As part of ongoing data maintenance of our Optum Provider Database product, Optum regularly contacts healthcare practitioners to verify demographic data regarding your office location(s). This outreach is independent of and not related to your participation in any Optum network. By taking a few minutes to verify your practice information is current, your information will be promptly updated in Optum Provider Database.
This data is used by health care related organizations to aid in claims payment, assist with provider authentication and recruiting, augment their own provider data, mitigate healthcare fraud and publish accurate provider directories.
Optum, 2018 WL 3609012, at *2. The faxes also advise the recipients that "[t]here is no cost to you to participate in this data maintenance initiative. This is not an attempt to sell you anything." Id. The fax that defendants sent Mauthe included these provisions.
III. STANDARD OF REVIEW
We exercise de novo review on this appeal. See Bradley v. West Chester Univ. of Pa. State Sys. of Higher Educ., 880 F.3d 643, 650 (3d Cir. 2018). "Our review of the District Court’s [summary judgment] decision is plenary, and we apply the same standard as the District Court to determine whether summary judgment was appropriate." State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). "[S]ummary judgment is properly granted ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Sconiers v. United States, 896 F.3d 595, 597 n.3 (3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a) ).1
IV. DISCUSSION
Under the TCPA, it is unlawful to send an unsolicited advertisement by fax. NIA, 2019 WL 1752591, at *2. Mauthe asks us to hold that the fax was an unsolicited advertisement which the TCPA prohibited defendants from sending to him. In NIA, we articulated the standard to determine when a fax has been sent to a potential direct purchaser of a product or service in violation of the TCPA, but we also opined that liability for a TCPA violation is not necessarily limited to a situation in which a fax is sent to potential direct purchasers of the sender’s product or services. Id. at *3 n.3. Mauthe does not claim to be a potential direct purchaser of defendants' services and defendants disclaim any intention to sell him anything. Indeed, their fax to him recited as much, as it said that the fax was not an attempt to sell him anything. After our examination of the fax we have concluded that...
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