Robert W. Mauthe MD PC v. Millennium Health LLC
| Decision Date | 19 January 2023 |
| Docket Number | 20-2265 |
| Citation | 58 F.4th 93 |
| Parties | ROBERT W. MAUTHE MD PC, Individually and on Behalf of All Others Similarly Situated, Appellant v. MILLENNIUM HEALTH LLC |
| Court | U.S. Court of Appeals — Third Circuit |
Phillip A. Bock, [Argued], Bock Law Firm, 820 West 41st Street, Suite 35, Miami Beach, FL 33140, David M. Oppenheim, Bock Hatch Lewis & Oppenheim, 134 North La Salle Street, Suite 1000, Chicago, IL 60602, Richard E. Shenkan, Shenkan Injury Lawyers, P.O. Box 7255, New Castle, PA 16107, Counsel for Appellant
Paul A. Werner, III, [Argued], Sheppard Mullin Richter & Hampton, 2099 Pennsylvania Avenue, N.W., Suite 100, Washington, DC 20006, David M. Poell, Sheppard Mullin Richter & Hampton, 70 West Madison Street, Three First National Plaza, Suite 4800, Chicago, IL 60602, Counsel for Appellee
Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges.
The Telephone Consumer Protection Act of 1991 made unlawful many unsolicited faxes, and it created a civil action for recipients of such faxes to recover handsomely: a minimum of $500 for each junk fax received. 47 U.S.C. §§ 227, (b)(3). In this case, a doctor's office received a fax for a free educational seminar, and it now pursues class-wide monetary relief for itself and every other fax recipient. But liability under the TCPA extends only to "unsolicited advertisement[s]," id. § 227(a)(5), which this Court has interpreted to mean communications that promote the sale of goods, services, or property, Fischbein v. Olson Rsch. Grp., Inc. , 959 F.3d 559, 562 (3d Cir. 2020). Because under an objective standard, no reasonable recipient could construe the free educational seminar fax as an unsolicited advertisement for goods, services, or property, we will affirm the District Court's grant of summary judgment to Defendant.
Millennium Health LLC operates a laboratory that provides drug testing and medication monitoring services to healthcare professionals. Robert Mauthe, a medical doctor with a private practice in Center Valley, Pennsylvania, used Millennium Health's services on occasion to test his patients' urine samples. In doing so, Mauthe provided Millennium Health with his practice's fax number.
On May 2, 2017, Millennium Health faxed all of its customers – including Mauthe's office – a single-page flyer promoting a free educational seminar. After reporting that a large population of injured workers received opioids to treat pain, the fax explained that the free seminar would "highlight national trends in opioid misuse and abuse ... and discuss the role of medication monitoring as a valuable tool that provides objective, actionable information during the care of injured workers." Fax (App. 224). Although Millennium Health offered one type of urine testing that could detect opioids, the fax did not mention that specific service or its availability from Millennium Health. Nor did the fax provide any pricing information, discounts, coupons, or product images.
Like the fax itself, the seminar, which was broadcast live three weeks later, did not promote any goods, services, or property for sale. Rather, through an oral presentation, accompanied by PowerPoint slides, the seminar described statistics on opioid abuse and the role of such drugs in chronic pain management. It also explained that drug testing could help detect or monitor opioid abuse, and the seminar assessed the efficacy of several drug testing methods. One of those methods was a type of urine drug testing that Millennium Health offered, but the presentation did not indicate that Millennium Health performed that type of drug testing. That was consistent with the scope of the seminar, which did not identify providers or prices for any of the drug testing methods it reviewed. After the seminar, Millennium Health did not follow up with any registrants or attendees.
Mauthe appreciates the opportunity presented by the damages remedy created by the TCPA for junk faxes. Through his office, he has sued fax senders in more than ten lawsuits since 2015, each seeking damages for violations of the TCPA.1 In this case, after receiving the free-seminar fax, Mauthe, through his office, filed a putative class action in the Eastern District of Pennsylvania against Millennium Health on behalf of himself and all other recipients of the fax. In addition to the TCPA claim, the complaint also contained a state-law conversion claim for the misappropriation of paper, toner, and employee time.
Millennium Health unsuccessfully moved under Rule 12(b)(6) to dismiss those counts for failure to state a claim. In denying that motion without prejudice, the District Court allowed limited discovery "on the question of whether the fax was an advertisement or a pretext, i.e. , whether it was part of a larger advertising scheme." Robert W. Mauthe, M.D., P.C. v. Millennium Health LLC , No. 5-18-cv-01903, Order, ECF No. 43, at 1 (E.D. Pa. Jan. 10, 2019).
After completing discovery, Millennium Health successfully moved for summary judgment. The District Court explained that the fax did not constitute an unsolicited advertisement because it "promote[d] a free seminar[ ] rather than any commercially available product." Robert W. Mauthe, M.D., P.C. v. Millennium Health LLC , 2020 WL 2793954, at *6 (E.D. Pa. May 29, 2020). In reaching that conclusion, the District Court considered only the fax itself, and it did not evaluate whether the free seminar was a pretext for advertisement. See id. at *14. With the federal question resolved, the District Court declined to exercise supplemental jurisdiction over the state-law conversion claim and dismissed it without prejudice. See id. at *20 (citing 28 U.S.C. § 1367(c)(3) ). The District Court had federal-question jurisdiction over the matter, 28 U.S.C. § 1331 ; Mims v. Arrow Fin. Servs., LLC , 565 U.S. 368, 377, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012), and through a timely appeal, Mauthe invoked this Court's appellate jurisdiction, 28 U.S.C. § 1291.
The TCPA prohibits the transmission of unsolicited advertisements by fax. See 47 U.S.C. §§ 227(a)(5), (b)(1)(C) ; Fischbein , 959 F.3d at 561–62 ; Robert W. Mauthe, M.D. P.C. v. Optum Inc. , 925 F.3d 129, 132 (3d Cir. 2019). The statutory definition of the term ‘unsolicited advertisement' does not depend on the subjective viewpoints of either the fax sender or recipient, and thus an objective standard governs whether a fax constitutes an unsolicited advertisement. See 47 U.S.C. § 227(a)(5) ; Optum , 925 F.3d at 133 ().2 Cf. 47 U.S.C. § 227(b)(3)(C) (). And substantively, to constitute an unsolicited advertisement, the fax must "promote goods or services to be bought or sold" and "have profit as an aim." Fischbein , 959 F.3d at 562 (quoting Optum , 925 F.3d at 133 ); 47 U.S.C. § 227(a)(5) ().
Here, under an objective standard, no reasonable recipient of Millennium Health's unsolicited free-seminar fax could view it as promoting the purchase or sale of goods, services, or property. The fax itself makes no mention whatsoever of goods, services, or property. Instead, the fax mentions a seminar. Nowhere in the fax is a discussion of anything that can be bought or sold – the fax speaks only about a free event. The fax does not contain testimonials, product images, or coupons – things commonly associated with an advertisement. It does not provide any email, phone number, or direct internet link to purchase a Millennium Health product or service. The fax is purely educational – it describes research about opioids, invites attendance at an academic event, and introduces the event speaker. For these reasons, the fax does not promote the purchase or sale of goods, services, or property.
Nor would Mauthe's TCPA claim fare any better under the Federal Communications Commission's pretext theory, which he urges this Court to adopt. Although the FCC's pretext theory may be construed differently, see Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc. , 847 F.3d 92, 101 (2d Cir. 2017) (Leval, J., concurring), Mauthe advocates for the rebuttable presumption version adopted by other circuits, which examines not only the fax for a free seminar but also the contents of the free seminar to determine whether the fax "turn[s] out to be [a] pretext for a later solicitation." Fulton v. Enclarity, Inc. , 962 F.3d 882, 889 (6th Cir. 2020) (internal citation omitted); see also Physicians Healthsource , 847 F.3d at 95. Here, Mauthe contends, Millennium Health's fax served as a pretext for a solicitation at its later seminar. But the free, educational seminar did not involve any such solicitation. It did not advertise any product, service, or property. 47 U.S.C. § 227(a)(5). Neither the presenter nor the slides discussed pricing for goods or services offered by Millennium Health. Even after the seminar, Millennium Health did not contact seminar registrants or attendees to follow up about the drug-testing services discussed at the seminar. Thus, nothing about the free seminar would lead a reasonable recipient of Millennium Health's fax to believe that it was an advertisement for goods, services, or property. For that reason, even assuming arguendo the applicability of a version of the pretext theory allowing consideration of the contents of the free seminar, the fax here would still not be an unsolicited advertisement.3
The District Court correctly...
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