2d Cir. Says Blast-Fax TCPA Plaintiff Need Not Plead “Promotion of Specific Products or Services” When Fax is For a “Free Seminar”

In Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc.,  2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a “free seminar” triggers the TCPA.

Requiring plaintiffs to plead specific facts alleging that specific products or services would be, or were, promoted at the free seminar would impede the purposes of the TCPA. See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013) (“Because the TCPA is a remedial statute, it should be construed to benefit consumers.”); Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C 4978, 2012 WL 4120506, at *2 (N.D. Ill. Sept. 18, 2012) (“Congress enacted the TCPA to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements.”) (citing H.R. Rep. No. 102-317, at 10 (1991); S. Rep. No. 102–78, at 2, 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1972 (“[U]nsolicited calls placed to fax machines, and cellular or paging telephone numbers often impose a cost on the called party (fax messages require the called party to pay for the paper used …)”)). And — unless plaintiffs actually attended the free seminar — in many cases it will be difficult for plaintiffs to know whether it was in fact used to advertise a defendant’s products or services. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (“The Twombly plausibility standard, which applies to all civil actions … does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant.”) (internal quotation marks omitted).  Two fanciful examples illustrate the distinction. If a complaint alleged that the Handy Widget Company funded a professorship at a local law school in the name of its deceased founder and faxed invitations on its letterhead to an inaugural lecture entitled “The Relevance of Greek Philosophers to Deconstructionism,” the complaint would not state a claim under the TCPA because the Handy Widget Company is not in the business of philosophical musings. In contrast, if the Handy Widget Company faxed invitations to a free seminar on increasing widgets’ usefulness and productivity, a claim under the TCPA would be validly alleged. Of course, the Handy Widget Company could rebut at the summary judgment stage with evidence showing that it did not feature its products or services at the seminar.  Boehringer’s fax advertised a “dinner meeting” to discuss two medical conditions — Female Sexual Dysfunction (FSD) and Hypoactive Sexual Desire Disorder (HSDD) — and their “pathophysiology models, epidemiology, and diagnosis.” J. App’x at 24. As a pharmaceutical company, Boehringer was generally in the business of treating diseases and medical conditions, such as FSD and HSDD. Moreover, the fax makes clear to the invitee that the dinner meeting was “sponsored by Boehringer Ingelheim Pharmaceuticals, Inc.” Id. The fax invitation was sent to a doctor, whom Boehringer would presumably hope to persuade to prescribe its drugs to patients. Therefore, facts were alleged that Boehringer’s fax advertised a free seminar relating to its business.  In addition, Boehringer’s seeking approval from the FDA for the marketing of Flibanserin is relevant, although not dispositive. Although not approved, the drug is intended as a remedy for the ailments to be discussed at the event. To be sure, Boehringer was prohibited from, inter alia, “promoting” an unapproved drug, 21 C.F.R. § 312.7(a), but that prohibition is not necessarily inconsistent with the free dinner’s mentioning the possible future availability of the drug. Nothing in the statute or Rule limits their scope to the advertisement of products or services then available.    In defense, Boehringer can present, inter alia, testimony of the dinner meeting participants as well as provide the meeting’s agenda, transcript, presentation slides, speaker list, or any internal emails or correspondences discussing the meeting. See Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp. 3d 482, 492 (W.D. Mich. 2015) (holding that “the TCPA’s text does not require a court to put on evidentiary blinders in deciding whether a particular fax amounts to an advertisement” and allowing parties to present evidence beyond the four corners of the fax — such as presentation slides — to determine if a fax promoting a free seminar was pretextual). It is also possible that Boehringer used the seminar to advertise other drugs or services in its inventory –- which would certainly support finding a violation of the TCPA.