District Court (Ohio) Says Just Because Business’ Name is Featured on Fax Does Not Mean that Business “Sent” It Under TCPA

In Comprehensive Health Care Systems of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd., 2017 WL 27263, at *4–6 (N.D.Ohio, 2017), Judge Burke dismissed a TCPA blast-fax against a defendant on whose behalf the fax allegedly was sent.

Hygenic submits that these allegations are insufficient to state a claim that Hygenic is liable under the TCPA because the Amended Complaint generically lumps all Defendants together and because the only allegations made specifically against Hygenic are merely conclusory allegations and statutory quotations. Doc. 45-1, p. 10. It asserts, “Plaintiff’s only factually-supported theory of liability is this: because Hygenic manufactured BioFreeze® topical analgesic, it is therefore responsible for the transmission of any fax bearing a picture of that product, regardless of whether it participated in, approved of, or was even aware of such faxes.” Id. It states that this “sweeping theory of liability has been rejected by federal courts nationwide” and should be rejected by this Court. Id.   Plaintiff retorts that the fact that VM sells BioFreeze creates a “reasonable inference” that VM and Hygenic have a business relationship and that, in any event, the TCPA imposes strict liability on the entity whose goods and services are advertised in an improperly sent fax. Doc. 53, pp. 12-13. In support of its contention, Plaintiff relies on two Sixth Circuit published cases, Siding and Insulation Co. v. Alco Vending, Inc., 822 F.2d 886 (6th Cir. 2016), and Imhoff Investment, supra, 792 F.3d 627. Id., pp. 12-15. . . . This case does not involve B2B or another, similar broadcaster company that is paid by a defendant to engage in widespread “fax-blasting.” Plaintiff does not allege that VM is a “broadcaster” as that term is defined in the regulations. It does not allege that Hygenic paid VM to send fax advertisements on Hygenic’s behalf, as was the case in Imhoff and Siding. See 47 § C.F.R. § 64.1200(f)(10) (“sender…means the person or entity on whose behalf a facsimile unsolicited advertisement is sent”). And, although Hygenic’s BioFreeze products appear in VM’s advertisement, VM’s faxes, which are attached to the Amended Complaint, make clear that the goods and services being advertised are those of VM. See id. (“sender”…means the person or entity…whose goods or services are advertised or promoted in the unsolicited advertisement.”). VM’s faxes urge the recipient who wishes to purchase BioFreeze at a special price to contact VM (“Bud Boote’s VM Medical/Vitaminerals”); they include VM’s Ohio address and its toll-free number; and they list healthcare products not manufactured by Hygenic that VM purports to sell, such as TENS machines, vitaminerals, hot/cold packs, orthopedic supports, cervical pillows, and another product called “Sombra.” Docs. 43-1, 43-2. Thus, the faxes hold out VM as a seller of products, i.e., its goods and services are advertised and promoted. In short, VM, as alleged in the Amended Complaint, fits the bill of “sender” as that term is defined in 47 § C.F.R. § 64.1200(f)(10).  Plaintiff contends that Hygenic is also a “sender” per the regulations because Hygenic manufactures BioFreeze. It argues that such an interpretation of the word “sender” was endorsed in Imhoff and Siding. Doc. 53, pp. 14-15. The Court disagrees. The Imhoff and Siding courts did not consider the factual scenario in this case and neither case directs a finding in favor of Plaintiff on these facts. Indeed, such a result would be absurd. In the context of Siding, for instance, it would be akin to a court finding that the vending machine company’s advertisement creates TCPA liability for the soft drink companies whose drinks are sold in the vending machines and are promoted in the ads because the soft drink companies manufacture the drinks and benefit when customers buy their products. If this were the case, TCPA liability would automatically attach to any manufacturer or distributor of any product promoted in an improperly sent fax advertisement. The history and the language of the TCPA and the pertinent regulations do not create such liability; nor does binding case law or common sense. If such a broad reading of Plaintiff’s definition of “sender” were applied by courts, entities could engage in “sabotage liability”. . .*6 In short, Plaintiff fails to allege that Hygenic is a “sender” as that term is defined by the regulations and fails to identify legal authority that would create TCPA liability in Hygenic under the facts alleged in the Amended Complaint. Instead, the Amended Complaint simply attempts to piggyback off VM’s status as a “sender” and Hygenic’s status as a manufacturer without any further factual allegations that would make Hygenic liable as a sender. See Twombly, 550 U.S. at 555 (courts need not accept as true legal conclusions couched as factual allegations and a formulaic recitation of the elements of a cause of action will not suffice). The fact that VM promoted Hygenic’s products, without more, does not make Hygenic liable under the TCPA.