Kaye et al v. Merck & Co., Inc. et al
Filing
216
ORDER denying 190 Motion for Summary Judgment. Plaintiffs' motion is denied. Summary judgment is instead granted in favor of defendants. The Clerk may enter judgment dismissing the action and close the case. See attached order and ruling for details. So ordered. Signed by Judge Robert N. Chatigny on 3/27/20. (Morgan, Luke)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROGER H. KAYE, et al.,
Plaintiffs,
v.
MERCK & CO., INC., et al.,
Defendants.
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CASE NO. 3:10-CV-1546(RNC)
RULING AND ORDER
On April 28, 2010, Dr. Roger Kaye’s office received a fax
inviting him to “participate in [a] telesymposium on important
clinical information about schizophrenia and bipolar I
disorder.”
The fax was sent by MedLearning, Inc.
(“MedLearning”) pursuant to a contract with Merck & Co., Inc.
(“Merck”). 1
Kaye and his office (together, the “plaintiffs”)
have sued Merck and MedLearning (together, the “defendants”),
purporting violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 447, as well as of Conn. Gen. Stat. § 52570c.
Plaintiffs have moved for summary judgment.
For reasons
explained below, I agree with defendants that plaintiffs
consented to the receipt of the fax.
1
Accordingly, plaintiffs’
The contract was actually entered into by Schering Corporation,
a predecessor to Merck. This ruling and order will follow the
parties’ convention of simply referring to Merck.
1
motion for summary judgment is denied.
Moreover, because no
material facts are in dispute and because I conclude that
plaintiffs cannot maintain their TCPA or state law claims as a
matter of law, summary judgment will be granted in favor of the
defendants. 2
I.
A.
Background
Factual History
In December 2009, Merck hired MedLearning to manage a
series of telesymposia discussing schizophrenia, bipolar
disorder, and the use of Saphris, a nongeneric drug used to
treat these conditions.
As part of the agreement between Merck
and MedLearning, the latter was responsible for “overall program
management” of the telesymposia, including, inter alia,
“recruit[ing] all participants from the list provided by the
client.”
ECF No. 192-1, at 5.
To recruit physicians to participate, MedLearning employed
callers to telephone physicians on a list provided by Merck.
2
The plaintiffs attempted to pursue an interlocutory appeal of
my decision denying their motion for class certification, which
the Second Circuit denied. As a result, the case in its current
posture involves no more than a single alleged TCPA violation,
meaning that the amount in controversy is, according to
plaintiffs, $5,000. Granting summary judgment without awaiting
a motion by the defendants serves the parties’ interests in
moving this case to entry of an appealable judgment so that the
class certification issue can be litigated before the Second
Circuit.
2
The callers were instructed to request permission to send a fax
invitation to the telesymposium using the following script:
Hello, my name is ___________ and I am calling from
MedLearning to invite Dr. __________ to participate in
a telesymposium, sponsored by Merck, entitled Important
Clinical Information about Schizophrenia and Bipolar
Disorder. We have several dates and times available. . . .
May I fax an invitation? If Yes obtain the fax number.
(Request the name of the person giving permission and
mark on record.) Thank you for your time. We will fax
the invitation.
On April 28, 2010, a MedLearning representative called Dr.
Kaye’s office and reached plaintiffs’ answering service.
The
representative used the above script and was affirmatively given
permission to fax the invitation.
Later that same day,
MedLearning faxed the invitation to plaintiffs’ fax machine.
The invitation itself is titled “Important Clinical
Information about Schizophrenia and Bipolar I Disorder.”
Immediately under the title, in large typeface, are the words
“You are invited!” and the Merck logo and name.
Farther down,
the invitation states: “This speaker program is sponsored and
provided by Merck,” “The presenter is speaking on behalf of
Merck,” and “The content of this speaker program is consistent
with FDA labeling and advertising regulations.”
The invitation
stated that the recipient could be “removed from the fax list
for this program,” either by initialing and returning the form
by fax or by calling a phone number.
3
ECF No. 192-3, at 10.
Plaintiffs allege that their fax machine used paper to
print out the invitation, the machine was occupied while the
invitation was being transmitted, and the receipt of the
invitation annoyed Dr. Kaye and wasted his time.
For present
purposes, these allegations are accepted as true and construed
most favorably to plaintiffs.
B.
Procedural History
Plaintiffs filed this suit on September 29, 2010.
Discovery was broadly stayed except for discovery relevant to
the class certification issue.
On January 26, 2014, I ruled
that the stay would remain in effect as to any additional
discovery pending the outcome of proceedings before the Federal
Communications Commission concerning the Commission’s regulation
of faxes under the TCPA.
See ECF No. 114.
The FCC issued an
order on October 30, 2014, and both Merck and Kaye were among
those petitioning the D.C. Circuit for review.
On March 31,
2017, the D.C. Circuit vacated the FCC’s order, holding that the
FCC lacked authority to require businesses to include opt-out
notices on solicited faxes.
See ECF No. 143; Bais Yaakov of
Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017).
On March 29, 2019, I granted defendants’ motion to strike
the complaint’s class allegations, holding that “[d]efendants
have demonstrated that these claims do not provide a basis for
certifying a class because, in view of the consent protocol used
4
by MedLearning, determining whether a recipient consented to
receive a fax would require an individualized inquiry.”
171.
ECF No.
Plaintiffs sought to appeal the ruling to the Second
Circuit, see ECF No. 176, and were rebuffed, with the Second
Circuit concluding that “an immediate appeal is not warranted,”
see ECF No. 179.
On October 30, 2019, plaintiffs filed a motion
for summary judgment, which is now ripe for adjudication.
II.
Legal Standards
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving part
is entitled to judgment as a matter of law.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R.
Civ. P. 56(c)).
“Disputed legal questions present nothing for
trial and are appropriately resolved on a motion for summary
judgment.”
FDIC v. Haines, 3 F. Supp. 2d 155, 159 (D. Conn.
1997) (quoting Flair Broadcasting Corp. v. Powers, 733 F. Supp.
179, 184 (S.D.N.Y. 1990)); see also Schoenefeld v. Schneiderman,
821 F.3d 273,278-79 (2d Cir. 2016) (noting that “purely legal
questions” are “particularly conducive to disposition by summary
judgment”).
It is occasionally, albeit rarely, appropriate for a court
to enter summary judgment against a moving party.
5
See Bridgeway
Corp. v. Citibank, 201 F.3d 134, 139-40 (2d Cir. 2000).
Before
doing so, a court must be sure that there is no “indication that
the moving party might otherwise bring forward evidence that
would affect the . . . determination,” such that “the facts
before the district court [are] fully developed so that the
moving party suffer[s] no procedural prejudice.”
Id. (quoting
Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d
Cir. 1991)).
“A party is procedurally prejudiced if it is
surprised by the district court’s action and that surprise
results in the party’s failure to present evidence in support of
its position.”
Id.
To avoid any prejudice, prior to granting
summary judgment against a moving party, the court must view all
evidence in favor of the moving party.
Hollander v. Steinberg,
419 Fed. App’x 44, 45 (2d Cir. 2011) (quoting NetJets Aviation,
Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 179 (2d Cir. 2008)).
As the Second Circuit has noted, “the threat of procedural
prejudice is greatly diminished if the court’s sua sponte
determination is based on issues identical to those raised by
the moving party.”
Bridgeway Corp., 201 F.3d at 139-40 (quoting
Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)).
Thus,
“where it appears clearly upon the record that all of the
evidentiary materials that a party might submit in response to a
motion for summary judgment are before the court, a sua sponte
grant of summary judgment against that party may be appropriate
6
if those materials show that no material dispute of fact exists
and that the other party is entitled to judgment as a matter of
law.”
Id.
(citing Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir.
1996)).
In this case, there is no claim, nor any basis for a claim,
that granting summary judgment against the moving party would
cause unfair prejudice.
During a conference on September 17,
2019, plaintiffs were informed that, in order to avoid unwanted
expense and delay in this ten-year-old case, the legal
sufficiency of their claims might well be determined on the
basis of their summary judgment motion alone.
ECF No. 202, at 5; ECF No. 187.
See Def. Mem.,
As will be discussed below, the
dispositive issue here is purely legal, the relevant facts are
undisputed, and the issue has been fully litigated.
Bridgeway Corp., 201 F.3d at 139-40.
See
Accordingly, there is no
need to delay entry of summary judgment.
III. Discussion
The parties do not dispute that a MedLearning
representative called plaintiffs, spoke with plaintiffs’
answering service, received affirmative permission to fax an
invitation to the telesymposia, and subsequently did so.
See,
e.g., ECF No. 203 (plaintiffs’ response to defendants’
statements of fact, disclosing essentially no substantive
objections).
Defendants have stipulated, at least for present
7
purposes, that the faxed invitation was an advertisement.
See
ECF No. 189.
The only remaining issue as to liability, as indicated by
the parties’ briefing, is whether the faxed invitation was
within the scope of the consent granted by plaintiffs’ answering
service. 3
This is a question of law.
See, e.g., Golan v.
Veritas Entm’t, LLC, No. 4:14-cv-00069 ERW, 2017 WL 193560, at
*3 (E.D. Mo. Jan. 18, 2017) (“Whether consent to call about
religious freedom is also consent to receive calls about a movie
is a legal question . . . .”); Payton v. Kale Realty, LLC, 164
F. Supp. 3d 1050, 1064 (N.D. Ill. 2016) (referring to the
question of “whether the three emails in which Payton provided
his cellular number to Patterson amount to prior express consent
for Kale to send Payton a text message” as “a legal question”);
Agne v. Papa John’s Intern., Inc., 286 F.R.D. 559, 567 (W.D.
Wash. 2012) (referring to the question of “whether a customer’s
prior purchase of pizza can be construed as express consent to
receive text message advertisements under the TCPA” as a “legal
question”).
Both the TCPA and Conn. Gen. Stat. § 52-570c apply only to
unsolicited faxes.
The TCPA makes it unlawful for any person
3
The plaintiffs do not dispute that their answering service had
actual or apparent authority to consent to the receipt of the
fax. See generally Plf. Mem., ECF No. 194; see also Def. Mem.
at 7.
8
“to send, to a telephone facsimile machine, an unsolicited
advertisement,” except in some circumstances.
§ 227(b)(1)(C).
47 U.S.C.
Connecticut’s analogue provides that “[n]o
person shall use a machine that electronically transmits
facsimiles through a connection with a telephone network . . .
to transmit unsolicited advertising material.”
Conn. Gen. Stat.
§ 52-570c(a). 4
The gravamen of plaintiffs’ argument is that “obtaining
prior express invitation or permission to send a fax does not
satisfy the requirement to obtain prior express invitation or
permission to send a fax advertisement.”
Plf. Mem. at 9.
Therefore, plaintiffs argue, because “the script [used] to
obtain permission to send . . . the Telesymposium Invitation did
not affirmatively reveal that the [invitation] was to a
4
The parties disagree as to which side has the burden of proof
on the issue of consent. Plaintiffs cite a number of cases
stating that consent is an affirmative defense for which the
defendant bears the burden. Defendants respond that the cases
cited involve phone calls governed by 47 U.S.C. § 227(b)(1)(A),
as opposed to fax cases governed by § 227(b)(1)(C), which
prohibits only “unsolicited advertisement[s].” Both the Seventh
and Ninth Circuits have held, in fax cases, that consent or
permission is an affirmative defense. See Physicians
Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d
959, 964 (7th Cir. 2020); True Health Chiropractic, Inc. v.
McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018). See also
Gorss Motels, Inc. v. American Tex-Chem Corp., 323 F. Supp. 3d
330, 336 (D. Conn. 2018) (defendant in fax case did not meet its
burden on issue of consent). I assume the Second Circuit would
agree with its sister Circuits and conclude that defendants have
the burden of proof.
9
telesymposium at which Merck’s drug Saphris . . . [was] going to
be advertised,” defendants violated the TCPA.
Id.
Merck
responds that its fax was well within the scope of plaintiffs’
consent and that “[a]ny reasonable person – and certainly any
reasonable medical doctor – would understand that a medical
seminar sponsored by a pharmaceutical company would discuss the
efficacy of the company’s drugs.”
I agree with defendants.
Def. Mem. at 11.
In agreeing to receive a faxed
invitation to a telesymposium sponsored by Merck, plaintiffs
consented to the receipt of an advertisement as a matter of law
because no reasonable person could believe otherwise.
Businesses, after all, “usually do not fund presentations for no
business purpose.”
Physicians Healthsource, Inc. v. Boehringer
Ingelheim Pharm., Inc. (“Boehringer Ingelheim”), 847 F.3d 92, 95
(2d Cir. 2017).
Because defendants obtained plaintiffs’ consent
to send an advertisement, they cannot be held liable for sending
an “unsolicited” advertisement in violation of the TCPA and
Conn. Gen. Stat. § 52-570c(a).
I start with the definition of an “unsolicited
advertisement” under the TCPA.
As both parties acknowledge,
this question is controlled by FCC regulations and the Second
Circuit’s decision in Boehringer Ingelheim.
The FCC has stated
that “facsimile messages that promote goods or services even at
no cost, such as . . . free consultations or seminars, are
10
unsolicited advertisements under the TCPA’s definition.”
Rules
and Regulations Implementing the Tel. Consumer Prot. Act of
1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967, 25973
(May 3, 2006).
In Boehringer Ingelheim, the Second Circuit held
that the FCC definition above “comports with the statutory
language,” but noted that “not every unsolicited fax promoting a
free seminar [is an advertisement].
nexus to a firm’s business.”
There must be a commercial
847 F.3d at 95-96.
One of the ironies in this case is that plaintiffs are
happy to take Boehringer Ingelheim for its holding, which
unambiguously compels the conclusion that defendants’ faxed
invitation here was an advertisement, while defendants hope to
persuade the Second Circuit to overturn Boehringer Ingelheim on
appeal.
But the case cuts the other way, too.
If, as the
Second Circuit has indicated, a fax from a pharmaceutical
company inviting a physician to a free seminar is an
advertisement, it is unclear to me how agreeing to receive such
a fax is not agreeing to receive an advertisement.
Consider the
following key paragraph from Physician’s Healthsource, modified
only by substituting “script” for “fax” to reflect that, in this
case, defendants sought permission prior to sending the fax:
Boehringer’s [script] 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,
11
Boehringer was generally in the business of treating
diseases and medical conditions, such as FSD and HSDD.
Moreover, the [script] makes clear to the invitee that
the dinner meeting was “sponsored by Boehringer
Ingelheim Pharmaceuticals, Inc.” Id. The [script] 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 [script]
advertised a free seminar relating to its business.
Id. at 97.
In other words, if a fax containing that combination
of information is sufficient to be an advertisement, a script
containing the exact same combination of information – like the
one used by defendants here - is sufficient to alert a party
that they are consenting to receive an advertisement.
Plaintiffs’ arguments to the contrary are unconvincing.
They argue that the invitation “did not affirmatively reveal”
that “Merck’s drug Saphris or any other good, product or
services were going to be advertised” at the telesymposium.
But
they fail to demonstrate that either the TCPA or Connecticut law
requires such a specific disclosure.
Such information is not
necessary to make a faxed document an advertisement for the
purposes of the TCPA, see id. at 95-97, and plaintiffs provide
no authority for the proposition that a party seeking permission
to send an advertisement must disclose more information than the
advertisement itself contains.
I am persuaded that no
reasonable person, and in particular, no reasonable doctor’s
office, would mistake an invitation for a symposium sponsored by
a pharmaceutical company for anything other than what it was.
12
The cases cited by plaintiff are broadly distinguishable,
and most simply stand for the truism that a defendant is liable
for violations of the TCPA if the defendant sends an unsolicited
advertisement.
None provides support for plaintiffs’ argument
that a defendant seeking permission to send an advertisement
must explicitly use the word “advertisement” or describe the
products to be advertised.
Plaintiffs first cite to the factual background section of
the opinion in Bais Yaakov of Spring Valley v. Educational
Testing Service, 367 F. Supp. 3d 93 (S.D.N.Y. 2019), where the
court noted that “ETS exchanged faxes with Plaintiff as a part
of that business relationship.
However, Plaintiff never gave
prior express permission or invitation to ETS, HMH, or anyone
else to send Plaintiff fax advertisements.” Id. at 102
(citations to the record omitted).
To the extent a rule of law
can be derived from this portion of the court’s opinion, the
most plaintiff-friendly version of the rule is that consent to
receive a faxed advertisement cannot be presumed from an ongoing
business relationship involving faxes.
on this case.
That rule has no bearing
Plaintiffs here gave “prior express permission or
invitation” to defendants to fax an advertisement.
See id.
Physicians Healthsource, Inc. v. A-S Medication Solutions
LLC, 324 F. Supp. 3d 973 (N.D. Ill. 2018), is distinguishable on
much the same grounds.
There, defendants sought to prove
13
consent by demonstrating that they had previously received
permission to fax specific, discrete documents to the
plaintiffs.
Id. at 979-81.
The court correctly rejected this
evidence as irrelevant to the issue of consent to receive faxed
advertisements, but that holding is inapposite for the reasons
discussed above.
Somewhat closer to the mark is the court’s
conclusion that the plaintiffs did not consent to receive faxed
advertisements by adding a fax number into defendants’
Salesforce portal.
But, as the court noted, by doing so, “[t]he
customer may have simply been filling in all of the blanks or
may have intended only to receive ordinary fax messages in the
course of business.”
Id. at 980.
Here, by contrast, plaintiff
specifically consented to the receipt of a discrete
advertisement. 5
In Physician’s Healthsource, Inc. v. Stryker Sales Corp.,
“no one – not Plaintiff or any of its employees – gave any
5
For the same reasons, the Seventh Circuit’s decision in A-S
Medication Solutions is also inapposite. See Physicians
Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d
959. Plaintiffs incorrectly suggest that “[t]he evidence of
purported prior express permission or invitation that
Defendants’ have offered in this case is even weaker than the
evidence” rejected by the Seventh Circuit. Plf. 1st Supp. Mem.,
ECF No. 210, at 3. In A-S Medication Solutions, defendants
relied on the fact that they had received permission in the past
to send specific faxes, as well as the fact that the plaintiffs
had not checked a box on Salesforce opting out of receiving
faxes. Here, defendants asked for and received permission to
send an invitation to a symposium sponsored by Merck, i.e., an
advertisement.
14
direct consent to the sender of the fax at issue here.”
Supp. 3d 482, 497 (W.D. Mich. 2014).
to the receipt of the fax.
65 F.
Here, plaintiff consented
Likewise, the defendants in
Physician’s Healthsource, Inc. v. Allscripts Health Solutions,
Inc., No. 12-cv-32333, 2017 WL 2391751 (N.D. Ill. June 2, 2017),
were able to muster no proof of express permission, unlike the
defendants here.
Id. at *9.
And in Bias Yaakov of Spring
Valley v. Richmond, the American Inter. Univ. in London, Inc.,
No. 13-cv-4564, 2014 WL 4626230 (S.D.N.Y. Sept. 16, 2014), there
was no dispute that the fax was unsolicited – the legal issue
decided by the court was whether it was an advertisement.
See
generally id.
Finally, plaintiffs’ supplemental citation to Judge Meyer’s
recent decisions in Gorss Motels Inc. v. Sprint Commc’ns Co.,
No. 3:17-cv-546 (JAM), 2020 WL 818970 (D. Conn. Feb. 19, 2020),
reconsideration denied 2020 WL 1303175 (D. Conn. Mar. 19, 2020),
are also unavailing.
The defendants in that case relied on the
fact that “Gorss at various times gave Wyndham its fax number
for general business purposes,” that “Gorss’s fax number was
published in Super 8 motel directories,” and that Sprint “was
Gorss’s long distance telephone service provider.”
818970, at *2-3.
2020 WL
Judge Meyer held that these facts were
insufficient to demonstrate that Gorss had consented to the
receipt of fax advertisements.
Id.
15
Here, once again,
plaintiffs specifically consented to the receipt of the
advertisement in question.
Plaintiffs’ other argument as to liability revolves around
the deficiencies in the opt-out notice on the fax, which
defendants essentially concede were “not technically compliant
with FCC regulations,” but nonetheless “gave an adequate, easy
and free means of opting out of future faxes.”
Def. Mem. at 16.
I have previously dismissed plaintiffs’ opt-out claims on the
basis of the D.C. Circuit’s decision in Bais Yaakov of Spring
Valley v. FCC, 852 F.3d 1078.
See ECF No. 170 (“The motion to
dismiss the claims against Merck for violating the FCC's opt-out
regulation is granted based on the D.C. Circuit's decision in
Yaakov invalidating the regulation.”). Those claims fare no
better here: the opt-out regulations do not apply – indeed, the
TCPA does not apply – to solicited faxes.
See Bias Yaakov of
Spring Valley v. FCC, 852 F.3d at 1081 (Kavanaugh, J.) (“The FCC
says that the [TCPA’s] requirement that businesses include optout notices on unsolicited fax advertisements grants the FCC the
authority to also require businesses to include opt-out notices
on solicited fax advertisements – that is, those advertisements
sent with the permission of the recipient.
We disagree with the
FCC.”); Cochran v. Massey, No. 3:12-cv-765, 2014 WL 335288, at
*2 (S.D. Ill. Jan. 30, 2014) (“The question of permission or
consent is . . . dispositive . . . under the TCPA.”).
16
See also
A-S Medication Solutions, 950 F.3d at 964 (acknowledging that
express permission defeats a TCPA claim even in the absence of
an opt-out notice). 6
IV. Conclusion
Accordingly, plaintiffs’ motion for summary judgment is
hereby denied.
defendants.
Summary judgment is instead granted in favor of
The Clerk may enter judgment dismissing the action
and close the case.
So ordered this 27th day of March 2020.
_____________/s/____________
Robert N. Chatigny
United States District Judge
6
Because I conclude that summary judgment in defendants’ favor
is appropriate on the issue of liability, it is unnecessary to
reach the parties’ arguments as to damages. Similarly, the
plaintiffs’ consent fully resolves the state law claim.
17
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