Physicians Healthsource, Inc. v. Stryker Sales Corporation et al

Filing 193

CORRECTED OPINION and ORDER (replaces 188 ) denying 91 motion for summary judgment; denying 95 motion for summary judgment; denying 97 motion for summary judgment ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHYSICIANS HEALTHSOURCE, INC.,
Plaintiff,
CASE NO. 1:12-CV-0729
v.
HON. ROBERT J. JONKER
STRYKER SALES CORPORATION,
STRYKER BIOTECH, L.L.C., STRYKER
CORPORATION, JOHN DOES 1–10, and
HOWMEDICA OSTEONICS CORP.,
Defendants.
__________________________________/
OPINION AND ORDER
This is a civil action for alleged violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227. Before the Court is Defendant Howmedica’s Motion for Summary Judgment (docket
no. 91), Defendant Stryker’s Motion for Summary Judgment (docket no. 95), and Plaintiff PHI’s
Motion for Summary Judgment (docket no. 97). The Court finds as a matter of law that the faxes
at issue are “unsolicited,” but that genuine issues of material fact preclude summary judgment for
any party on all other issues. Accordingly, the motions are denied because no party is entitled to
judgment as a matter of law.
I. BACKGROUND
Defendant Stryker Corporation and its subsidiaries—Stryker Biotech LLC, Stryker Corp.,
and Howmedica Osteonics Corp.—design, manufacture, and sell products used in joint replacement
and trauma surgeries, including total joint arthroplasties. (R. 27-3, Ex. C., PageID # 265.)
Defendants conducted Primary Care Physician (“PCP”) seminars relating to the field in which they

operate. Howmedica promoted the PCP seminars by fax, focusing on either the recipient’s medical
speciality or geographic location. Howmedica purchased lists of fax numbers from Redi-Mail Direct
Marketing, Inc. (“RediMail”), a list provider company. The parties disagree whether the seminars
were promotional or educational in nature.
Dr. Martinez was a medical doctor in Cincinnati, Ohio. He practiced with Physician’s
Healthsource, Inc. (“PHI”). On or around October 12, 2009, one or more of Defendants faxed
Plaintiff an invitation to attend an upcoming seminar at Jeff Ruby’s, a Cincinnati steakhouse. The
sent fax included a cover letter with the following: “Please join us for an engaging discussion on the
latest advancements in orthopaedics, including arthritis of hip & knee and advancements in total joint
arthroplasty, presented by Dr. Pamela Petrocy, on Wednesday, October 14th at 6:30pm. RSVP to
Jen at [redacted] today. (Dinner will be served.)” (R. 61-4, Ex. D at 2, PageID # 780.) Two pages
accompanied the cover letter. The first page included the Stryker logo and a picture of an
unidentified orthopedic implant—the parties disagree whether it is one of Defendants’ products or
a generic product—with the headline, “Advancements in Orthopaedics for The Primary Care
Physician.” Also included was information concerning the guest speaker, Dr. Pamela Petrocy, an
orthopedic surgeon. (R. 61-4, Ex. D at 3, PageID # 781.) The second page repeated information
from the first page, as well as noted that covered topics would include “Arthritis of the Hip and
Knee” and “Advancements in Total Joint Arthroplasty.” (R. 61-4, Ex. D at 4, PageID # 782.) No
language providing a recipient with information on how to “opt-out” of future correspondence
appeared on the fax. It is undisputed that Defendant sent 15,041 similar faxes to 8,065 unique
numbers between December 3, 2009 and August 8, 2011. (R. 61-8, Ex. G, PageID # 965.)

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Defendants say they got Plaintiff’s fax number—at least indirectly—from Plaintiff itself.
Dr. Martinez, a medical doctor, provided both his and PHI’s contact information to the American
Medical Association (“AMA”). (R. 92, Howmedica Br. at 3, PageID # 2425.) The contact
information included a fax number as part of his response to the AMA’s 2003 Census. Defendants’
claim that by including the fax number, Dr. Martinez consented to receive at least some faxed
communications associated with the licensed use of the AMA’s physician database. (R. 92,
Howmedica Br. at 2, 8, PageID # 2424, 2430.) In fact, the census form itself does not include any
formal consent question; rather, it simply says the number “is necessary so you can receive
medically-related information, including advertising, approved by the AMA.” (R. 92-5, Ex. D at 6,
PageID # 2534.) It appears the AMA presumes consent and then offers its members the option of
submitting a separate request for a “No Contact” or “Do Not Release” option. (R. 92-5, Ex. D at
12, PageID # 2540.) The boilerplate disclosure language certainly does not encourage opt out. To
the contrary, after noting some potential issues regarding the “Do Not Release” option in particular,
the AMA concludes: “If after careful consideration you decide to request a change [from what
appears to be the default position],” the doctor may notify the AMA by email, phone, fax, or regular
mail, or the doctor may visit the AMA’s website. (R. 92-5, Ex. D at 12, PageID # 2540.) Again, this
must be made by separate communication, not as part of a “check-the-box” opt-out on the census
form itself.
The AMA placed Dr. Martinez’s contact information in its “masterfile” based on
Dr. Martinez’s response to the 2003 census form. There is no evidence of his response to any other
census form even though it is distributed annually. Nor is there any direct evidence of what
Dr. Martinez himself said on the response at any time. Rather, the record consists of what the AMA
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Masterfile reports was on a form from Dr. Martinez. No original document signed or submitted by
Dr. Martinez is part of the record. Provided in the same envelope as the census form was a privacy
statement, stating that “Masterfile information is made available to Database Licensees, who operate
under strict usage agreements.” (R. 92, Howmedica Br. at 9, PageID # 2431.) The privacy statement
further stated that the Database Licensees could fax information concerning continuing medical
education programs, medical equipment and supplies, and general practice-related commercial offers
of interest to physicians as consumers. (R. 92, Howmedica Br. at 10, PageID # 2432.) The privacy
statement also included information on how to elect either a “Do Not Release” or “No Contact”
option, which would have kept Dr. Martinez from receiving faxes. (R. 92, Howmedica Br. at 10,
PageID # 2432.)
Database Licensees that obtained contact-information lists from the AMA entered into
contractual agreements with the AMA relating to conditions of usage. The AMA’s “Conditions of
Usage For Facsimile Transmissions” provide in relevant part as follows:
(iii) DATABASE LICENSEE agrees that facsimile transmissions shall be used
for conveying information germane to the practice of medicine. Any use of
conveying consumer and/or commercial information and/or advertising to
physician’s as general consumers is strictly prohibited. All materials to be
faxed pursuant to the terms of this Section shall contain the name, address and
telephone number of the organization utilizing the fax numbers and contain the
following notices conspicuously located within the materials:
If you have questions about this specific fax, or wish to be removed from
receiving future faxes from (sender’s name) please call (sender’s phone
number).
(R. 92-4, Ex. N at 2, PageID # 2527 (emphasis added).) The fax sent to PHI did not include the
contractual opt-out language or any other opt-out notice.

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On October 14, 2012, Dr. Petrocy spoke at and moderated the free dinner seminar at Jeff
Ruby’s Steakhouse. (R. 109, Pl. Br. at 9, PageID # 4277.) Dr. Petrocy was not a Stryker employee,
however Stephanie Groh, program director at Stryker, testified that only orthopedic surgeons who
used Stryker products were used as seminar speakers because those surgeons understood the clinical
features of Stryker’s products. (R. 98, Pl. Br. at 11–12, PageID # 2980–81.) The parties agree that
five Stryker employees, including three Stryker sales representatives, attended the seminar, although
it appears that these individuals did not formally present at the seminar. (R. 109, Pl. Br. at 9, PageID
# 4277.) As it did with other presenters, Defendants entered into an agreement with Dr. Petrocy:
Stryker’s Sponsored Primary Care Physician Seminar Agreement (“PCP Agreement”). The PCP
Agreement states that the PCP seminars are “an excellent way to provide physicians with valuable,
educational information and raise awareness of orthopaedic treatment options offered by Stryker.”
(R. 98-2, Ex. A at 2, PageID # 2997.) The PCP Agreement further states that the speaker “will make
use only of presentation materials, [meaning PowerPoint slides] provided by Stryker, and will not
alter or supplement those materials.” (R. 98, Pl. Br. at 9, PageID # 2978.) Aside from retaining the
presentation materials, the parties agree that Dr. Petrocy was not compensated for her time. Finally,
the PCP Agreement stated that “nothing in this letter of agreement shall be deemed a requirement
or an expectation that you purchase, use, recommend, advocate or arrange for the use of any products
of Stryker in the treatments of any patient.” (R. 98-2, Ex. A at 2, PageID # 2997.)
The parties agree that Dr. Petrocy’s presentation included a slideshow of the PowerPoint
slides provided to her by Stryker, and that in some instances PowerPoint slides contained the Styker
logo. Defendants contend that the seminars, and by extension the slides, provide primary care
physicians with information that is relevant to the practice of medicine and valuable to their
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practices. (R. 106, Def. Br. at 14, PageID # 3998.) Plaintiff does not necessarily dispute this
contention, but highlights information contained on select slides that Plaintiff argues constitute direct
references to Stryker products. (R. 109, Pl. Br. at 10-11, PageID # 4278–79.) One slide titled
“Ceramic-on-Ceramic Hip Replacement” reads “Additional information about ceramic hip
replacement is available to you: Call 1-888-STRYKER or visit www.aboutstryker.com.” (R. 98-12,
Ex. J at 3, PageID # 3437.) A second slide titled “Stryker Implant Technology” includes pictures
of Stryker’s “EIUS” and “Triathlon” products. (R. 98-12, Ex. J at 8, PageID # 3442.) A third slide
expands on the “Triathlon” knee-system product, reading “advanced implant design--potential for
greater implant longevity” and “designed for natural knee movement.” (R. 98-12, Ex. J at 9, PageID
# 3443.) A fourth slide titled “Stryker Implant Technology” notes that its Accolade TMZF product
“is an MIS-friendly implant” and “Compatible with ceramic-on-ceramic technology for long-term
results.” (R. 98-12, Ex. J at 11, PageID # 3445.) A fifth slide titled “Total Knee Replacement” notes
that over “60% of total knee replacements are performed on women,” that Stryker’s “Triathlon Knee
System was designed with women in mind,” and that the product will increase motion, decrease
wear, and be a “Better fit for a woman’s anatomy.” (R. 98-12, Ex. J at 16, PageID # 3450.) A sixth
slide titled “Triathlon Knee System” reads “More natural movement to help you get back to being
yourself.” (R. 98-12, Ex. J at 19, PageID # 3453.) A seventh slide included a quote from a patient
who favorably reviewed his Stryker shoulder replacement. (R. 98-12, Ex. J at 20, PageID # 3454.)
An eighth slide, “Stryker Navigation,” read “Navigation is a visual enabler for MIS surgery
facilitating more accurate placement of prosthesis” and “Implant alignment is an important factor
that may reduce joint wear and extend the life of the implant.” (R. 98-12, Ex. J at 21, PageID #
3455.) A ninth slide, “Anatomic Hip Implants” reads “Stryker’s Anatomic Femoral Heads are larger
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in size, similar to the top of the femur” and “Anatomically sized for natural-like hip performance.”
(R. 98-12, Ex. J at 23, PageID # 3457.) And finally, a tenth slide compares Stryker’s “X3
Technology” favorably against the industry standard as both products relate to hip wear. (R. 98-12,
Ex. J at 24, PageID # 3458.)
On July 16, 2012, PHI filed a class action complaint against the Stryker entities, alleging that
Defendants’ practice of sending faxes violated the Telephone Consumer Protection Act.

On

December 11, 2013, this Court granted the Plaintiff’s Motion to Certify Class. On November 19,
2014, this Court heard oral argument on the parties’ cross motions for summary judgment. The
parties also submitted post-hearing briefs.
II. LEGAL STANDARD
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a).
The central inquiry is “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Material facts are those necessary to apply the
substantive law. Id. at 248. A dispute is genuine if a reasonable jury could return judgment for the
non-moving party. Id. In deciding a motion for summary judgment, the court must draw all
inferences in a light most favorable to the non-moving party, but may grant summary judgment when
“‘the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’”
Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

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The filing of cross-motions for summary judgment does not give rise to any presumption that
no genuine issues of material fact exist. Rather, “each movant separately bears the burden of
establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter
of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–39 (5th Cir. 2004).
III. DISCUSSION
Before the Court is Defendant Howmedica’s Motion for Summary Judgment (docket no. 91),
Defendant Stryker’s Motion for Summary Judgment (docket no. 95), and Plaintiff PHI’s Motion for
Summary Judgment (docket no. 97). Defendant Howmedica’s Motion for Summary Judgment
(docket no. 91) and Plaintiff PHI’s Motion for Summary Judgment (docket no. 97) both concern
liability under the Telephone Consumer Protection Act, and will be evaluated together. Defendant
Stryker’s Motion for Summary Judgment (docket no. 95) concerns whether certain defendants should
be dismissed from the case. The Court considers each in turn.
A. Defendant Howmedica’s and Plaintiff PHI’s Cross Motions for Summary Judgment
(docket nos. 91, 97)
The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, provides as follows:
“It shall be unlawful for any person within the United States, or any person outside the United States
if the recipient is within the United States, to use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an unsolicited advertisement,” unless the
transmission falls into one of the exceptions outlined in the TCPA. Id. § 227(b)(1)(c) (emphasis
added). The TCPA further provides that the “term ‘unsolicited advertisement’ means any material
advertising the commercial availability or quality of any property, goods, or services which is
transmitted to any person without that person’s prior express invitation or permission, in writing or
otherwise.” Id. § 227(a)(5). The TCPA creates a private right of action for any person or entity that
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receives an advertisement in violation of the act and regulations, and provides for statutory damages
in the amount of $500 for each violation as well as injunctive relief against future violations. Id. §
227(b)(3). The TCPA provides that the Federal Communications Commission (“FCC”) “shall
prescribe regulations to implement the requirements” of the TCPA. Id. § 227(b)(2).
Defendant Howmedica (as well as all Defendants, should this Court deny their other
summary judgment motion) moves for summary judgment on the grounds that the sent fax does not
fit the statutory definition of “an unsolicited advertisement” as a matter of law, either because the
fax is not an advertisement, or because the fax, even if properly understood as an advertisement, is
not an unsolicited advertisement. Plaintiff PHI moves for summary judgment on the grounds that
the sent fax, as a matter of law, is both an advertisement and unsolicited within the meaning of the
TCPA. The Court considers in turn each issue.
1. Is the Fax an Advertisement?
a. The Fax Alone
An initial question for this Court is whether the fax alone is an advertisement within the
meaning of the TCPA. Howmedica states that the faxes are not advertisements because the faxes
did not promote the commercial availability or quality of Howmedica’s goods or services. (R. 92,
Howmedica Br. at 2, PageID # 2424; R. 106, Def. Br. at 8, PageID # 3992.) Howmedica notes that
the fax does not mention any specific property, goods, or services, and so Howmedica argues the
faxes could not advise of their commercial availability or quality. With respect to the Stryker logo
appearing on the fax, Howmedica notes that it is an authorized user of the Stryker trademark, and
that the logo served merely to identify the sender of the fax, as the TCPA requires. See 47 U.S.C.
§ 227(d)(1)(B) (noting that it is unlawful to send a fax unless a sender clearly identifies the entity

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sending the message). While Defendants acknowledge that the fax included an “unlabeled,
unbranded image of an implantable device,” Defendants argue that the faxes still did not identify the
product, did not mention prices, did not identify sales outlets, and did not provide any product
descriptions; therefore, according to Defendants, the faxes furnished no commercial information of
any variety. (R. 106, Def. Br. at 17, 19, PageID # 4001, 4003; R. 122, Howmedica Rep. Br. at 5,
PageID # 5615.) Rather than promoting something or contemplating a commercial transaction,
Howmedica argues, the fax was purely informational, and merely announced an upcoming discussion
of interest—a local dinner seminar—to primary care physicians such as Dr. Martinez. (R. 92,
Howmedica Br. at 12–13, PageID # 2434–35; R. 122, Howmedica Rep. Br. at 5, PageID # 5615.)
Plaintiff PHI counters that the faxes do in fact promote the commercial availability of goods
and services. The fax invites individuals to a free seminar that offers not only information but also
a free dinner at a well-known Cincinnati steakhouse. In addition, PHI states that the fax contains a
picture of one of Stryker’s products (which Defendants dispute), Stryker’s name, and Stryker’s logo
along with an invitation to attend the seminar. (R. 109, Pl. Br. at 15, PageID # 4283.) Plaintiff PHI
argues that text “advancements in orthopaedics” on the fax relates to specific Stryker products,
which are commercially available goods within the meaning of the TCPA. (R. 109, Pl. Br. at 15,
PageID # 4283.) PHI argues that the availability of a free seminar is evidence of a profit-making
motive on behalf of the sender of the fax, in this case, a for-profit entity, which in turn establishes,
as a matter of law, that a fax promoting such a seminar is an advertisement. (R. 98, Pl. Br. at 18–19,
PageID # 2988.)
Based on a review of the fax alone, neither party is entitled to summary judgment. A
reasonable fact-finder, drawing all inferences in favor of the Plaintiff, could reasonably conclude that

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the fax, at least in part, promotes the quality and availability of Stryker products. On the other hand,
a reasonable fact-finder drawing all inferences in favor of the Defendant could reasonably conclude
that no particular Stryker product is featured on the fax, and that the fax is simply promoting an
opportunity for continuing medical education in a comfortable environment.
The cited case law addressing these issues points in different directions, and in any event,
does not disturb this Court’s conclusion. PHI cites several factually similar cases from district and
state courts in which a court denied a defendant’s motion to dismiss (rather than a motion for
summary judgment), noting that these cases suggest that a fax need not contain an explicit sale offer
to constitute an advertisement within the meaning of the TCPA. (R. 98, Pl. Br. at 18–19, PageID
# 2988.) Even ignoring the difference between a motion to dismiss and a motion for summary
judgment, these cases do not compel judgment as a matter of law in this case. The Court agrees that
the “TCPA does not require that an unwanted and uninvited fax make an overt sales pitch to its
recipient in order for a cause of action to exist,” but finds these other cases distinguishable to the
extent Plaintiff offers them in support of its own motion for summary judgment. See Green v. Time
Ins. Co., 629 F. Supp. 2d 834, 837 (N.D. Ill. 2009). For example, in Green, the fax at issue specified
a particular insurance contract that was available to consumers as well as the savings involved in
entering into that arrangement; of course, no such specificity (beyond an unmarked picture) is
detailed in the fax at issue in this case. See id. at 834–35.
More helpful to the Plaintiff’s case is Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th
Cir. 2013), in which the Seventh Circuit found that a weekly newsletter comprised 75% of
information and 25% of an advertisement was sufficient as a matter of law to establish a TCPA
violation, reasoning that the ad served to “declare the[] availability” of Defendant Turza’s attorney

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services. In so doing, the Seventh Circuit dismissed out of hand any argument that the advertisement
on the fax was incidental to the overall message; the fact that it appeared at all was enough to support
a finding of liability. See id. Notably, the advertisement on the newsletter in Turza could be
construed as a logo—it contained the defendant’s name and contract information, noted that he was
an attorney at law who specialized in estate and business succession planning, and provided contact
information. The Stryker logo appearing on the fax is similar to the attorney’s letterhead in Turza,
but still distinguishable. In Turza, the letterhead of the attorney invited to follow up with contact
information provided. In this case, no contract information is provided on the fax, and any linkage
between the Stryker logo and a particular product requires resolution of a disputed fact: namely,
whether the product pictured is a Stryker product, or a generic sample. Summary judgment is
therefore inappropriate.
Other cited cases, such as Holmes v. Back Doctors, Limited., No. CIV.NO.09-540-GPM,
2009 WL 3425961, at *4 (S.D. Ill. Oct. 21, 2009) vacated in part on other grounds, 695 F. Supp.
2d 843 (S.D. Ill. 2010), also turn on particular factual nuance. The court in Holmes found that the
faxes at issue were not advertisements, but the faxes themselves included medical information
directed to a list of regular recipients on a periodic basis, all of which suggests they were an
informational newsletter. Similarly, in Physicians Healthsource, Inc. v. Janssen Pharmaceuticals,
Inc., No. CIV.A. 12-2132 FLW, 2013 WL 486207, at *7 (D.N.J. Feb. 6, 2013), the court found that
“the content of the fax at issue [did] not suggest the presence of a commercial pretext” because the
fax “did not offer any free services or goods to Plaintiff’s doctors.” Here, by contrast, the fax offers
a free steak dinner to attendees. Whether the free dinner is part of an advertising campaign or a non-

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commercial educational opportunity depends on how a fact-finder resolves disputed issues of fact,
including whether the pictured product is a Stryker product or a generic sample.
The parties cite one case involving a motion for summary judgment. In Phillip Long Dang,
D.C., P.C. v. XLHealth Corp., defendants faxed invitations to seminars concerning insurance
coverage; the seminars included the defendants’ logo as well as logistical information concerning
the seminar. See No. 109-CV-1076-RWS, 2011 WL 553826, at *1 (N.D. Ga. Feb. 7, 2011). The
“seminars promised to offer providers . . . information regarding claims and utilization management,
to demonstrate use of [the defendants’] secure provider portal, and to afford providers and their staffs
opportunities to meet CIP representatives.” Id. Although the court noted that “in many instances”
a free seminar serves as a “pretext to advertise commercial products and services,” the court found
that the fax was not a pretext for a commercial enterprise because there was “nothing on the
communication” which sought to sell insurance to the recipient or even promote the benefits of
becoming a contracted provider. Id. at *4. While this Court acknowledges that this case provides
support to Defendants, this Court rejects the opportunity to accept its reasoning in full. While the
Court agrees that there is nothing on the face of the fax at issue in this case that serves as an explicit
sale offer, the Court disagrees that this answers the question as to whether this free seminar was “a
pretext to advertise commercial products and services.” Id. at *3. Of course, if the fax itself
contained an explicit offer to sell, it would be unnecessary to make the follow-up inquiry into
whether the message was pretextual, as the message on its own would violate the TCPA without any
need to ask whether the message was a mere pretext. See id.
Howmedica also argues that because the faxes were sent to primary care physicians who
neither buy nor prescribe orthopedic devices, a commercial nexus between the fax and its recipients

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is lacking as a matter of law. (R. 92, Howmedica Br. at 2, PageID # 2424; R. 106, Def. Br. at 8,
20–21, PageID # 3992, 4004–05.) The Court disagrees. The parties agree that primary care
physicians may engage patients and orthopedic surgeons on matters involving orthopedic devices,
and that primary care physicians refer patients to orthopedic surgeons. (R. 98, Pl. Br. at 18, PageID
# 2987.) It stands to reason that the information referenced on the fax could have led primary care
physicians to refer more patients or discuss orthopedic products more frequently, and this in turn
could stimulate demand for Defendants’ products. The Court finds that the relationship between the
fax recipients and demand for Defendants’ products, as opposed to a direct one-to-one link regarding
a commercial transaction, is a sufficient basis on which a factfinder could infer the existence of an
advertisement, particularly in an industry such as medical devices. And the Court finds nothing in
the TCPA mandating one degree of separation between buyer and seller for material to constitute
an advertisement as a matter of law. While a factfinder could reasonably determine that the
separation between buyer and seller weighed in favor of considering the fax as educational rather
than promotional, such a separation does not mandate resolution as a matter of law.
b. Beyond the Fax Itself
Another question debated by the parties is whether the Court should consider only the fax
itself or both the fax and the actual seminar that the fax promoted in determining whether the fax
constituted an advertisement as a matter of law. Defendants argue that only consideration of the fax
is appropriate because the language of the TCPA does not purport to regulate anything other than
the transmission of unsolicited advertisements. (R. 92, Howmedica Br. at 13, PageID # 2435.)
Defendants further argue that nothing in the TCPA directs the Court to look beyond the face of the
fax transmission in determining whether a defendant has sent an unsolicited advertisement, and that

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a seminar, by definition, cannot be understood as a transmission. (R. 106, Def. Br. at 8, PageID #
3992.) Therefore, the argument goes, anything that occurred at the seminar is outside the scope of
the TCPA. (R. 122, Howmedica Rep. Br. at 2, PageID # 5612.) Plaintiff counters by citing other
circuits for the proposition that the TCPA is a remedial statute that should be broadly interpreted.
(R. 106, Def. Br. at 8, PageID # 3992.) Defendant responds by saying the issue of whether the TCPA
is punitive or remedial is unsettled in the Sixth Circuit, and that the only permissible course of action
is to apply the TCPA’s plain meaning, which in Defendants’ view leads to a narrow interpretation
that excludes consideration of the seminar. (R. 106, Def. Br. at 18, PageID # 4002.) Of course, even
if Defendants are correct about this, they are still not entitled to summary judgment for the reasons
already discussed. Even so, the Court will address the issue to determine whether Plaintiff is entitled
to summary judgment once the seminar itself is included, and to frame the issues for trial, based on
the Court’s ultimate conclusion that no party is entitled to summary judgment.
The Court finds 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. The ultimate statutory question
is whether the fax at issue falls within the statutory definition. In answering that question, nothing
in the statute puts an artificial limit on information a court may consider. Congress knows how to
limit the evidentiary record when it wants to do so. See, e.g., Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.A. § 9613(j)(1) (“In any judicial action
under this chapter, judicial review of any issues concerning the adequacy of any response action
taken or ordered by the President shall be limited to the administrative record.”); Immigration
Reform and Control Act of 1986, 8 U.S.C.A. § 1160(e)(3)(B) (noting that “judicial review shall be
based solely upon the administrative record established at the time of the review”); see also Cronin

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v. U.S. Dep’t of Agric., 919 F.2d 439, 441 (7th Cir. 1990) (discussing the general requirement that
a district court limit its review to the administrative record). In the absence of any statutory
restriction, the ordinary rules of evidence apply. See Fed. R. Evid. 401–02; Fed. R. Civ. P. 56(c).
And the actual content of a seminar can logically shed light on whether a particular fax promoting
the seminar is merely providing non-commercial educational opportunities, or advertising the
commercial availability or quality of particular products. Anyone who has received an invitation to
a free breakfast or cocktail hour at a beach resort knows a lot more about whether the invitation was
an advertisement for a time-share opportunity after actually attending the event.
This is the same practical insight that the FCC has embodied in its policy statement regarding
offers for free goods or services. The FCC regulations implementing the TCPA clarify, “[t]he term
advertisement means any material advertising the commercial availability or quality of any property,
goods, or services.” 47 C.F.R. § 64.1200(f)(1). The FCC’s policy statements further provide that
“offers for free goods or services that are part of an overall marketing campaign to sell property,
goods, or services constitute advertising the commercial availability or quality of any property,
goods, or services.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
18 F.C.C. Rcd. 14014, 14097 (2003).

More directly on point, the FCC has concluded that

“facsimile messages that promote goods or services even at no cost, such as . . . free consultations
or seminars are unsolicited advertisements under the TCPA’s definition. In many instances, ‘free’
seminars serve as a pretext to advertise commercial products and services. By contrast, only those
facsimile communications that contain only information, such as industry news articles, legislative
updates, or employee benefit information, would not be prohibited by the TCPA rules.” Rules and

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Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention
Act of 2005, 71 FR 25967-01 (2006) (emphasis added).
The parties disagree whether case law supports affording deference to the FCC’s comments.
But this disagreement is beside the point. The issue is not deference; it is simply common sense.
We know from common experience—whether at time-share resorts or otherwise—that “free offers”
often come with strings attached. Understanding the full context is not only helpful, but often
essential, to evaluating the true nature of what is being offered. To the extent the FCC guidance
embodies this common sense notion, it reinforces the Court’s conclusion that the question of whether
the fax is an advertisement may be illuminated by more than the fax itself. Refining fine points of
administrative law regarding levels of judicial deference to various forms of agency action is
unnecessary in this case.
In looking at the broader factual information, Plaintiff argues that its motion for summary
judgment should be granted simply because Defendants are for-profit entities and the seminar was
free. Plaintiff notes that Stryker paid for the expenses associated with the seminars, including those
for food and handout materials. (R. 98, Pl. Br. at 17, PageID # 2986.) But the Court finds that this
fact alone is insufficient for purposes of deciding a motion for summary judgment. It is certainly
unclear why Defendant would provide free dinners without receiving, or expecting to receive,
something in return—if there is, as any professor would tell his students in an introductory
economics course, no “free lunch,” it stands to reason that there is similarly no “free dinner.” But
the Court is not inclined to adopt a hard-and-fast rule centered on the motives of the Defendants for
purposes of ascertaining whether a seminar is focused on education or promotion for the reasons
described above. Rather, the fact that Defendants paid for the seminar’s associated expenses would

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be one consideration for a factfinder in evaluating the nature of the seminar, and the fax promoting
it.
Similarly, looking at whether the seminar content was educational or promotional is not open
to decision as a matter of law. Defendant Howmedica states that even if the Court examines the
content of the underlying seminars, the faxes still do not constitute unsolicited advertisements
because the seminars provided bona fide medical education for doctors. (R. 122, Howmedica Rep.
Br. at 2, PageID # 5612.) Plaintiff predictably disagrees, focusing on the multiple PowerPoint slides
that could certainly be said to raise awareness of Defendants’ products and their quality. Plaintiff
observes that the PCP agreement prohibited presenters from altering the slides, including those that
relate to Defendants’ products and technology. Defendant Howmedica states that of the 68 total
slides, few reference its own products, and maintains that even if the PCP agreement stated that the
speakers may not alter the provided PowerPoint slides, Dr. Petrocy and other presenters did in fact
alter the PowerPoint slides; apparently “a number of the presenters altered the presentations to
eliminate references to Stryker products or branding.” (R. 122, Howmedica Rep. Br. at 3, PageID
# 5613.) Defendant Howmedica also notes that nothing in the PCP contracts requires the presenters
to promote the Defendants’ orthopedic products, the agreement specifically states that there is “no
requirement or expectation” that the presenters engage in such conduct. (R. 122, Howmedica Rep.
Br. at 2, PageID # 5613.) According to Defendants, the fact that presenters “discussed [Defendants’]
products does not mean that they promoted their use, as opposed to informing attendees about how
orthopedic devices can address the medical needs of patients.” (R. 122, Howmedica Rep. Br. at 2–3,
PageID # 5612–13.)

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The Court finds that the PowerPoint slides and the circumstances of the seminar could lead
a reasonable factfinder to find for or against either side. On the one hand, a factfinder could
conclude that any references to Stryker or its products in the PowerPoint slides were for the purpose
of discussing how medical devices can be used to treat orthopedic conditions, and were thus part of
the overall educational design of the presentation. On the other, a factfinder could conclude that the
references to Stryker or its products in the PowerPoint slides were for the purpose of advertising the
commercial availability and quality of Stryker’s products in the hopes that primary care physicians
would undertake steps to stimulate demand for Stryker products. And the surrounding circumstances
can similarly be viewed either way. The issue of whether the seminar was principally educational
or promotional in nature simply cannot be decided as a matter of law, and so the Court will deny the
parties’ motions for summary judgment on these issues. And because Plaintiff is not entitled to
summary judgment without showing as a matter of law both that the fax was an advertisement and
unsolicited, Plaintiff’s motion for summary judgment must be DENIED.
2. Was the fax unsolicited?
The second question for this Court to consider is whether the fax was unsolicited, which is
the only kind of fax expressly regulated by the TCPA. The relevant portion of the TCPA’s definition
of “unsolicited advertisement” focuses on transmissions “to any person without that person’s prior
express invitation or permission.” 47 U.S.C. § 227(a)(5). An “unsolicited advertisement” sent by
fax violates the TCPA unless the sender can establish three things: (1) the sender has an established
business relationship with the recipient; (2) the sender obtained the recipient’s fax number either
through a voluntary communication between the two or through a public source on which the
recipient voluntarily made the number available; and (3) the fax has an opt-out notice meeting the

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requirements of the statute. See id. § 227(b)(1)(c). The parties focus on the third requirement
because even assuming the first two conditions are satisfied, there is no factual dispute regarding the
absence of any opt-out language on the fax at issue in this case.
The statutory opt-out-notice requirement outlines some requirements and directs the FCC to
prescribe additional regulations to implement the requirement.

Id. § 227(b)(2)(D).

The

accompanying regulation states, “[a] facsimile advertisement that is sent to a recipient that has
provided prior express invitation or permission to the sender must include an opt-out notice that
complies with the requirements in paragraph (a)(4)(iii) of this section.” 47 C.F.R.
§ 64.1200(a)(4)(iv). The corresponding FCC regulation states the following:
(iii) The advertisement contains a notice that informs the recipient of the ability and
means to avoid future unsolicited advertisements. A notice contained in an
advertisement complies with the requirements under this paragraph only if-(A) The notice is clear and conspicuous and on the first page of the
advertisement;
(B) The notice states that the recipient may make a request to the sender of
the advertisement not to send any future advertisements to a telephone
facsimile machine or machines and that failure to comply, within 30 days,
with such a request meeting the requirements under paragraph (a)(4)(v) of
this section is unlawful;
(C) The notice sets forth the requirements for an opt-out request under
paragraph (a)(4)(v) of this section;
(D) The notice includes-(1) A domestic contact telephone number and facsimile machine
number for the recipient to transmit such a request to the sender; and
(2) If neither the required telephone number nor facsimile machine
number is a toll-free number, a separate cost-free mechanism
including a Web site address or email address, for a recipient to
transmit a request pursuant to such notice to the sender of the
advertisement. A local telephone number also shall constitute a
cost-free mechanism so long as recipients are local and will not incur
any long distance or other separate charges for calls made to such
number; and
(E) The telephone and facsimile numbers and cost-free mechanism identified
in the notice must permit an individual or business to make an opt-out request
24 hours a day, 7 days a week.
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Id. § 64.1200(a)(4)(iii). The FCC has reiterated that the opt-out notice is required for all fax
advertisements, even if there is an established business relationship or the sender has obtained prior
consent. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967-01, 25972, 2006 WL 1151584 (2006)
(“In addition, entities that send facsimile advertisements to consumers from whom they obtained
permission must include on the advertisements their opt-out notice and contact information to allow
consumers to stop unwanted faxes in the future.”). The Court observes that the AMA’s own license
agreement with Database Licensees also requires a conspicuous opt-out notice. The fax at issue here
did not include any opt-out language.
Plaintiff PHI argues that the FCC’s regulation in 47 C.F.R. § 64.1200(a)(4)(iv) and the
accompanying commentary control. (R. 109, Pl. Br. at 24–25, PageID # 4292–93.) PHI points to
various courts that have deferred to the FCC on the subject, holding that if a fax does not strictly
comply with opt-out requirement, the defendant cannot raise a consent defense. See, e.g., Turza, 728
F.3d at 683 (“Turza’s faxes did not contain opt-out information, so if they are properly understood
as advertising then they violate the Act whether or not the recipients were among Turza’s clients.”);
Nack v. Walburg, 715 F.3d 680, 685 (8th Cir. 2013) (“[W]e believe that the regulation as written
requires the senders of fax advertisements to employ the above-described opt-out language even if
the sender received prior express permission to send the fax.”); Bais Yaakov of Spring Valley v.
Alloy, Inc., 936 F. Supp. 2d 272, 285–87 (S.D.N.Y. 2013) (same); Vandervort v. Balboa Capital
Corp., 287 F.R.D. 554 (C.D. Cal. 2012) (same); Aventura Chiropractic v. Med Waste Mgmt., LLC,
No. 12-21695-CIV, 2013 WL 3463489, at *4 (S.D. Fla. July 3, 2013) (same).

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In response, first Defendant Howmedica argues that the fax was not unsolicited because, as
part of the AMA’s 2003 Census, Dr. Martinez gave express written consent to receive faxed
advertisements associated with the licensed use of the AMA’s physician database. (R. 92,
Howmedica Br. at 2, 8, PageID # 2424, 2430.). Defendant further argues that this is all by itself
sufficient to defeat liability under the TCPA, and that it need not separately comply with the statutory
elements of the defense of consent. But this argument does not take the statute as a whole seriously.
In understanding what Congress meant by “unsolicited,” the Court looks first to the statutory
definition, which focuses on the recipient’s “prior express invitation or permission.” 47 U.S.C.
§ 227(a)(5). But the phrase is itself susceptible to multiple reasonable constructions. An “express
invitation or permission” is something more than the absence of objection to an established practice,
or even a conscious choice to accept an established practice of allowing faxes because it seems less
onerous at the time than taking the initiative to send a separate communication opting out of the
practice. See id. Tolerating the presence of a door-to-door solicitor at the house is not the same
thing as an express invitation or permission. Moreover, even assuming for purposes of argument
that there really was some express consent from Dr. Martinez in 2003, does the statutory phrase
require separate consent or invitation for each individual transmission, or only for a particular
category of transmissions? And if the latter, who decides whether a particular fax is within the
category? Also, if categorical consent is enough, how often must it be received and how does a
person revoke consent after a change of heart? And what if the person who gave categorical consent
is not the person who actually owns the fax machine receiving the transmission? In short, the
statutory phrase leaves room for reasonable construction.

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In construing the proper reach of the definition, Congress itself provided some clues by
singling out three elements for a successful consent defense, one of which is an opt-out notice. See
id. § 227(b)(1)(C). That opt-out notice is required even when there is an established business
relationship, and even when there is no question that the sender received the fax number directly
from the recipient (or from a public source), and not from someone who sold or licensed the
information. These congressional choices support construction of the term “unsolicited” in this
context that will ensure fax recipients have real and practical control—and means to control—what
is sent to them on their own fax machines. Defendants’ construction isolates one statutory word and
ignores what Congress itself said about the inextricably linked issue of consent. Here, Defendants
included no opt-out language on their fax, and accordingly have no basis for satisfying the statutory
defense of consent. The FCC regulation on this issue makes the case even easier on this point. The
FCC’s regulation unequivocally requires all advertisements to include an opt-out notice. This is, at
a minimum, a fair interpretation of the congressional scheme. Congress’s use of the term
“unsolicited” in the same statute including an express defense and definition of consent reasonably
supports the conclusion that Congress meant to treat the terms as equivalent, at least for purposes
of requiring opt-out language on all faxes. And regulations that are reasonably within the statutory
language are entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 844 (1984).
As a matter of law, the fax was “unsolicited” within the meaning of the overall statutory
framework Congress enacted because it did not include the opt-out language required for a
successful defense of consent, and was not sent by “express invitation or permission” of the Plaintiff,
as the Court construes the phrase.

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The congressional and FCC requirement of opt-out language is entirely reasonable, as the
facts of this case demonstrate. Whatever consent Plaintiff gave was, at best, indirect. It came from
one of its employees in an annual census to the AMA. And the “consent” appears more like the
acceptance of an established practice than an express “check-the-box” opt-in decision. At a
minimum, no one—not Plaintiff or any of its employees—gave any direct consent to the sender of
the fax at issue here, or to the marketing company that provided the fax list to the sender.
Defendants’ theory here would effectively say that once a single doctor in a multi-doctor practice
gave consent to the AMA in an annual survey, faxes from anyone that the AMA sold the number to
would be “solicited” and beyond the TCPA, at least until all doctors in the practice withheld consent
in separate communications to the AMA. Given the inherent ambiguity in what is “solicited” or
“unsolicited” in this factual morass, Congress and the FCC could reasonably conclude that the
unequivocal requirement of a simple opt-out notice on every fax was the only way to give practical
effect to the purpose of the TCPA. Apparently even the AMA reached the same conclusion because
it required its Database Licensees to include an opt-out mechanism, too.
The Defendants’ remaining points similarly do not carry the day. Defendants argue that the
FCC regulation violates the First Amendment by imposing a ban on commercial speech. (R. 106,
Def. Br. at 29, PageID # 4013.) The Court disagrees. Regardless of whether the Court applies the
analytical framework in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447
U.S. 557 (1980), or the “time, place, and manner” analysis applicable to content-neutral restrictions
on free speech, the Court discerns no constitutional violation. See generally Bd. of Trustees of State
Univ. of New York v. Fox, 492 U.S. 469, 477 (1989) (noting that “application of the Central Hudson
test was ‘substantially similar’ to the application of the test for validity of time, place, and manner

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restrictions upon protected speech”). Neither Congress nor the FCC is drawing any content-based
line tied to the subject of the advertisement. Rather, they are simply ensuring that an advertiser not
impose the costs of the fax itself on the target. That is a perfectly reasonable regulation on the
manner of the commercial communication.
Defendants also note that on October 30, 2014, the FCC released an Order concerning the
TCPA (docket no. 183), which states that “some parties who have sent fax ads with the recipient’s
prior express permission may have reasonably been uncertain about whether our requirement for
opt-out notices applied to them” and that the FCC is providing a six-month window in which senders
of faxes may apply for a retroactive waiver of the FCC’s opt-out requirement, provided that senders
comply with the FCC’s regulations within six months. (R. 183-1, Ex. A at 2, PageID # 7984.) The
Stryker Entities have filed a Petition for Waiver with the FCC. (R. 183-1, Ex. A at 2, PageID
# 7984.) But the waiver issue does not impact the Court’s decision, for three reasons. First, as noted
above, this Court’s ruling rests not merely on the FCC’s regulation, but on the statutory term itself.
Second, the Court finds that nothing in the waiver—even assuming the FCC ultimately grants
it—invalidates the regulation itself. The regulation remains in effect just as it was originally
promulgated. Third, the FCC cannot use an administrative waiver to eliminate statutory liability in
a private cause of action; at most, the FCC can choose not to exercise its own enforcement power.
See generally Turza, 728 F.3d at 688 (“Section 227 [of the TCPA] authorizes private litigation,
however; recipients [of faxes] need not depend on the FCC.”). It would be a fundamental violation
of the separation of powers for the administrative agency to “waive” retroactively the statutory or
rule requirements for a particular party in a case or controversy presently proceeding in an Article
III court.

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Based on the above analysis, this Court finds that the fax was “unsolicited” as a matter of
law. Therefore, Plaintiff’s motion as to this particular issue is granted (though summary judgment
on liability as a whole cannot be entered for the Plaintiff for the reasons separately listed in the
previous section), and Defendants’ motion for summary judgment must be DENIED.
B. Defendant Stryker’s Motion for Summary Judgment (docket no. 95)
The Stryker entities consist of Defendant Stryker Sales Corporation, Defendant Stryker
Biotech LLC, and Defendant Stryker Corporation, their parent company. Stryker asserts that PHI
has not met its evidentiary burden to establish that Stryker Sales Corp., Stryker Biotech LLC, or
Stryker Corp. had any involvement with the alleged sending of faxes. (R. 96, Def. Br. at 2, PageID
# 2755.) Stryker states that neither Stryker Sales Corp. nor Stryker Biotech Corp. is involved with
the sale or manufacture of orthopedic implant devices. Stryker further states that there is no
evidentiary basis for piercing the corporate veil and affixing liability to the parent company, Stryker
Corp. (R. 96, Def. Br. at 3, PageID # 2757.) See Seasword v. Hilti, Inc., 537 N.W.2d 221, 224
(Mich. 1995) (“Michigan law presumes that, absent some abuse of corporate form, parent and
subsidiary corporations are separate and distinct entities.”). Stryker also notes that PHI did not take
a deposition of a corporate representative from any of the three entities, and that all eleven deponents
indicated that they worked exclusively with Howmedica Osteonics Corporation. (R. 96, Def. Br. at
5, 10 PageID # 2758, 2764.) Stryker also states that the statutory language of § 227(b) does not
provide for vicarious liability, and that even in cases where federal courts have found vicarious
liability, the courts have premised their findings on doctrines of agency. (R. 96, Def. Br. at 9–10,
PageID # 2762–63.)

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PHI counters that Stryker’s written discovery responses admit that they sent the faxes in
question. (R. 105, Pl. Br. at 2, PageID # 3958.) PHI states that Stryker contracted with a company
called Mudbug to send the faxes, and also states that Stryker used desktop faxing software to send
the faxes. (R. 105, Pl. Br. at 3–4, PageID # 3959–60.) PHI also states that Stryker’s claim about
agency as it relates to vicarious liability as well as its piercing the corporate veil claims are
erroneous, and cites the FCC regulations which define “sender” in the Telecommunications Act as
“the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods
or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10)
(emphasis added).
Stryker argues that it has consistently denied involvement with the sending of faxes, and that
to the extent it answered an interrogatory asking if “you or someone on your behalf sent [a fax]” in
the affirmative that it meant Howmedica, which was a wholly-owned subsidiary of Stryker
Corporation. (R. 125, Stryker Rep. Br. at 4–6, PageID # 5761–63.) As such, Stryker argues that the
interrogatory answers are consistent with its position that no genuine issue of material fact exists.
(R. 125, Stryker Rep. Br. at 8, PageID # 5765.) And Stryker cites a myriad of cases which it says
indicate that ambiguities—here, the word “you”—should be construed in favor of the propounding
party, PHI. (R. 125, Stryker Rep. Br. at 8–9, PageID # 5765–66.)
The Court finds that it may be the case that the faxes were not sent on Stryker’s behalf, but
the Court also finds that it cannot say so as a matter of law. The totality of the circumstances,
including Defendants’ discovery responses, and the use of Stryker’s name and logo on both the sent
fax and the PowerPoint slides displayed at the seminar, suggest that a reasonable factfinder could
conclude that Howmedica, Stryker’s subsidiary, sent the faxes on behalf of the Stryker entities, or

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that the Stryker entities are otherwise properly accountable here. Accordingly, the Court DENIES
the Stryker entities’ motion for summary judgment on this issue.
IV. CONCLUSION
For the foregoing reasons, Defendant Howmedica’s Motion for Summary Judgment (docket
no. 91) is DENIED; Defendant Stryker’s Motion for Summary Judgment (docket no. 95) is
DENIED; and Plaintiff PHI’s Motion for Summary Judgment (docket no. 97) is DENIED in all
respects except one: namely, on the issue of whether the fax was “unsolicited,” on which the Court
finds as a matter of law that it was.
IT IS SO ORDERED.

Dated:

January 12, 2015

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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