Lackawanna Chiropractice P.C. v. Tivity Health Support, LLC

Filing 24

ORDER denying 19 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Lawrence J. Vilardo on 1/22/2019. SO ORDERED. (AMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LACKAWANNA CHIROPRACTIC P.C.,
Plaintiff,
v.

18-CV-649
DECISION & ORDER

TRIVITY HEALTH SUPPORT, LLC,
Defendant.

On June 7, 2018, the plaintiff, Lackawanna Chiropractic P.C., filed this putative
class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
The complaint alleges that the defendant, Trivity Health Support, LLC (“Trivity”), sent
unauthorized and unwanted fax advertisements in violation of the TCPA. Docket Item
1. On August 16, 2018, Trivity filed its first motion to dismiss the case, and on
September 6, 2018, Lackawanna Chiropractic filed an amended complaint. Docket
Items 13, 15. Trivity filed its second motion to dismiss on October 22, 2018, Docket
Item 19; Lackawanna Chiropractic responded on November 6, 2018, Docket Item 21;
and Trivity replied on November 16, 2018, Docket Item 23.
BACKGROUND
In deciding a motion to dismiss a complaint for failure to state a claim under Fed.
R. Civ. P. 12(b)(6), the court accepts as true all factual allegations, drawing reasonable
inferences in the plaintiff’s favor. See Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002). “Dismissal is inappropriate unless it appears beyond doubt that the

plaintiff can prove no set of facts which would entitle him or her to relief.” Sweet v.
Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
The amended complaint alleges that on March 2, 2018, Trivity sent an unsolicited
fax to Lackawanna Chiropractic.1 Docket Item 15 at 5. According to the amended
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The substantive text of the fax reads as follows:

Who we are
WholeHealth Networks, Inc., a subsidiary of Trivity Health Support, LLC, (WHL) has
successfully developed and managed national networks for numerous regional and
national health plans for more than 25 years. We are currently growing our
Acupuncture, Chiropractic, and Massage networks.
Call to action – We need you!
You are currently participating in the Trivity Health WholeHealth Living Choices
Discount Network. We would like you to also participate in a new exciting network
similar to the Choices Discount Network. The best part is the number of members that
can participate in your community – targeted members are ages 50+. Since you are
already in the Choices Discount Network, all we need you to do is complete the
attached material and send it back so we can get you in the network for the new
Network launch in March!
Trivity’s new Health and Fitness Program Network – 4 easy steps
Once you have signed the attached information, here is how the process works:
1. Your practice will be posted on our website. The member will present to your
office with an app on his/her mobile phone.
2. You will enter your NPI number on the member’s phone app to activate your
voucher.
3. You will receive an auto-generated email with the voucher redemption steps.
4. Open your email and redeem your voucher!
Specifics for the Program:
•
•

Discounts: WHL will ask you to offer members a discount of 10 to 30 percent.
You get to select the percentage discount, off your cash charges (this is just like
the Choices Discount Network).
Vouchers: Members will have a monthly $20 voucher (or coupon). WHL
considers the first visit voucher as a new patient finder fee; it is non-reimbursable
by WHL. The subsequent vouchers can be submitted to WHL for reimbursement.
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complaint, the fax promoted the commercial availability of Trivity’s SilverSneakers,
PrimeFitness, and WholeHealth Living program networks and “a new and exciting
network similar to the [WholeHealth Living] Network” for which “targeted members are
ages 50+.” Id. at 3. The fax also solicited provider recipients to join Trivity’s networks,
make use of its marketing and patient matching services, and compensate Trivity in
return. Id. This compensation came in the form of effectively paying Trivity a $20 “new
patient finder fee,” by offering an ongoing discount to Trivity network members for which
members compensate Trivity, and by delaying the reimbursement of network providers
and otherwise retaining the benefit of members’ funds during that delay. Id. at 4.
Lackawanna Chiropractic filed a class action law suit on behalf of all persons and
entities similarly injured by Trivity’s conduct, alleging that Trivity violated the TCPA by
“sending unsolicited faxes to businesses and other consumers with which it ha[d] no
relationship advertising [its networks].” Id. at 1. According to the complaint, the fax was
an “unsolicited advertisement” because it “advertised the commercial availability and
quality of [Trivity’s] goods and services and [was] commercial in nature.” Id. at 8.
Lackawanna Chiropractic alleges that by sending these unsolicited advertisements to
the prospective class plaintiffs “without their prior express invitation or permission,”
Trivity violated 47 U.S.C. § 227(b)(1)(C).

•
•

The member will pay you the Discounted amount after the Voucher is applied.
If the member does not have a voucher for a visit and wants to see you multiple
times in a month, you just offer the Discount.

Get started today!
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To support its motion to dismiss, Trivity argues that the fax was not an
“unsolicited advertisement” because its purpose was not to promote the commercial
availability and quality of Trivity’s referral and discount network. Docket Item 19-1 at 2.
Rather, the purpose of the fax, according to Trivity, was to recruit healthcare providers
like Lackawanna Chiropractic to its network. Id. Trivity moves to dismiss because, it
argues, the plaintiff has failed to plausibly allege that the fax was an unsolicited
advertisement or that it was commercial in nature and promoted property, goods, or
services. Id. at 3, 7.
DISCUSSION
To survive a motion to dismiss, a complaint must include sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 557).
The TCPA makes it unlawful to fax an “unsolicited advertisement” unless the
recipient has an established business relationship with the sender, the recipient
voluntarily communicated its fax number for public distribution, or the unsolicited
advertisement contains an opt-out notice. 47 U.S.C. § 227(b)(1)(C). The act defines an
“unsolicited advertisement” as “any material advertising the commercial availability or
quality of any property, goods, or services which is transmitted to any person without
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that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(5). At the
pleading stage, a fax is an “unsolicited advertisement” under the TCPA when “there is a
plausible conclusion that the fax had the commercial purpose of promoting [the
sender’s] products or services.” Physicians Healthsource, Inc. v. Boehringer Ingelheim
Pharmaceuticals, Inc., 847 F.3d 92, 95 (2d Cir. 2017).
According to the amended complaint here, “Trivity is a provider of fitness and
wellness program networks” whose core business is “connect[ing] healthcare and
wellness providers with potential patients and clients.” Docket Item 15 at 3. Without a
doubt, those services are the subject of the fax Trivity sent to Lackawanna Chiropractic.
Docket Item 15-1. So the fax had the commercial purpose of promoting Trivity’s
services, and the complaint states a plausible claim for relief under the TCPA.2

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The plaintiffs also allege that, as an employer, Lackawanna Chiropractic could
be a Trivity group sponsor for its employees and thus a potential direct purchaser of
Trivity’s programs, goods, and services. Docket Item 15 at 3. According to the
plaintiffs, by simply mentioning the quality of Trivity’s networks in general and using the
term “member,” which in context offered services for a fee, the fax had the commercial
purpose of promoting Trivity’s programs. Docket Item 21 at 7. The plaintiffs argue that
merely touting the quality or declaring the availability of services suffices to show the fax
is an unsolicited advertisement, id. at 5, relying on Mussat v. Enclarity, Inc., 2018 U.S.
Dist. LEXIS 35142, at *7 (N.D. Ill. Mar. 5, 2018) (“A fax need not make an overt sales
pitch to its recipient for a TCPA claim to exist.”).
But the law in the Second Circuit is not as expansive as the plaintiffs contend. In
Physicians Healthsource, Inc., 847 F.3d at 95, the Second Circuit considered whether a
fax inviting recipients to an event involving the sender “had the commercial purpose of
promoting [the sender’s] products or services.” Judge Winter illustrated the point with
“[t]wo fanciful examples.”
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
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The plaintiffs allege that the fax was an unsolicited advertisement asking
recipients to join Trivity’s networks and to use Trivity’s marketing and patient matching
services. Docket Item 15 at 3. And accepting the complaint’s allegations as true, they
are correct. The fax “promote[s]” the advantages of Trivity’s patient-matching
“services.” Physicians Healthsource, Inc., 847 F.3d at 96-97. It invites recipients to
“Grow your business!” by joining Trivity’s network. Docket Item 15-1. It mentions the
number of patients in Trivity’s network, the age of targeted members, and the ease of
signing up. Id.
Trivity argues that the fax is a recruitment email, not an unsolicited
advertisement, because it simply informs the recipient of an opportunity and attempts to
recruit the recipient to provides services. Docket Item 19-1 at 5. Trivity points to a
series of cases from other circuits in which the courts decided that communications in
which the sender proposed compensating the recipient for some services were not
unsolicited advertisements. See Reardon v. Uber Techs., Inc., 115 F. Supp. 3d 1090,

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.
Id. at 97. Lackawanna Chiropractic would apply Mussat to define “unsolicited
advertisement” so broadly that simply by placing the invitations on its letterhead Handy
Widget Company would violate the TCPA. Here, the fax states that Trivity has
“successfully developed and managed national networks” for its “members,” but it does
nothing more to promote the availability of those networks for direct purchase by
Lackawanna Chiropractic. Docket Item 15-1. It never even mentions the
SilverSneakers, PrimeFitness, and WholeHealth Living networks. Id. Nor does it
suggest anywhere that the recipient become a Trivity group sponsor or even mention
the benefits of sponsorship. Id. While it is “possible” that the fax could promote the
direct purchase of Trivity’s services by an employer in that way, such an interpretation
may not be “plausible.” Iqbal, 556 U.S.at 678. Nevertheless, because this Court denies
the defendant’s motion to dismiss, it does not now reach that issue.

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1096 (N.D. Cal. 2015) (holding that text messages sent by Uber to potential drivers are
not advertisements sent with the purpose to promote a good or service); Friedman v.
Torchmark Corp., 2013 WL 4102201, at *5 (S.D. Cal. Aug. 13, 2013) (“Regarding
unsolicited advertisements, the Court finds persuasive the Lutz court’s conclusion that
an offer of employment is not ‘material advertising the commercial availability . . . of any
property, goods, or services’ within the ordinary meaning of those words of the TCPA.”);
Lutz Appellate Servs., Inc. v. Curry, 859 F. Supp. 180, 181 (E.D. Pa. 1994) (“A
company’s advertisement of available job opportunities within its ranks is not the
advertisement of the commercial availability of property.”); cf. Sandusky Wellness
Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 222 (6th Cir. 2015)
(pharmacy benefit manager sent information to healthcare provider about preferred
prescriptions for its patients that was not an unsolicited advertisement because the
sender had “no interest whatsoever in soliciting business from” the recipient). In each of
these cases, the communication did not contemplate that the recipient pay the sender
any money for the sender’s products or services.
Here, Trivity’s fax is different. On its face, Trivity’s fax describes at least two
ways in which the recipient will compensate Trivity for patient-matching services. First,
the recipient effectively pays Trivity by accepting a nonreimbursable $20 monthly
voucher when a member first visits the healthcare provider, which Trivity considers a
“new patient finder fee.” Docket Item 15-1. Second, Trivity asks participants to offer
Trivity members an on-going 10-30% discount, with the participant selecting the specific
“percentage discount” in that range. Id. In both ways, participants compensate Trivity

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for its services, and that revenue suffices to plausibly allege the “commercial purpose”
of the fax.

Physicians Healthsource, Inc., 847 F.3d at 95.

Trivity is correct in its assertion that the purpose of the message is critical. If
Trivity did not have the commercial purpose of promoting its products and services
when sending the fax, it may not have violated the TCPA. See id.; cf. Salmon v. CRST
Expedited, Inc., 2015 WL 1395237, at *3 (N.D. Okla. Mar. 25, 2015) (“[T]he ‘purpose of
the message’ is what governs whether an autodialed call is a prohibited solicitation or
advertisement.”) (citing In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14097 (F.C.C. July 3, 2003)).
But the plaintiffs have plausibly alleged that Trivity sent a fax with a commercial purpose
of advertising the commercial availability and quality of its goods and services and that
the fax therefore was commercial in nature. Docket Item 15 at 8. Trivity can rebut that
allegation, but only after answering the complaint and proceeding to discovery.
In sum, the complaint alleges that Trivity is in the business of connecting
healthcare providers such as Lackawanna Chiropractic to the members of its network
for a fee, and the plaintiffs have plausibly alleged that that is exactly what Trivity sought
to do with its fax here. Because providers would compensate Trivity for its services,
Trivity’s argument that the purpose of the fax was recruitment is unavailing. On its face,
Trivity’s fax is more than an offer of employment or noncommercial information.
Instead, at least based on the facts alleged in the complaint, it is an unsolicited
advertisement for Trivity’s patient-matching services.

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CONCLUSION
For the reasons stated above, Trivity’s motion to dismiss the amended complaint,
Docket Item 19, is DENIED. The plaintiffs have plausibly stated a claim that Trivity sent
an unsolicited advertisement for its patient-matching services in violation of the TCPA.
The defendant’s motion to dismiss therefore is denied.

SO ORDERED.
Dated:

January 22, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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