Ruth Ann Cooper, DPM v. Neilmed Pharmaceuticals, Inc.

Filing 27

ORDER denying 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Michael R. Barrett on 9/29/17. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Ruth Ann Cooper, DPM,

Plaintiff,

Case No. 1:16cv945

v.

Judge Michael R. Barrett

NeilMed Pharmaceuticals, Inc.,
Defendant.
OPINION & ORDER
This matter is before the Court upon Defendant NeilMed Pharmaceuticals, Inc.’s
Motion to Dismiss. (Doc. 14). Plaintiff Ruth Ann Cooper, D.P.M. filed a Response in
Opposition. (Doc. 17). Defendant filed a Reply. (Doc. 18).
I.

BACKGROUND
Plaintiff’s Complaint centers on Defendant’s alleged practice of sending

unsolicited facsimiles.

According to the Complaint, NeilMed Pharmaceuticals

(“NeilMed”) manufactures and sells medical products, including nasal/sinus rinses,
decongestants, ear care products, and first aid products. (Doc. 1, ¶ 11). Dr. Cooper
operates a medical clinic. (Id. ¶ 9). On August 24, 2016, NeilMed sent a one-page fax
to Cooper, which read:
Dear Physician and Office Staff,
We would like to send you NeilMed product samples.
Please fill out the form below to verify your address and confirmation for
samples.
...

We thank you for all of you [sic] years of support.
NeilMed© Sinus Rinse© and Neilmed© Baby Care, Ear Care, and First
Aid devices have become an acceptable line of treatment for various self
care for simple ailments.
Thank you in advance for your timely response.
Neilmed Pharmaceuticals, Inc.
(Doc. 1-1, PAGEID #16). The fax then asked: “Would you like to receive samples from
NeilMed©?” and “Would you like to receive Medical Literature from NeilMed©?” (Id.)
Responses were to be indicated by checking boxes. (Id.) There was also a space to
update address and contact information. (Id.) The fax provided phone numbers and an
email address to use to fax the form back to NeilMed. (Id.) The fax also listed the
names and mobile numbers of NeilMed’s executive leadership, as well as the web
address, physical address and contact information for NeilMed’s head office.
Cooper has brought a putative class action pursuant to the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C.
§ 227 (“TCPA”). Cooper claims that NeilMed has sent unsolicited advertisements to
Cooper and the class via facsimile in violation of the TCPA.
II.

ANALYSIS
A. Motion to Dismiss
NeilMed moves to dismiss Cooper’s Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) based on the failure to state a claim upon which relief can be
granted.
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light
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most favorable to the plaintiff, accept its allegations as true and draw all reasonable
inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d
426, 430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, legal conclusions conveyed as factual allegations do not need to be
accepted as true, rather the reviewing court is allowed to draw on its own judicial
experience and common sense in determining whether or not the pleader can obtain
any relief based on the purported facts. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-950
(2009).
B. Telephone Consumer Protection Act
The Telephone Consumer Protection Act of 1991, as amended by the Junk Fax
Prevention Act of 2005, 47 U.S.C. § 227 (“TCPA”), provides that a person may not “use
any telephone facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). NeilMed
argues that the fax it sent Cooper was not an advertisement under the TCPA.
The TCPA defines “unsolicited advertisement” as “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.” 47 U.S.C. § 227(a)(5). The Sixth Circuit has held that under this
definition “[a]n advertisement is any material that promotes the sale (typically to the
public) of any property, goods, or services available to be bought or sold so some entity
can profit.” Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218,
222 (6th Cir. 2015).
Under this definition, the Sixth Circuit found that two faxes sent by a pharmacy

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benefit manager (“Medco”) to a chiropractic practice (“Sandusky”) were not
advertisements because they lacked the “commercial components inherent in ads.” Id.
at 222. The faxes listed drugs which were in Medco’s formulary and asked Sandusky to
consider prescribing these plan-preferred drugs to “help lower medication costs for
[Sandusky's] patients.” Id. at 220. The court noted that while the faxes called attention
to the medications and Medco’s services, there was no evidence Medco was offering to
ever sell the drugs or its services to Sandusky. Id. at 222. The court explained that the
faxes list the drugs “in a purely informational, non-pecuniary sense: to inform Sandusky
what drugs its patients might prefer, based on Medco's formulary.” Id.
The court contrasted the faxes to everyday ads which would fit within the
definition of “advertisement:”
When McDonald's runs a television ad for a new McCafé item (complete
with a jingle, of course), viewers understand that McDonald's is promoting
that item to the public's attention, that it is available to be bought, and that
McDonald's hopes to gain a profit from it. So too when a law firm buys
space in a newspaper for its logo, slogan, areas of expertise, and contact
information: Readers understand that the firm is soliciting the public to pay
for its services (which are available for sale) with making money in mind.
And probably so too when an orthopedic-implant manufacturer sends
potential buyers a fax containing a picture of its product on an invitation to
a free seminar: It is drawing the relevant market's attention to its product
to promote its sale (albeit indirectly).
Id. (citations omitted). The court found that its conclusion was bolstered by the Federal
Communications Commission's rules and regulations interpreting the statute. Id. at 223
(citing 47 C.F.R. § 64.1200(f)(1) (defining “advertisement”); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention
Act of 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006) (expounding on that definition)).
The court recognized that there is a circuit split on whether to defer to the Commission's

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interpretation, but explained “if we needed to rely on them, [the rules] only help Medco's
case that these faxes are not ads.” Id. The court explained that according to the
Commission, faxes “that contain only information, such as industry news articles,
legislative updates, or employee benefit information,” are not advertisements under the
Act.

Id. (quoting 71 Fed. Reg. at 25973).

The court also noted that under the

Commission’s interpretation, one factor to be considered is whether the fax's “primary
purpose is informational, rather than to promote commercial products.” Id. The court
concluded that because the faxes sent by Medco only contained information and did not
seek to promote products or services to make a profit, the Commission’s interpretation
confirmed that the faxes were not advertisements under the TCPA. Id.
The court also found that its conclusion was not contrary to the Seventh Circuit’s
decision in Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th Cir. 2013):
The person who sent the fax in Turza “plug[ged] the commercial
availability of [his] services” by faxing his name, contact information, and
areas of expertise (in addition to “mundane advice” about unrelated topics)
to potential clients for “promotion[al] or marketing” reasons. Turza, 728
F.3d at 685-86, 688.
The sender conceded that the fax was a
“promotional” device, and his lawyer called it a “marketing” tool in his brief
and at oral argument. Id. at 686-87. So the court held as a matter of law
that he faxed an advertisement. That conclusion is completely consistent
with our judgment in this case. The faxes in Turza solicited business from
the public, albeit in an indirect way. The faxes at issue here solicit
nothing. They don't seek to make a profit, and they seek no actual or
potential commercial transaction between the parties. They don't even
seek a future relationship with Sandusky (forget a commercial one). In line
with Turza, these are not ads.
Id. at 224-25.
NeilMed argues that like the faxes in Sandusky, a fax from a pharmaceutical
company about drugs, without any reference to how or where the drugs are available for
purchase, is not an advertisement under the TCPA. However, in Sandusky, the Sixth
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Circuit explained:
To be sure, a fax need not be an explicit sale offer to be an ad. It's
possible for an ad to promote a product or service that's for sale without
being so overt, as in the free-seminar example, see 71 Fed. Reg. at
25973, or as in Turza, 728 F.3d at 688. The best ads sometimes do just
that. But the fax itself must at least be an indirect commercial solicitation,
or pretext for a commercial solicitation. If it's not, it's not an ad.
788 F.3d at 225. This explanation is in keeping with the FCC’s interpretation of ads
which include offers of free products or services:
We conclude that facsimile messages that promote goods or services
even at no cost, such as free magazine subscriptions, catalogs, or 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. Similarly, “free”
publications are often part of an overall marketing campaign to sell
property, goods, or services.
In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991
Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787, 3814 (April 6, 2006); see also
Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F.Supp.3d 482, 489 (W.D.
Mich. 2014) (noting that “[w]e know from common experience—whether at time-share
resorts or otherwise—that ‘free offers' often come with strings attached” and finding a
question of fact existed regarding whether a fax that invited the recipient to a free
seminar was an advertisement); Bais Yaakov of Spring Valley v. Alloy, Inc., 936
F.Supp.2d 272, 282-83 (S.D.N.Y. 2013) (explaining that a fax that requested that the
recipient sign up for a free television service financed by commercials played during the
news program was an advertisement because, like a free seminar, it was part of an
overall campaign to sell property, goods, or services).
This Court recently applied these principles to a fax sent by a company which
sells orthotics (“Foot Levelers”) to a chiropractic clinic. Swetlic Chiropractic & Rehab.
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Ctr., Inc. v. Foot Levelers, Inc., 235 F. Supp. 3d 882 (S.D. Ohio 2017). The faxes
advertised a free webinar, gave information on receiving free promotional material from
Foot Levelers, and promoted a giveaway contest for an iPad Air and a Michael Kors
clutch. Id. at 885. The giveaway and the registration for the webinar directed interested
parties to the Foot Levelers website and the free promotional material directed
interested parties to contact Foot Levelers' customer service department. Id.
This Court found that the fax was an advertisement under the TCPA. Id. at 890.
The Court focused on the free point-of-sale materials from Foot Levelers:
Promotional materials for point-of-sale stations that could be passed on to
a practice's customers falls into a type of advertisement described by the
Sixth Circuit as one which “draw[s] the relevant market's attention to its
product to promote its sale (albeit indirectly).” Sandusky, 788 F.3d at 222.
It also falls directly into the FCC's statement that even when a publication
is offered at no cost “the products promoted within the publication are
generally commercially available. . .[thus], it is reasonable to presume that
such messages describe the ‘quality of any property, goods, or services.’”
In re Rules, 21 F.C.C. Rcd. at 3814.
Id. at 890.
Accordingly, this Court must determine whether NeilMed’s fax offering its
products for free constitutes advertising because it is an indirect commercial solicitation
or a pretext for a commercial solicitation.
NeilMed’s products.

The fax calls attention to the quality of

The fax states that “NeilMed© Sinus Rinse© and Neilmed©

Baby Care, Ear Care, and First Aid devices have become an acceptable line of
treatment for various self care for simple ailments.”

(Doc. 1-1, PAGEID #16).

NeilMed’s products are “generally commercially available.” NeilMed’s website, which is
listed in the fax, sells its products directly and also provides a store locator to find stores
who carry NeilMed’s products. From that standpoint, NelMed’s fax is commercial in

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nature. While NeilMed is not soliciting business from Cooper, “the fact that the recipient
of the fax is not the one paying for the product does not make the proposed transaction
non-commercial.” Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F. Supp. 2d 272, 282
(S.D.N.Y. 2013).

Like the fax offering promotional materials from Foot Levelers in

Swetlic Chiropractic, the offer of free products is a vehicle to advertise NeilMed’s
products and sell those products to Cooper’s patients.

The Court notes that in

Sandusky, the Sixth Circuit cautioned that “[t]he fact that the sender might gain an
ancillary, remote, and hypothetical economic benefit later on does not convert a
noncommercial, informational communication into a commercial solicitation.” 788 F.3d
at 225. Certainly there is no guarantee that Cooper’s patients will purchase NeilMed’s
products after being handed a free sample. However, the fax from NeilMed does not
resemble the kinds of faxes that have been deemed merely informational. As the FCC
has explained: “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 Regulations Implementing the Telephone
Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed.Reg.
25967–01, 25973 (May 3, 2006). Here, the fax from NeilMed is not providing any
medical information, industry news, or like the fax in Sandusky, benefits available to
patients. Instead, the fax promotes the sale of its products to Cooper’s patients, albeit
indirectly, by passing on free samples through Cooper.
Therefore, the Court concludes that the complaint states a plausible claim that
Defendant's fax qualifies as an advertisement.

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III.

CONCLUSION
Based on the foregoing, Defendant NeilMed Pharmaceuticals, Inc.’s Motion to

Dismiss (Doc. 14) is DENIED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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