You may remember the name Dr. Mauthe. Having received unsolicited faxes asking him to update his professional contact information, he argued that the ultimate “profit motive” of the sender made the faxes unsolicited advertisements in violation of the Telephone Consumer Protection Act (TCPA).

However, as reported in May by TCPAWorld, the United States Court of Appeals for the Third Circuit, in Mauthe v. Optum, Inc., et al. (“Optum”), said, “not necessarily,” and outlined a three-pronged standard for establishing “third party” based liability under the TCPA, at least in the Third Circuit. A key element of that standard was the requirement to demonstrate that the fax “directly or indirectly encouraged the recipient to influence the purchasing decisions of a third party.” Applying its newly articulated test, the Third Circuit refused to “distort the meaning of ‘advertisement’ to accommodate Mauthe’s case” and affirmed summary judgment for Optum.

Now comes Mauthe 2.0. In Mauthe v. Itg, Inc., et al., 2019 U.S. District LEXIS 110000, United States District Court for the Eastern District of Pennsylvania, Civil Action No. 18-1968, decided July 1, 2019, the good doctor received faxes from defendants who, as part of a compensated market research program conducted on behalf of their paying health care industry clients, were gathering opinions and other valuable market research from folks like Dr. Mauthe. Three faxes invited him to “follow an internet link to determine if he qualified to participate in a telephone interview” on a particular medical topic;if he qualified and completed the survey $200 would be his. Two other faxes offered Dr. Mauthe a “$50-60 payment to participate in a short…study…” on another such topic. He brought a class action under the TCPA, but in November of 2018, the District Court rejected the defendants’ arguments that the case should be dismissed because the “faxes in question were not ‘advertisements’ as defined by the statute….” Score one for Dr. Mauthe.

Not so fast! Six months later came the Optum decision, which, as might be expected, gave the defendants in Mauthe 2.0 a second bite at the dismissal apple. They asked the District Court to reconsider its decision in light of “new alleged controlling law” and Judge Chad F. Kenney obliged earlier this week.

He found that Optum was “an intervening change in controlling law as it promulgates a clear standard for third party based liability actions under the TCPA,” a standard which did not exist at the time of the dismissal denials. That finding was grounds for the Court to reconsider those actions.

Then, applying the Optum test, Judge Kenney found that Dr. Mauthe failed to “sufficiently allege how defendants ‘directly or indirectly encouraged the recipient to influence the purchasing decisions of third party.’” Dr. Mauthe tried to go a step further, arguing that the faxes he received were intended indirectly to influence the decisions of potential future purchasers not of defendants’ products, but of purchasers of the products of the defendants’ health care clients who commissioned the surveys in the first place. Although not rejecting this theory of liability out of hand, Judge Kenney “seriously” doubted it would provide facts adequate to meet the Optum-required “nexus between the fax and the purchasing decisions of an ultimate purchaser.” Score one for the defendants.

But all is not lost for Dr. Mauthe. Although granting the defendants’ motions for reconsideration, Judge Kenny gave the doctor until July 15, 2019, to file an amended complaint that satisfied the Optum standards.

Is there yet a Mauthe 3.0 in store for TCPAWorld?


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