INVITE TO TALK BAD BACK CAUSE YIELDS EXPOSURE TO POTENTIAL TCPA PAIN IN THE POCKET

Can a seemingly innocuous faxed invite to talk about back pain remedies trigger a potential case of TCPA liability? You bet said the Northern District of California in Eric B. Fromer Chiropractic, Inc. v. Si-Bone, Inc., 2019 U.S. Dist. LEXIS 131932, Case No. 19-CV-00633-LHK, N.D. of California, August 5, 2019.

Si-Bone invited chiropractor corporation Fromer to an “educational program to discuss the sacroiliac [SI] joint as a cause of action of low back pain.” The unsolicited fax overture included a free dinner to registrants and a medical doctor “presentation [on]… SI joint treatment options.” SI-Bone, which sold “iFuse implants…used to remedy lower back pain stemming from the SI joint,” co-sponsored the event. Further, the invitation prominently displayed the firm’s logo and was signed by its Territory Manager, including his email and phone number.

Fromer – whose namesake presumably offered other remedies for back problems – brought a class action under the TCPA, arguing the fax was a “pretext to recommend a ‘treatment option,’” namely a surgical procedure using Si-Bone’s implants.

The defendant moved to dismiss asserting that Fromer (a) lacked Article III standing to bring the suit because it failed to “allege a particularized injury traceable to Defendant’s action in sending the Fax” and (b) had “not pled facts sufficient to allege that the Fax was an ‘advertisement’ under the TCPA.”

Judge Lucy Koh bought neither argument.

Citing Ninth Circuit precedent in Van Patten v. Vertical Fitness Group, the Court ruled that “a violation of the TCPA, without more, is sufficient to establish standing because Congress sought to protect consumers from unwanted … ‘fax advertisements.’” The allegation that the fax was “unsolicited in violation of the TCPA is sufficient to allege the [required] particularized injury in fact” for standing purposes. Moreover, the fact that the fax did not contain an opt-out notice was “irrelevant to whether the Fax was an unsolicited advertisement that led to Plaintiff’s injury.”

As to the “not-an-advertisement” argument, the Court agreed that the plaintiff’s invite was a pretext for advertising a product that is “available to be bought or sold,” namely Si-Bone’s minimally invasive surgical option using its implants across the SI joint. Drawing parallels to facts in the Second Circuit’s decision in Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., Judge Koh pointed to (a) the prominent display of Si-Bone’s logo, (b) Si-Bone’s sponsorship of the dinner to address SI joint treatment options, (c) the signature of the fax by Si-Bone’s Territory Manager and (d) the fact that it was sent to a chiropractic corporation “which could inform patients with SI joint pain about” Si-Bone’s products.

However, Si-Bone did not throw in the towel. Chiropractors cannot, in fact, purchase any of Si-Bone’s products, the defendant argued, so therefore, this cannot be an advertisement. The Court countered that “whether an unsolicited fax is an advertisement depends not on the recipient’s identity, but on the nature of the fax itself” (emphasis supplied).The TCPA defines an “unsolicited advertisement by reference to the advertisement’s content alone.” There is no requirement that “the person receiving the advertisement be equipped to purchase the product.” Such an advertisement is “equally invasive whether or not the recipient can actually buy the product advertised.”

Si-Bone’s last gasp was to assert that the “Fax is an informational communication and … any reference on the Fax to Defendant is so ‘de minimis’ that the Fax cannot constitute an advertisement.” Again, that large Si-Bone logo reared its ugly head – “the first and largest item displayed on the Fax.” Thus, the theory that only some “incidental advertising” transformed what otherwise was a legitimate fax into an illegal unsolicited advertisement does not apply under these circumstances. Moreover, Fromer was not proceeding on that theory.

Thus, the chiropractor corporation has standing to bring, and has adequately pled, a claim under the TCPA. Motion to dismiss denied. So much for back pain remedies in TCPAWorld.

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