Avid readers of TCPAWorld will remember 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).
After losing that argument in the District Court, he took his case to the United States Court of Appeals for the Third Circuit. However, as reported in May of this year by TCPAWorld, that Court, in Mauthe v. Optum, Inc. et al. (Optum), said “not necessarily” and outlined a three-pronged standard for establishing “third-party” liability under the TCPA 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.
But Dr. Mauthe, even before Optum, had brought a separate case against ITG, Inc. and others, when 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. 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….” Then came Optum. And, as further reported by TCPAWorld, the Court, applying that decision, held that Dr. Mauthe failed to “sufficiently allege how defendants ‘directly or indirectly encouraged the recipient to influence the purchasing decisions of third-party.’” Still, tempering justice with mercy, Judge Chad F. Kenney gave Dr. Mauthe until July 15 to amend his complaint to satisfy the Optum standard.
So, the physician took yet another shot and thus TCPAWorld arrives at Mauthe 3.0 (or is it really 4.0?). In Mauthe v. ITG, Inc., 2019 U.S. Dist. Lexis 147171, Civil Action No. 18-1968, Eastern District of Pennsylvania, August 29, 2019, Judge Kenney reviewed an Amended Complaint that “only varies minimally from the original Complaint.” Rather than incorporating “additional allegations that would allow …[the] Court to find that…the new pleading” satisfied Optum, Dr. Mauthe now argued that Optum did not apply because “in the case at hand the Defendants are offering an inducement to recipients to take the proposed survey whereas in Optum there was no inducement being offered.”
Finding it to be a “distinction without a difference,” the Court simply stated that “the fact that the fax senders…are agents of the companies trying to improve their products and the fact that the recipients are being offered an award for completing the surveys do not remove this case from Optum’s ballpark.” Strike three you are out in the Third Circuit. Case dismissed with prejudice.