MEOW, MEOW: FAX TO FELINE HOSPITAL IS NOT AN UNSOLICITED AD, EVEN WITH POTENTIAL GIFT CARD BONUS

We’ve seen this before in TCPAWorld – unsolicited facsimile opinion surveys to gather data on medical expertise, with a potential monetary bonus kicker. Remember Doctor Mauthe?

Now it’s the veterinarians’ turn. In Exclusively Cats Veterinary Hospital, P.C. v. M/A/R/C Research, L.L.C., 2020 U.S. Dist. LEXIS 45181, Case No. 11228, United States District Court for the Eastern District of Michigan, March 16, 2020, the Defendant “created surveys and sent them to participants in target markets,” using the “information collected to develop more accurate and well supported advice to its clients” who were potentially interested in “selling a product to market participants some time in the future.”

In July 2016, the Plaintiff received a facsimile indicating that the Defendant was “‘seeking veterinarians to participate in an important research study.’” The fax stated that there was no selling involved, but that the survey was gathering ‘“opinions that will help [Defendant] improve products that ultimately benefit [Plaintiff’s] patients.’” The product was identified as a ‘“new veterinary pain management product.’” As an incentive to complete the survey, participants were offered “a $20 Amazon gift card and a chance to win a $500 prize.” The fax also stated that the recipient’s phone number would not be ‘“shared or sold’” and the message was “‘for market research purposes only.’”

The Plaintiff sued, contending that the fax constituted an “unsolicited advertisement” under the TCPA. The Defendant moved to dismiss for failure to state a claim. In the end, the latter got the better of this TCPA catfight.

In the context of a studious and thorough review of judicial and regulatory precedent, the Court ruled that “an analysis of [relevant precedent] and the statutory and regulatory text of the TCPA demonstrates that surveys are not advertisements subject to liability. Surveys, such as the one Defendant proffered to veterinarians employed at Plaintiff’s firm, are offering no good or service ‘for sale.’ Requests to submit information regarding preferences, beliefs, and attitudes instead enhance knowledge and understanding.”

Judge Robert Cleland added that “although Defendant may have used the information to then obtain a profit through commercial transactions with its own clients who had by then received Defendant’s (and others’) market advice,… ‘ancillary, remote, and hypothetical economic benefit’ does not create a commercial solicitation.”

Moreover, seeking to incentivize the Plaintiff with the gift card and related cash offer did not change things in the Court’s view. “This finding does not change simply because Plaintiff’s veterinarians could receive a $20 Amazon Gift card and eligibility in a sweepstake for $500. Such ad-ons are sweeteners to incentivize higher response rates. Defendant argues and Plaintiff does not contest that they are a routine practice used to effectively administer market research studies. There are no allegations that Defendant was compensating Plaintiff for the fair market value of the survey to Defendant or any of Defendant’s clients, or that Plaintiff was somehow underpaid for the value of ‘services’ provided. Like charity fundraisers where participants donate and get placed in a pool of names to receive a prize, veterinarians might be further incentivized to complete the survey for Defendant, but merely offering benefits to participation does not transform Defendant’s survey into a commercial offer to promote a product as opposed to gathering information.”

Bottom line: The TCPA does not impose liability on surveys that actually are surveys, and Defendant’s fax, in this case, was in fact a survey. That it included participation incentives does not change that conclusion. TCPA claim dismissed.

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