Guy receives faxes. Sues under the TCPA. Loses. Dies.
Wife purses case on appeal (presumably) in his memory. Wins.
In Smith v, First Hospital Laboratories, 2023 WL 5090970 (7th Cir. Aug. 9, 2023) the Seventh Circuit Court of Appeals expanded TCPA liability for unsolicited faxes to circumstances where individuals are offered to join provider networks, seemingly at no cost to them. And it is an odd ruling for a number of reasons.
First, as already noted, the guy who received the fax died after losing the case below. (I assume, but do not know, his death was unrelated to his TCPA suit being dismissed.) But the case rattled on to the court of appeal brought by Ms. Smith.
On appeal the Court took a “holistic” approach to the analysis and concluded that since the faxes encouraged doctors to enroll in a network and charge a reduced fee in exchange for “referrals” it was reasonable to infer the Defendant would net some profit from the referred patients. This, the court viewed, as a “service” being provided to the doctor for a fee–akin to “lead generation” in the court’s view.
In other words, although the fax seemingly did nothing more than offer to pay a set price for the services of the Doctor it actually did more–it offered to refer work as a service in exchange for compensation in he form of lower prices to be recognized by the network participants.
The appellate court viewed this as a close case, however, so one wonders whether a little sympathy played in:
Although the company offers a reasonable perspective, we are not persuaded. To be sure, a bare offer to buy goods from the recipient or to do business with the recipient is not an advertisement under the TCPA. And had the faxes done no more than inquire whether Thalman was interested in providing services to some of FSSolutions’s clients, our outcome today might be different. But the faxes did not stop there. Instead, FSSolutions used the faxes (at least in part) to pitch the company’s network, including by approximating the number of clients at stake and by attaching a fee schedule itemizing the revenue Thalman would receive as a preferred provider for providing particular services.
The say bad facts make bad law, but fighting against a widow pushing a case for her dead husband might make the worst sort of law. Eesh.
As if to drive home that point:
We are mindful that many plaintiffs’ attorneys view the TCPA opportunistically. See Craftwood II, Inc. v. Generac Power Sys., Inc., 63 F.4th 1121, 1123–24 (7th Cir. 2023) (expressing concern that the TCPA “so handsomely reward[s] litigiousness over annoyances that have been greatly diminished by changes in technology”). So be careful not to overread what we are saying. Our opinion bears on a slice of fax messaging—unsolicited faxes that an objective recipient would construe as urging the purchase of a good, service, or property by emphasizing its availability or desirability.
Seventh Circuit Court of Appeals just said Plaintiff’s lawyers view the TCPA opportunistically. Amazing stuff.