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Faxes Re:Free Continuing Education Presentations: What Constitutes a Commercial Pretext?

Were seemingly innocuous unsolicited fax invitations to attend a free continuing education presentation on “Canine and Feline Disease Prevention Hot Topics” advertisements, or at least a pretext, to pitch attending veterinarians on the commercial availability of animal health products and services?

In Ambassador Animal Hospital, Ltd v. Elanco Animal Health, Incorporated et al., 2021 U.S. Dist. LEXIS 30268, Case No. 20-cv-2886, United States District Court for the Northern District of Illinois, filed February 18, 2021, one irate invitee claimed that they were just that and thus the faxes violated the Telephone Consumer Protection Act (TCPA) junk fax provisions. So the Ambassador Animal Hospital brought a class action lawsuit under the statute. The defendant moved to dismiss for failure to state a claim under the TCPA.

There was no question that the plaintiff received two unsolicited faxes to attend free presentations hosted by the defendant. The faxes prominently featured the defendant’s name and company logo and noted that the lectures had been approved for continuing education credit. A RSVP phone number was included. However, nobody from the plaintiff ever registered or attended the sessions.

Judge Mary Rowland faced two questions: (a) did the faxes on their face constitute unsolicited advertisements? or (b) did the plaintiff’s complaint sufficiently raise the prospect that faxes constituted a pretext for a commercial purpose?

As to the first question, Judge Rowland noted that while the text of the faxes included the defendant’s name and logo, there was “no mention of any of the company’s products or services.” Nor did they “contain contact information beyond a phone number to RSVP for the event.” In this District, “the presence of a name and a logo does not transform a fax into an advertisement.” So the faxes did not “advertise Elanco’s products.”

The plaintiff then argued that the “commercial availability” of such products “can be inferred by the recipient veterinarians because of their familiarity with Elanco’s business.” But the Court observed that by reading the fax, one would not know whether the defendant made any drugs related to the topics of the presentations. Judge Rowland rejected the “proposition that a reader’s possible knowledge can transform a benign fax into an advertisement.”

So facially the faxes were not unsolicited advertisements.

On to the second issue – whether the plaintiff’s allegations that defendant’s “free seminars served as a pretext for a commercial interest” were sufficient to defeat the motion to dismiss. In deciding that the plaintiff’s complaint at this point fell short of the mark, the key points of the Court’s reasoning included the following:

  • Plaintiff conceded that it did now know the content of the seminars because no one from the hospital signed up and attended. So allegations about the nature of the presentations were “‘mere labels and conclusions’ insufficient to survive a motion to dismiss.”

  • Plaintiff did not allege that “registration for the seminars required consent to receive future marketing or to have one’s information sold,” unlike decisions cited by plaintiff.

  • The fax suggests “the opposite, as registration could only take place via telephone, not a corporate web page that might have contained advertisements or consent forms.”

  • Since the free seminar “was certified for continuing education credit and thus has educational value,” the Court would not assume a commercial purpose at the pleading stage whenever “‘it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a firm’s products or services.’”

  • Finally, the mere fact of goodwill from the seminars was not enough. The “possible goodwill generated by offering a continuing education seminar is not, on its own, enough to imbue a fax with commercial purpose.” More specifically, “‘‘the fact that a sender might gain an ancillary, remote and hypothetical economic benefit later does not convert a non-commercial informational communication into a commercial solicitation.’’”

Motion to dismiss granted, but without prejudice.

A useful roadmap for TCPAWorlders on elements of commercial pretext in the realm where there are still fax invitations to free events.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 52
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About this Author

Paul Besozzi Telecommunications Attorney Squire Patton Boggs Washington DC
Senior Partner

Paul Besozzi concentrates his practice in the wireless, broadband and emerging technology areas. His extensive experience of more than 30 years in the telecommunications field includes regulatory, transactional, legislative and litigation matters for clients ranging from wireless service and infrastructure providers to resellers of long-distance service, including cellular, personal communications services, specialized mobile radio, point-to-point microwave, advanced wireless services and other emerging wireless technologies.

Paul represents clients before the federal and state...

202-457-5292
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