United States District Court, E.D. Arkansas, Helena Division
ARCARE, d/b/a PARKIN DRUG, on behalf of itself and all others similarly situated, PLAINTIFF
IMS HEALTH, INC., DEFENDANT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
brings this action on behalf of itself and others similarly
situated for damages and injunctive relief under the
Telephone Consumer Protection Act of 1991
(“TCPA”). 47 U.S.C. § 227(b)(3). With three
exceptions, the TCPA prohibits any person from using a
telephone facsimile machine to send an unsolicited
advertisement. ARcare alleges that IMS Health, Inc. sent at
least six unsolicited advertisements to ARcare's
ink-and-paper facsimile machine. IMS Health has filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), contending that the faxes it sent to ARcare, which
are attached to the complaint, are not
“advertisements.” If the faxes are not
“advertisements, ” within the meaning of the
TCPA, then the complaint fails to state a claim upon which
relief can be granted. The faxes are not
“advertisements, ” as the law has defined the
term for purposes of the TCPA. Therefore, for the following
reasons, the motion to dismiss is granted.
complaint alleges that ARcare is a non-profit corporation,
which owns the Parkin Drug Store and the Bald Knob Medical
Clinic. IMS Health is a Connecticut corporation that provides
global information and technology services that help improve
performance and protect patient privacy. IMS Health owns
Healthcare Data Solutions.
Health sent an unsolicited fax to ARcare on May 11, 2015.
Document #1 at 11. The fax features the Healthcare Data
Solutions logo and states in part:
Healthcare Data Solutions (HDS) works with pharmacies and
prescribers to ensure the confidential exchange and
confirmation of patient information. We want to verify that
your fax number is compliant and secure to protect
patient's information and allow pharmacies to verify
prescriber information regarding prescription refill
requests. Thank you for your time.
Id. The fax then asks the recipient to verify the
practice's address, phone number, fax number, office
manager, and website; the identity of the medial professional
who provides services at the practice; and the direct fax
number for that medical professional. Id. The fax
provides a space for a signature, where the recipient can
affirm that the information provided is true and correct.
Id. The fax also provides a box, where the recipient
can check if he has additional information or would rather
receive a phone call from a Healthcare Data Solutions
representative. Id. ARcare attached five other faxes
to the complaint. The faxes were sent on March 21, April 19,
April 20, May 13, and June 15, 2015, and vary only by the
practice and the professional. Document #1 at 13-17.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965. Moreover, the Court may consider the faxes
attached to the complaint. Mattes v. ABC Plastics,
Inc., 323 F.3d 695, 698 (8th Cir. 2003).
Health maintains that the faxes it sent to ARcare and other
entities are not “advertisements” as that term is
defined by applicable law because they do not promote goods
or services that are for sale to the fax recipients; rather,
they seek to verify the recipients' contact information.
Document #11 at 5. ARcare, on the other hand, maintains that
the faxes are advertisements because they promote IMS
Health's pharmacy compliance services. Document #15 at 1.
ARcare explains: “Defendant's faxes do not seek
merely to verify [ARcare's] contact information. Rather,
they are sent to generate business and maximize [IMS
Health's] profit motive. Ostensibly, the faxes offer a
free service: An evaluation of Plaintiff's fax number to
ensure it complies with the various regulatory
standards.” Id. (citing 21 F.C.C.R. 3787, 3814
TCPA, as amended by the Junk Fax Prevention Act of 2005,
makes it unlawful for any person to use a telephone facsimile
machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement, except under
limited circumstances that are not relevant to IMS
Health's motion to dismiss. 47 U.S.C. § 227(b)(1).
“The term ‘unsolicited
advertisement' means any material advertising the
commercial availability or quality of any property, goods, or
services which is transmitted to any person without that
person's prior express invitation or permission, in
writing or otherwise.” 47 U.S.C. § 227(a)(5).
Congress gave the Federal Communications Commission authority
to make regulations to implement the TCPA. 47 U.S.C. §
227(b)(2). These regulations explain what constitutes an
“advertisement” by illustrating the types of
faxes that violate the statute. See In the Matter of
Rules & Regulations Implementing the Tel. Consumer Prot. Act
of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C.R.
3787, 3810-15 (2006). For example, “facsimile messages
that promote goods or services even at no cost, such as free
magazine subscriptions, catalogs, or free consultations or
seminars, are unsolicited advertisements under the TCPA's
definition.” Id. at 3814.
Ameriguard, Inc. v. Univ. of Kansas Med. Ctr., the
court held that a fax seeking participants in a clinical
research trial for “prevention of diabetes” was
not an “advertisement” and dismissed the action
for failure to state a claim. No. 06-0369-CV-W-ODS, 2006 WL
1766812 at *1 (W.D. Mo. June 23, 2006) (aff'd
Ameriguard, Inc. v. Univ. of Kansas Med. Ctr., 222
Fed.Appx. 530, 531 (8th Cir. 2007)). The fax discussed
general information about diabetes; announced the clinical
research trial; provided that qualified participants would
receive study-related medical care, study medication, and
counseling at no cost; provided that travel would be
compensated; and provided a section for the recipient to
provide contact information. Id. The plaintiff
argued that inviting people to obtain information about
diabetes prevention qualified as “commercial
availability” of the defendant's goods.
Id. at *2. The court disagreed: “First, the
Complaint does not allege Defendant makes ‘information
about diabetes prevention' commercially available (as
opposed to simply delivering it to people), nor does it
allege Defendant sells medication directly to the public.
Second, there is no suggestion that defendant included the
call for volunteers as a smokescreen to mask a true purpose
of engaging in the commercial activity of providing or
selling medicine.” Compare id., and Ira
Holtzman, C.P.A. v. Turza, 728 F.3d 682, 686 (7th Cir.
2013) (holding that fax devoting 75 percent of its space to
mundane advice and the remainder to a lawyer's logo,
name, address, and specialties was an
advertisement); Physicians Healthsource, Inc. v.
Express Scripts Serv. Co., No. 4:15-CV-664 JAR, 2016 WL
1246884 at *2 (E.D. Mo. March 30, 2016) (holding that a fax
describing the availability of the defendant's goods and
services was an advertisement).
the complaint's allegations as true and drawing all
inferences in ARcare's favor, the Court concludes that
the faxes in dispute are non-commercial messages that fall
outside that TCPA's ban on unsolicited advertisements.
Here, the fax is not a direct commercial solicitation and
like in Ameriguard, the plaintiff-ARcare-has failed
to allege facts from which the Court reasonably could infer
that the fax it received was either an indirect commercial
solicitation or a pretext for a commercial solicitation.
ARcare argues that considering the different components of
fax together-the prominence of the logo, address, and phone
number, the description of Healthcare Data Solutions, and the
offer to verify the fax number and practice information-the
fax “inform[s] the recipient that Defendant's
pharmacy compliance services are commercially
available.” Document #15 at 5. But ARcare does not
allege, nor does the fax indicate where or how this category
of services is available for purchase by the fax recipient.
See, e.g., Physicians Healthsource, Inc. v.
Janssen Pharm., Inc., No. 12-2132 (FLW), 2013 WL 486207
at *4 (D. N.J. Feb. 6, 2013) (“[T]he inquiry under the
TCPA is whether the content of the message is commercial, not
what predictions can be made about future economic
benefits.”). ARcare only broadly alleges that
“Defendant IMS ...