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ARcare v. IMS Health, Inc.

United States District Court, E.D. Arkansas, Helena Division

September 15, 2016

ARCARE, d/b/a PARKIN DRUG, on behalf of itself and all others similarly situated, PLAINTIFF



         ARcare 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.


         The 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.

         IMS 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.


         To 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).


         IMS 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 (2006)).

         The 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'[1] 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.”[2] Id. at 3814.

         In 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);[3] 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).

         Accepting 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 ...

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