Comprehensive Health Care Systems of the Palm Beaches, Inc. v. M3 USA Corporation et al

MOTION TO DISMISS 1 Complaint FOR FAILURE TO STATE A CLAIM

S.D. Fla.September 8, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA COMPREHENSIVE HEALTH CARE SYSTEMS OF THE PALM BEACHES, INC., individually and on behalf of all others similarly situated, Plaintiff, v. M3 USA CORPORATION, MDLINX, INC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 9:16-cv-80967-BB Hon. Judge Beth Bloom DEFENDANTS’ MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT PURSUANT TO RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM WITH INCORPORATED MEMORANDUM OF LAW David M. Poell, Esq. (pro hac vice to be filed) dpoell@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 70 W. Madison Street, 48 th Floor Chicago, Illinois 60602 Telephone: (312) 499-6300 Facsimile: (312) 499-6301 Mark D. Schellhase, Esq. (Florida Bar No. 57103) mark.schellhas@gray-robinson.com GRAY ROBINSON, P.A. 401 E. Jackson Street, Suite 2700 Tampa, Florida 33602 Telephone: (813) 273-5000 Fax: (813) 273-5145 Counsel for M3 USA Corp. and MDLinx, Inc. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 1 of 26 -i- TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................2 DISCUSSION ..................................................................................................................................5 I. THE FAX AT ISSUE IS NOT AN “ADVERTISEMENT” UNDER THE TCPA. ............5 A. Standard for Dismissal under Federal Rule 12(b)(6). ..............................................5 B. The Fax Is Informational and Contains No Commercial Component. ....................6 1. An Advertisement Must Promote Goods or Services for Sale......................6 2. A Fax Announcing a Medical Research Survey Is Not an Advertisement under the TCPA as a Matter of Law. ...................................7 3. The Informational Nature of the Fax is a Question of Law to be Decided Based on the “Four Corners” of the Fax. ...................................12 II. DISMISSAL OF PLAINTIFF’S TCPA CLAIM WARRANTS DISMISSAL OF PLAINTIFF’S CONVERSION CLAIM PURSUANT TO 28 U.S.C. § 1367(C). ............16 CONCLUSION ..............................................................................................................................19 Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 2 of 26 -ii- TABLE OF AUTHORITIES Page(s) Cases Aderhold v. Car2go N.A., LLC No. 13-cv-489, DE 74 (W.D. Wash. Feb. 27, 2014) ...............................................................14 Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Research Inst., Inc. 222 F. App’x 530 (8th Cir. 2007) (per curiam) .......................................................................10 Ameriguard, Inc. v. University of Kansas Medical Center Research Institute, Inc. No. 06-0369-CV, 2006 WL 1766812 (W.D. Mo. June 23, 2006) .......................................9, 11 Arkin v. Innocutis Holdings, LLC No. 8:16-cv-0321, 2016 WL 3042483 (M.D. Fla. May 26, 2016) ............................................6 Ashcroft v. Iqbal 556 U.S. 662 (2009) .............................................................................................................5, 15 Baggett v. First Nat’l Bank of Gainesville 117 F.3d 1342 (11th Cir. 1997) .........................................................................................16, 17 Bank v. Uber Techs. Inc. No. 15-CV-4858 (JG), 2015 WL 8665441 (E.D.N.Y. Dec. 11, 2015) ......................................7 Bell Atl. Corp. v. Twombly 550 U.S. 544 (2007) .............................................................................................................5, 15 Carnegie-Mellon Univ. v. Cohill 484 U.S. 343 (1988) .................................................................................................................17 Comprehensive Health Services, Inc. v. M3 USA Corporation Case No. 16-cv-80874 (S.D. Fla.)..............................................................................................1 Dang v. XLHealth Corp. No. 1:09-cv-1076, 2011 WL 553826 (N.D. Ga. Feb. 7, 2011) ................................................10 Eden Day Spa, Inc. v. Loskove No. 14-81340-CIV, 2015 WL 1649967 (S.D. Fla. Apr. 14, 2015) ............................................7 Eubanks v. Gerwen 40 F.3d 1157 (11th Cir. 1994) .................................................................................................17 Forys, Birn & Assocs. v. Accelmed No. 1:09-cv-07391, DE 27 (N.D. Ill. Mar. 2, 2010) ................................................................10 G.M. Sign, Inc. v. Elm Street Chiropractic, Ltd. 871 F. Supp. 2d 763 (N.D. Ill. 2012) .......................................................................................18 Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 3 of 26 -iii- Holt v. Redbox Automated Retail, LLC No. 11-cv-3046, DE 57 (S.D. Cal. June 20, 2013) ..................................................................14 Lutz Appellate Servs., Inc. v. Curry 859 F. Supp. 180 (E.D. Pa. 1994) ............................................................................................11 N.B. Indus. v. Wells Fargo & Co. No. C 10-03203, 2010 WL 4939970 (N.D. Cal. Nov. 30, 2010), aff’d, 465 F. App’x 640 (9th Cir. 2012) .......................................................................................................10 Neurocare Inst. of Cent. Fla., P.A. v. Healthtap, Inc. 8 F. Supp. 3d 1362 (M.D. Fla. 2014) .............................................................................7, 18, 19 Old Town Pizza of Lombard, Inc. v. Corfu-Tasty Gyro’s Inc. No. 11-cv-6959, 2012 WL 638765 (N.D. Ill. 2006) ................................................................18 Oxford Asset Mgmt., Ltd. v. Jaharis 297 F.3d 1182 (11th Cir. 2002) .................................................................................................5 P&S Printing LLC v. Tubelite, Inc. No. 3:14-cv-1441, 2015 WL 4425793 (D. Conn. July 17, 2015) ................................10, 11, 15 Palm Beach Golf Ctr.-Boca, Inc., v. Sarris 781 F.3d 1245 (11th Cir. 2015) ...............................................................................................19 Phillips Randolph Enters., LLC v. Adler-Weiner Research Chi., Inc. 526 F. Supp. 2d 851 (N.D. Ill. 2007) ...................................................................................8, 11 Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc. No. 3:14-cv-405, 2015 WL 144728 (D. Conn. Jan. 12, 2015) ..........................................10, 16 Physicians Healthsource, Inc. v. Janssen Pharm., Inc. No. 12-cv-2132, 2013 WL 486207 (D.N.J. Feb. 6, 2013) .......................................................16 Physicians HealthSource, Inc. v. MultiPlan Servs. Corp. No. CIV.A. 12-11693-GAO, 2013 WL 5299134 (D. Mass. Sept. 18, 2013) ....................10, 16 Response Oncology, Inc. v. MetraHealth Ins. Co. 978 F. Supp. 1052 (S.D. Fla. 1997) ...........................................................................................5 Rossario’s Fine Jewelry v. Paddock Publ., Inc. 443 F. Supp. 2d 976 (N.D. Ill. 2006) .......................................................................................18 Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc. 788 F.3d 218 (6th Cir. 2015) ...............................................................................6, 7, 13, 15, 16 Simpson v. Sanderson Farms, Inc. 744 F.3d 702 (11th Cir. 2014) .................................................................................................15 Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 4 of 26 -iv- Star Fruit Co. v. Eagle Lake Growers, Inc. 33 So. 2d 858 (Fla. 1948).........................................................................................................17 Stonecrafters, Inc. v. Foxfire Printing & Packaging 633 F. Supp. 2d 610 (N.D. Ill. 2009) .......................................................................................18 United Mine Workers v. Gibbs 383 U.S. 715 (1966) .................................................................................................................17 Statutes 28 U.S.C. § 1331 ............................................................................................................................16 28 U.S.C. § 1367(a) .......................................................................................................................16 28 U.S.C. § 1367(c) ..................................................................................................................16, 17 28 U.S.C. § 1367(c)(3) ...................................................................................................................17 47 U.S.C. § 227 ...................................................................................................................... passim 47 U.S.C. § 227(a)(5) .................................................................................................................5, 12 47 U.S.C. § 227(b)(1)(C) .............................................................................................................5, 6 Other Authorities 47 C.F.R. § 64.1200(f)(1) ..........................................................................................................6, 12 Fed. R. Civ. P. 8 .............................................................................................................................19 Fed. R. Civ. P. 12(b)(6)..............................................................................................1, 2, 3, 4, 5, 19 RESTATEMENT (SECOND) OF TORTS § 222A ...................................................................................18 Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967-01 (May 3, 2006) ................................................7 Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 5 of 26 Defendants M3 USA Corporation (“M3”) and MDLinx, Inc. (“MDLinx”), by and through undersigned counsel, respectfully submit this Motion to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a Claim with Incorporated Memorandum of Law. 1 PRELIMINARY STATEMENT Plaintiff claims to have received a one-page fax from Defendants in December of 2015. The fax invited the recipient, Dr. James Padula (a physician formerly affiliated with Plaintiff), to participate in a double-blind medical research survey. The fax did not attempt to sell or advertise anything; on the contrary, the fax informed Dr. Padula that he would be paid $71 for his participation in the survey. Six months later, Plaintiff filed this lawsuit asserting a claim under the Telephone Consumer Protection Act (“TCPA”) and a claim for common law conversion. Plaintiff’s Amended Complaint should be dismissed in its entirety with prejudice. Simply put, a double-blind medical research survey invitation contains no commercial component. The TCPA proscribes only the transmission of unsolicited advertisements. The TCPA unambiguously provides that a fax must contain commercial components to qualify as an advertisement and be actionable. Without doubt, the fax Plaintiff attaches to the Amended Complaint does not announce the commercial availability of any property, good or service. Plaintiff’s Amended Complaint—filed during the pendency of Defendants’ initial motion to dismiss—still fails to plausibly portray the fax at issue as an advertisement. Plaintiff’s new “domino” theory is not plausible. Plaintiff contends that the fax could be an advertisement if a person (i) received the fax at issue; (ii) visited the hyperlink displayed on the fax; (iii) inserted all of the appropriate information; (iv) clicked on additional hyperlinks at the bottom of the 1 Plaintiff originally filed this action captioned Comprehensive Health Services, Inc. v. M3 USA Corporation, Case No. 16-cv-80874 (S.D. Fla.), on May 31, 2016, and assigned to Judge Bloom. The 80874 action was voluntarily dismissed on June 16, 2016. This case was transferred from Judge Zloch to Judge Bloom on July 13, 2016. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 6 of 26 -2- webpage; and (v) read the entirety of the M3 Terms of Use, Privacy Policy and FAQs. Then— and only then—after engaging in these inferential gymnastics, the fax could be an advertisement. This is too far afield from common sense. The fax at issue invited the recipient to participate in a free, online research survey. No goods or services were sold or advertised, nor does Plaintiff allege otherwise. These surveys are commonplace in the medical field, especially via fax, and have been universally exempted from TCPA liability by courts throughout the country. If faxes of this nature were found to constitute advertisements, invitations to participate in important double-blind medical surveys would be severely restricted. Dismissal of Plaintiff’s TCPA claim also warrants dismissal of its state law claim for conversion. Without a federal question pending, this Court should decline to exercise supplemental jurisdiction over the conversion claim. It is one of the basic canons of federalism that issues of state law should be decided by state courts. Moreover, even if the Court decides to keep the conversion claim, it should be dismissed. The only “damages” Plaintiff alleges is the loss of paper, toner and ink resulting from the single fax transmission. It is well-settled that the law does not concern itself with trifles, and it is difficult to conceive of a more de minimis injury than the receipt of a one-page fax. For these reasons and those that follow, Plaintiff’s Amended Complaint should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim. BACKGROUND On June 10, 2016, Plaintiff filed its original class action complaint against M3 and MDLinx. 2 On August 3, 2016 Defendants filed their motion to dismiss Plaintiff’s complaint for failure to state a claim pursuant to Federal Rule 12(b)(6). (See DE 15.) Instead of responding to 2 MDLinx, Inc. was merged into M3 USA Corporation in 2008 and therefore no longer exists as a separate entity. Plaintiff filed its original class action complaint on June 10, 2016. This case is one of the fourteen TCPA actions Comprehensive Health Care filed in the Southern District of Florida between May 31, 2016 and June 10, 2016. Of the fourteen actions, all but three have been voluntarily dismissed. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 7 of 26 -3- the motion to dismiss, Plaintiff filed its Amended Complaint on August 25, 2016. (DE 23.) Plaintiff’s Amended Complaint contends, in conclusory fashion, that “Defendants” (without specifying which) “sent advertisements by facsimile to Plaintiff and a class of similarly- situated persons.” (DE 23 ¶ 18.) Plaintiff alleges the receipt of a single one-page fax on December 8, 2015 (the “Fax”). (Id. ¶ 19; DE 23-1, attached hereto as Ex. A.) The Complaint characterizes the alleged fax as “a document Defendants sent by fax advertising compensations to participate in online surveys” and alleges that “[t]he fax advertises the commercial availability of Defendants’ paid online survey program, through which Defendants plan to gather valuable information or opinions from health professionals for Defendants’ clients.” (See id. ¶ 20.) The face of the Fax shows that it was intended for “Dr. James Padula.” (See DE 23-1.) The Fax states, “We are currently conducting an online survey with Gastroenterologists, and we would like to invite you to participate.” (Id. (emphasis in original).) The Fax informs the recipient of the estimated length of the survey (25 minutes); the compensation the recipient will receive upon completion of the survey ($71); and the deadline to register for the survey (December 10, 2015). (Id.) The Fax also displays a web address, a unique User ID number and a unique Invite Code the recipient of the Fax could use to log on and complete the survey. (Id.) The Fax announced a double-blind research study, which means that participants are never informed of who the survey is conducted on behalf of. By its very nature, therefore, no goods or services could be advertised. (Id.) Additionally, the Fax states the recipient “will not be solicited because of your participation in this study. There are NO sales or endorsements associated with this study.” (Id. (emphasis in original).) Consistent with this representation, the Fax does not advertise the commercial availability or quality of any goods or services. (Id.) The Amended Complaint goes on to discuss the content of the “survey link” included on Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 8 of 26 -4- the face of the Fax itself. As Plaintiff notes, the link directs the intended recipient of the Fax to an “Invite Code Entry” page where he is prompted to enter his unique User ID and Invite Code, his email address, and first and last name. (DE 23 ¶ 22.) The Amended Complaint alleges that there is a disclaimer the user should read prior to participating in the survey: By pressing Submit, I agree that I am the intended recipient of this invitation and agree to participate in paid market research surveys with M3 Global Research. I also confirm that I have read and agree to M3 Global Research Terms and Conditions and Privacy Policy. (Id.) Further, the Amended Complaint quotes M3’s Terms and Conditions, Privacy Policy and Frequently Asked Questions (“FAQs”) listed on M3’s website. (See id. ¶¶ 23-27.) Although links to M3’s Terms and Privacy Policy are available on the Invite Code Entry page (see id. ¶ 23), neither the Invite Code Entry page nor the Fax displays the link to M3’s website or FAQs. Plaintiff alleges no injury from the Fax. (See id. ¶¶ 18-32.) Nonetheless, Plaintiff brings claims for violation of the TCPA and conversion. Plaintiff seeks statutory damages under the TCPA. (See id. at p. 23.) Further, Plaintiff seeks to represent a class of persons who received a fax from Defendants (i) that invited them to participate for payment or compensation in an ‘online survey’ by logging into a ‘survey link’ of http://www.m3globalresearch.com/myinvite,” and (ii) “not stating on its first page that the recipient may request that the sender not send any future fax and that its failure to comply with such a request within 30 days would be unlawful.” (Id. ¶ 33.) Plaintiff thus seeks to represent persons whose claims derive solely from a technical violation of the TCPA’s opt-out notice requirement. Importantly, the putative class subsumes all fax recipients regardless of whether they consented to receive the fax. 3 3 Significantly, the TCPA only prohibits the sending of unsolicited fax advertisements, i.e., faxes that were sent to persons who did not provide prior express permission or invitation to receive such faxes. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 9 of 26 -5- DISCUSSION I. THE FAX AT ISSUE IS NOT AN “ADVERTISEMENT” UNDER THE TCPA. A. Standard for Dismissal under Federal Rule 12(b)(6). Courts are instructed to dismiss a complaint pursuant to Rule 12(b)(6) if it does not provide enough factual information to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 559 (2007). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is axiomatic that “[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. When evaluating whether a complaint states a plausible claim for relief, courts are instructed “to draw on [their] judicial experience and common sense.” Id. With that in mind, courts “need not accept factual claims that are internally inconsistent; facts which run counter to facts of which the court can take judicial notice; conclusory allegations; unwarranted deductions; or mere legal conclusions asserted by a party.” Response Oncology, Inc. v. MetraHealth Ins. Co., 978 F. Supp. 1052, 1058 (S.D. Fla. 1997); see also Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.”). See 47 U.S.C. § 227(a)(5) (defining “unsolicited advertisement”); id. § 227(b)(1)(C) (prohibiting the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement”). As defined in its Complaint, Plaintiff’s class definition does not make receipt of an unsolicited fax a prerequisite to inclusion in the class. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 10 of 26 -6- B. The Fax Is Informational and Contains No Commercial Component. 1. An Advertisement Must Promote Goods or Services for Sale. The TCPA only imposes liability for unsolicited fax advertisements. See 47 U.S.C. § 227(b)(1)(C). Under the TCPA, an “advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). Therefore, “if the [f]ax is not an advertisement, Plaintiff has no claim under the TCPA.” Arkin v. Innocutis Holdings, LLC, No. 8:16-cv-0321, 2016 WL 3042483, at *2 (M.D. Fla. May 26, 2016). The Sixth Circuit recently engaged in the most thorough analysis of the term “advertisement” to date. In Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., the Court evaluated whether a medical formulary fax (i.e., a fax listing medications available through a specific health plan) constituted an advertisement under the TCPA. See 788 F.3d 218, 222 (6th Cir. 2015). The Court held that it did not, pursuant to the following analysis: We can glean a few things from [the TCPA’s] definition. For one thing, we know the fax must advertise something. Advertising is “[t]he action of drawing the public’s attention to something to promote its sale,” or “the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public.” So material that advertises something promotes it to the public as for sale. For another thing, we know that what’s advertised—here, the “availability or quality of any property, goods, or services”—must be commercial in nature. Commercial means “of, in, or relating to commerce”; “from the point of view of profit: having profit as the primary aim.” It’s something that relates to “buying and selling.” So to be an ad, the fax must promote goods or services to be bought or sold, and it should have profit as an aim. This refinement puts meat on the [TCPA’s] bones: An advertisement is any material that promotes the sale (typically to the public) of any property, goods, or services available to be bought or sold so some entity can profit. Id. at 221-22 (emphasis added & internal citations omitted). The Court went on to hold that “[t]he term ‘advertisement’ unambiguously contains commercial components: To be an ad, the Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 11 of 26 -7- fax must promote goods or services that are for sale, and the sender must have profit as an aim.” Id. at 223-24. Numerous courts in this Circuit (and the FCC) have followed a similar rationale. See, e.g., Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967-01, 25972 (May 3, 2006) (“[M]essages that do not promote a commercial product or service . . . are not unsolicited advertisements under the TCPA.”); Neurocare Inst. of Cent. Fla., P.A. v. Healthtap, Inc., 8 F. Supp. 3d 1362, 1367 (M.D. Fla. 2014) (“Courts have interpreted the word ‘commercial’ to refer to the buying or selling of goods or services.”); Eden Day Spa, Inc. v. Loskove, No. 14-81340-CIV, 2015 WL 1649967, at *2 (S.D. Fla. Apr. 14, 2015) (same); Bank v. Uber Techs. Inc., No. 15-CV-4858 (JG), 2015 WL 8665441, at *3 (E.D.N.Y. Dec. 11, 2015) (“An ‘advertisement’ under the TCPA is limited to material that promotes the sale of a product or service because messages that do not seek to sell a product or service do not tread heavily upon the consumer interests implicated by section 227.”). 2. A Fax Announcing a Medical Research Survey Is Not an Advertisement under the TCPA as a Matter of Law. The Fax at issue here does not advertise the commercial availability of any property, goods or services. The Fax invites one specific person to participate in a double-blind medical research survey—nothing more. The Fax informs the recipient that he “must be the doctor to whom this invitation is addressed in order to be compensated for participation.” (See DE 23-1.) The Fax does not promote anything (i) commercial (ii) to the general public. There is no product. There is no service. Nothing for sale is promoted. See, e.g., Sandusky Wellness, 788 F.3d at 222 (holding that advertisements “draw[] the relevant market’s attention to its product to promote its sale” and thus the medical formulary faxes were not advertisements). And despite Plaintiff’s implication to the contrary, the Fax plainly does not advertise any survey services. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 12 of 26 -8- (See DE 23 ¶ 6.) By Plaintiff’s characterization, every poll ever conducted would constitute a survey program. For example, an opinion poll conducted by a news organization would be “advertising” that organization’s polling services—an absurd characterization considering that the purpose of such polls is to gather information. Federal courts have routinely granted motions to dismiss TCPA claims where the fax at issue did nothing more than provide information regarding a research survey or other non- commercial event. In the most analogous case, a court in the Northern District of Illinois evaluated a fax that invited “business owners or business decision makers to participate in a research discussion on the topic of a new healthcare program sponsored by the Chicagoland Chamber of Commerce.” Phillips Randolph Enters., LLC v. Adler-Weiner Research Chi., Inc., 526 F. Supp. 2d 851, 852 (N.D. Ill. 2007). The fax stated that attendees would receive $200 for their participation in the study. Id. The plaintiff argued that the fax advertised a “service” in the form of a research discussion on a healthcare program and claimed that this was “akin to a ‘free seminar’ or similar service which serves as a pretext to advertise commercial products and services, and falls within the scope of the TCPA.” Id. at 853. In granting defendant’s motion to dismiss, the court made two key holdings. First, the court concluded “[o]n its face, the fax does not promote a ‘commercially available service,’ but a research study.” Id. Second, the court characterized plaintiff’s comparison of the research discussion to a pretextual free seminar as “misguided.” Id. The court explained that “the complaint does not allege that the fax was a pretext to any advertisement” and noted that “[t]he only product or service that plaintiff identifies is the ‘research discussion.’” Id. Further, the court reasoned that “unlike an advertisement, the fax is not an indiscriminate, open-ended Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 13 of 26 -9- invitation” but rather “makes clear individuals interested in participating in the research study must be qualified and are pre-screened.” Id. Another district court dismissed a TCPA fax claim under very similar circumstances in Ameriguard, Inc. v. University of Kansas Medical Center Research Institute, Inc., No. 06-0369- CV, 2006 WL 1766812 (W.D. Mo. June 23, 2006). In Ameriguard, the fax in question sought participants for a clinical research trial for “prevention of diabetes.” Id. at *1. The court summarized the content of the fax as follows: The fax discusses general information about diabetes and “Pre-Diabetes,” announces the clinical research trial, and states that “[p]articipants who qualify receive study related medical care, study medication and diet and exercise counseling at no cost. Participants will also receive compensation for their time and travel.” Id. On defendant’s motion to dismiss, the court concluded, as a matter of law, that the fax was not an advertisement. The court noted that “[i]t announces the existence of a clinical drug trial and Defendant’s need for individuals willing to serve as test subjects and does not announce Defendant is providing or otherwise has available goods, services, or property.” Id. Further, the court rejected plaintiff’s contention that the invitation for people to obtain “information about diabetes prevention” qualified as “commercial availability” of defendant’s goods. First, the court explained that “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.” Id. Additionally, the court concluded “there is no suggestion Defendant included the call for volunteers as a smokescreen to mask a true purpose of engaging in the commercial activity of providing information or selling medicine.” Id. Accordingly, the court held “[t]he fax sent by Defendant is not an ‘unsolicited Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 14 of 26 -10- advertisement’ within the meaning of 47 U.S.C. § 227,” and dismissed the case with prejudice. Id. The district court’s ruling was affirmed by the Eighth Circuit. See Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Research Inst., Inc., 222 F. App’x 530 (8th Cir. 2007) (per curiam). 4 Applying similar principles, courts across the country have dismissed TCPA fax claims, holding that the faxes at issue were not advertisements as a matter of law:  P&S Printing LLC v. Tubelite, Inc., No. 3:14-cv-1441, 2015 WL 4425793, at *5 (D. Conn. July 17, 2015) (“The fact that the fax was received by [plaintiff], a non- customer, cannot transform the content of this [fax] message, which is informational, into an advertisement without more.”);  Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., No. 3:14- cv-405, 2015 WL 144728, at *3 (D. Conn. Jan. 12, 2015) (granting motion to dismiss, holding “[n]othing in the Fax indicates that the dinner was a pretext for pitching a Boehringer product or service related to FSD/HSDD or links the potential registrant with Boehringer’s other products and services”);  Physicians HealthSource, Inc. v. MultiPlan Servs. Corp., No. CIV.A. 12-11693- GAO, 2013 WL 5299134, at *2 (D. Mass. Sept. 18, 2013) (“The facsimile does not purport to sell or buy goods or services. On the contrary, the facsimile provides information concerning services already available to Dr. Elwert pursuant to an existing account or subscription.”);  Dang v. XLHealth Corp., No. 1:09-cv-1076, 2011 WL 553826, at *3-4 (N.D. Ga. Feb. 7, 2011) (holding faxes sent on behalf of preferred provider organization to non-participating healthcare providers were not advertisements because they did not promote benefits of becoming a member or offer to sell things to recipient);  N.B. Indus. v. Wells Fargo & Co., No. C 10-03203, 2010 WL 4939970, at *8-10 (N.D. Cal. Nov. 30, 2010) (granting motion to dismiss, holding that fax promoting annual business leadership award and containing an application for the award did not constitute an advertisement because the “faxed application here at most is an invitation to apply for a benefit”), aff’d, 465 F. App’x 640 (9th Cir. 2012);  Forys, Birn & Assocs. v. Accelmed, No. 1:09-cv-07391, Dkt. #27 (N.D. Ill. Mar. 2, 2010) (granting motion to dismiss and holding that fax promoting diabetes seminar for one credit of continuing medical education was not an advertisement); 4 Attached hereto as Group Exhibit B are all TCPA cases cited herein where courts have held that the fax at issue was “informational” as a matter of law and thus not actionable under the TCPA. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 15 of 26 -11-  Lutz Appellate Servs., Inc. v. Curry, 859 F. Supp. 180, 181 (E.D. Pa. 1994) (holding that faxes promoting job opportunities did not fall within the TCPA’s statutory definition of unsolicited advertisements). Taking the principles articulated in the above cases, particularly Phillips Randolph, Ameriguard and Medco, it is clear that the Fax attached to Plaintiff’s Complaint does not constitute an “advertisement” as a matter of law. The M3 Fax is an invitation for a double-blind medical research survey that invites specific recipients to participate and offers to pay compensation to survey participants for their time and involvement. Like the faxes in Phillips Randolph and Ameriguard, the M3 Fax was sent to a discrete, targeted subset of individuals and states that anyone interested in the research survey must pre-qualify in order to participate. (See DE 23-1 (“You will need to answer a few screening questions in order to qualify for this survey.”).) As the face of the Fax makes clear, the Fax was not an indiscriminate, open-ended invitation to the public; it was directed to specialized medical doctors—gastroenterologists. And only the invited doctor could participate. 5 Moreover, the Fax neither promotes anything commercial nor solicits prospective customers to buy or sell anything. Indeed, the Fax does not even indicate on whose behalf the survey is being performed. As in Phillips Randolph and Ameriguard, the only “product or service” that Plaintiff identifies in the Complaint is the research survey itself. Plaintiff does not allege that Defendants advertise any products or services during the surveys, nor does the Complaint allege the surveys were a pretext for commercial solicitations. In fact, the face of the Fax flatly contradicts any such suggestion that it 5 That the fax may have been received by someone other than Dr. Padula does not transform the fax at issue into an advertisement. See, e.g., P & S Printing, 2015 WL 4425793, at *5 (“The fact that the fax was received by [plaintiff], a non-customer, cannot transform the content of this message, which is informational, into an advertisement without more.”). Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 16 of 26 -12- was a pretext for advertising: “You will not be solicited because of your participation in this study. There are NO sales or endorsements associated with this study.” (See DE 23-1.) At the end of the day, there is no basis to support Plaintiff’s conclusory allegation that the Fax was an advertisement. The sole purpose of the Fax was to invite the recipient to participate in an online research survey. As a more practical concern, finding that invitations to participate in medical research surveys constitute advertisements would largely prevent double-blind medical research surveys from taking place (which, as it is the medical field’s chosen method of communication, typically happens via fax). 3. The Informational Nature of the Fax is a Question of Law to be Decided Based on the “Four Corners” of the Fax. The TCPA unambiguously defines “advertisements” as having commercial components. See 47 U.S.C. § 227(a)(5); 47 C.F.R. § 64.1200(f)(1). As discussed in the preceding Section, the Fax at issue in this case clearly lacks any commercial components. Therefore, it necessarily follows, as a matter of law, that the Fax is not an advertisement under the TCPA. Recognizing that there is nothing remotely commercial about the Fax, Plaintiff grasps at straws by referencing innocuous documents from the M3 website nowhere mentioned in the Fax itself. In the “Preliminary Statement” section of the Amended Complaint, Plaintiff asserts—in conclusory fashion—that “[o]ther information on Defendants’ Fax (Exhibit A) is mere pretext or subterfuge for evading the TCPA, as Defendants use the fax.” (DE 23 ¶ 7.) Plaintiff does not specify what information on the Fax is “mere pretext or subterfuge,” but Plaintiff appears to be referencing M3’s Terms and Conditions and Privacy Policy, which are accessible to anyone who follows the link displayed on the Fax. (See http://www.m3globalresearch.com/myinvite.) Indeed, the only material amendments in the Amended Complaint are Plaintiff’s citations to Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 17 of 26 -13- M3’s Terms and Conditions, Privacy Policy and various FAQs discussed on M3’s website. (See DEs 23-3, 23-4 & 23-5.) Plaintiff has failed to allege any facts indicating that the Fax at issue is a pretext for some profit-seeking motive. Presumably, Plaintiff has cited these materials in the Amended Complaint for the purpose of attempting to allege that the Fax was pretextual because M3 allegedly received (or will receive) some attenuated economic benefit from the online surveys at some unknown, indeterminate point in time. Courts, however, have repeatedly held that “extraneous and speculative down-the-stream evidence cannot convert non-ads into ads.” Sandusky Wellness Ctr., 788 F.3d at 225. For instance, in Sandusky Wellness the plaintiff had argued that defendant “might financially benefit from these faxes several locks down the stream of commerce.” Id. As the Sixth Circuit explained in firmly rejecting this “substantial-effects test”: [Plaintiff’s] argument boils down to this: No matter what the faxes look like on their face, a jury might conclude that, taken together, they have a positive effective on [defendant’s] business—and thus must have been sent to promote its products or services, with profit in mind. All publicity is apparently financially good publicity. Id. (emphasis in original) Similarly here, the Complaint implies the Fax at issue might, at some point result in some economic benefit somewhere down the line. Under the sound reasoning of Sandusky Wellness and several other federal courts that have adjudicated this issue, however, such speculative, hypothetical claims of future commercial benefit cannot transform an informational fax into an impermissible advertisement. The sine qua non of an advertisement under the TCPA is whether the communication promotes the commercial availability or quality of the sender’s property, goods or services. The Fax here does nothing more than invite the recipient to participate in an online survey; the Fax does not promote or advertise anything commercial. After all (and as the Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 18 of 26 -14- Fax notes), qualifying participants for the online survey will be paid $71 upon completion. To be clear, survey participants were not required to buy or purchase any goods or services from M3 or any other third party. And nothing on the Fax indicates otherwise. Further, courts have routinely rejected attempts by plaintiffs in the TCPA context to convert innocuous informational messages into advertisements based on what consumers, acting on their own accord, might find on the Internet. See, e.g., Holt v. Redbox Automated Retail, LLC, No. 11-cv-3046, DE 57 (S.D. Cal. June 20, 2013) (“The Court, however, declines to adopt this ‘look through’ approach to liability under the TCPA. Rather, the Court looks to the texts themselves, and the texts at issue here do not contain any marketing or promotional information . . . . Plaintiff’s approach goes beyond what is actually stated . . . and invites liability based on what a consumer would find if he or she pursued the link.”); Aderhold v. Car2go N.A., LLC, No. 13-cv-489, DE 74 (W.D. Wash. Feb. 27, 2014) (“It is manifestly insufficient that [Plaintiff] could, after choices of his own making, divert himself from the registration process to [Defendant’s] marketing.”). 6 The common sense underlying these holdings is clear. Concluding otherwise would permit a plaintiff (more appropriately, its counsel) to convert any fax into an advertisement solely by their own actions. Plaintiff’s attenuated theory is a follows: (i) if a person received the fax at issue; (ii) typed the hyperlink into a web browser; (iii) inserted all of the appropriate information; (iv) clicked on hyperlinks at the bottom of the browser; and (v) read the entirety of the Terms of Use, Privacy Policy and FAQs, then—and only then—would the recipient understand that M3 is a survey company. (See DE 23 ¶¶ 20-27.) Plaintiff fails even to argue that it ever visited the link in question or viewed the documents appended to the Complaint. Even crediting Plaintiff’s 6 These cases are attached hereto as Group Exhibit C. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 19 of 26 -15- domino theory—which has been routinely dismissed—the Fax still would not be an advertisement. Plaintiff’s apparent supposition that all faxes sent by for-profit companies must be advertisements defies logic and finds no support in the text of the TCPA. Relatedly, courts have rejected the notion that TCPA plaintiffs can engage in discovery in the hope of finding a profit-seeking motive for the purpose of defeating a motion to dismiss. For example, in P&S Printing, plaintiff noted “some courts have ultimately found that the factual context surrounding a fax, including whether it was part of defendant’s marketing strategy, is relevant to determining whether it is an advertisement under the TCPA.” 2015 WL 4425793, at *6. The Court rejected this, explaining “[plaintiff] has not alleged, and admitted at oral argument, that it could not at this stage, any contextual facts that raise a plausible inference that the fax was considered an advertisement by [defendant] or anyone else.” Id. Therefore, the court held that “Twombly and Iqbal require that [plaintiff] plead specific facts showing that it is entitled to more discovery.” Id. (citing Vent v. Mars Snackfood U.S., LLC, 611 F. Supp. 2d 333, 340-41 (S.D.N.Y. 2009)); see also Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014) (“The plausibility standard is only met where the facts alleged enable ‘the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”) (quoting Iqbal, 556 U.S. at 678); Twombly, 550 U.S. at 555 (holding that while a plaintiff need not plead “detailed factual allegations,” he must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Here, the allegations in the Amended Complaint (and the Fax) demonstrate that Plaintiff has fallen woefully short of any facts that would entitle it to discovery. The TCPA requires that a fax contain commercial elements, and the Fax allegedly sent by M3 plainly does not. Quite simply, “[t]he language and statutory scheme of this Act do not reasonably permit an Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 20 of 26 -16- interpretation that makes these faxes ‘advertisements.’” Sandusky Wellness Ctr., 788 F.3d at 224-25 (holding that the “fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation”); see also Boehringer Ingelheim Pharms., 2015 WL 144728, at *5 (“[T]he hypothetical future economic benefit that the [] defendants might receive someday does not transform the Fax into an advertisement.”); Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. 12-cv-2132, 2013 WL 486207, at *5 (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.”); MultiPlan Servs., Corp., 2013 WL 5299134, at *2 (granting motion to dismiss TCPA based only “on the four corners of the facsimile”). The Court should thus grant Defendants’ motion to dismiss Plaintiff’s TCPA claim with prejudice, because the Fax does not constitute an “advertisement” as that term is defined under the TCPA. II. DISMISSAL OF PLAINTIFF’S TCPA CLAIM WARRANTS DISMISSAL OF PLAINTIFF’S CONVERSION CLAIM PURSUANT TO 28 U.S.C. § 1367(C). In light of Plaintiff’s failure to state a TCPA claim, the Court no longer has subject- matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331. 7 As a result, the Court should also decline to exercise supplemental jurisdiction over Plaintiff’s state-law claim for conversion. See 28 U.S.C. § 1367; Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997) (dismissing state law claims). Although the dismissal of an underlying federal question claim does not automatically deprive a court of supplemental jurisdiction, “§ 1367(c) permits a court to dismiss any state law claims where the court has dismissed all the claims over which it 7 The Complaint alleges that the Court has subject matter jurisdiction under 28 U.S.C. § 1331 (Federal Question) and 47 U.S.C. § 227, but the Complaint does not allege the basis for the Court’s subject-matter jurisdiction over the conversion claim. (See DE 23 ¶ 15.) Even so, the only possible grounds for this Court to assert jurisdiction over Plaintiff’s state-law conversion claim is supplemental jurisdiction. See 28 U.S.C. § 1367(a). Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 21 of 26 -17- had original jurisdiction.” Baggett, 117 F.3d at 1352; see also 28 U.S.C. § 1367(c)(3) (“[T]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.”). Moreover, resolution of Plaintiff’s conversion claim depends entirely on determinations of state law. See, e.g., Star Fruit Co. v. Eagle Lake Growers, Inc., 33 So. 2d 858, 860 (Fla. 1948) (discussing elements of conversion claim under Florida law). It is well-established that “[s]tate courts, not federal courts, should be the final arbiters of state law.” Baggett, 117 F.3d at 1353 (citing Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546, 1553 (11th Cir. 1992)). When coupled with this Court’s discretion to decline the exercise of supplemental jurisdiction under § 1367(c), the conversion claim would be best resolved by the Florida courts. See id. (holding “judicial economy, fairness, convenience, and comity” dictated having the remaining state law claims decided by state courts and declining to exercise supplemental jurisdiction under § 1367(c)); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“When federal law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (dismissal of state law claims encouraged when federal law claims are dismissed prior to trial); Eubanks v. Gerwen, 40 F.3d 1157, 1161-62 (11th Cir. 1994) (remanding case to district court to dismiss plaintiff’s state law claims where court granted summary judgment on plaintiff’s federal law claims). Finally, even if the Court declines to dismiss the conversion claim pursuant to 28 U.S.C. § 1367(c), dismissal of the conversion claim is still warranted for failure to state a claim. To state a claim for conversion in Florida, “a plaintiff must allege that a defendant intentionally exercised dominion or control over chattel, which ‘so seriously interferes with the right of Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 22 of 26 -18- another to control it that the actor may justly be required to pay the other the full value of the chattel.’” Neurocare Inst. of Cent. Fla., P.A. v. Healthtap, Inc., 8 F. Supp. 3d 1362, 1368 (M.D. Fla. 2014) (quoting RESTATEMENT (SECOND) OF TORTS § 222A). 8 In Neurocare (a TCPA case), the plaintiff alleged that the defendant “converted fax machines, toner, paper and employee time when printing the faxes.” Id. The court disagreed, however, and held that “[b]ecause the alleged interference is not serious, major, or important, the complaint fails to state a conversion claim.” Id. Further, the Court noted that “[e]ven if the interference suffered by the more than 39 putative class members is aggregated, it would still be insignificant” and dismissed the conversion claim. Id.; see also G.M. Sign, Inc. v. Elm Street Chiropractic, Ltd., 871 F. Supp. 2d 763, 768 (N.D. Ill. 2012) (“The loss of a single sheet of paper and a miniscule amount of toner cannot be aggregated, and it is too trivial an injury to amount to an actionable conversion.”); Old Town Pizza of Lombard, Inc. v. Corfu-Tasty Gyro’s Inc., No. 11-cv-6959, 2012 WL 638765, at *3 (N.D. Ill. 2006) (granting motion to dismiss conversion claim for paper and ink used); Rossario’s Fine Jewelry v. Paddock Publ., Inc., 443 F. Supp. 2d 976, 980 (N.D. Ill. 2006) (holding not only were the claimed damages de minimis but that conversion could not be established because the defendant never came into possession of the fax machine, toner or paper). Indeed, “the ancient maxim de minimis non curat lex might well have been coined for the occasion in which a conversion claim is brought based solely on the loss of paper and toner consumer during the one-page unsolicited fax advertisement.” Stonecrafters, Inc. v. Foxfire Printing & Packaging, 633 F. Supp. 2d 610, 613 (N.D. Ill. 2009). 8 As the court in Neurocare noted, “Florida courts have adopted the Restatement (Second) of Torts when analyzing conversion claims.” 8 F. Supp. 3d at 1368 n.5 (citing Joseph v. Chanin, 940 So. 2d 483, 486 (Fla. Dist. Ct. App. 2006)). Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 23 of 26 -19- In like fashion, Plaintiff here alleges that, as a result of the single, one-page fax, Plaintiff and the putative class members “were deprived of the use of the fax machines, paper, toner, and employee time, which could no longer be used for any other purpose.” (DE 23 ¶ 73.) Under the reasoning and holding of Neurocare and the aforementioned cases, these paltry allegations are not a enough to state a claim for conversion. See also Palm Beach Golf Ctr.-Boca, Inc., v. Sarris, 781 F.3d 1245, 1261 (11th Cir. 2015) (Hinkle, J., concurring in part & dissenting in part) (“In my view, a person does not suffer a common-law conversion when the person chooses to connect a fax machine to a network, chooses to use paper and toner to print faxes, and then receives an unsolicited fax.”). 9 Receipt of a one-page fax—without more—is not enough to give rise to a conversion claim. CONCLUSION For the foregoing reasons, M3 USA Corporation and MDLinx, Inc. respectfully request this Honorable Court: (i) to dismiss Plaintiff’s Amended Complaint in its entirety for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6); and (ii) to award all other relief deemed equitable and just. Dated: September 8, 2016 Respectfully submitted, /s/ Mark Schellhase 9 In Sarris, the Eleventh Circuit held that the district court erred in dismissing a TCPA plaintiff’s conversion claim because the district court applied Florida’s heightened pleading standard instead of the federal pleading standard under Federal Rule 8. See 781 F.3d at 1259-61. Notably, however, the issue before the Court in Sarris concerned whether the plaintiff had adequately pleaded vicarious liability against defendant. Moreover, the majority did not evaluate the argument as to whether plaintiff had pleaded a conversion claim notwithstanding the de minimis not curat lex doctrine. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 24 of 26 -20- David M. Poell, Esq. (pro hac vice to be filed) dpoell@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 70 West Madison Street, 48 th Floor Chicago, Illinois 60602 Telephone: (312) 499-6300 Facsimile: (312) 499-6301 Mark Schellhase, Esq. mark.schellhase@gray-robinson.com GRAY ROBINSON Mizner Park Office Tower 225 N.E. Mizner Blvd., Suite 500 Boca Raton, Florida 33432 Telephone: (561) 368-3808 Fax: (561) 368-4008 Counsel for M3 USA Corp. and MDLinx, Inc. Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 25 of 26 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing DEFENDANTS’ MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT PURSUANT TO RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM WITH INCORPORATED MEMORANDUM OF LAW was served upon all interested parties using this Court’s ECF filing system this 8th day of September, 2016. /s/ Mark Schellhase Case 9:16-cv-80967-BB Document 27 Entered on FLSD Docket 09/08/2016 Page 26 of 26 EXHIBIT A Case 9:16-cv-80967-BB Document 27-1 Entered on FLSD Docket 09/08/2016 Page 1 of 2 Blumenfeld 000057 Case 9:16-cv-80967-BB Document 1-1 Entered on FLSD Docket 06/10/2016 Page 1 of 1Case 9:16-cv-80967-BB Document 27-1 Entered on FLSD Docket 09/08/2016 Page 2 of 2 GROUP EXHIBIT B Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 1 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Physicians Healthsource, Inc. v. Salix Pharmaceuticals, Inc., E.D.N.C., August 7, 2015 788 F.3d 218 United States Court of Appeals, Sixth Circuit. SANDUSKY WELLNESS CENTER, LLC, an Ohio limited liability company, individually and as the representatives of a class of similarly situated persons, Plaintiff–Appellant, v. MEDCO HEALTH SOLUTIONS, INC., Defendant–Appellee. No. 14–4201. | June 3, 2015. | Rehearing En Banc Denied July 16, 2015.* * Judge White recused herself from participation in this ruling. Synopsis Background: Healthcare provider brought putative class action against pharmacy benefit manager, alleging two faxes sent by manager were unsolicited advertisements which violated the Telephone Consumer Protection Act (TCPA). The United States District Court for the Northern District of Ohio, James G. Carr, J., 2014 WL 6775501, granted manager’s motion for summary judgment, and provider appealed. Holdings: The Court of Appeals, McKeague, Circuit Judge, held that: [1] as matter of first impression, faxes were not “advertisements” within meaning of the TCPA, and [2] district court did not abuse its discretion by denying provider’s request for discovery to oppose summary judgment. Affirmed. Attorneys and Law Firms *219 ON BRIEF: David M. Oppenheim, Glenn L. Hara, Anderson + Wanca, Rolling Meadows, IL, Matthew E. Stubbs, Montgomery Rennie & Jonson, Cincinnati, OH, for Appellant. JoAnn T. Sandifer, Christopher A. Smith, Husch Blackwell LLP, St. Louis, MO, Robert C. Tucker, Robison, Curphey & O’Connell, Toledo, OH, for Appellee. Before: McKEAGUE and DONALD, Circuit Judges; and MATTICE, District Judge.** ** The Honorable Harry S. Mattice, Jr., United States District Judge for the Eastern District of Tennessee, sitting by designation. *220 OPINION McKEAGUE, Circuit Judge. It’s under attack, but the fax lives on-in homes, offices, and, yes, judges’ chambers around the country. Christopher Null, Why the fax still lives (and how to kill it), PCWORLD (Jan. 13, 2014 3:00 AM), http://bit.ly/1aWT 21E. And it lives on in this case. A pharmacy benefit manager sent two faxes to a chiropractic company, listing medications available in the health plans of the chiropractors’ patients. Innocent enough, right? Well, no, actually, if those faxes were “unsolicited advertisements” prohibited by the Telephone Consumer Protection Act. 47 U.S.C. § 227(b)(1)(C). That’s the question presented in this case: Were those faxes “advertisements”? No, we hold, because they lacked the necessary commercial aspects of ads. And so we affirm the grant of summary judgment to the defendants. I As a pharmacy benefit manager, Medco Health Solutions acts as an intermediary between health plan sponsors (often employers) and prescription drug companies. See Thomas Gryta, What is a ‘Pharmacy Benefit Manager?’, WALL ST. J. (July 21, 2011 6:03 PM), http://on.wsj.com/1AgCGDe. Medco provides services to plan sponsors that enable the plans to offer more informed and less expensive prescription drug benefits to their members (often employees). Those services include Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 2 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 keeping and updating a list of medicines (known as the “formulary”) that are available through a healthcare plan. Medco sends that list to the plan sponsors so they can offer the most attractive prescription drug plans to their members. In addition to sending the formulary to its clients, Medco sends it to healthcare providers that prescribe medications to its clients’ members. R. 21–2 (Medco’s Statement of Undisputed Facts) at ¶ 2; see Fed.R.Civ.P. 56(e)(2) (allowing the court to treat these facts as “undisputed for purposes of [Medco’s summary-judgment] motion”). That way, the healthcare providers will know which medications are covered by their patients’ healthcare plans. Sandusky Wellness Center is one such healthcare provider. R. 21–2 at ¶ 2. It provides chiropractic services—and prescribes medications—to patients who are members of prescription drug plans contracted with Medco. R. 21–4 (Amy Green Decl.) at ¶ 4. Its patients use their healthcare plans—and thus indirectly use Medco’s services—to obtain the medications from Sandusky. Medco faxed part of its formulary to Sandusky in June 2010. That fax, entitled “Formulary Notification” and attached in Appendix A, informed Sandusky that “[t]he health plans of many of your patients have adopted” Medco’s formulary. R. 1–1 at 2. The fax asked Sandusky to “consider prescribing plan-preferred drugs” to “help lower medication costs for [Sandusky’s] patients,” and it listed some of those drugs. Id. It also told Sandusky where it could find a complete list of the formulary. Other than listing Medco’s name and number, the fax did not promote Medco’s services and did not solicit business from Sandusky. See id.; see also R. 21–2 at ¶¶ 6–8. Three months later, Medco sent another fax to Sandusky. This second fax, entitled “Formulary Update” and attached in Appendix *221 B, informed Sandusky that a certain respiratory drug brand was preferred over another brand, and that using the preferred brand could save patients money. R. 1–1 at 3. Neither this fax nor the first one contained pricing, ordering, or other sales information. R. 21–2 at ¶¶ 6–7. Nor did either fax ask Sandusky, directly or indirectly, to consider purchasing Medco’s services. Id. at ¶ 8. The undisputed facts in the record instead show that each merely informed Sandusky which drugs its patients might prefer, irrespective of Medco’s financial considerations. See R. 21–2 at ¶¶ 5–8. Nevertheless, Sandusky (individually and on behalf of a proposed class) sued Medco over these two faxes, claiming that they were “unsolicited advertisements” prohibited by the Telephone Consumer Protection Act. Medco moved for summary judgment, arguing that the faxes were not advertisements as a matter of law because their primary purpose was informational rather than promotional. The district court agreed. R. 29 at 4–5. It did not find the question close, calling it “not far off the mark, if off it at all here” that Sandusky’s suit was “frivolous litigation.” Id. at 5 n. 1. It warned Sandusky and others like it “not to file similar fruitless litigation in the future” or else the court’s “colleagues [would] respond appropriately.” Id. Sandusky and its attorneys did not heed that warning. Not only did Sandusky appeal in this case, its attorneys have filed suits (and appeals after losing) in other courts as well. E.g., Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc., No. 3:14–CV–405 SRU, 2015 WL 144728 (D.Conn. Jan. 12, 2015), appeal filed No. 15–288 (2d Cir. Feb 03, 2015); see also R. 21–1 (collecting faxes and cases from other Sandusky-related lawsuits). Yet Sandusky raises non-frivolous arguments on appeal. We freshly review those arguments to see if there is any genuine dispute of material fact and to determine whether Medco is entitled to judgment as a matter of law. EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir.2015) (en banc). II We begin with an overview of the Telephone Consumer Protection Act. Passed in response to “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes”—the Act restricts certain kinds of telephonic and electronic solicitations. Mims v. Arrow Fin. Servs., LLC, ––– U.S. ––––, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). At issue in this case is the Act’s prohibition on sending unsolicited advertisements to fax machines. 47 U.S.C. § 227(b)(1)(C). The Act provides a $500 penalty for such a violation. § 227(b)(3)(B). Sandusky alleges that Medco violated the Act by sending two advertisements to its fax machine, but Medco responds that the faxes it sent were not “advertisement[s]” at all. A [1] So were these faxes advertisements? It is a question of law our court has never addressed. But the Act provides a definition. It defines “advertisement” as “any material advertising the commercial availability or quality of any Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 3 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 property, goods, or services.” § 227(a)(5). We can glean a few things from that definition. For one thing, we know the fax must advertise something. Advertising is “[t]he action of drawing the public’s attention to something to promote its sale,” Black’s Law Dictionary 65 (10th ed.2014), or “the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public,” *222 Webster’s Third New International Dictionary 31 (1986). So material that advertises something promotes it to the public as for sale. For another thing, we know that what’s advertised—here, the “availability or quality of any property, goods, or services”—must be commercial in nature. Commercial means “of, in, or relating to commerce”; “from the point of view of profit: having profit as the primary aim.” Webster’s Third at 456. It’s something that relates to “buying and selling.” Black’s Law Dictionary 270 (6th ed.1990). So to be an ad, the fax must promote goods or services to be bought or sold, and it should have profit as an aim. This refinement puts meat on the Act’s bones: An advertisement is any material that promotes the sale (typically to the public) of any property, goods, or services available to be bought or sold so some entity can profit. See 47 U.S.C. § 227(a)(5); see also Black’s Law Dictionary (10th ed.) at 65 (defining advertisement as a “commercial solicitation; an item of published or transmitted matter made with the intention of attracting clients or customers”). Everyday people recognize everyday ads as fitting within this definition. When McDonald’s runs a television ad for a new McCafé item (complete with a jingle, of course), viewers understand that McDonald’s is promoting that item to the public’s attention, that it is available to be bought, and that McDonald’s hopes to gain a profit from it. So too when a law firm buys space in a newspaper for its logo, slogan, areas of expertise, and contact information: Readers understand that the firm is soliciting the public to pay for its services (which are available for sale) with making money in mind. And probably so too when an orthopedic-implant manufacturer sends potential buyers a fax containing a picture of its product on an invitation to a free seminar: It is drawing the relevant market’s attention to its product to promote its sale (albeit indirectly). Cf. Physicians Healthsource, Inc. v. Stryker Sales Corp., No. 1:12–CV–0729, 65 F.Supp.3d 482, 488–90, 2014 WL 7109630, at *5–*6 (W.D.Mich. Dec. 12, 2014); see In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14097 (2003). But see Phillip Long Dang, D.C., P.C. v. XLHealth Corp., 1:09–CV–1076–RWS, 2011 WL 553826, at *3–*4 (N.D.Ga.2011). These are all (likely) ads under the Act’s definition. The same cannot be said of these two faxes. They call items (medications) and services (Medco’s formulary) to Sandusky’s attention, yes. But no record evidence shows that they do so because the drugs or Medco’s services are for sale by Medco, now or in the future. In fact, the record shows that Medco has no interest whatsoever in soliciting business from Sandusky. R. 21–2 at ¶¶ 6–8. And no record evidence shows that the faxes promote the drugs or services in a commercial sense—they’re not sent with hopes to make a profit, directly or indirectly, from Sandusky or the others similarly situated. See id. Nor does any record evidence show that Medco hopes to attract clients or customers by sending the faxes. The record instead shows that the faxes list the drugs in a purely informational, non-pecuniary sense: to inform Sandusky what drugs its patients might prefer, based on Medco’s formulary—a paid service already rendered not to Sandusky but to Medco’s clients. See id. at ¶ 5; Appendices A & B. Under the Act’s definition, and in everyday speak, these faxes are therefore not advertisements: They lack the commercial components inherent in ads. Several on-point cases confirm this conclusion. The Ninth Circuit has held that because the item discussed in the fax was *223 not “available to be bought or sold” or “for sale,” it was not “commercially available” and thus not an ad under the Act. N.B. Indus., Inc. v. Wells Fargo & Co., 465 Fed.Appx. 640, 642 (9th Cir.2012). Even more on point, other courts have held that an unsolicited fax from a pharmaceutical company about the reclassification of a drug—without any reference to how or where the drug was available for purchase—was not an ad under the Act. Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. CIV.A. 12–2132(FLW), 2013 WL 486207, at *7 (D.N.J. Feb.6, 2013); see also Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., No. CIV.A. 12–11693–GAO, 2013 WL 5299134, at *2 (D.Mass. Sept. 18, 2013). And another has held that faxes from a preferred provider organization to non-participating healthcare providers are not ads when they don’t promote the benefits of becoming a member or sell things to the recipient. Long Dang, 2011 WL 553826, at *3–4. Just so here. Our conclusion—that the Act unambiguously defines advertisements as having commercial components, and that these faxes lack those components—allows us to avoid wading into another dispute: determining the effect (if any) of the Federal Communications Commission’s interpretation on this case. The statute charges the Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 4 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Commission with implementing the Act and gives it “the authority to promulgate binding legal rules.” Natl Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980–81, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). It has issued rules here. 47 C.F.R. § 64.1200(f)(1) (defining “advertisement”); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006) (expounding on that definition). There is a circuit split on whether to defer to the Commission’s explanation of its definition. Compare N.B. Industries, 465 Fed.Appx. at 642–43 (giving Chevron deference to the Commission’s interpretation regarding incidental ads), with Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 687–88 (7th Cir.2013) (rejecting the Commission’s interpretation regarding incidental ads). But where our “construction follows from the unambiguous terms of the statute”—as it does here—we do not defer to the agency’s interpretation. See Brand X, 545 U.S. at 982, 125 S.Ct. 2688. In any event, reliance on the Commission’s interpretation would only bolster our conclusion. According to the Commission’s rules and regulations, faxes “that contain only information, such as industry news articles, legislative updates, or employee benefit information,” are not advertisements under the Act. 71 Fed. Reg. at 25973. The Commission considers several factors to determine whether a fax is informational or promotional, and where the fax’s “primary purpose is informational, rather than to promote commercial products,” it is not covered by the Act. Id. That aptly describes the faxes here. They contain only information—parts of the formulary—and do not seek to promote products or services to make a profit. The faxes are analogous to the employee-benefit information discussed in the regulation. The district court, relying on the regulations, found this conclusion so obvious that it called Sandusky’s suit borderline “frivolous litigation.” R. 29 at 5 n. 1. We wouldn’t go that far, but we agree that the regulations, if we needed to rely on them, only help Medco’s case that these faxes are not ads. * * * The term “advertisement” unambiguously contains commercial components: To be an ad, the fax must promote goods or services that are for sale, and the sender *224 must have profit as an aim. 47 U.S.C. § 227(a)(5); Black’s Law Dictionary at 65; Webster’s Third at 31. The record uniformly shows that these faxes lack those commercial aspects: They did not solicit business for a commercially available product or service. So they are not “advertisements” under the Act. B Sandusky counters with three arguments: (1) that the Act’s definition is broader; (2) that we should follow the Seventh Circuit on the issue; and (3) that we should look outside of the four corners of the faxes to see that they’re ads. None convinces. First, Sandusky’s proposed definition of “advertisement” sweeps much too broadly. The company says that anything that “makes known” the quality or availability of a good or service is an ad. Appellants’ Br. 23, 27. Notice what’s missing? It’s the concept that an ad (at least an ad under the Act) is commercial in nature. The word “commercial” is in the Act’s definition, § 227(a)(5), and the concept is part of the common understanding of what constitutes an ad, Black’s Law Dictionary at 65. So “commercial” must play a role—some role. But Sandusky reads it out of the statute. We don’t. The jury must be able to reasonably conclude that Medco sent the faxes “from the point of view of profit,” to promote the availability or quality of something available to be bought or sold. Webster’s Third at 456; see Black’s Law Dictionary at 65. Based on these faxes and this record, it cannot do so here. [2] And no, we won’t “broadly construe” the Act in Sandusky’s favor because it is a so-called “remedial statute.” Appellants’ Br. 20–21; Reply Br. 3–4. As applied today, that canon is “either incomprehensible or superfluous.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 364–66 (2012). Why interpret a statute’s language broadly or narrowly (as opposed to just reasonably or fairly)? And since all statutes remedy what’s seen as a problem, which statutes do not deserve a broad construction? Id. at 364. In any event, insofar as our case law requires the canon’s application at all, it doesn’t require it when the statute’s language is plain, In re Carter, 553 F.3d 979, 985–86 (6th Cir.2009), as it is here. “The broad remedial goals of the [ ] Act” (assuming there are such goals) “are insufficient justification for interpreting a specific provision more broadly than its language and the statutory scheme reasonably permit.” Pinter v. Dahl, 486 U.S. 622, 653, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) (internal quotation marks omitted). The language and statutory scheme of this Act do not reasonably permit an interpretation that makes these faxes “advertisements.” And so they’re not. Second, the Seventh Circuit’s decision in Turza does not contradict ours here. The person who sent the fax in Turza “plug[ged] the commercial availability of [his] services” by faxing his name, contact information, and areas of expertise (in addition to “mundane advice” about unrelated topics) to potential clients for “promotion[al] or Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 5 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 marketing” reasons. Turza, 728 F.3d at 685–86, 688. The sender conceded that the fax was a “promotional” device, and his lawyer called it a “marketing” tool in his brief and at oral argument. Id. at 686–87. So the court held as a matter of law that he faxed an advertisement. That conclusion is completely consistent with our judgment in this case. The faxes in Turza solicited business from the public, albeit in an indirect way. The faxes at issue here solicit nothing. They don’t seek to make a profit, and they seek no actual or potential commercial transaction *225 between the parties. They don’t even seek a future relationship with Sandusky (forget a commercial one). In line with Turza, these are not ads. Third, extraneous and speculative down-the-stream evidence cannot convert non-ads into ads. Sandusky argues that Medco’s past, which includes having operated a mail-order pharmacy business and having violated the laws of various states, see R. 27 at 9–12, creates a genuine dispute of fact as to whether these faxes are ads. Appellant Br. 36. And it contends that Medco might financially benefit from these faxes several locks down the stream of commerce (conceivably through one of its illegal schemes). Sandusky’s argument boils down to this: No matter what the faxes look like on their face, a jury might conclude that, taken together, they have a positive effect on Medco’s business—and thus must have been sent to promote its products or services, with profit in mind. All publicity is apparently financially good publicity. We reject this quasi substantial-effects test, as other courts have. E.g., Boehringer Ingelheim Pharmaceuticals, 2015 WL 144728, at *5 (“[T]he hypothetical future economic benefit that the [ ] defendants might receive someday does not transform the Fax into an advertisement.”); Janssen Pharmaceuticals, 2013 WL 486207, at *5 (“[T]he inquiry under the [Act] is whether the content of the message is commercial, not what predictions can be made about future economic benefits.”); Physicians HealthSource, 2013 WL 5299134, at *2 (basing its decision on the “on the four corners of the facsimile”); see also N.B. Industries, 465 Fed.Appx. at 642; Turza, 728 F.3d at 688. The fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation. Plus, no record evidence reliably shows that there would be such a financial benefit from these faxes; evidence of past illegal schemes is certainly not enough to create a genuine dispute of fact. (But more on this below.) To be sure, a fax need not be an explicit sale offer to be an ad. It’s possible for an ad to promote a product or service that’s for sale without being so overt, as in the free-seminar example, see 71 Fed. Reg. at 25973, or as in Turza, 728 F.3d at 688. The best ads sometimes do just that. But the fax itself must at least be an indirect commercial solicitation, or pretext for a commercial solicitation. If it’s not, it’s not an ad. And the record shows that these faxes were not. So they’re not ads as a matter of law. III [3] That would be that but for one more related issue. Sandusky requested discovery under Rule 56(d)—in the form of depositions, document requests, and expert opinions—to oppose Medco’s summary-judgment motion. R. 24–1 at ¶¶ 3–4; see Fed.R.Civ.P. 56(d). Specifically, it sought evidence that would show “Medco’s pecuniary interest in the nine prescription drugs touted in the ads; Medco’s advertising practices; and the specific circumstances that led to the ads.” R. 24 at 6. The district court denied its request, which it has the discretion to do. See Cardinal v. Metrish, 564 F.3d 794, 797 (6th Cir.2009). But did the court abuse its discretion? The answer is no for three independent reasons. First, our conclusion above answers part of this question. The possibility that future economic benefits will flow from a non-commercial fax, ancillary to the content of the fax, is legally irrelevant to determining whether the fax is an ad. And Sandusky wanted evidence of this sort. R. 24 at 6; see Appellant Br. 41–42. *226 This evidence, being legally irrelevant, does not bear on a “material” issue of fact. Fed.R.Civ.P. 56(a). It thus cannot be the basis to reverse the district court’s judgment on this issue. Allen v. CSX Transp., Inc., 325 F.3d 768, 775–76 (6th Cir.2003); see Good v. Ohio Edison Co., 149 F.3d 413, 422–23 (6th Cir.1998). Second, the district court could have “deem[ed] as too vague the affidavits submitted in support of the motion.” CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir.2008). In full, the one unsworn statement notified the court that Sandusky “will seek documents from Medco, take the depositions of the affiants, retain an expert for assistance, and conduct other discovery.” R. 24–1 at ¶ 4. The motion (but not the unsworn statement) listed the “subjects” of the discovery. R. 24 at 6. Such a statement needs to do more: It must describe “exactly how [Sandusky] expects those materials would help [it] in opposing summary judgment.” Summers v. Leis, 368 F.3d 881, 887 (6th Cir.2004). The district court was within its discretion to Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 6 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 find that this statement did not do that. Third, Sandusky’s motion “fail[ed] to meet the requirements of an affidavit” or declaration under Rule 56(d). CareToLive v. FDA, 631 F.3d 336, 345 (6th Cir.2011). Such a motion must be supported by a proper “affidavit or declaration.” Fed.R.Civ.P. 56(d). This one was not, and Sandusky concedes as much. Reply Br. 19. Sandusky’s statement contained the date and a list of what it sought. But it “was not sworn to before a notary public nor signed under penalty of perjury pursuant to 28 U.S.C. § 1746.” CareToLive, 631 F.3d at 345. So it was an improper Rule 56(d) motion. And without “having filed a proper affidavit [or declaration], the district court did not abuse its discretion by denying discovery.” Id. IV Because no reasonable jury could conclude from this record that the faxes were commercial in nature, they are not “advertisements” under the Act. We affirm. Appendix A Appendix B Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 7 of 50 Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (2015) 62 Communications Reg. (P&F) 1235 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 All Citations 788 F.3d 218, 62 Communications Reg. (P&F) 1235 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 8 of 50 Phillips Randolph Enterprises, LLC v. Adler-Weiner..., 526 F.Supp.2d 851... © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 526 F.Supp.2d 851 United States District Court, N.D. Illinois, Eastern Division. PHILLIPS RANDOLPH ENTERPRISES, LLC., an Illinois Limited Liability Company, individually and on behalf of all others similarly situated, Plaintiff, v. ADLER-WEINER RESEARCH CHICAGO, INC., an Illinois Corporation; Adler-Weiner Research Orange County, Inc., a California Corporation; Adler-Weiner Research, L.A., Inc., a California Corporation; Scott D. Weiner; and John Does 1-10, Defendant. No. 06 C 5111. | Jan. 30, 2007. Synopsis Background: Recipient brought action against sender of purported unsolicited facsimile (fax) advertisement alleging violation of Telephone Consumer Protection Act (TCPA). Sender brought motion to dismiss. [Holding:] The District Court, Elaine E. Bucklo, J., held that fax did not promote “commercial availability” of product or service. Motion granted. West Headnotes (3) [1] Telecommunications Advertising, Canvassing and Soliciting; Telemarketing The primary purpose of Congress in enacting the TCPA was to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements, and therefore the TCPA does not apply to other forms of communication transmitted by fax. Telephone Consumer Protection Act of 1991, § 227(a)(5), (b)(1)(C), 47 U.S.C.A. § 227(a)(5), (b)(1)(C). 14 Cases that cite this headnote [2] Telecommunications Advertising, Canvassing and Soliciting; Telemarketing Messages that do not promote a commercial product or service are not solicited advertisements under the TCPA. Telephone Consumer Protection Act of 1991, § 227(a)(5), (b)(1)(C), 47 U.S.C.A. § 227(a)(5), (b)(1)(C). 11 Cases that cite this headnote [3] Telecommunications Advertising, Canvassing and Soliciting; Telemarketing Unsolicited facsimile (fax) message “inviting business owners or business decision makes to participate in a research discussion” did not promote “commercial availability” of product or service in violation of TCPA, since fax promoted research study and made clear that individuals interested in participating in research study were pre-screened and had to be qualified. Telephone Consumer Protection Act of 1991, § 227(a)(5), (b)(1)(C), 47 U.S.C.A. § 227(a)(5), (b)(1)(C). 13 Cases that cite this headnote Attorneys and Law Firms *851 Thomas A. Zimmerman, Jr., Zimmerman and Associates, Chicago, IL, for Plaintiff. Paul Andrew Greenberg, Aronberg, Goldgehn, Davis & Garmisa, Chicago, IL, for Defendant. Opinion Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 9 of 50 Phillips Randolph Enterprises, LLC v. Adler-Weiner..., 526 F.Supp.2d 851... © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 MEMORANDUM OPINION AND ORDER BUCKLO, District Judge. Defendants Adler-Weiner Research Chicago, Inc., Adler-Weiner Research *852 Orange County, Inc., Adler-Weiner Research, L.A., Inc., and Scott Weiner (collectively “defendants”) have moved to dismiss plaintiff Phillips Randolph Enterprises, LLC’s (“Phillips”) complaint (“the complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff alleges that on May 31, 2006, defendants transmitted an unsolicited facsimile (“fax”) advertisement in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 (2006).1 Plaintiff also asserts a class action on behalf of itself and all others who received the fax from defendants. The fax at issue is attached as Exhibit A to the complaint. For the following reasons, defendants’ motion is granted. I. In assessing defendants’ 12(b)(6) motion to dismiss, I must accept all well-pleaded facts in the complaint as true. Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir.2005). Documents attached to the complaint are considered part of the complaint. Id. (citing Fed.R.Civ.P. 10(c)). I must view the allegations in the light most favorable to the plaintiff. Id. Dismissal under Rule 12(b)(6) is proper if the plaintiff can prove no set of facts to support its claims. First Ins. Funding Corp. v. Fed. Ins. Co., 284 F.3d 799, 804 (7th Cir.2002). II. [1] [2] Defendants argue the fax at issue here does not fall within the scope of the TCPA. The TCPA prohibits the use of any telephone facsimile machine, computer or other device to send an “unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). An “unsolicited advertisement” is “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.” 47 U.S.C. § 227(a)(5). Congress’ primary purpose in enacting the TCPA was to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements, and therefore does not apply to other forms of communication transmitted by fax. See H.R.Rep. No. 317, at 10, 102d Cong., 1st Sess. 25 (1991); see also Destination Ventures, Ltd. v. Fed. Communications Comm’n, 46 F.3d 54, 56 (9th Cir.1995); Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1166, 1170 (S.D.Ind.1997). However, “messages that do not promote a commercial product or service ... are not solicited advertisements under the TCPA.” In re MATTER OF RULES & REGS. IMPLEMENTING THE TEL. CONSUMER PROTECTION ACT OF 1991 AND THE JUNK FAX PREVENTION ACT OF 2005, 2006 WL 901720, 21 F.C.C.R. 3787, at 3810 (April 6, 2006). [3] The issue here is whether the fax sent by defendants promotes the “commercial availability” of a product or service. In relevant part, the fax states: Attention: Business Owners & Business Decision Makers Adler Weiner Research is currently inviting business owners or business decision makes to participate in a research discussion on the topic of a new HEALTHCARE PROGRAM sponsored by The Chicagoland Chamber of Commerce ... HONORARIUM: * * *$200.00 CASH * * * If you are interested in participating in this research study, please call to see if you qualify between the hours of 9:00 am to 4:30 pm. *853 (Compl.Exh. A.) Plaintiff argues that the fax advertises a “service” in the form of a “research discussion” on a healthcare program. Plaintiff furthers this is akin to a “free seminar” or similar service which serves as a pretext to advertise commercial products and services, and falls within the scope of the TCPA. I disagree with plaintiff. On its face, the fax does not promote a “commercially available service,” but a research study. See Ameriguard, Inc., v. Univ. of Kansas Med. Ctr. Research Inst., No. 06-0369-CV-W-ODS, 2006 WL 1766812, at *1 (W.D.Mo. June 23, 2006) (fax advertising clinical research trial for diabetes was outside the scope of TCPA). This is distinct from the fax at issue in the case cited by plaintiff. Kenro, 962 F.Supp. at 1170-71. In Kenro, the defendant faxed a publication entitled the “Fax Daily,” which contained “approximately 30 to 50 percent advertising” and “two of the three-page edition ... consist[ed] entirely of coupons and ‘classified’ advertisements.” Id. at 1171. The court also noted that “each edition of Fax Daily ... encourage[d] readers to advertise in the Fax Daily and to ‘take advantage of [the merchants’] ‘money-saving offers.’ ” Id. (alterations in original). Plaintiff’s comparison to a pre-textual free seminar is also misguided. First, the complaint does not allege that the Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 10 of 50 Phillips Randolph Enterprises, LLC v. Adler-Weiner..., 526 F.Supp.2d 851... © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 fax was a pretext to an advertisement. See H.R. Rep. 317, at 3815 (“any surveys that serve as a pretext to an advertisement are subject to the TCPA[ ]”). The complaint only alleges that defendants’ “products or services were advertised in the fax.” (Compl. at ¶ 14.) The only product or service that plaintiff identifies is the “research discussion.” There are no additional allegations addressing whether defendants advertise any products or services at those discussions, or that defendants are in the business of advertising products or services in those discussions. See Ameriguard, 2006 WL 1766812 at *1. Second, unlike an advertisement, the fax is not an indiscriminate, open-ended invitation. Instead, the fax makes clear individuals interested in participating in the research study must be qualified and are pre-screened. See id.; Lutz Appellate Servs., Inc. v. Curry, 859 F.Supp. 180, 181 (E.D.Pa.1994) (fax advertising job openings was outside the scope of TCPA). III. For the foregoing reasons, defendants’ motion to dismiss is granted. Footnotes 1 Plaintiff initially filed a three count complaint, but subsequently withdrew counts II and III. End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 11 of 50 Ameriguard, Inc. v. University of Kansas Medical Center..., Not Reported in... © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 1766812 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division. AMERIGUARD, INC., Plaintiff, v. UNIVERSITY OF KANSAS MEDICAL CENTER RESEARCH INSTITUTE, INC., Defendant. No. 06-0369-CV-W-ODS. | June 23, 2006. Attorneys and Law Firms Lyle M. Gregory, Raymore, MO, for Plaintiff. Russell S. Jones, Jr., Travis Lee Salmon, Shughart Thomson & Kilroy, PC, Kansas City, MO, for Defendant. Opinion ORDER AND OPINION GRANTING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ORTRIE D. SMITH, District Judge. *1 Pending is Defendant’s Motion to Dismiss for Failure to State a Claim. After considering the parties’ arguments, the Court grants the motion (Doc. # 6). A motion to dismiss for failure to state a claim should be granted when it appears that “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Davis v. Hall, 992 F.2d 151, 152 (8th Cir.1993) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to dismiss, the Court is required to view the facts alleged in the complaint in the light most favorable to the Plaintiff. The Court is limited to a review of the Complaint; the only items outside the Complaint that may be considered without converting the motion to one seeking relief pursuant to Rule 56 of the Federal Rules of Civil Procedure are (1) exhibits attached to the Complaint, and (2) materials necessarily embraced by the Complaint. Mattes v.. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir.2003). Plaintiff, (Amerigard, Incorporated) alleges Defendant (The University of Kansas Medical Research Institute, Incorporated) violated 47 U.S.C. § 227 by sending it an “unsolicited advertisement” via a telephone facsimile machine (more commonly referred to as a “fax”). Plaintiff desires to assert a class action on behalf of itself and all others who received the fax from Defendant. Defendant contends the fax is not an “unsolicited advertisement” as that phrase is defined in the statute. The fax is attached as an exhibit to the Complaint, so Mattes allows the Court to examine its contents without converting the Motion to Dismiss into a Motion for Summary Judgment. An “unsolicited advertisement” is “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.” 47 U.S.C. § 227(a)(4). The fax in question generally seeks participants in a clinical research trial for “prevention of diabetes.” The fax discusses general information about diabetes and “Pre-Diabetes,” announces the clinical research trial, and states that “[p]articipants who qualify receive study related medical care, study medication and diet and exercise counseling at no cost. Participants will also receive compensation for their time and travel.” Then, above a section for the recipient to provide contact information, the fax advises “i]f you or a loved one could benefit from participating in this trial or you would like additional information about diabetes information, please call ... or fill out the form below....” The critical issue is whether the fax advertises the “commercial availability” of goods, services or property. The Court concludes, as a matter of law, that it does not. It announces the existence of a clinical drug trial and Defendant’s need for individuals willing to serve as test subjects and does not announce Defendant is providing or otherwise has available goods, services, or property. See Lutz Appellate Servs., Inc. v. Curry, 859 F.Supp. 180, 181 (E.D.Pa.1994) (fax announcing existence of job openings does not advertise commercial availability of goods, property or services). Moreover, regardless of how one views the fax, it does not suggest anything “commercial.” Plaintiff contends the invitation for people to obtain “information about diabetes prevention” qualifies as “commercial availability” of Defendant’s goods, but the Court disagrees for two reasons. 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 Defendant included the call for volunteers as a smokescreen to mask a true purpose of engaging in the commercial activity of providing information or selling Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 12 of 50 Ameriguard, Inc. v. University of Kansas Medical Center..., Not Reported in... © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 medicine. See Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1170-71 (S.D.Ind.1997) (finding the affixing of non-commercial information to a commercial advertisement to be an attempt to evade restrictions on faxing commercial advertisements). *2 The fax sent by Defendant is not an “unsolicited advertisement” within the meaning of 47 U.S.C. § 227, so the case is dismissed for failure to state a claim. IT IS SO ORDERED. End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 13 of 50 Ameriguard, Inc. v. University of Kansas Medical Center..., 222 Fed.Appx. 530... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 222 Fed.Appx. 530 This case was not selected for publication in the Federal Reporter. Not for Publication in West’s Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Eighth Circuit Rules 28A, 32.1A. (Find CTA8 Rule 28A and Find CTA8 Rule 32.1A) United States Court of Appeals, Eighth Circuit. AMERIGUARD, INC., Appellant, v. UNIVERSITY OF KANSAS MEDICAL CENTER RESEARCH INSTITUTE, INC., Appellee. No. 06-2912. | Submitted: Feb. 12, 2007. | Filed: March 15, 2007. Synopsis Background: Plaintiff brought action in state court against medical research institute for alleged violation of the Telephone Consumer Protection Act (TCPA). The institute removed the case to federal court, and the United States District Court for the Western District of Missouri, 2006 WL 1766812, Ortrie D. Smith, J., dismissed the action for failure to state a claim. Plaintiff appealed. Holding: The Court of Appeals held that facsimile sent by institute did not constitute an “unsolicited advertisement” under the TCPA. Affirmed. *530 Appeal from the United States District Court for the Western District of Missouri. Attorneys and Law Firms Lyle M. Gregory, Raymore, MO, John Richard McEachern, Karl W. Dickhaus, McEachern & Dickhaus, argued, St. Louis, MO, for Appellant. Russell Scarritt Jones, Jr., Travis Lee Salmon, Shughart & Thomson, argued, Kansas City, MO, for Appellee. Before RILEY, MELLOY, and SHEPHERD, Circuit Judges. [UNPUBLISHED] PER CURIAM. **1 Ameriguard, Inc., appeals the district court’s1 dismissal of its Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, complaint against University of Kansas Medical Center Research Institute, Inc., (“Institute”). 1 The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. Ameriguard alleged that the Institute violated the TCPA by sending an “unsolicited advertisement” via telephone facsimile machines and attached a copy of the facsimile to its complaint as an exhibit. The complaint was initially filed in Missouri state court but was removed by the Institute to federal court. Following removal, the Institute filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) alleging that the complaint should be dismissed for failure to state a claim upon which relief could be granted because the attached facsimile did not meet the statutory definition of an “unsolicited advertisement.” The TCPA provides that an “unsolicited advertisement” is “any material advertising the commercial availability or quality *531 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) (2005). Applying the definition set forth in the TCPA, the district court found that the facsimile did not meet the definition of an “unsolicited advertisement” and granted the motion to dismiss. Having carefully reviewed the record, see Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1244 (8th Cir.2006) (per curiam) (de novo standard of review), we agree with the district court that Ameriguard failed to state a claim upon which relief could be granted because the facsimile attached to the complaint does not constitute an “unsolicited advertisement” pursuant to the TCPA. See 47 U.S.C. § 227(a)(5) (defining unsolicited Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 14 of 50 Ameriguard, Inc. v. University of Kansas Medical Center..., 222 Fed.Appx. 530... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 advertisement); Abels v. Farmers Commodities Corp., 259 F.3d 910, 921 (8th Cir.2001) (materials attached to the complaint may be considered when ruling on a Rule 12(b)(6) motion to dismiss). Accordingly, we affirm. See 8th Cir. R. 47B. All Citations 222 Fed.Appx. 530, 2007 WL 763969 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 15 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 4425793 Only the Westlaw citation is currently available. United States District Court, D. Connecticut. P & S PRINTING LLC, d/b/a/ Minuteman Press, on behalf of himself and all others similarly situated, Plaintiff, v. TUBELITE, INC.; and Does 1–10, Defendants. No. 3:14–cv–1441 (VAB). | Signed July 17, 2015. Attorneys and Law Firms Sergei Lemberg, Alexander T. Hornat, Stephen F. Taylor, Lemberg & Associates, LLC, Stamford, CT, for Plaintiff. Charles K. Seyfarth, Leclairryan, Richmond, VA, Michael G. Caldwell, Leclairryan, New Haven, CT, for Defendants. RULING ON DEFENDANTS’ MOTION TO DISMISS VICTOR A. BOLDEN, District Judge. *1 Plaintiff, P & S Printing LLC doing business as Minuteman Press (“Minuteman”), filed this Complaint on October 1, 2014 as a proposed class action against Tubelite, Inc. (“Tubelite”) alleging a violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227 (the “TCPA”). Compl., ECF No. 1. According to the Complaint, Tubelite is “a company that specializes in eco-efficient storefront, curtain wall and entrance systems.” Id. ¶ 5. Plaintiff alleges that Tubelite sent an unsolicited advertisement to its fax on August 13, 2014. Id. ¶¶ 1315. The TCPA prohibits individuals from sending unsolicited commercial advertisements via fax to others, unless they have a pre-established business relationship and the advertisement includes an opt-out notice that complies with the statute. 47 U.S.C. § 227(b)(1)(C). Before the Court is Defendant’s Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). ECF No. 13. For the following reasons, the Court GRANTS the Defendant’s Motion to Dismiss. I. FACTUAL ALLEGATIONS Plaintiff alleges that the unsolicited fax from Tubelite was a letter with the subject-line “DFG–2014 Labor Day Schedule” from Tony Evans, who based on the fax itself that is attached to the Complaint as an exhibit, appears to be a “Client Services Manager” at Tubelite. Ex. A to Compl., ECF No. 11.1 The letter was addressed to “Big Horn Masonry” at an address in Fort Collins, Colorado. Id. It informs the recipient that Tubelite will be closed on Labor Day and provides a revised delivery schedule for the holiday. Id. It also notes that “Tubelite continues its commitment to provide you with the best service possible” and thanks the recipient for their “continued support and help in allowing [Tubelite] to provide [them] with this exceptional service.” Id. At the top of the letter, the logo for Tubelite contains the word “dependable” and identifies them as “leaders in eco-efficient storefront curtainwall and entrance systems.” Id. 1 The fax itself is attached to this opinion, at the end of the text. The Complaint alleges that Tubelite’s conduct violated the TCPA because (1) Minuteman did not authorize Tubelite to send the fax, (2) nor did it have a business relationship with Tubelite before this fax was sent. Compl. ¶¶ 14–15, ECF No. 1. It further alleges that (3) the fax was an advertisement that did not have a provision explaining how the recipient could “opt-out” or stop receiving the fax, as required by the statute and Federal Communications Commission (“FCC”) regulation. Id. ¶¶ 11–12, 16. Minuteman claims that these three factual allegations establish that Tubelite negligently violated of the TCPA and, accordingly, seeks damages and injunctive relief. Id. ¶¶ 19, 30–32. Minuteman indicates in the Complaint that it will seek to represent a class composed of all persons who received “substantially similar” faxes from Tubelite. Id. ¶¶ 17–18. It alleges that Tubelite regularly sent similar faxes to others and “[u]pon information and belief,” that it has sent fax advertisements to “hundreds of persons or entities without providing the complete opt-out notices required by the federal regulations.” Id. ¶¶ 20, 23. II. STANDARD *2 To survive a motion to dismiss under Rule 12(b)(6), a Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 16 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citation omitted). Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusion,” or “a formulaic recitation of the elements of a cause of action” or “naked assertion[s]” devoid of “further factual enhancement. Bell Atl. Corp. v. Trombly, 550 U.S. 544, 555, 557 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). In determining whether the plaintiff has met this standard, the Court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). In considering a motion to dismiss, the Court may consider only “facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) (citation omitted). Minuteman has filed three exhibits with the Court. One is the fax Tubelite sent on August 13 and is attached to the Complaint, Ex. A, ECF No. 11, the others are pages from Tubelite’s website and are attached to the Opposition to the Motion to Dismiss, Exs. A–B, ECF Nos. 19–1, 19–2. Because the fax Tubelite sent is attached to the Complaint as an exhibit and the Plaintiff explicitly incorporated it into the Complaint, the Court will consider the fax itself. See Compl. ¶ 13, ECF No. 1; Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985) (“The pleading is deemed to include any document attached to it as an exhibit, Fed.R.Civ.P. 10(c), or any document incorporated in it by reference.”) (citations omitted); Mangiafico v. Blumenthal, 358 F.Supp.2d 6, 9–10 (D.Conn.2005) (internal quotation marks omitted) (citing Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir.1999)) (considering documents “incorporated by reference” into the pleadings in evaluating a motion to dismiss); Cortland Line Co., Inc. v. Orvis Co., Inc., No. 97–CV–1294, 1997 WL 808608, at *2 (N.D.N.Y. Jan. 5, 1997) (“Courts in this circuit may consider documents attached to the complaint as exhibits or incorporated therein by reference [in resolving a motion to dismiss]”) (citations omitted). Under the same analysis, the Court cannot and will not consider the exhibits that Minuteman attached to its Opposition to the Motion to Dismiss. Exs. A–B, ECF Nos. 191, 19–2. These exhibits are pages from Tubelite’s website. Minuteman has not shown that it relied on these documents in drafting its Complaint, it did not refer to them in the Complaint nor did it attach them as exhibits. See Cortland Line Co., Inc., 1997 WL 808608, at *3 (refusing to consider exhibits attached to a motion to dismiss that were not attached as exhibits to the complaint or otherwise incorporated into the complaint by reference). Thus, in evaluating the Motion to Dismiss, the Court will consider all allegations made in the Complaint and the fax sent by Tubelite to Minuteman. III. DISCUSSION *3 It is undisputed that, if the fax Tubelite sent to Minuteman was not an “unsolicited advertisement,” Minuteman has failed to state a claim under the TCPA. Def.’s Mot. To Dismiss 1–2, 5, ECF No. 13–1; Pl.’s Opp. 3, ECF No. 19. The TCPA defines “unsolicited advertisement” to mean “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).2 Tubelite argues that Minuteman has not alleged facts sufficient to indicate that the fax is an advertisement and that the fax itself is not an advertisement because it “does not advertise the commercial availability of property, goods, or services” but rather is purely informational, “simply informing recipients that Tubelite will be closed on Labor Day and that the general delivery schedule will be affected due to the holiday.” Def.’s Mot. to Dismiss 2, ECF No. 13–1. Minuteman argues that the text of the fax itself and the fact that it was sent to a non-customer creates a plausible inference that the fax is an advertisement. Opp. Br. 5, ECF No 19. Based on a review of the fax itself as well as the facts Minuteman alleges in its Complaint, the Court disagrees and finds that the fax is not an “unsolicited advertisement” within the meaning of the TCPA. 2 Congress enacted the TCPA to balance “individuals’ privacy rights, public safety interests, and commercial freedoms of speech in trade” with “the privacy of individuals.” Telephone Consumer Protection Act of 1991, Pub.L. No. 102–243, § 2(9), 105 Stat. 2394, 2394 (1991). It was passed to prevent the costs of fax-based advertising from being unfairly transferred to the recipients and recognized the costs to the recipients of receiving unsolicited advertisements via fax. See Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649, 652–53 (8th Cir.2003) (summarizing the Act’s legislative history). Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 17 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 In interpreting the meaning of “unsolicited advertisement,” the Court begins with the text of the statute itself. See Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir.2012) (“[W]ith any question of statutory interpretation, we begin with the text of the statute to determine whether the language at issue has a plain and unambiguous meaning ... If [ ] the plain meaning is ambiguous, we may consult other sources.”) In addition, the Court may also consider interpretive guidance provided by the FCC, the administrative agency that is responsible for issuing regulations implementing the TCPA. 47 U.S.C. § 227(b)(2) (“[t]he Commission shall prescribe regulations to implement the requirements of this subsection”); see generally Rules and Regulations Implementing the TCPA; Junk Fax Prevention Act of 2005, 71 Fed.Reg. 25967 (May 3, 2006) (amending 47 C.F.R. pt. 64). Because the statute is not ambiguous and defines the term “unsolicited advertisement,” the FCC’s interpretations are not controlling on this Court under Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843–44 (1984), instead, they constitute a body of experience and informed judgment which courts and litigants may turn to for guidance.3 See N.B. Indus. v. Wells Fargo & Co., No. C 10–03203 LB, 2010 WL 4939970, at *5 (N.D.Cal. Nov. 30, 2010) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)) (noting that the statute is not ambiguous as to the meaning of “unsolicited advertisement” and is entitled to Skidmore rather than Chevron deference), aff’d, 465 F. App’x 640, 643 (9th Cir.2012); Physicians Healthsource, Inc. v. Janssen Pharms, Inc., No. 12–2132(FLW), 2013 WL 486207, at * 3 (D.N.J. Feb. 6, 2013) (same); see also Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F.Supp.2d 272, 282 (S.D.N.Y.2013) (citing United States v. Mead Corp., 533 U.S. 218, 229–31 (2001) (“[I]n resolving the matter of whether the faxes at issue constitute advertising it is appropriate for the Court to adopt a reasonable construction of the TCPA promulgated by the [FCC].”) (internal quotation marks omitted and alterations in the original). 3 Moreover, the definition of “unsolicited advertisement” in the FCC regulations mirrors the statute and does not clarify any ambiguity. Physicians Healthsource, Inc. v. Janssen Pharms, Inc., No. 12–2132(FLW), 2013 WL 486207, at * 3 (D.N.J. Feb. 6, 2013) (citations omitted). *4 As noted above, the Act itself defines an advertisement as something that “advertises” the commercial availability or quality of goods or services. Black’s Law Dictionary defines “advertisement” as a “commercial solicitation” or “an item of published or transmitted matter made with the intention of attracting clients or customers.” Black’s Law Dictionary 65 (10th ed.2014). Courts have found that to constitute an advertisement under the TCPA, the document does not need to make an “overt sales pitch” so long as it “promotes the commercial availability of the Defendant’s goods or services.” Green v. Time Ins. Co., 629 F.Supp.2d 834, 837 (N.D.Ill.2009) (citation omitted); St. Louis Heart Ctr., Inc. v. Caremark LLC, No. 4:12CV2151 TCM, 2013 WL 9988795, at *3 (E.D.Mo. Apr. 19, 2013) (citation omitted). “Messages regarding new or additional business would ... be covered by the [TCPA],” but those relating to existing or ongoing transactions are not. Rules and Regulations Implementing the TCPA, 71 Fed.Reg. at 25973. The FCC has indicated that faxes containing “only ‘information, such as industry news, articles, legislative updates, or employee benefit information’ “ are not advertisements. Bais Yaakov of Spring Valley, 936 F.Supp.2d at 282 (quoting Rules and Regulations Implementing the TCPA, 21 F.C.C. Rcd. 3787, 3814 (2006) (identical to the version of the rule available in the Federal Register)). “In analyzing whether a fax crosses the line from ‘informational’ to ‘advertisement,’ courts should consider ‘whether the message is an advertisement which tends to propose a commercial transaction,’ ‘not whether there is some ancillary benefit to either party.’ “ Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms. Inc ., No. 3:14–cv–405 (SRU), 2015 WL 144728, at *3 (D.Conn. Jan. 12, 2015) (citations omitted); see also Bais Yaakov of Spring Valley, 936 F.Supp.2d at 282 (noting that if a document’s “primary purpose is informational, rather than to promote commercial products, it does not constitute an unsolicited advertisement.”). In other words, the relevant inquiry under the TCPA is whether the content of the message is advertising, so allegations about future economic benefit that result from a fax do not transform it into advertising without more. Boehringer Ingelheim Pharms., Inc., 2015 WL 144728, at *3 (citation omitted). Factors relevant to this inquiry include “ ‘whether the communication is issued on a regular schedule; whether the text of the communication changes from issue to issue; and whether the communication is directed to specific regular recipients, i.e., to paid subscribers.’ “ Bais Yaakov of Spring Valley, 936 F.Supp.2d at 282 (quoting Rules and Regulations Implementing the TCPA, 71 Fed.Reg. at 25973). The FCC has also recognized that documents with only an incidental amount of advertising are not advertisements under the TCPA. See Boehringer Ingelheim Pharms., Inc., 2015 WL 144728, at *3 n. 3 (citations omitted). In determining whether advertising is incidental, the FCC Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 18 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 suggests examining whether the document is a bona fide informational communication (using the three factors identified above), “the amount of space devoted to the informational message, [and] whether the advertising is on behalf of the sender.” Janssen Pharms, Inc., 2013 WL 486207, at * 5 (citation omitted); Boehringer Ingelheim Pharms., Inc., 2015 WL 144728, at *3 n. 3 (noting that the appearance of a logo without more does not transform an information message into an advertisement) (citations omitted). *5 In the Court’s view, this fax’s primary purpose, on its face, was to communicate information to current customers about a change in delivery schedule due to the Labor Day holiday. It is difficult to construe the message otherwise. Under the FCC factors, updates on delivery schedules are inherently informational because they are sent on a regular schedule, they change each time they are sent (based on the holiday or schedule change in question), and generally target current customers not new ones. Although it is true that the message could apply to new customers, by providing them with delivery dates so they could plan an order accordingly, attracting new customers is not its primary purpose. This delivery schedule message does not constitute an “advertisement” as a matter of law, because it does not tend to propose a commercial transaction and does not appear on its face to have been sent based on a commercial pretext.4 See Lutz Appellate Servs., Inc. v. Curry, 859 F.Supp. 180, 181 (E.D.Pa.1994) (fax announcing existence of job openings is not an advertisement); Janssen Pharms., Inc., 2013 WL 486207, at *5 (finding that a fax that notifies the recipient of the reclassification of a drug does not constitute an advertisement). The fact that the fax was received by Minuteman, a non-customer, cannot transform the content of this message, which is informational, into an advertisement without more. See 47 U.S.C. § 227(a)(5) (defining “advertisement” as “any material advertising the commercial availability or quality of any property, goods or services.”); see also Boehringer Ingelheim Pharms., Inc., 2015 WL 144728, at *3 (noting that the relevant inquiry under the TCPA is whether the fax’s content is commercial). 4 Indeed, it seems far more plausible at this stage that the fax was sent accidentally to Minuteman, instead of the named addressee, Big Horn Masonry. Minuteman also emphasizes the importance of the use of the abbreviation “DFG” in the fax. Opp. Br. 4, 6, ECF No. 19. According to Exhibit A to its Opposition to the Motion to Dismiss, Ex. A, ECF No. 19–1, which was pulled from Tubelite’s website, Minuteman believes that “DFG” means “damage free guarantee” and argues that the use of this term renders the fax advertising. However, the definition of this term is not alleged in the Complaint, and as noted above, the Court cannot consider the exhibits offered by Minuteman because they were not attached to the Complaint or otherwise incorporated into it. See Cortland Line Co ., Inc., 1997 WL 808608, at *3. Moreover, Minuteman does not allege, nor can it, that a non-customer receiving this fax would understand what “DFG” means. Indeed, this term on its face is a term of art that would be meaningless to the average layperson who was not already familiar with Tubelite’s services. The abstruse nature of this term undermines any inference that this fax was sent to advertise the commercial availability or quality of Tubelite’s services. Minuteman argues that the fax contains the URL address of Tubelite’s website, where a definition for “DFG” can be found. But Tubelite’s fax does not contain any indication that the website contains a definition of DFG and does not otherwise direct a recipient to go there. It is simply not plausible that the presence of Tubelite’s web address alone makes “DFG” a comprehensible term or otherwise renders the fax an advertisement. See N.B. Indus., 2010 WL 4939970, at *4 (finding that a fax is “not rendered ‘advertisement[ ]’ merely by the inclusion of logos and website addresses.”) (citation omitted). *6 In a Notice of Additional Authority filed prior to oral argument, ECF No. 37, Minuteman correctly notes that some courts have ultimately found that the factual context surrounding a fax, including whether it was part of the defendant’s marketing strategy, is relevant to determining whether it is an advertisement under the TCPA. See e.g., Physicians Healthsource, Inc. v. Janssen Pharms., Inc., Civ. No. 12–2132 (FLW–TJB), 2015 WL 3827579, at *4–6 (D.N.J. June 19, 2015) (considering the factual context such as the timing of the fax and whether it was part of the defendants’ overall marketing campaign to determine whether a fax was an advertisement in deciding a motion for summary judgment). It argues that the relevance of contextual information means more discovery is warranted. However, Minuteman has not alleged, and admitted at oral argument that it could not at this stage, any contextual facts that raise a plausible inference that the fax was considered an advertisement by Tubelite or anyone else. Twombly and Iqbal require that Minuteman plead specific facts showing that it is entitled to more discovery. See Vent v. Mars Snackfood U.S., LLC, 611 F.Supp.2d 333, 340–41 (S.D.N.Y.2009) (rejecting a plaintiff’s argument that more discovery was needed to respond to a motion to dismiss and noting that Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 19 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 under Twombly “a plaintiff must include sufficient factual allegations to raise a right to relief above the speculative level.”); see also Brown v. City of Harrodsburg Kentucky, Civil No. 5:14–cv–390–JMH, 2015 WL 1481547, at *2 (E.D.Ky. Mar. 31, 2015) (rejecting plaintiff’s argument that more discovery was needed to defeat a motion to dismiss because “[t]his is not the law [and][b]efore discovery, the complaint must, at least, contain facts upon which a plausible claim can be based.”) (citation omitted). In addition, one of the crucial facts to the Court’s analysis in Janssen Pharmaceuticals was that the fax in that case contained stale information, which raised an inference that it did not in fact have an informational purpose. Id. Here, the fax was sent a few weeks before Labor Day and discussed a Labor Day schedule; it cannot reasonably be said to contain stale information. Without alleging more, Minuteman has failed to plausibly state a claim under the TCPA. Moreover, any phrases or images in the fax that could be considered “advertisements” are merely incidental and are not large enough or integral enough to the document’s purpose to convert it into an advertisement. There are two aspects of the message that can be considered promotional in nature. First, there are references to Tubelite providing “the best service possible” and “exceptional service.” However, these statements are made in the context of seeking to continue a relationship with a client, not attracting new ones. Second, Tubelite’s logo uses positive words like “dependable” and “leaders.” While Tubelite may experience some incidental benefit of having its logo and a few positive phrases on this communication, the mere presence of a logo on a document does not transform that entire document into advertising under the TCPA. See Holmes v. Back Doctors, Ltd., 695 F.Supp.2d 843, 851 (S.D.Ill.2010) (holding that the fact that one-seventh of a fax consisted of advertising could not convert that entire document into an advertisement under the TCPA); N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640, 643 (9th Cir.2012) (finding that “de minimis advertising” including logos that constituted a “very low” percentage of the message were “insufficient to transform faxes that were largely permissible into prohibited communications [under the TCPA]”); Janssen Pharms., Inc., at *5 (finding that use of Defendants’ name and marketing logos was insufficient to transform an otherwise informational fax into an advertisement). IV. CONCLUSION *7 For all of the foregoing reasons, the Court finds that the fax sent by Tubelite to Minuteman is not an “advertisement” as defined under the TCPA. Accordingly, Tubelite’s Motion to Dismiss, ECF No. 13, is GRANTED and the case is dismissed in its entirety. The Clerk is directed to enter judgment for the Defendant and close the case. SO ORDERED. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 20 of 50 P&S Printing LLC v. Tubelite, Inc., Not Reported in F.Supp.3d (2015) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 All Citations Not Reported in F.Supp.3d, 2015 WL 4425793 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 21 of 50 Physicians Healthsource, Inc. v. Boehringer Ingelheim..., Not Reported in... 61 Communications Reg. (P&F) 1343 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue Flag – Appeal Notification Appeal Filed by PHYSICIANS HEALTHSOURCE, INC. v. BOEHRINGER INGELHEIM PHARMACEU, 2nd Cir., February 3, 2015 2015 WL 144728 United States District Court, D. Connecticut. PHYSICIANS HEALTHSOURCE, INC., Plaintiff, v. BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., et al., Defendants. No. 3:14–cv–405 (SRU). | Signed Jan. 12, 2015. Attorneys and Law Firms Aytan Y. Bellin, Bellin & Associates LLC, White Plains, NY, Brian J. Wanca, Glenn L. Hara, Wallace C. Solberg, Anderson & Wanca, Rolling Meadows, IL, for Plaintiff. Bryan James Orticelli, Day Pitney LLP, Hartford, CT, Thomas D. Goldberg, Day Pitney LLP, Stamford, CT, Matthew H. Geelan, Donahue, Durham & Noonan, P.C., Guilford, CT, for Defendants. RULING ON DEFENDANTS’ MOTIONS TO DISMISS STEFAN R. UNDERHILL, District Judge. *1 This lawsuit is brought by Physicians Healthsource, Inc. (“PHI”), on behalf of itself and others similarly situated, against Medica, Inc. and Boehringer Ingelheim Pharmaceuticals, Inc. and its parent company Boehringer Ingelheim Corporation (“BIC”) (collectively, the “Boehringer defendants”) for violations of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227 (the “TCPA”). Medica sent a fax inviting Dr. Jose Martinez of PHI to a dinner sponsored by Boehringer, which PHI alleges violated the TCPA. Now before me are the defendants’ motions to dismiss under Fed.R.Civ.P. 12(b)(6) (docs. # 19 & 22), both of which assert that the fax is not an “advertisement.” The Boehringer defendants also move to dismiss BIC as a party, because there is no indication that the fax was sent by or on behalf of BIC. For the reasons discussed below, the defendants’ motions are GRANTED. I. Background1 1 The following facts are drawn from the Complaint and the Exhibits attached thereto. On or about April 6, 2010, Medica sent a facsimile transmission (the “Fax”) to Dr. Martinez. The Fax, which is attached to the complaint, is an invitation to an “awareness dinner meeting” to be held at McCormick & Schmick in Cincinnati, Ohio. Boehringer Ingelheim Pharmaceuticals is listed as the sole sponsor of the dinner. The invitation states: Boehringer Ingelheim Pharmaceuticals, Inc. cordially invites you to join us for a dinner meeting entitled, It’s Time to Talk: Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder. Based on recent data from a large U.S. study (PRESIDE), 43% of U.S. women aged > 18 years have experienced a sexual problem in their lives and 9.5% of the same group of women have experienced decreased sexual desire with distress. This program has been developed to discuss Female Sexual Dysfunction (FSD), including Hypoactive Sexual Desire Disorder (HSDD) including pathophysiology models, epidemiology, and diagnosis. We hope you will join us for this informative and stimulating program. The only other information on the Fax relates to logistics, including the time, date, and location and the process for registering for the dinner meeting. The Fax does not name any product designed to treat FSD/HSDD. It does not mention treatment of the disorders at all. PHI asserts that the Fax was part of the defendants’ “work or operations to market [their] goods or services” and that it was sent without PHI’s prior express invitation or permission without a proper opt-out notice.2 Although Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 22 of 50 Physicians Healthsource, Inc. v. Boehringer Ingelheim..., Not Reported in... 61 Communications Reg. (P&F) 1343 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 PHI received no additional faxes from the defendants, PHI avers, upon information and belief, that the defendants sent similar faxes to more than 40 individuals/entities. 2 The fax did contain an opt-out notice, which stated: “to be removed from the fax list, please initial here ____ and fax this form back” to the defendants. The defendants indicate that the Fax was not “unsolicited” and that the FCC might have exceeded its authority by enacting rules that regulate solicited faxes; however, those arguments do not form the basis of their motions to dismiss. II. Standard of Review A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). *2 When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). If a court relies on matters outside the pleadings in its consideration of a motion under Rule 12(b)(6), “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and ... recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted). III. Discussion The TCPA generally makes it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s express invitation or permission, in writing or otherwise.” 47 U.S.C. § 277(a)(5); 47 C.F.R. § 64.1200(f)(15). “Congress enacted the TCPA to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements.” Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12–CV–4978, 2012 WL 4120506, at *2 (N.D.Ill. Sept. 18, 2012) (citing H.R.Rep. No. 317 (1991)). In determining whether a fax constitutes an “advertisement” under the TCPA, “it is appropriate for the Court to adopt a reasonable construction of the TCPA promulgated by the [FCC].” Holmes v. Back Doctors, Ltd., No. 09–CV–540, 2009 WL 3425961, at *2 (S.D.Ill. Oct. 21, 2009) (citing United States v. Mead Corp., 533 U.S. 218, 229–31 (2001)); see also Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F.Supp.2d 272, 282 (S.D.N.Y.2013) (citing Holmes ). The FCC rules emphasize that: “messages that do not promote a commercial product or service ... are not unsolicited advertisements under the TCPA.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3810 (2006). “[F]acsimile messages that promote goods or services even at no cost, such as ... free consultations or seminars,” however, are included within the category of unsolicited advertisements. Id. at 3814. Faxes promoting free seminars are treated as advertisements, because “[i]n many instances, ‘free’ seminars serve as a pretext to advertise commercial products and services.... Based on this, it is reasonable to presume that such [facsimile] messages describe the ‘quality of any property, goods, or services.’ “ Id. (quoting 47 U.S.C. § 227(a)(5)). Thus, in the absence of an established business relationship, such faxes cannot be sent without permission under the TCPA unless they are “purely transactional” in nature—i.e., communications designed to “facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into.” Id. at 3812–14. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 23 of 50 Physicians Healthsource, Inc. v. Boehringer Ingelheim..., Not Reported in... 61 Communications Reg. (P&F) 1343 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 *3 Faxes “that contain only information, such as industry news articles, legislative updates, or employee benefit information,” by contrast, are not unsolicited advertisements under the TCPA.3 Id. at 3814. Similarly, “notifications concerning the existence of an opportunity,” such as the existence of a job opening or a research study, are not prohibited by the TCPA rules. Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. CIV.A. 12–2132 FLW, 2013 WL 486207, at *4 (D.N.J. Feb. 6, 2013), reconsideration denied, No. CIV.A. 12–2132 FLW, 2013 WL 2460345 (D.N.J. June 6, 2013) (internal citations omitted); see also Phillips Randolph Enter., LLC v. Adler–Weiner Research Chicago, Inc., 526 F.Supp.2d 851, 853 (N.D.Ill.2007) (fax inviting participation in research study not an “advertisement”). In analyzing whether a fax crosses the line from “informational” to “advertisement,” courts should consider “whether the message is an advertisement which tends to propose a commercial transaction,” “not whether there is some ancillary commercial benefit to either party.” Janssen Pharm., 2013 WL 486207 at *4 (citing Lutz Appellate Serv., Inc., 859 F.Supp. 180, 181 (E.D.Pa.1994)); N.B. Indus. v. Wells Fargo & Co., No. C 10–03203 LB, 2010 WL 4939970, at *10 (N.D.Cal. Nov. 30, 2010), aff’d sub nom. N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640 (9th Cir.2012) (“The inquiry is not whether there is an ancillary commercial benefit to either party but instead is whether the message is an advertisement (or a pretext for an advertisement).”). Put another way, “the inquiry under the TCPA is whether the content of the message is commercial, not what predictions can be made about future economic benefits.” Janssen Pharm., 2013 WL 486207 at *5. 3 The FCC has also clarified that “[a]n incidental advertisement contained in a newsletter does not convert the entire communication into an advertisement.” 21 F.C.C. Rcd. at 3814. The determination whether an advertisement is incidental to an informational communication is made on a case-by-case basis considering, among other factors the amount of space devoted to advertising versus information or “transactional” messages, “whether the advertising is on behalf of the sender of the communication,” and “whether the advertisement is to a bona fide ‘informational communication.’ “ Id. at 3818 n. 187. In determining whether the advertisement is to a bona fide “informational communication,” the FCC considers: (1) “whether the communication is issued on a regular schedule”; (1) “whether the text of the communication changes from issue to issue”; and (3) “whether the communication is directed to specific regular recipients, i.e., to paid subscribers or to recipients who have initiated membership in the organization that sends the communication.” Id. It is not necessary to consider the effect of “incidental advertisements” in this case, however, because other than the Boehringer logo nothing on the face of the fax could be interpreted as an advertisement for Boehringer. As many courts have pointed out, the appearance of a defendant’s logo, without more does not transform an informational message to an advertisement; indeed, the TCPA actually requires the sender’s name appear on the fax. See 47 U.S.C. § 227(d)(1); Holmes, 2009 WL 3425961 at *4; Janssen Pharm., 2013 WL 486207 at *5. Although the FCC’s rules “could be read to categorize all faxes promoting free seminars as unsolicited advertisements,” courts typically require plaintiffs to show that the fax has a commercial pretext—i.e., “that the defendant advertised, or planned to advertise, its products or services at the seminar.” Bais Yaakov of Spring Valley v. Richmond, the Am. Int’l Univ. in London, Inc., No. 13–CV–4564 CS, 2014 WL 4626230, at *3 (S.D.N.Y. Sept. 16, 2014) (citing N. Suburban Chiropractic Clinic, Ltd. v. Merck & Co., No. 13–CV–3113, 2013 WL 5170754, at *3 (N.D.Ill. Sept. 13, 2013); St. Louis Heart Center, Inc. v. Forest Pharms., Inc., No. 12–CV2224, 2013 WL 1076540, at *4 (E.D.Mo. Mar. 13, 2013); Alma Lasers, 2012 WL 4120506 at *2; Phillip Long Dang v. XLHealth Corp., No. 09–CV–1076, 2011 WL 553826 at *4 (N.D.Ga. Feb. 7, 2011) (fax advertising free seminar not “unsolicited advertisement” where it was “not pretext for a commercial enterprise”)). This interpretation conforms with both the statutory text, which prohibits the “unsolicited” sending of “material advertising the commercial availability or quality of any property, goods, or services” and the FCC’s own interpretation of the TCPA, which excludes “messages that do not promote a commercial product or service” from the definition of unsolicited advertisements. See id.; Phillip Long Dang, 2011 WL 553826 at *4. *4 Here, the Fax is an invitation to a free dinner meeting about diagnosing FSD/HSDD. PHI asserts that the Fax violates the TCPA because the Fax had a dual informational and advertising purpose. At the time the Fax was sent, the Boehringer defendants were developing a drug, Flibanserin, designed to treat HSDD.4 PHI argues that Boehringer sought to “exploit an untapped part of the drug market” and its invitation “to an expensive dinner” that would “[place] those making up the supply and demand for HSDD drugs in one room” formed part of its strategy for doing so. Pl.’s Opp. 3–4, 7. Moreover, though the Fax appears informational on its face, the PRESIDE study mentioned in it was funded by Boehringer and the speaker at the dinner, David Portman, had participated in research for a HSDD drug. Id. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 24 of 50 Physicians Healthsource, Inc. v. Boehringer Ingelheim..., Not Reported in... 61 Communications Reg. (P&F) 1343 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 4 Both sides have attached information that is not referenced to in the complaint. The parties agree that I can take judicial notice of all of the attached information, because it is from official company and agency websites. Thus, this information can be considered on a 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (court may consider “matters of which judicial notice may be taken” on motion to dismiss without converting it to motion for summary judgment); Malin v. XL Capital Ltd., 499 F.Supp.2d 117, 129 (D.Conn.2007), aff’d, 312 F. App’x 400 (2d Cir.2009) (same). These links to treatment of HSDD, PHI argues, distinguish the Fax from those that courts have found to be “informational” in nature. See, e.g., Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Research Inst., Inc., No. 06–0369–CV–W–ODS, 2006 WL 1766812, at *1 (W.D. Mo. June 23, 2006), aff’d, 222 F. App’x 530 (8th Cir.2007) (invitation to participate in clinical research trial was not an advertisement); Janssen Pharm., No.2013 WL 486207 at *5 (information about reclassification of a drug was not an advertisement). PHI argues that, under the FCC rules, as interpreted by the federal courts, it is plausible that the Fax was promotional, or at least that the dinner was a pretext to market Boehringer’s new HSDD drug. See, e.g., St. Louis Heart Center, 2013 WL 1076540 at *3–4 (invitation to medical discussion regarding treatment of hypertension, which included label and prescribing information for defendant’s drug used to treat hypertension, contained “enough in the way of product-driven content ... to raise an issue of fact whether a ‘medical discussion regarding the treatment of hypertension’ is tantamount to a free seminar serving as ‘a pretext for advertising goods and services’ ”); Addison Automatics, Inc. v. RTC Grp., Inc., No. 12–CV–9869, 2013 WL 3771423, at *3 (N.D.Ill. July 16, 2013) (free “technical seminar” on embedded computer technology plausibly would have been used to market defendants’ products and services, where seminar specifically provided training on defendants’ products and recipients of fax invitation had to visit products’ website in order to register); see also N. Suburban Chiropractic, 2013 WL 5170754 at *4 (plausible to conclude defendant’s fax invitation to free webcast was pretext to market its goods and services where recipients had to register at defendant’s corporate website and registration required participants to agree that defendant could contact them in future regarding product information, special offers, etc.). The defendants counter that the Fax did not and could not have advertised the commercial availability of any goods. Flibanserin had not been (and never was) approved by the FDA and therefore was not commercially available at the time of the dinner. FDA regulations prohibit manufacturers like Boehringer from “promoting” a drug that has not been approved. 21 C.F.R. § 312.7(a). Nothing in the complaint indicates that Boehringer failed to comply with applicable FDA regulations prohibiting the promotion of a drug that was not yet approved. Thus, the defendants argue, PHI cannot plausibly allege that the Fax advertised the commercial availability of any goods or served as a pretext for advertising any goods. The defendants assert that the dinner meeting was akin to a “disease awareness communication,” which the FDA defines as a communication that “encourage[s] awareness of signs of [a] particular disease or health condition, or otherwise provide[s] information to assist in the diagnosis of the particular disease or health condition.” See Boehringer Defs.’ Ex. E at 3 (doc. # 23–6). The FDA permits disease awareness communications, as long as they do not “mention a particular drug or device” or “include any representation or suggestion relating to a particular drug or device .” Id. *5 In further support of their argument, the defendants contrast the Fax with those in Physicians Healthsource, Inc. v. Purdue Pharma, LP, et al., No. 12–CV–1208–SRU, which I held were advertisements as a matter of law. See Hr’g Tr. 39, May 21, 2013 (doc. # 90). In Purdue, the faxes, which were invitations to dinners and web seminars, included the language “this is a promotional event,” and stated: “Purdue is firmly committed to maintaining the highest standards of sales and marketing practices in the industry while continuing to advance the proper treatment of patients.” Moreover, the dinner/seminar topics were titled: “Practical Applications to Support Appropriate Treatment of Chronic Pain with a Long Acting Opioid” and “Announcing a Transdermal System for Moderate to Severe Chronic Pain,” and both programs involved “a case-based presentation with a pain management expert.” Here, by contrast, there is no mention of the dinner being “promotional” in nature and the topic is limited to diagnosing FSD/HSDD, not treating those conditions. I am persuaded that this case is distinguishable from Purdue and others where courts have held that fax invitations to discussions or seminars plausibly or actually were “unsolicited advertisements.” Nothing in the Fax indicates that the dinner was a pretext for pitching a Boehringer product or service related to FSD/HSDD or links the potential registrant with Boehringer’s other products and services. Cf., e.g., St. Louis Heart Center, 2013 WL 1076540 at *3–4; Addison Automatics., No. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 25 of 50 Physicians Healthsource, Inc. v. Boehringer Ingelheim..., Not Reported in... 61 Communications Reg. (P&F) 1343 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 12–CV–9869, 2013 WL 3771423 at *3; Sadowski v. OCO Biomedical, Inc., No. 08 C 3225, 2008 WL 5082992, at *1 (N.D.Ill. Nov. 25, 2008) (fax inviting recipient to $295 training course on installation of defendant’s dental implant system was advertisement, because training course was a service and fax promoted quality of that service, and fax also advertised commercial availability of defendant’s product); see also Pl.’s Opp. Ex. L at 2 (Order in Physicians Healthsource, Inc. v. Cephalon, No. 12–CV–3753–LDD (E.D.Pa. Oct. 11, 2012) (denying motion to dismiss, because invitation to lunch/dinner seminars discussing pain medications produced by defendant drug company plausibly was an advertisement)). Moreover, under the circumstances PHI cannot raise its assertions above the speculative level simply by asserting that the dinner was part of the defendants’ “work or operations to market [their] goods or services,” because Boehringer did not have a product designed to treat FSD/HSDD. Cf. N. Suburban Chiropractic, 2013 WL 5170754 at *3 (holding it was plausible to conclude defendant’s fax invitation to free webcast was pretext to market its goods and services where plaintiff alleged that webcast was part of defendant’s “work or operations” and information in fax actually linked recipients with defendant’s products); Alma Lasers, 2012 WL 4120506 at *1 (same). Even drawing the inference that Boehringer sponsored the dinner in order to inform potential future prescribers of Flibanserin about the existence and nature of HSDD, the hypothetical future economic benefit that the Boehringer defendants might receive someday does not transform the Fax into an advertisement. See Janssen Pharm., 2013 WL 486207 at *4. Given that Boehringer’s HSDD drug was not yet FDA-approved, and the topic of the dinner was limited to diagnosis of FSD/HSDD and not treatment of the conditions, it is not plausible to conclude that the dinner “serve[d] as a pretext to advertise commercial products and services.” 21 F.C.C. Rcd. at 3814. *6 The defendants’ motions to dismiss are granted. The dismissal of the complaint is with prejudice, because plaintiff’s counsel was unable at oral argument to articulate any additional facts that could be alleged that would transform the complaint into a plausible TCPA claim. If the plaintiff does have any additional facts to allege that bear on the plausibility of its claim, it should set forth those facts in a motion for reconsideration and should file that motion within fourteen days of this order. I will then happily reconsider this ruling. IV. Conclusion For the foregoing reasons, the motions to dismiss are GRANTED. The clerk shall enter judgment for the defendants and shall close this case. It is so ordered. All Citations Not Reported in F.Supp.3d, 2015 WL 144728, 61 Communications Reg. (P&F) 1343 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 26 of 50 Physicians HealthSource, Inc. v. MultiPlan Services, Corp., Not Reported in F.Supp.2d... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Brodsky v. HumanaDental Insurance Company, N.D.Ill., September 29, 2014 2013 WL 5299134 Only the Westlaw citation is currently available. United States District Court, D. Massachusetts. PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs, v. MULTIPLAN SERVICES, CORPORATION and John Does 1–10, Defendants. Civil Action No. 12–11693–GAO. | Sept. 18, 2013. Attorneys and Law Firms Alan L. Cantor, Swartz & Swartz, Boston, MA, Brian J. Wanca, Ryan M. Kelly, Anderson & Wanca, Rolling Meadows, IL, for Plaintiffs. Erin C. Horton, Kevin M. McGinty, Peter D. McCarthy, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, MA, for Defendants. OPINION AND ORDER O’TOOLE, District Judge. *1 The plaintiff, Physicians HealthSource, Inc. (“PHI”) alleges that the defendants, Multiplan Services Corp. and John Does 1–10 (“MultiPlan”), transmitted, via facsimile, an unsolicited advertisement promoting MultiPlan’s health care provider network in violation of the Telephone Consumer Protection Act (“TCPA”) and the Junk Fax Prevention Act (“JFPA”). MultiPlan has moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The central issue is whether the facsimile in question is an unsolicited advertisement within the meaning of the TCPA. I. Background PHI is a health care provider with its principle place of business in Ohio. MultiPlan is an entity that facilitates networks of health care providers to treat insured patients. On March 10, 2010, MultiPlan transmitted a facsimile to PHI’s facsimile machine. The facsimile was addressed to Jeffrey C. Elwert, D.C., a chiropractor practicing at PHI. The facsimile includes a MultiPlan Provider ID pertaining to Dr. Elwert, information about the preferred provider network to which Dr. Elwert belonged, and information advising him that he had access to a population of patients within the network by virtue of his participation in the MultiPlan Network. The facsimile expressly indicates that Dr. Elwert received the facsimile because he was an existing member of the MultiPlan Network and that he should contact the Service Operations Department with any questions about his participation. The facsimile provided a telephone number for this department. III. Discussion A. Unsolicited Advertisements The Complaint alleges that PHI did not invite or give MultiPlan permission to transmit the facsimile to PHI, and that, on information and belief, MultiPlan has sent similar facsimiles to more than forty other recipients. The TCPA prohibits unsolicited advertisements sent via facsimile. 47 U.S.C. § 227(b)(1)(C). Advertisements are exempted from this prohibition if: (1) the sender has an established business relationship with the facsimile’s recipient; (2) the sender obtained the recipient’s facsimile number through a voluntary disclosure by the recipient; and (3) the unsolicited facsimile contains language clearly indicating how the recipient can ensure nonreceipt of facsimiles in the future. § 227(b)(1)(C)(i)-(iii). MultiPlan argues that the Complaint fails to state a claim because the facsimile in question is not an unsolicited advertisement as a matter of law. An unsolicited advertisement is “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). Commercial availability means a good or service is “available to be bought or sold (or must be a pretext for advertising a product that is so available).” N.B. Industries, Inc. v. Wells Fargo & Co., 465 Fed. Appx. 640, 642 (9th Cir.2012). The Federal Communications Commission, the agency charged with promulgating rules and regulations under the TCPA, advises that facsimiles “notify[ing] the recipient of a change in terms or features regarding an account, subscription, membership, loan or comparable Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 27 of 50 Physicians HealthSource, Inc. v. MultiPlan Services, Corp., Not Reported in F.Supp.2d... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 ongoing relationship, in which the recipient has already purchased or is currently using the facsimile sender’s product or service, is not an advertisement.” 71 Fed.Reg. 25967–01, 25972; see 47 U.S.C. § 227(b)(2). *2 The plaintiff alleges that the facsimile is an advertisement promoting defendants’ services. However, the text of the facsimile does not support this conclusory allegation, and the plaintiff pleads no facts as a basis for the conclusion. The facsimile does not purport to sell or buy goods or services. On the contrary, the facsimile provides information concerning services already available to Dr. Elwert pursuant to an existing account or subscription. See Phillip Long Dang, D.C., P.C. v. XLHealth Corp., 2011 WL 553826, at *3–4 (N.D.Ga.2011) (facsimile from a preferred provider organization to a non-participating chiropractor held not an advertisement because facsimile did not promote the benefits of becoming a member of the PPO network, nor purported to sell insurance to the recipient). The facsimile states explicitly that it was sent because Dr. Elwert is a current member of the MultiPlan Network. The plaintiff pleads no facts that either confirm or deny that such an account exists. Beyond the plaintiff’s conclusory allegation that the facsimile in question was an unsolicited advertisement, there are no facts to support that the facsimile was anything other than a transactional communication sent pursuant to an existing business relationship between Dr. Elwert and MultiPlan. See 71 Fed.Reg. at 25972. Based on the four corners of the facsimile, there is no overt advertising by MultiPlan, nor is there any enticement that could be construed as a pretext to advertise commercial products or services because the facsimile is merely apprising Dr. Elwert of features of an account to which he already has access. IV. Conclusion For the reasons stated herein, MultiPlan’s Motion to Dismiss (dkt. no. 12) is GRANTED, and the complaint is DISMISSED. It is SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 5299134 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 28 of 50 Phillip Long Dang, D.C., P.C. v. XLHealth Corp., Not Reported in F.Supp.2d (2011) Med & Med GD (CCH) P 303,672 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 2011 WL 553826 Only the Westlaw citation is currently available. United States District Court, N.D. Georgia, Atlanta Division. PHILLIP LONG DANG, D.C., P.C., d/b/a Buford Highway Injury Center, individually and on behalf of all other persons and entities similarly situated, Plaintiff, v. XLHEALTH CORPORATION, et al., Defendants. Civil Action No. 1:09–CV–1076–RWS. | Feb. 7, 2011. Attorneys and Law Firms L. Joseph Loveland, Jr., Zachary Andrew McEntyre, Sidney Stewart Haskins, II, King & Spalding, LLP, Atlanta, GA, Jay Daniel Brownstein, Brownstein, Nguyen & Little, LLP, Tucker, GA, for Defendants. Opinion ORDER RICHARD W. STORY, District Judge. *1 This case comes before the Court on Plaintiff’s First Motion to Certify Class [59], Defendants’ Motion for Summary Judgement [80], Defendants’ Motion for Oral Argument [82], Plaintiff’s Motion for Partial Summary Judgment [87],1 and Defendants’ Motion to Strike Plaintiff’s Trial Plan, or Alternatively, Notice of Objection to Plaintiff’s Trial Plan [94]. I. Statement of Facts Defendants Care Improvement Plus Group Management, LLC (“CIP Group”) and Care Improvement Plus South Central Insurance Company (“CIP”) are wholly-owned subsidiaries of Defendant XLHealth, a preferred provider organization that owns and operates Medicare Advantage health plans (collectively, “Defendants”). Def.’s SMF, Dkt. No. [80–15] at ¶ 1. As a Medicare Advantage plan, the Defendants contract with the Centers for Medicare and Medicaid Services (“CMS”). Id. at ¶ 5. CMS then pays the Defendants on a capitated rate, or based upon the number of Medicare recipients who subscribe to the Defendants’ plan. Id. at ¶¶ 6–7. Once a person subscribes to Defendants’ plan, Defendants’ plan “replaces” the subscriber’s Medicare coverage under Original Medicare. Id. at ¶ 6. In order to contract with CMS, the Defendants first had to meet CMS’s provider standards, which set out a minimum requirement for number and types of healthcare providers. Defendants received this approval on January 1, 2007 for portions of Maryland, Arkansas, Missouri, Georgia and South Carolina. Id. at ¶ 8; Pl.’s Resp. SMF, Dkt. No. [88–1] at ¶ 8. However, as a regional, open-access preferred provider, its members can see any Medicare-licensed healthcare provider within the Defendants’ service area. Def.’s SMF, Dkt. No. [80–15] at ¶ 11. Dr. Phillip Long Dang, a doctor of chiropractic, solely owns and controls Plaintiff, the Buford Highway Injury Center (“Plaintiff”). Aff. Dang, Dkt. No. [7–2] at ¶ 3. In November 2008, the Defendants sent facsimiles (“faxes”) to Plaintiff, among others. Id. at ¶ 5. These faxes purported to be invitations to Care Improvement Plus’s Provider Education Seminars. See Cmpl., Dkt. No. [1–2] Ex. A, at 7. The seminars promised to offer providers, such as Plaintiff, information regarding claims and utilization management, to demonstrate use of CIP’s secure provider portal, and to afford providers and their staffs opportunities to meet CIP representatives. Id. The background of the fax was a dark watermark of CIP’s logo and a majority of the communication was composed of the dates, times, and locations of the seventeen seminars which CIP planned to administer. Id. Plaintiff filed a “Junk Fax” claim in the Superior Court of Fulton County, Georgia, on March 10, 2009. Plaintiff alleges that the faxes were unsolicited advertisements under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Following removal, the Defendants filed a motion to dismiss to Plaintiff’s amended complaint. Judge Martin then issued an order transforming the motion to dismiss into one for summary judgment on the issue of whether the advertisement was “unsolicited.” Judge Martin found that, as a matter of law, she could not rule that Plaintiff understood that he had given the Defendants consent to send the fax. Order, Dkt. No. [20] at 22. *2 Following discovery, the Defendants now move for summary judgment asking this court to hold that the faxes were not “advertisements” under the TCPA, and Plaintiff Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 29 of 50 Phillip Long Dang, D.C., P.C. v. XLHealth Corp., Not Reported in F.Supp.2d (2011) Med & Med GD (CCH) P 303,672 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 has filed a cross-motion for summary judgment on the “advertisement” issue seeking the converse. Additionally, Plaintiff has sought permission to certify a class and Defendants have sought to strike, or alternatively object, to the Plaintiff’s suggested trial plan. The Court will consider the motions in turn. II. Preliminary Matters As an initial matter, Defendants have requested oral argument on the motions for class certification and summary judgment. Because the Court finds that the briefing was sufficient on those matters, Defendants’ Motion for Oral Argument [82] is DENIED. As well, the parties differ about the order in which the Court should take up the motions for class certification and the cross-motions for summary judgment. Defendants request this Court to first consider the cross-motions; the Plaintiff seeks a ruling on class certification. The Court will address the cross-motions for summary judgment first because if the communication is not an advertisement as a matter of law, class certification would be moot. III. Cross Motions for Summary Judgment A. Legal Standard Federal Rule of Civil Procedure 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “The moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249–50. In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). But, the court is bound only to draw those inferences which are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule 56(c), the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”). *3 Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist. Rather, “[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–39 (5th Cir.2004). B. Whether the Communication was an “Advertisement” The TCPA prohibits sending any “unsolicited advertisement” to any telephone facsimile (“fax”) machine within the United States. 47 U.S.C. § 227(b)(1)(C) (2010). An “unsolicited advertisement” is statutorily defined as “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) (2010). Judge Martin previously ruled that the terms “unsolicited” and “advertisement” are separate and distinct inquiries for the Court. Order, Dkt. No. [20] at 9–11. Therefore, the Court will consider whether the communication was an “advertisement” under the TCPA, apart from Judge Martin’s previous decision regarding whether the message Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 30 of 50 Phillip Long Dang, D.C., P.C. v. XLHealth Corp., Not Reported in F.Supp.2d (2011) Med & Med GD (CCH) P 303,672 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 was “unsolicited.” “[M]essages that do not promote a commercial product or service ... are not unsolicited advertisements under the TCPA.” In re Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991 & the Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787, 3810 (F.C.C. Apr. 6, 2006) (“FCC Promulgation”); Phillips Randolph Enters. v. Adler–Weiner Research Chicago, Inc., 526 F.Supp.2d 851, 852 (N.D.Ill.2007). Therefore, this Court is to determine whether the purpose of the communication was to promote a good or service, or in contrast, was informational. Plaintiff argues that under the FCC’s Promulgation, “a free seminar fax is an advertisement under the TCPA without regard to whether any commercial activity occurs at the seminar.” Pl.’s PMSJ, Dkt. No. [87–1] at 14. Plaintiffs cite the following language for their proposition: [The FCC] concludes that facsimile messages that promote goods and services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Similarly, “free” publications are often part of an overall marketing campaign to sell property, goods, or services. For instance, while the publication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the ‘quality of any goods or services.’ Therefore, facsimile communications regarding such free goods and services, if not purely ‘transactional,’ would require the sender to obtain the recipient’s permission beforehand, in the absence of an EBR. *4 FCC Promulgation, 21 F.C.C.R. at 3814 (emphasis added). However, Plaintiff’s interpretation ignores the plain qualifying language used by the FCC. First, the FCC states that these messages must still “promote goods and services.” Second, the FCC makes clear that these free seminars are problematic “in many instances” or “often”—not always. Third, when the FCC states that it is “reasonable to presume that such messages” are violative, the FCC uses the word “such” to refer back to messages which “promote goods and services” or are essentially pretextual. Therefore, the Court does not read the FCC Promulgation as creating a per se ban on free seminar communications. This interpretation is also consistent with the TCPA, the authorizing statute for this promulgation. In enacting the TCPA, Congress clearly set out that the statute was only to bar “any material advertising the commercial availability or quality of any property, goods, or services.” 47 U.S.C. § 227(a)(5) (2010). For the FCC to then find, per se, that all free seminars violated the statute-without concern for whether the seminar promoted the commercial availability of goods and services-would exceed that agency’s mandate, and this Court would not be bound by that regulation. See Cadet v. Bulger, 377 F.3d 1173, 1185 (11th Cir.2004) (holding that an agency’s interpretation is controlling unless it is “arbitrary, capricious, or manifestly contrary to the statute”). However, again, the Court finds that-on its face-the FCC’s language does not create a wholesale ban on free seminars, but instead only on ones which promote “goods and services.” Under this scheme, the Court finds as a matter of law that the Defendants’ communication was not an advertisement under the TCPA. Instead of “promoting goods and services” in the commercial sense, Defendants’ communication alerted the recipient that a free seminar would be offered, wherein the recipient could learn more about the Defendants’ billing processes and thereby speed up payment to the recipient. Cmpl., Dkt. No. [1–2], Ex. A at 7. As well, the recipient was given the opportunity to meet the Defendants’ representatives. This type of communication does not detail the “commercial availability or quality” of the healthcare plan, but rather seeks to inform the recipient.2 There is nothing on the communication which seeks to sell insurance to the recipient, or even promote the benefits of becoming a contracted provider, assuming the recipient was not one already. This is not pretext for a commercial enterprise. At bottom, this case is more like promoting a research trial—information—than a “free” online marketplace which seeks to unite the buyers and sellers of goods-commerce. Compare Phillips Randolph Enters., 526 F.Supp.2d at 853 with G.M. Sign, Inc. v. MFG.com, Inc., 2009 WL 1137751, at *2–3 (N.D.Ill. Apr.24, 2009). Because this communication was not an advertisement under the TCPA, Defendants’ Motion for Summary Judgment [80] is GRANTED and Plaintiff’s Partial Motion for Summary Judgment [87] is DENIED. IV. Remaining Motions *5 Because the Court has granted summary judgment for Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 31 of 50 Phillip Long Dang, D.C., P.C. v. XLHealth Corp., Not Reported in F.Supp.2d (2011) Med & Med GD (CCH) P 303,672 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 4 Defendant, Plaintiff’s First Motion to Certify Class [59] and Defendants’ Motion to Strike the Plaintiff’s Trial Plan [94] have been rendered MOOT. V. Conclusion Defendants’ Motion for Oral Argument [82] is DENIED. Defendants’ Motion for Summary Judgement [80] is GRANTED, and Plaintiff’s Motion for Partial Summary Judgment [87] is DENIED. As a result, Defendants’ Motion to Strike Plaintiff’s Trial Plan, or Alternatively, Notice of Objection to Plaintiff’s Trial Plan [94] and Plaintiff’s First Motion to Certify Class [59] are now MOOT. The Clerk is directed to close this case. SO ORDERED. Parallel Citations Med & Med GD (CCH) P 303,672 Footnotes 1 Plaintiff has styled its motion as a Motion for Summary Judgment. However, it has confirmed that it is only seeking partial summary judgment on whether the communication was an advertisement. Pl.’s Reply, Dkt. No. [87–1] at 8. 2 Plaintiff argues that in order to be deemed “informational,” the communication must satisfy the test set out in footnote 187 of the FCC Promulgation. Pl.’s MPSJ, Dkt. No. [87–1] at 15. However, that test is used to determine whether an incidental advertisement within a newsletter-type setting would transform an informational document into a commercial one. But, because this is clearly not a newsletter or a question of incidental advertising, that test does not apply. End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 32 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 2010 WL 4939970 Only the Westlaw citation is currently available. United States District Court, N.D. California, Oakland Division. N.B. INDUSTRIES, a California corporation, individually and on behalf of others similarly situated, Plaintiffs, v. WELLS FARGO & COMPANY, a Delaware corporation; Wells Fargo Bank, N .A., a national banking association; United States Pan Asian American Chamber of Commerce, a District of Columbia nonprofit corporation; and United States Pan Asian American Chamber of Commerce Education Foundation, a District of Columbia nonprofit organization, Defendants. No. C 10–03203 LB. | Nov. 30, 2010. Attorneys and Law Firms Scott Zygmunt Zimmermann, Connolly, Finkel and Gosselin LLP, Los Angeles, CA, for Plaintiffs. Randall Thomas Kim, Brune & Richard LLP, San Francisco, CA, Kathy H. Dong, Marian’s Inn LLP, Oakland, CA, for Defendants. Opinion ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) [ECF No. 12] LAUREL BEELER, United States Magistrate Judge. I. INTRODUCTION *1 N.B. Industries filed this class action against Wells Fargo & Company and Wells Fargo Bank, N.A. (collectively, “Wells Fargo”) and the non-profit organizations United States Pan Asian American Chamber of Commerce and United States Pan Asian American Chamber of Commerce Education Foundation (collectively “USPAACC”), alleging that the defendants violated the Junk Fax Prevention Act by sending unsolicited advertisements by facsimile to businesses nationwide, including four faxes sent to N.B. Industries and attached as exhibits to the complaint. Complaint, ECF No. 1 at 6–7, ¶¶ 14, 17, and 20–39 (the four faxes).1 Because this court concludes as a matter of law that the faxes—which contained information about and applications for an Asian Business Leadership award—are not “advertisements” under 47 U.S.C. § 227(a)(5) of the Act, this court GRANTS Defendants’ motion to dismiss and DISMISSES WITH PREJUDICE the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. II. FACTS The facts here are from N.B. Industries’ complaint. A. The Faxes In January and February 2010, USPAACC, a non-profit corporation, sent no fewer than four unsolicited faxes to N.B. Industries (A) promoting an annual Asian Business Leadership Award sponsored by USPAACC and Wells Fargo and (B) containing an application for the award. Complaint, ECF No. 1 at 4, ¶¶ 8–9, 15, ¶ 33. The four faxes are attached to the complaint. Id. at 20–39. Plaintiff believes Defendants “blasted thousands” of similar unsolicited faxes to a class that “exceeds 6,000 persons or entities.” Id. at 2, ¶ 2 and 10, ¶ 23. The four faxes are four pages each and identical. Id. at 20–39. The last fax sent on February 19, 2010 also has a fifth page that is a USPAACC fax cover sheet with the faxer’s name and contact information and that extends the application deadline from February 19, 2010 to the last week of February. Id. at 35. A detailed description of the faxes is as follows. Page one is a fill-in-the-blank application for the “USPAACC–EF/Wells Fargo Asian Business Leadership Award” to be presented at the “USPAACC–EF 25th Anniversary CelebrAsian Business Opportunity Conference.” It contains two logos, each the size of a penny, for “Wells Fargo” (top right corner) and “USPAACC–EF” (midway down left side). In the bottom right corner is a modest logo with the words “Together we’ll go far” and a stagecoach and horses. The application fills up most of the page with blank lines for the award nominees’ business and personal information. A side bar lists in small font the qualifications, which in summary Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 33 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 form are being at least 18, a legal resident of the United States, and an active principal for at least three years in an at–least–51%–Asian–owned company. The side bar then lists the award’s background and purpose: USPAACC and Wells Fargo (A) support Asian business owners, (B) established the award to honor leading Asian businesses for great leadership, vision, and products, as demonstrated by business performance, growth, and contribution to the community, and (C) will award a $5,000 grant to and recognize three outstanding Asian-owned businesses at the CelebrAsian Conference. Id. at 36. *2 Page two contains six questions that applicants must answer about their businesses (covering products, philosophy, accomplishments, and benefits to consumers and the community), asks for a brief bio, and asks for two letters of reference from any of the following: banker, local USPAACC chapter, local chamber of commerce, city/state representative, supply vendors, or customers. It also provides details about (A) how to apply (such as numbers of copies), (B) the award process (such as review of applications by an award committee from USPAACC and Wells Fargo), (C) the award rules (such as applications are the property of Wells Fargo and winners must provide photographs and publicity releases), (D) the award’s presentation at the CelebrAsian Business Opportunity Conference, which applicants are “strongly encouraged” to attend at their own expense, and (E) where questions should be directed (to USPAACC at an 800 number or to Wells Fargo’s Asian Business Services at abs@wellsfargo.com). Page two also contains an agreement to be signed by the applicant agreeing to award rules, including verification of information in the application, background checks, and use of the awardee’s “pictures, likeness, name and all other information set forth in the application” in articles and publications and for advertising or promotional purposes. Id. at 37. Page three has a three-line caption encouraging Asian business owners to apply for the award, three pictures of past award winners, a Wells Fargo logo around the size of a quarter in the top right corner, and the logo with the words “Together we’ll go far” and a stagecoach and horses in the bottom right corner. Id. at 38. The fourth and final page has USPAACC’s logo and business address in the top right corner, and the right column is otherwise blank. A left column reiterates the following: (A) three leading Asian businesses will receive a $5,000 award and be recognized at the conference for their vision, success, and community contributions; (B) the basic applicant qualifications from page one; and (C) the February 19, 2010 application deadline. The column’s final two lines are “visit uspaacc.com or wellsfargo.com/biz/asian.” Id. at 39. B. Other Facts From N.B. Industries’ Complaint In 2002, Wells Fargo created an “Asian Business Services” program to attract Asian-owned businesses as customers. Two years later, Wells Fargo and USPAACC created the leadership award jointly. Id. at 6–7, ¶ 14. The award is presented at a USPAACC conference called “CelebrAsian Business Opportunity Conference,” which generates revenues for USPAACC from attendeees, sponsors, and exhibitors. USPAACC certifies Asian businesses for a fee. The purpose of the conference and certification program are to provide opportunities to (1) Asian–American businesses to increase business opportunities with corporate and government purchasers and (2) corporate and government purchasers to diversify their supplier and vendor base. Id. at 7, ¶ 15. Wells Fargo participates in the conferences, was co-chair of the May 2007 conference, and made an investment of $208,000 in USPAACC in 2009 for a national research study. Id. ¶ 16. C. The Court Does Not Consider Additional Faxes Attached to Complaints In Other Cases *3 In a declaration in support of their reply brief, Wells Fargo and USPAACC submitted faxes that were part of complaints in other cases. See generally ECF No. 25. Those cases resulted in the opinions cited in the parties’ briefs. See id. All faxes are part of the public record and were retrieved from PACER or the court file. See id. Wells Fargo and USPAACC provided the faxes to show the kinds of faxes that courts found to be advertisements. See, e.g., Reply Brief, ECF No. 24, at 3–4. At the hearing, Wells Fargo suggested that the court could take judicial notice of the faxes because they are part of pleadings that are a matter of public record and not subject to reasonable dispute. N.B. Industries disagreed. Regardless of whether judicial notice is appropriate, N.B. Industries did not have prior notice. Accordingly, this court will not consider the faxes in the reply declaration or any reference to them in the reply brief. III. THE LEGAL STANDARD ON A MOTION TO DISMISS A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 34 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 732 (9th Cir.2001). A court may dismiss a complaint under Rule 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 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, ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted). The court takes allegations of material fact as true and construes them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007). In reviewing a motion to dismiss, courts also may consider documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995) (citation omitted). If the court dismisses the complaint, it should grant leave to amend even without a request to amend the pleading “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (quotation omitted). IV. ANALYSIS The Junk Fax Prevention Act prohibits the sending of an “unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). An “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s express invitation or permission, in writing or otherwise.” 47 U.S .C. § 227(a)(5); accord 47 C.F.R. § 64.1200(f)(13). *4 Wells Fargo and USPAACC do not deny that USPAACC sent the faxes here on behalf of USPAACC and Wells Fargo (thus subjecting them both to potential liability under the Act) or that the faxes were sent to N.B. Industries without its “express invitation or permission, in writing or otherwise.” See 47 U.S.C. § 227(a)(5); Motion to Dismiss, ECF No. 12 at 14:26. Instead, they argue as a matter of law that the faxes are not advertisements because they announce only the availability and application process for an award, and not “the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5); ECF No. 12 at 11–12. N .B. Industries responds that Wells Fargo and USPAACC are advertising in several ways: (a) soliciting award applications promotes the “service” of a $5,000 award, national publicity, and recognition at the USPAACC annual conference; (b) soliciting award applications invites a commercial transaction in that it solicits an applicant to apply for an award in return for allowing Wells Fargo and USPAACC to use the applicant’s information for marketing, advertising, and promotional purposes; (c) the faxes promote the commercial availability of the service of USPAACC’s annual conference; and (d) the faxes promote Wells Fargo’s and USPAACC’s products and services by including their logos and website addresses. Opposition, ECF No. 23 at 15–16. The court concludes as a matter of law that the faxes here announce only the availability of an award, do not advertise “the commercial availability or quality” of Wells Fargo’s or USPAACC’s “property, goods, or services,” and are not rendered “advertisements” merely by the inclusion of logos and website addresses. See 47 U.S.C. § 227(a)(5). Because this conclusion rests primarily on the plain language of the Act and commentary by the Federal Communications Commission (“FCC”) in the document issuing its final rules and regulations on the Act, the analysis (A) begins with a comprehensive summary of the FCC’s rules and regulations, (B) applies the statute and the guidance to conclude that the faxes here are not advertisements, and (C) determines that the USPAACC and Wells Fargo logos and commercial information do not alter the conclusion that the faxes are not advertisements. A. FCC Final Rules and Regulations Regarding “Advertisements” The FCC administers the Junk Fax Prevention Act, enacted final regulations implementing the Act, and—in its May 3, 2006 document (“entitled “Rules and Regulations”) issuing the final regulations—addressed issues raised during notice-and-comment period following the FCC’s notice of its proposed regulations on December 19, 2005. See 47 U.S.C. § 151; 47 C.F.R. § 64.1200 (May 3, 2006); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005 (“FCC Rules and Regulations”), 71 Fed.Reg. 25,967–01 (May 3, 2006); Holmes v. Back Doctors, Ltd., No. C 09–540, 2009 WL 3425961, at *4 (S.D.Ill. Oct.21, 2009), vacated in part on other grounds by Holmes v. Back Doctors, Ltd., 695 F.Supp.2d 843 (S.D.Ill.2010). The topics addressed included examples of messages that are not “unsolicited advertisements.” See Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 35 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 4 FCC Rules and Regulations at *25,972–73. The examples—though different from the award messages here—illuminate when messages are advertisements and when they are not. *5 A preliminary issue is whether this court should accord substantial deference under Chevron to the FCC’s examples of non-advertisements. See Chevron v. Natural Res. Defense Council Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Wells Fargo and USPAACC—citing only Chevron—assert that Chevron deference is appropriate. ECF No. 12 at 9. N.B. Industries does not dispute this conclusion. Opposition, ECF No. 23 at 11–12 (arguing only that the Act is a remedial statute that should be construed broadly to discourage wrongdoing). The court is not convinced that the statute is ambiguous on its face. The plain meaning of “advertisement” in the statute—“any material advertising the commercial availability or quality of any property, goods, or services”—is not difficult to apply. See 47 U.S.C. § 227(a)(5). That does not mean that the court cannot consider the examples and rely on them. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (agency interpretations and guidelines, even when not controlling, constitute a body of experience and informed judgment to which courts and litigants may resort for guidance). If the statute’s definition of “unsolicited advertisement” were ambiguous, the court would be inclined to give the FCC Rules and Regulations substantial deference under Chevron. Congress delegated to the FCC the authority to elucidate that provision of the statute by regulation, see 47 U.S.C. §§ 151, 227(b)(2), and thus a regulation promulgated by the FCC is entitled to controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute. Chevron, 467 U.S. at 843–44. The regulation’s definition of “unauthorized advertisement”—which was promulgated by the FCC pursuant to its statutory authority—only mirrors the statute and thus does not clarify any ambiguity. See 47 C.F.R. § 64.1200(f)(13). The examples in the FCC Rules and Regulations—issued as a preamble to the final regulations—do provide some guidance as to how to apply the statutory definition. Again assuming an ambiguity in the statute (and the mirroring regulation), and a delegation by Congress to elucidate that portion of the statute, a court looks to an agency’s “subsequent interpretation of those regulations” and accepts them as correct unless they are clearly erroneous or inconsistent with the statute. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, –––U.S. ––––, –––– – ––––, 129 S.Ct. 2458, 2469–70, 174 L.Ed.2d 193 (2009) (citations omitted). It makes sense that a court should give the same deference to examples published contemporaneously with the final regulations as a direct response to concerns raised during the notice-and-comment period following the proposed rule. In any event, the court considers and gives weight to the FCC’s examples because they are persuasive and helpful. The FCC addresses four categories of materials that are not “unsolicited advertisements” regarding the commercial availability or quality of property: (1) “transactional” communications; (1) “informational” messages; (3) non-commercial messages from non-profit organizations; and (4) non-advertisement messages with incidental or de minimis advertising information. FCC Rules and Regulations at *25,972–73. 1. “Transactional” communications *6 “Transactional” communications are “messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender.” According to the FCC, they are not advertisements. Id. Examples of non-advertisement transactional messages include the following: (a) receipts confirming the purchase of items; (b) information about account balances or changes in terms of service; (c) communications to facilitate a loan transaction (such as appraisals, disclosures, or summaries of closing costs); (d) a price list sent by a wholesaler to a distributer to communicate terms of a transaction; (e) communications from a trade show organizer to an exhibitor if the exhibitor has already agreed to appear; and (f) subscription renewal notices to a current subscriber. By contrast, communications regarding travel deals, bonus commission offers, and other promotional information are advertisements absent an already-established business relationship. Id. The FCC explained that a message is “transactional” (and not an “unsolicited advertisement”) if it relates specifically to existing accounts and ongoing transactions. Id. at *25,973. Thus, messages regarding new or additional business do not qualify as transactional messages, and instead would be advertisements, because they advertise the commercial availability of property, goods, and services. Examples of messages that are unsolicited advertisements (and not transactional messages) include (a) information about educational opportunities or conferences sent to persons not yet enrolled in the programs and (b) a rate sheet on financial products transmitted to a potential borrower or potential broker (absent a pre-existing business relationship or Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 36 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 5 permission). Id. The FCC also clarified in this section that a notice soliciting bid proposals on a construction project is not an advertisement so long as it does not otherwise contain offers for products, goods, or services. Id. Similarly, responses to bid proposals are not advertisements because they facilitate a commercial transaction that the recipient has entered into by soliciting the bids. Id. This exception apparently does not require a current relationship between project and bidders. See id. (silent on this point, but the conclusion makes sense given that a new construction project is new business). 2. Informational messages Messages that promote goods and services at no cost—including free magazine subscriptions, catalogues, consultations, and seminars—are unsolicited advertisements that require the sender to obtain the recipient’s permission in advance (absent a pre-existing business relationship). Id. The reason, the FCC explains, is that “free” seminars often are a pretext for advertising commercial products and services. Similarly, “free” publications often are part of a marketing campaign to sell property, goods, and services. For example, the publication may be free to the fax recipient, but the products promoted in the free publication are commercially available. Id. Similarly, surveys that serve as a pretext to an advertisement are considered advertisements themselves. For example, a message that purports to be a survey—but that actually advertises the commercial availability or quality of property, goods, or services—is an advertisement covered by the Act. Id. *7 By contrast, faxes that truly have only information—such as industry news articles, legislative updates, or employee benefit information—are not messages promoting “the commercial availability or quality of any property, goods, or services” and thus are not advertisements. See id. For example, a regularly-scheduled newsletter with educational information that varies from issue to issue that is directed at subscribers or members of the sending entity is not an advertisement. See, e.g., Holmes, 2009 WL 3425961, at *2–*4 (back specialist’s bona fide educational faxes to personal injury law firm sent on a bi-monthly schedule to regular recipients). 3. Non-commercial messages from non-profit organizations In its document issuing the final regulations, the FCC recognized that many non-profits send messages that are not commercial in nature and are therefore not “advertisements” covered by the facsimile advertising prohibition. FCC Rules and Regulations at *25,972. Messages that are not advertisements include all messages involving political or religious discourse, such as a request for a donation to a political campaign, political action committee, or charitable organizations. (A political message that includes an invitation to a fundraising dinner does not turn the message into an advertisement because Federal Election Commission rules treat the purchase price of the dinner as a contribution to the campaign or fundraiser.) Id. 4. Non-advertisement communications with company logos and business slogans In discussing how small amounts of advertising material should not convert a communication into an “unsolicited advertisement,” the FCC concluded that a reference to a commercial entity does not by itself make a message a commercial message. For example, a company logo or a business slogan on an account statement does not convert the statement from a “transactional” communication into an advertisement so long as the primary purpose of the communication is to relay account information to the fax recipient. Id. at *25,973. Similarly, an “incidental advertisement” in an otherwise “informational” message does not convert the entire communication into an advertisement. For example, a trade organization’s newsletter is not an unsolicited advertisement so long as the newsletter’s primary purpose is informational (as opposed to promoting commercial products). By contrast, a newsletter format used to advertise products or services is still an advertisement. Id. In determining whether the advertisement is incidental to the informational communication, the FCC considers, among other factors, the following: (a) whether the communication is issued on a regular schedule; (b) whether the text of the communication changes from issue to issue; and (c) whether the communication is directed to specific regular recipients (such as paid subscribers or to recipients who have initiated membership in the organization sending the communication). Id. *8 In determining whether advertising information is incidental to either a transactional or an informational message, the FCC also considers the following: (a) the amount of space devoted to advertising versus the amount of space used for the informational or transactional message; and (b) whether the advertising is on behalf of the sender of the communication, such as an announcement in a membership organization’s monthly Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 37 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 6 newsletter about an upcoming conference, or whether the advertising space is sold to and transmitted on behalf of entities other than the sender. Id. B. The Faxes Here Are Not Advertisements The faxes here are not advertisements. First, on their face and under the plain meaning of the definition in the Junk Fax Protection Act, they are applications for an award, not advertisements. Second, N.B. Industries’ argument—that the faxes promote the commercial services of USPAACC’s conference and the award itself—is a strained reading of the faxes and is not persuasive. The court also rejects N.B. Industries’ argument that the award application solicits a commercial transaction because it allows Wells Fargo and USPAACC to use an applicant’s information. Third, inclusion of Wells Fargo’s and USPAACC’s logos and website addresses is incidental information that does not transform the messages into advertisements. 1. The faxes here are applications for an award, not advertisements When interpreting a statute, a court considers the plain and ordinary meaning of the words in the statute. See Hardt v. Reliance Standard Life Ins. Co., ––– U.S. ––––, ––––, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). Here, the Junk Fax Prevention Act defines “advertisement” as “material advertising the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5); accord 47 C.F.R. § 64.1200(f)(13). The faxes here do not advertise the commercial availability or quality of any property, goods, or services. Instead, they are merely applications for an award. More specifically, page one is a fill-in-the-blank application and the qualifications an applicant must have. Page two sets forth the six essay questions, how to apply, the award process and rules, and the award’s presentation at USPAACC’s annual conference. Page three encourages applicants to apply in part by showing prior award winners, and page four reiterates the basic applicant qualifications. ECF No. 1 at 36–39. Applying is voluntary, no fee is required, and the award winner does not need to attend the annual conference to receive the award. Indeed, while winners are “strongly encouraged to attend,” they must do so at their own expense. Id. at 37. The fax is a notice about the availability of an award and nothing more. 2. The faxes do not promote the commercial availability of services or a business deal The court rejects N.B. Industries’ arguments that faxing the award applications (a) promotes the commercial availability of services (the award and the USPAACC conference) and (b) promotes a business transaction (applying for an award in exchange for allowing use of the information for marketing purposes). a. The faxes do not promote the commercial availability of services *9 N.B. Industries first asserts that soliciting award applications promotes the commercial availability of two services: (1) the award of $5,000 and national publicity and recognition; and (2) the USPAACC’s annual conference. ECF No. 23 at 15–16. These arguments are a strained reading of the fax itself, which is a straight-up application for an award that mentions the conference only as the location for the award. The application says nothing about the conference’s purpose or agenda. (Even if it did, the FCC’s guidance suggests an announcement in a membership organization’s monthly newsletter about an upcoming conference—as opposed to a paid ad by someone else—is not an advertisement. FCC Rules and Regulations at *25,973.) The faxed application here at most is an invitation to apply for a benefit (the award) and thus is not an advertisement. It is similar to a notice soliciting bid proposals for a construction project. That bid proposal is not an advertisement so long as it does not contain offers for products, goods, or services. Id. Similarly, one court has held that a notice of employment opportunities does not promote the commercial availability of products, services, or goods. See Lutz Appellate Servs., Inc. v. Curry, 859 F.Supp. 180, 181 (E.D.Pa.1994). Also, offering a $5,000 award to be presented at a conference (where attendance is optional) is very different than the examples of “opportunities” in the FCC’s guidance that really are pretexts for advertisements: (1) offering free seminars that really are a pretext for advertising commercial services; (2) sending informational rate sheets to potential buyers; or (3) sending free publications that are part of a marketing campaign to sell goods. See FCC Rules and Regulations at *25,973. Another relevant factor that distinguishes this award application from an advertisement is that unlike an advertisement soliciting customers for a product, the award here has selection criteria. Applicants must be active principals in an at–least–51%–Asian–owned business for at least three years. They also must demonstrate—through six essay questions and letters of Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 38 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 7 reference—how their business performance, philosophy, and contributions to the community qualify them for the award. The award is competitive: an award committee selects only three recipients from the applicants. ECF No. 1 at 36–37. Unlike the FCC’s examples summarized in the last paragraph where messages were pretexts for advertising commercial products or services, the faxes here are applications for a competitively-selected award and are not an open-ended, indiscriminate invitation that is a pretext for advertising. See, e.g., Phillips Randolph Ent., LLC v. Adler–Weiner Research Chicago, Inc., 526 F.Supp.2d 851, 853 (N.D.Ill.2007) (finding market-research study on a new health-care program was not an advertisement for products or services, in part because participants must be qualified and pre-screened). b. The faxes do not propose a commercial transaction *10 N.B. Industries also argues that soliciting applications proposes a commercial transaction involving a quid pro quo: an applicant applies for the award in return for allowing Wells Fargo and USPAACC to use the applicant’s information for marketing, advertising, and promotional purposes. This “commercial benefit” to Wells Fargo and USPAACC does not alter the analysis that the faxes are not advertisements. For example, participants in research studies often are paid for their time and travel or receive honoraria. See, e.g ., Phillips Randolph, 526 F.Supp.2d at 853 ($200 for participating in a market-research study on a new health-care program sponsored by the Chicagoland chamber of commerce); Ameriguard, Inc. v. University of Kansas, No. C 06–369, 2006 WL 1766812, at *1 (W.D. Mo. June 23, 2006) (time and travel for participation in clinical study on diabetes). Participants in those studies also gave up their time and, in Ameriguard, physically participated in a clinical trial. The market-research study at issue in Phillips Randolph was about a new health-care program, which presumably had commercial relevance. Similarly, conceivably the diabetes clinical study in Ameriguard was relevant to a product or treatment with commercial application. Nothing could be more business-related than soliciting bids for a construction project or posting notice of employment opportunities. See FCC Rules and Regulations at *25,973; Lutz, 859 F.Supp. at 181. The inquiry is not whether there is an ancillary commercial benefit to either party but instead is whether the message is an advertisement (or a pretext for an advertisement). Like the examples in the preceding paragraph, the application for an award is not an advertisement because it is not “material advertising the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5). c. Comparing the faxes to messages that are advertisements shows that these faxes are not Comparing the faxes here with communications that are advertisements bolsters the conclusion that the application for an award is not an advertisement. For example, a fax promoting the service of “brokering the sale of an insurance agency” is an advertisement, even though it only encouraged the recipient to call about the possibility of selling. See Green v. Anthony Clark Int’l Ins. Brokers, Ltd., 2009 WL 2515594, *3 (N.D.Ill. Aug.17, 2009). Plugging a stock and potential profits is an advertisement. See Peter Strojnik, P.C. v. Signalife, Inc., 2009 WL 605411, *5 (D.Ariz. Mar.9, 2009). So is a fax promoting a free online marketplace for buying and selling goods for profit. G.M. Sign, Inc. v. MFG.com, Inc., 2009 WL 1137751, at *1 (N.D.Ill. April 24, 2009). Promoting for-fee-training courses is advertising. See Sadowski v. OCO Biomedical Inc., No. C 08–3225, 2008 WL 5082992, *1–*2 (N.D.Ill. Nov.25, 2008). Even free seminars often are a pretext for advertising commercial products and services and thus are unsolicited advertisements under the Act. See FCC Rules and Regulations at *25,973. By contrast, sending an application for an award does not promote the commercial availability of a good or service or serve as a pretext for advertising the commercial availability of a good or service. It is just an application for an award. 3. The logos, slogans, and websites do not make the messages into advertisements *11 The modest logos and business slogans do not convert the faxes here into advertisements. As the FCC’s guidance instructs, a reference to a commercial entity in the form of a logo or business slogan does not by itself make a message an “advertisement.” FCC Rules and Regulations at *25,973. Similarly, an incidental advertisement does not convert a message that is not an advertisement into an advertisement. In determining whether advertising information is incidental, relevant factors include the amount of the space for the so-called advertising. Id. In the faxes at issue here, page one has penny-sized logos for Wells Fargo and USPAACC–EF, and Wells Fargo’s business slogan (“together we’ll go far” and the stage coach). Each company’s logo appears once more: Wells Fargo on page three (including its slogan) and USPAACC on page four. Questions are directed to USPAACC at an 800 number or to Wells Fargo’s Asian Business Services Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 39 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 8 at abs @wellsfargo.com. On the last page is “visit uspaacc.com or wellsfargo.com/biz/asian.” ECF No. 1 at 36–39. The so-called advertising content here appears because it identifies the award’s sponsors. It is modest in the space it uses, and—besides the references to Wells Fargo’s Asian Business Services—suggests nothing about the commercial availability or quality of any of Wells Fargo’s or USPAACC’s property, goods, or services. See 47 U.S.C. § 227(a)(5). The application otherwise contains information about the award criteria and process and the application itself. If the logos and similar information are advertising content, then they are entirely incidental, and they do not convert the faxed applications into advertisements. The listing of USPAACC’s and Wells Fargo’s websites does not alter this conclusion. N.B. Industries’ argument is that Wells Fargo’s website is interactive and that USPAACC and Wells Fargo both have websites that promote their services. Opposition, ECF No. 23 at 25–26. But mere inclusion of a website on a fax does not make it an advertisement. Under the FCC’s guidance, the inquiry is still whether the inclusion of the information is incidental. It is here. From the face of the faxes, they are applications for an award and nothing more. 4. Conclusion: an application for an award is not an advertisement In sum, the application for the USPAACC–Wells Fargo Asian Business Leadership Award is not only different than these overt advertisements, but also, it is entirely distinguishable from “free” seminars that really are pretexts for advertising. As an application for a benefit, it is similar to a solicitation for bid proposals for a construction project, or a notice of employment opportunities, or the invitations to participate in the research study or clinical trial in Phillips Randolph and Ameriguard. See FCC Rules and Regulations at * 25,973; Lutz, 859 F.Supp. at 181; Phillips Randolph, 526 F.Supp.2d at 853; Ameriguard, 2006 WL 1766812 at *1. The award also is based on selective criteria, a factor found persuasive by the Phillips Randolph court. See 526 F.Supp.2d at 853. Finally, it is an award sponsored in part by a nonprofit Asian American chamber of commerce to leading Asian-owned businesses. As the FCC’s guidance recognizes, many nonprofits send messages that are not commercial in nature and thus are not advertisements. FCC Rules and Regulations at *25,972. That is the case here. The faxes are just applications for an award, not advertisements. The logos and websites are incidental and do not convert the applications into advertisements. V. CONCLUSION *12 The court concludes as a matter of law that the faxes are not unsolicited advertisements under the Junk Fax Prevention Act and GRANTS Wells Fargo’s and USPAACC’s motion to dismiss filed at ECF No. 12. Because the complaint cannot be cured by allegations of additional facts, the court DISMISSES THE COMPLAINT WITH PREJUDICE . See, e.g., Holmes, 2009 WL 3425961 at *2 (also addressing as a matter of law whether or not faxes are unsolicited advertisements); Ameriguard, 2006 WL 1766812 at *1 (same). The case management conference set for December 2, 2010, at 1:30 p.m. is VACATED. The court also does not address the parties’ proposed stipulated protective order filed at ECF No. 34 because it is moot. IT IS SO ORDERED. Parallel Citations 51 Communications Reg. (P&F) 1304 Footnotes 1 Citations are to the docket entry in the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document (not the page number at the bottom). End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 40 of 50 N.B. Industries v. Wells Fargo & Co., Not Reported in F.Supp.2d (2010) 51 Communications Reg. (P&F) 1304 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 41 of 50 N.B. Industries, Inc. v. Wells Fargo & Co., 465 Fed.Appx. 640 (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by St. Louis Heart Center, Inc. v. Caremark, L.L.C., E.D.Mo., April 19, 2013 465 Fed.Appx. 640 This case was not selected for publication in the Federal Reporter. Not for Publication in West’s Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Ninth Circuit Rule 36-3. (Find CTA9 Rule 36-3) United States Court of Appeals, Ninth Circuit. N.B. INDUSTRIES, INC., a California corporation, individually and on behalf of all others similarly situated, Plaintiff—Appellant, v. WELLS FARGO & COMPANY, a Delaware corporation; Wells Fargo Bank, N.A., a national banking association; United States Pan Asian American Chamber of Commerce, a District of Columbia nonprofit corporation; United States Pan Asian American Chamber of Commerce Education Foundation, a District of Columbia nonprofit corporation, Defendants—Appellees. No. 10–17934. | Argued and Submitted Dec. 5, 2011. | Filed Jan. 6, 2012. Synopsis Background: Fax recipient brought class action against senders that allegedly faxed unsolicited advertisements in violation of Junk Fax Prevention Act (JFPA). Senders moved to dismiss for failure to state claim. The United States District Court for the Northern District of California, Laurel D. Beeler, United States Magistrate Judge, 2010 WL 4939970, granted motions. Recipient appealed. Holdings: The Court of Appeals held that: [1] business leadership award described in faxes was not a commercially available good or service, and thus faxes’ description of award and application to apply for it were not “unsolicited advertisements” within meaning of JFPA, and [2] faxes were not transformed into “unsolicited advertisements” by presence of incidental advertisements for senders’ goods and services. Affirmed. Attorneys and Law Firms *641 Scott Z. Zimmermann, Esquire, Law Offices of Scott Z. Zimmermann, Los Angeles, CA, for Plaintiff–Appellant. Randall Thomas Kim, Brune & Ricard LLP, San Francisco, CA, Thomas Michael Freeman, Marion’s Inn LLP, Oakland, CA, for Defendants–Appellees. Appeal from the United States District Court for the Northern District of California, Laurel D. Beeler, Magistrate Judge, Presiding. D.C. No. 4:10–cv–03203–LB. Before: SCHROEDER, O’SCANNLAIN, and BERZON, Circuit Judges. MEMORANDUM* * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36–3. **1 Plaintiff–Appellant N.B. Industries, Inc. (“N.B.”) alleges that Defendant–Appellees *642 Wells Fargo & Company, Wells Fargo N.A. (collectively, “Wells Fargo”), the United States Pan Asian American Chamber of Commerce, and the United States Pan Asian American Chamber of Commerce Education Foundation (collectively, “USPAACC”) faxed N.B. unsolicited advertisements in violation of the Junk Fax Prevention Act (“JFPA”), 47 U.S.C. § 227. The district court dismissed with prejudice N.B.’s complaint for failure to state a claim. We affirm the dismissal. 1. We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir.2007). Because this is an appeal from an order granting Defendants’ motion to dismiss, we rely upon all the factual allegations pleaded in the Plaintiff’s complaint and assume them to be true. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 42 of 50 N.B. Industries, Inc. v. Wells Fargo & Co., 465 Fed.Appx. 640 (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 [1] 2. The faxes sent by Wells Fargo and USPAACC comprised almost entirely information about an Asian Business Leadership Award, an application for the award, and encouragement to apply. In addition, the faxes contained five mentions of the 2010 USPAACC CelebrAsian Business Opportunity Conference; were marked with six USPAACC or Wells Fargo logos; provided general (non-award specific) USPAACC or Wells Fargo contact information twice; and once invited recipients to “[v]isit” USPAACC and Wells Fargo’s websites, sites that contained information advertising their services. JFPA defines an unsolicited advertisement as “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). To be commercially available within the meaning of JFPA, a good or service must be available to be bought or sold (or must be a pretext for advertising a product that is so available). The American Heritage Dictionary 175 (3d ed.1994) (defining commerce as the “buying and selling of goods”). There is no indication—and N.B. does not allege—that the Asian Business Leadership Award is available for sale. Nor is there any indication or allegation that the award itself is a pretext for advertising commercially available goods or services. The Asian Business Leadership Award is thus not commercially available. N.B. argues that the text relating to the award nevertheless violates JFPA because it “proposes a commercial transaction”: “award consideration and the opportunity to receive award benefits in exchange for applicants’ immediate transfer of media and privacy rights.” N.B. is referring to the disclosure agreement included with the faxed application, which essentially provides that Wells Fargo and USPAACC may publicize the award winners. Requiring that applicants sign such an agreement as a condition for applying for an award does not make the award for sale. Indeed, publicity is presumably one of the benefits of the award to those who win. We hold that the award itself is not commercially available and, therefore, the description of the award, the application to apply for it, and the text encouraging recipients to apply are not unsolicited advertisements within the meaning of JFPA. **2 [2] 3. The faxes did, however, contain several incidental advertisements. To determine whether such incidental advertising transforms an otherwise legitimate fax into an illegal unsolicited advertisement, we must turn to the interpretation of JFPA promulgated by the Federal Communications Commission, the agency to which the Act explicitly delegates interpretive authority. 47 U.S.C. § 227(b)(2); see also *643 Chevron, U.S.A. v. NRDC, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The faxes repeatedly mention that the Asian Business Leadership Award will be presented at the 25th Anniversary CelebrAsian Business Opportunity Conference. Conference attendees were charged a fee for their participation in exchange for the “chance to connect with serious buyers of Fortune Corporations and the Federal Government, to showcase [their] products and services, and to take part in this trillion dollar market at this one-of-a-kind conference.” Participation in the conference was thus a commercially available service. In addition, the faxes at issue contained several Wells Fargo and USPAACC logos and slogans, as well as general (non-award related) contact information for both organizations. The FCC Order interpreting JFPA indicates that company logos and business slogans are advertising, although, in many cases, so de minimis in comparison to the fax as a whole as not to render the entire fax an advertisement. See 71 Fed.Reg. at 25,973. The logos, slogans, and contact information included on the faxes at issue here could reasonably be construed as advertising the commercial availability of Wells Fargo and USPAACC’s goods and services. In particular, a recipient of the faxes could reasonably infer from the references to Wells Fargo’s Asian Business Services program that Wells Fargo sells services to Asian businesses. Finally, the faxes direct recipients to “[v]isit uspaacc.com or wellsfargo.com/biz/asian.” At the time, the website at uspaacc.com was almost entirely an advertisement for the CelebrAsian Conference. The Wells Fargo website, while briefly describing the award, was similarly almost entirely an advertisement for and description of Wells Fargo’s Asian business services. Applying the FCC standards, the CelebrAsian Business Conference, the inclusion of the logos, slogans, and non-award related contact information, and the direction to visit Wells Fargo and USPAACC’s websites all constitute unsolicited advertisements. The FCC’s guidance mentions two factors relevant to when incidental advertising transforms a legitimate fax into an unsolicited advertisement: (1) “whether the advertising is on behalf of the sender ..., such as an announcement in a membership organization’s monthly newsletter about an upcoming conference” or whether it “is sold to and transmitted on behalf of [other] entities”; and (2) “the amount of space Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 43 of 50 N.B. Industries, Inc. v. Wells Fargo & Co., 465 Fed.Appx. 640 (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 devoted to advertising versus the amount of space used for information.” 71 Fed.Reg. 25,967–01. The first factor clearly cuts in favor of Wells Fargo and USPAACC. **3 As to the second factor, there is little caselaw on what percentage of incidental advertising is too much. However, it is clear that the percentage in this case is very low. C.f. Holmes v. Back Doctors, Ltd., 695 F.Supp.2d 843, 851 (S.D.Ill.2010) (holding that a fax, one-seventh of which comprised advertising, did not violate JFPA). We hold that the advertisements constituted such a small portion of the faxes as to be incidental to the award application. Such de minimis advertising is insufficient to transform faxes that were largely permissible into prohibited communications. In sum, the faxes sent by Wells Fargo and USPAACC to N.B. were not, overall, advertisements within the meaning of JFPA. Therefore, faxing them without N.B.’s permission did not violate the Act. AFFIRMED. All Citations 465 Fed.Appx. 640, 2012 WL 32125 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 44 of 50 Order Form (01/2005) United States District Court, Northern District of Illinois Name of Assigned Judge or Magistrate Judge Elaine E. Bucklo Sitting Judge if Other than Assigned Judge CASE NUMBER 09 C 7391 DATE 3/2/2010 CASE TITLE Forys, Birn & Associates vs. Accelmed, et al. DOCKET ENTRY TEXT Defendant’s motion to dismiss Count I of plaintiff’s complaint is granted. As the court has no jurisdiction over the remaining claims, those claims are dismissed without prejudice. Plaintiffs’ motion to strike and defendant’s motion to stay are denied as moot. O[ For further details see text below.] Notices mailed by Judicial staff. STATEMENT Plaintiff medical clinic alleges that it received several unsolicited faxes from defendant Accelmed, LLC, regarding a free seminar entitled “Diabetes Decisions and Controversies: Glucose Management or Pathophysiology?”, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The complaint also alleges violations of the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS § 505/2, and common law conversion. Defendant moves to dismiss the complaint, arguing that the faxes at issue are not “advertisements” subject to the TCPA. Without the TCPA claim, defendant contends there is no jurisdiction to hear plaintiff’s remaining supplemental state law claims. An “advertisement” is defined by the TCPA as follows: “any material advertising the commercial availability or quality of any property, goods, or services.” The faxes at issue state that promoted diabetes seminar is sponsored by the Postgraduate Institute for Medicine (“PIM”), and supported by an educational grant from Amylin Pharmaceuticals, Inc. (“Amylin”) and Lilly, USA, Inc. (“Lilly”). Logos for those three entities are included on the fax, but no products or services are mentioned. The seminar is free and is worth one credit of continuing medical education. Its content is described as follows: This activity will consist of a 1-hour live presentation by Dr. DeFronzo, a leading faculty [sic] in the area of diabetes management, with a focus on the controversial benefits and trade- offs between a pathophysiologic approach and a glucose management approach to managing diabetes. The program will focus on the 09C7391 Forys, Birn & Associates vs. Accelmed, et al. Page 1 of 3 Case: 1:09-cv-07391 Document #: 27 Filed: 03/02/10 Page 1 of 3 PageID #:228Case 9:16-cv-80967-BB Document 27-2 Enter on FLSD Docket 09/08/2016 Page 45 of 50 STATEMENT potential decisions that confront healthcare professionals when considering whether to just manage patients’ glucose levels or whether to consider other physiologic factors like β-cell function and weight in addition to glucose management. The program will include an overview of the pathophysiology of diabetes and specific case-based situations to enhance application-based learning. The program will conclude with an interactive question and answer session. (Compl., Exs. A-E.) A list of educational objectives is also included on the faxes: After completing this activity, the participant should be better able to: 1. List 5 pathophysiological targets for treatment of type 2 diabetes 2. Compare and contrast the American Diabetes Association’s treatment algorithm versus a pahtophysiological-based algorithm 3. Summarize recent clinical trial data on glucagon-like peptide-1 (GLP-1) analogs, dipeptidyl peptidase-4 (DPP-4) inhibitors, and basal insulin 4. Contrast the GLP-1 analogs, DPP-4 inhibitors, and basal insulin according to a pathophysiological-based treatment algorithm (Id.) Plaintiff argues that because the seminar is supported by an educational grant from Lilly and Amylin, the faxes should be considered advertisements for the product Byetta, a GLP-1 analog made and/or distributed by the those companies. Additionally, according to plaintiff’s response brief, Amylin has exclusive rights to a National Institute of Health patent on GLP-1 analogs. Viewing the complaint and its exhibits in the light most favorable to plaintiff, I find no support for this position. In fact, there is no mention or allusion to Byetta, patent rights, or the commercial availability or quality of any commercial product at all.1 The only allegation in the complaint that arguably suggests defendant’s faxes were “advertisements,” is plainly contradicted by the faxes themselves. (Compare Compl. ¶ 11 with Exs. A-E.) Rather, defendant’s faxes describe a discussion of various categorical treatments for type 2 diabetes and clinical study results for such treatments, namely, GLP-1 analogs, DPP-4 inhibitors, and basal insulin. Unlike the faxes in the cases cited by plaintiff, no specific products, goods, or services are even mentioned. (Compare Compl. Exs. A-E with Stonecrafters, Inc. v. Almo Distributing New York, Inc., No. 07-5105, slip op. at 2, 2008 TCPA Rep. 1813 (N.D.Ill. July 23, 2008)(faxes expressly promoted free training on specific commercial product lines listed on the fax), G.M. Sign, Inc. v. MFG.com, Inc., 2009 U.S. Dist. Lexis 35291, No. 08 C 7106, *7-8 (N.D.Ill. Apr. 24, 2009)(faxes advertised online marketplace of suppliers rated with five stars in quality, responsiveness, and delivery of their commercial products), and Green v. Anthony Clark Int’l Ins. Brokers, Ltd., 2009 U.S. Dist. LEXIS 72500, No. 09 C 1541, *2-3, 6-7 (N.D.Ill. Aug. 17, 2009)(faxes outlined service offer to broker the sale of an insurance agency.)) 09C7391 Forys, Birn & Associates vs. Accelmed, et al. Page 2 of 3 Case: 1:09-cv-07391 Document #: 27 Filed: 03/02/10 Page 2 of 3 PageID #:229Case 9:16-cv-80967-BB Document 27-2 Enter on FLSD Docket 09/08/2016 Page 46 of 50 STATEMENT 1. Despite the omission of these allegations in the complaint, I reviewed the materials cited in plaintiff’s response that purport to evidence its argument. The cited NIH notices only mention that a patent license to Amylin was “contemplated” in 2000 and 2006. There is no support for plaintiff’s contention that such a license exists. Further, when searching for the one NIH patent at issue in those notices, I came across numerous other GLP-1 analog patents owned by various competitors of Lilly and Amylin. This search led me to discover at least one other FDA-approved GLP-1 analog offered by Novo Nordisk (“Victoza”), a competitor to Byetta, that is currently on the market despite whatever patent rights Amylin and Lilly may have. Accordingly, I grant defendant’s motion to dismiss. Because I did not consider the materials contested in plaintiff’s associated motion to strike, I deny that motion as moot. 09C7391 Forys, Birn & Associates vs. Accelmed, et al. Page 3 of 3 Case: 1:09-cv-07391 Document #: 27 Filed: 03/02/10 Page 3 of 3 PageID #:230Case 9:16-cv-80967-BB Document 27-2 Enter on FLSD Docket 09/08/2016 Page 47 of 50 Lutz Appellate Services, Inc. v. Curry, 859 F.Supp. 180 (1994) 76 Rad. Reg. 2d (P & F) 919 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 859 F.Supp. 180 United States District Court, E.D. Pennsylvania. LUTZ APPELLATE SERVICES, INC. v. Rodney CURRY and Douglas Taylor, Individually and t/a Curry & Taylor. Civ. A. No. 94–3985. | July 28, 1994. Former employer brought action against former employee and his current business partner seeking damages for alleged violations of Telephone Consumer Protection Act of 1991. Former employee and business partner moved to dismiss for failure to state a claim. The District Court, Bartle, J., held that conduct of former employee and his business partner in faxing unsolicited messages to former employer seeking to hire away former employer’s current employees did not constitute “unsolicited advertisements” prohibited by the Act. Motion granted. West Headnotes (4) [1] Federal Civil Procedure Insufficiency in general A complaint should be dismissed for failure to state a claim only where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. [2] Federal Civil Procedure Construction of pleadings On motion to dismiss for failure to state a claim, all well pleaded factual allegations in complaint are assumed to be true and are viewed in light most favorable to plaintiff. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. [3] Telecommunications Advertising, canvassing and soliciting; telemarketing Conduct of former employee and his current business partner in faxing unsolicited messages to former employer seeking to hire away former employer’s current employees did not constitute “unsolicited advertisements” within meaning of Telephone Consumer Protection Act section making it unlawful for any person to use any telephone facsimile machine to send an unsolicited advertisement to another telephone facsimile machine; unsolicited advertisement was material advertising commercial availability or quality of property and advertisement of job opportunities was not advertisement of availability of property. Communications Act of 1934, §§ 227, 227(a)(4), (b), as amended, 47 U.S.C.A. §§ 227, 227(a)(4), (b). 11 Cases that cite this headnote [4] Statutes Plain Language; Plain, Ordinary, or Common Meaning Statutes Context Unless context indicates otherwise, words of statute must be interpreted in accordance with ordinary meaning. 2 Cases that cite this headnote Attorneys and Law Firms *180 Leslie Weisse, Philadelphia, PA, for plaintiff. *181 Craig B. Sobel, Philadelphia, PA, for defendants. Opinion Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 48 of 50 Lutz Appellate Services, Inc. v. Curry, 859 F.Supp. 180 (1994) 76 Rad. Reg. 2d (P & F) 919 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 MEMORANDUM BARTLE, District Judge. As new technology emerges, the appearance of related legal issues seems never to be far behind. This is such a case. It concerns the prohibitions on the use of the now ubiquitous facsimile (“fax”) machine under the Telephone Consumer Protection Act of 1991 (“Act”), 47 U.S.C. § 227. Plaintiff, Lutz Appellate Services, Inc., filed the present action against a former employee, Rodney Curry, and his business partner, Douglas Taylor, individually and trading as Curry & Taylor. Plaintiff seeks damages for two alleged violations of the Act. The case is currently before the court on defendants’ motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [1] [2] A complaint should be dismissed for failure to state a claim only where “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). All well pleaded factual allegations in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969). [3] Plaintiff’s complaint alleges that on two occasions, defendants faxed unsolicited messages to Lutz Appellate Services. The first of these messages reads as follows: CURRY & TAYLOR IS NOW HIRING ALL POSITIONS CALL TODAY 1–800–222–8738 The second states: CURRY & TAYLOR –APPELLATE SPECIALISTS NEEDED –GENEROUS PAY STRUCTURE –EXPERIENCE WELCOME BUT NOT NECESSARY –CALL 1–800–409–0060 TODAY, ASK FOR BILL Plaintiff contends that these solicitations from a business competitor seeking to hire away plaintiff’s current employees are “unsolicited advertisements” prohibited by 47 U.S.C. § 227. Section 227(b) states that “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine ... to send an unsolicited advertisement to a telephone facsimile machine....” 47 U.S.C. § 227(b). The statute defines an “unsolicited advertisement” as “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.” 47 U.S.C. § 227(a)(4). Defendants argue that the faxed messages do not fall within the statutory definition of “unsolicited advertisements” because they advertise employment opportunities, not defendants’ property, goods or services. Plaintiff, however, claims that “[e]mployment is property” and that “to offer employment, as Defendants have done, is to offer property.” [4] Plaintiff’s position is without merit. A company’s advertisement of available job opportunities within its ranks is not the advertisement of the commercial availability of property. Unless the context indicates otherwise, the words of a statute must be interpreted in accordance with their ordinary meaning. United States v. Knox, 32 F.3d 733 (3d Cir.1994). When, for example, an employer places a “help wanted” ad, no one speaks or thinks of it as a property solicitation or an offer of property. Likewise, when an employer hires an employee, no one characterizes the hiring as a property sale, exchange or transaction. Here, the defendants did nothing more than send a “help wanted” ad on two occasions over the plaintiff’s fax machine. These transmitted messages are not unsolicited “material advertising the commercial *182 availability or quality of any property, goods or services” within the ordinary meaning of those words of the Act. See 47 U.S.C. § 227(a)(4). Plaintiff contends that “[t]he whole import of the Act is to Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 49 of 50 Lutz Appellate Services, Inc. v. Curry, 859 F.Supp. 180 (1994) 76 Rad. Reg. 2d (P & F) 919 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 avoid the abuse of, inter alia, facsimile machines to foist unwanted information or communications to [sic] those who do not want it.” That, of course, is the purpose of this Act as far as it goes. However, Congress clearly did not prohibit fax transmissions of all unsolicited information or communications, and there is some question whether it could do so constitutionally.1 See generally City of Cincinnati v. Discovery Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); Destination Ventures, Ltd. v. F.C.C., 844 F.Supp. 632 (D.Or.1994); Lysaght v. State of New Jersey, 837 F.Supp. 646 (D.N.J.1993). Plaintiff’s redress, if any, lies elsewhere. No matter how sympathetic plaintiff’s case may be, the court may not rewrite the Telephone Consumer Protection Act to enjoin or penalize behavior not prohibited by Congress. Plaintiff’s complaint will be dismissed for failure to state a claim upon which relief can be granted. Parallel Citations 76 Rad. Reg. 2d (P & F) 919 Footnotes 1 None of the parties here has raised the issue of the constitutionality of the Act. End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. Case 9:16-cv-80967-BB Document 27-2 Entered on FLSD Docket 09/08/2016 Page 50 of 50 EXHIBIT C Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 1 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KATHLEEN HOLT, Individually and on Behalf of All Others Similarly Situated, Plaintiff, CASE NO. 11cv3046 DMS (RBB) vs. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [Docket No. 42] REDBOX AUTOMATED RETAIL, LLC, Defendant. This case comes before the Court on Defendant Redbox Automated Retail, LLC’s motion to dismiss. Plaintiff filed an opposition to the motion, and Defendant filed a reply. In the motion, Defendant raises an as-applied challenge to the constitutionality of the Telephone Consumer Protection Act (“TCPA”). After the hearing date on the motion, the United States attempted to file a brief defending the constitutionality of the TCPA. Because of the late filing, the Court struck the United States’ brief. After further briefing from all parties, the Court granted the United States permission to file its brief, and gave the parties an opportunity to file a response. The United States thereafter filed its brief, to which the Defendant filed a response. After thoroughly considering the issues, the Court grants Defendant’s motion. / / / / / / - 1 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 1 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 2 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BACKGROUND Plaintiffs Kathleen Holt and Sebastian Biagioni allege Defendant sent unsolicited text messages to their cellular telephones. (First Am. Compl. (“FAC”) ¶¶ 14-35.) Specifically, Plaintiff Holt alleges that on December 14, 2011, she received an unsolicited text message from Defendant. (Id. ¶ 14.) The following day, Plaintiff responded to Defendant’s text message with a text message that read “STOP.” (Id. ¶ 15.) In response to that text message, Defendant sent another text message to Plaintiff’s phone which forms the basis of this lawsuit. (Id. ¶ 16.) It stated: You are now unsubscribed from REDBOXALERTS, sorry to see you go. For more info, visit http://ix.ly/727272. Msg&data rates may apply. Plaintiff Biagioni received a text message from Defendant on December 21, 2012, similar to the one Holt received on December 14, 2011. (Id. ¶ 24.) Like Plaintiff Holt, Plaintiff Biagioni responded to Defendant’s text message with a text message that read “STOP.” (Id. ¶ 25.) In response, Defendant sent another text message to Plaintiff Biagioni’s phone. (Id. ¶ 26.) It stated: You are now unsubscribed from Redbox Tickets Text Club and will not receive further messages. For more info, visit http://ix.ly/cs. Msg&data rates may apply. On December 30, 2011, Plaintiff Holt filed the original Complaint in this case on behalf of herself and all others similarly situated alleging that Defendant’s text messages violated the TCPA. In response to the Complaint, Defendant filed a motion to dismiss. While that motion was pending, Defendant requested that the Court stay the case pending the outcome of a proceeding before the Federal Communications Commission (“FCC”). That proceeding involved a central issue in this case, namely, whether a text message like the one at issue here violates the TCPA. After Plaintiff filed a notice of non-opposition to Defendant’s request, the Court stayed the case pending a ruling from the FCC. The FCC issued its ruling on the Petition of SoundBite Communications, Inc. (“SoundBite”) on November 29, 2012. See 27 F.C.C. Rec. 15391. In SoundBite, the FCC found that “sending a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the Telephone Consumer Protection Act (TCPA) or the Commission’s rules as long as the confirmation text has the specific characteristics described in the petition.” Id. Those characteristics include - 2 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 2 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 3 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “confirmation texts that: 1) merely confirm the consumer’s opt-out request and do not include any marketing or promotional information; and 2) are the only additional message sent to the consumer after receipt of the opt-out request.” Id. at 15394 n.31. The FCC stated that its ruling “applies only when the sender of text messages has obtained prior express consent, as required by the TCPA and Commission rules, from the consumer to be sent text messages using an automatic telephone dialing system or ‘autodialer.’” Id. at 15391. The FCC concluded that for texts of this type, “a consumer’s prior express consent to receive text messages from an entity can be reasonably construed to include consent to receive a final, one-time text message confirming that such consent is being revoked at the request of that consumer.” Id. at 15394. After this Ruling, the parties filed a joint motion for leave to file a First Amended Complaint. The Court granted that motion, and Plaintiffs Holt and Biagioni filed the First Amended Complaint on January 22, 2013. The present motion followed. II. DISCUSSION Defendant moves to dismiss the First Amended Complaint in its entirety. It argues Plaintiffs have failed to plead sufficient facts to support the element of an automatic telephone dialing system (“ATDS”), and asserts that application of the relevant section of the TCPA to the facts of this case would violate the First Amendment. Defendant also contends its text messages do not violate the TCPA under the FCC’s Ruling in SoundBite. A. Motion to Dismiss In Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court established a more stringent standard of review for 12(b)(6) motions. To survive a motion to dismiss under this new standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). / / / - 3 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 3 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 4 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). In Iqbal, the Court began this task “by identifying the allegations in the complaint that are not entitled to the assumption of truth.” Id. at 680. It then considered “the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief.” Id. at 681. B. The TCPA The TCPA provides, in pertinent part: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States ... to make any call (other than a call ... made with the prior express consent of the called party) using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service .... 47 U.S.C. § 227(b)(1)(A)(iii). “[T]he three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012), cert. denied, 2013 WL 1334909 (U.S. May 13, 2013), (citing 47 U.S.C. § 227(b)(1)). Here, among other arguments, Defendant asserts Plaintiffs must plead whether they gave prior express consent to receive any text messages from Defendant. The parties dispute whether prior express consent (as opposed to lack of consent) is an element of a TCPA claim and must be alleged. Plaintiffs have refused to allege whether they consented to receiving text messages from Defendant. (See FAC ¶¶ 21, 31 (stating Plaintiffs do “not take a position as to the prior express consent of the [earlier text messages.]”)) Plaintiffs cite an unpublished Ninth Circuit decision for the proposition that “express consent” is not an element of a TCPA claim, but rather is an affirmative defense for which the defendant bears the burden of proof. See Grant v. Capital Management Services, L.P., No. 11-56200, 2011 WL 3874877, at *1 n.1 (9th Cir. Sept. 2, 2011) (quoting 23 F.C.C. Rec. 559, 565 (Jan. 4, 2008)) (“[W]e conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.”). The Court agrees with that reasoning. The TCPA provides that “[c]alls otherwise in violation of the TCPA are not unlawful if made - 4 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 4 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 5 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘... with the prior express consent of the called party[.]’” Id. (quoting 47 U.S.C. § 227(b)(1)(A)). Therefore, the TCPA provides an exception to liability, which the defendant must prove. Simply put, if the caller has received prior consent from the called party to contact them, and can prove it, that is a complete defense under the TCPA. Defendant nevertheless argues that Plaintiffs must plead whether they provided consent to receive the initial text messages sent by Defendant, citing the FCC Ruling in SoundBite. However, SoundBite did not address pleading requirements under the TCPA. The FCC ruled that sending a one- time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA, as long as the text does not contain marketing or promotional information. While the FCC stated its ruling applies only when the sender of text messages initially had consent from the consumer to be contacted, that limitation simply tracks the requirements of the statute: that calls are not unlawful under the TCPA if made with the prior express consent of the called party.1 47 U.S.C. § 227(b)(1)(A). SoundBite does not purport to require a plaintiff to plead consent as a basis for TCPA relief; indeed, it is the absence of consent that establishes liability under the TCPA. Hence, a plaintiff must allege lack of consent as an element of his or her claim. Meyer, 707 F.3d at 1043. Here, Plaintiffs plead they did not provide consent to Defendant for the second text message. (FAC ¶¶ 21, 31.) That is sufficient for pleading lack of consent under the TCPA. Defendant’s real argument is that Plaintiffs have attempted to avoid the reach of SoundBite by declining to state in their FAC whether they gave consent to Defendant’s initial text message. If Plaintiffs admitted in the FAC they consented to the initial contact, then the second, confirming texts in response to Plaintiffs’ opt-out requests would arguably fall squarely within SoundBite and would not violate the TCPA. However, whether Plaintiffs initially consented to receiving text messages from Defendant is irrelevant for purposes of determining whether a claim is adequately pleaded under the TCPA. What matters is whether Defendant sent Plaintiffs a text without their prior express consent. / / / 1 If a sender of text messages never had permission to contact the consumer, then any text message – other than a text made for emergency purposes – would be unauthorized by the consumer and proscribed by the TCPA. 47 U.S.C. § 227(b)(1)(A). Accordingly, the FCC’s Ruling in SoundBite is predicated upon the caller initially having received consent to text the consumer. - 5 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 5 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 6 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs have pleaded that the confirming texts were sent without their permission, and thus they have sufficiently alleged the lack of consent element of their claims. Whether Plaintiffs have stated a claim, as a matter of law, however, is another matter. On this issue, Ibey v. Taco Bell Corp., No. 12-cv-0583-H (WVG), 2012 WL 2401972 (S.D. Cal. June 18, 2012), is instructive. The essential facts in Ibey are similar to those in this case, namely that the plaintiff received a text message from the defendant, to which he replied “STOP,” and to which the defendant then sent one additional text message confirming the plaintiff’s request. While the plaintiff in Ibey initially consented to receiving text messages from the defendant, the court found no violation for the confirming text based solely upon its interpretation of the statute: “the TCPA does not impose liability for a single, confirmatory text message.” Id. at *3. It noted the purpose of the TCPA, which is to “prevent unsolicited automated telemarketing and bulk communications.” Id. The court further stated that the “‘purpose and history of the TCPA indicate that Congress was trying to prohibit use of ATDSs [autodialers] in a manner that would be an invasion of privacy.’” Id. (quoting Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)). Based thereon, the court found that “[t]o impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute – prevention of unsolicited telemarketing in a bulk format.” Id. That reasoning tracks the Ninth Circuit’s interpretation of the TCPA as stated in Satterfield, and is persuasive. The TCPA does not impose liability for the single, confirmatory text messages alleged here. Plaintiffs have therefore failed to state a claim as a matter of law. Plaintiffs fare no better under SoundBite.2 That Ruling, in pertinent part, considered the substance of the text and concluded that a single, confirmatory text that does not contain marketing or promotional information does not violate the TCPA. Here, Plaintiffs allege Defendant’s confirming texts include forbidden content: marketing and promotional information. Plaintiffs argue the texts referenced a link to Defendant’s website and solicited Plaintiffs to visit the website. According to 2 The FCC’s Ruling in SoundBite came down after Ibey and addressed the same issue – whether a confirming text violated the TCPA – by analyzing the content of the text as well as the scope of the consumer’s consent: a consumer’s prior express consent “can be reasonably construed to include consent to receive a final, one-time [confirming] text message” so long as the text does not contain marketing or promotional information. 27 F.C.C.Rec. 15394. Because Plaintiffs decline to allege whether they consented to Defendant’s initial text messages, SoundBite’s holding regarding consent need not be addressed on the present motion. - 6 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 6 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 7 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs, if the consumer clicks on the link it takes the consumer to Defendant’s website where Defendant offers deals, movies and games, among other things. The Court, however, declines to adopt this “look through” approach to liability under the TCPA. Rather, the Court looks to the texts themselves, and the texts at issue in this case do not contain any marketing or promotional information for products or services. Plaintiffs’ approach goes beyond what is actually stated in Defendant’s confirming texts and invites liability based on what a consumer would find if he or she pursued the link. Because the language of the confirming texts does not contain marketing or promotional information, the texts do not run afoul of SoundBite and cannot form the basis for liability under the TCPA. Plaintiffs, therefore, have failed to state a claim as a matter of law.3 II. CONCLUSION AND ORDER For these reasons, the Court grants Defendant’s motion to dismiss. The Clerk of Court shall close the case. IT IS SO ORDERED. DATED: June 20, 2013 HON. DANA M. SABRAW United States District Judge 3 Because any amendment would be futile, the Court rejects Plaintiffs’ request for leave to amend. In light of this holding, the Court declines to address Defendant’s other arguments concerning the ATDS and the constitutionality of the TCPA. - 7 - 11cv3046 Case 3:11-cv-03046-DMS-RBB Document 57 Filed 06/20/13 Page 7 of 7Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 8 of 26 ORDER – 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HONORABLE RICHARD A. JONES UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ERIC ADERHOLD, Plaintiff, v. CAR2GO N.A., LLC, Defendant. CASE NO. C13-489RAJ ORDER I. INTRODUCTION This matter comes before the court on Defendant’s motion for judgment on the pleadings and Plaintiff’s motion to strike. Although Plaintiff requested oral argument, the court finds oral argument unnecessary. For the reasons stated herein, the court GRANTS the motion for judgment on the pleadings (Dkt. # 13), ruling that Plaintiff’s pleadings establish Defendant’s affirmative defense to Plaintiff’s sole claim arising under federal law. The court DENIES Plaintiffs’ motion to strike. Dkt. # 35. In light of these rulings, along with the court’s ruling from earlier today that Plaintiff’s claim has not been mooted by Defendant’s offer of judgment, the court declines to address Plaintiff’s motion for class certification. The clerk shall TERMINATE that motion. Dkt. # 23. This order concludes with instructions to the parties regarding Plaintiffs’ efforts to certify a class with respect to his remaining claims, all of which invoke Washington law. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 1 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 9 of 26 ORDER – 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. BACKGROUND Mr. Aderhold, a Seattleite, applied to become a car2go member in December 2012. Car2go is a one-way local car-sharing service that Defendant car2go N.A., LLC provides. In Seattle, for example, car2go provides hundreds of cars parked on city streets. Any member can use a car to drive to any location within preset boundaries, paying car2go by the minute for the use of the car. Once the member arrives at her destination, she simply leaves the car there, where another car2go member will presumably use it to go to another destination. Car2go operates not just in Seattle, but in at least five other cities across the United States. Mr. Aderhold registered to become a car2go member by filling out a brief form on the car2go website. The form (Compl., Ex. 1) announced that unless Mr. Aderhold had a valid promotional code, he would pay a “One Time Registration Fee of $35.00 (plus tax).” The form required him to input personal information including his postal address, his “[p]rivate cell number,” and his email address. The form included a section called “[o]ther mandatory disclosures,” which informed him that he was required to review three documents as part of the registration process. The form required him to check three boxes confirming his review and acceptance of the car2go “Terms and Conditions,” the car2go “Trip Process” document, and the car2go “Privacy Policy.” The registration form explained that each of those documents would “control your membership application and subsequent participation in the car2go trip process.” The court will consider the disclosures contained in the registration form and these three documents in its later analysis. Within seconds after Mr. Aderhold submitted his registration form, he received an email at the address he had provided and a text message on the cellular phone whose number he had provided. The text message consisted of two sentences: “Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.” Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 2 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 10 of 26 ORDER – 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Then Mr. Aderhold sued. He asserts that car2go broke the law by sending him the text message. In particular, he relies on the automated dialing restrictions of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b), as well as the ban on unsolicited commercial text messages found in the Washington Commercial Electronic Mail Act (“CEMA”), RCW 19.190.060. He also asserts a Washington Consumer Protection Act (“CPA”) claim that derives at least in part from the alleged CEMA violation. Mr. Aderhold hopes to represent a class of all car2go members and prospective members who have been or might be injured as a result of car2go’s text messages. At the threshold, however, car2go contends that Mr. Aderhold’s TCPA claim is a non-starter. The portion of the TCPA on which Mr. Aderhold relies does not prohibit calls “made with the prior express consent of the called party . . . .” 47 U.S.C. § 227(b)(1)(B). Car2go has moved for judgment on the pleadings, contending that Mr. Aderhold’s complaint establishes that he consented to receive the text message that car2go sent him. Mr. Aderhold has moved to strike the affirmative defense of consent from car2go’s answer to his complaint. The court now considers both motions. After resolving them, it considers what claims remain in this suit and Mr. Aderhold’s efforts to certify a class to pursue those claims. III. ANALYSIS A. Motion for Judgment on the Pleadings: Standard and Applicability to TCPA Affirmative Defense of “Prior Express Consent” The court begins its analysis at car2go’s motion for judgment on the pleadings. That motion, which Federal Rule of Civil Procedure 12(c) authorizes, is “functionally equivalent” to a Rule 12(b)(6) motion to dismiss for failure to state a claim. Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires the court to assume the truth of the complaint’s factual allegations and credit all reasonable inferences arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief that is Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 3 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 11 of 26 ORDER – 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”). The court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the document is central to the party’s claims and its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The court may also consider evidence subject to judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A motion for judgment on the pleadings may also serve as a vehicle for asserting an affirmative defense. When an affirmative defense “is obvious on the face of a complaint,” a defendant can assert that defense in a Rule 12(b)(6) motion or, presumably, in a motion for judgment on the pleadings. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). Car2go’s motion revolves around its affirmative defense that Mr. Aderhold consented to the text message he received. Consent, as the court has noted, is an escape route for a caller who might otherwise face TCPA liability. Mr. Aderhold asserts that car2go violated a portion of the TCPA making it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to any “cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).1 Although the court knows of no federal appeals court that has addressed the issue, district courts deem “prior express consent” to be “an affirmative defense to be raised and proved by a TCPA 1 Text messages are “calls” within the meaning of this portion of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 4 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 12 of 26 ORDER – 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendant,” rather than “an element of Plaintiffs’ TCPA claim.” Connelly v. Hilton Grand Vacations Co., LLC, No. 12cv599 JLS (KSC), 2012 U.S. Dist. LEXIS 81332, at *9 (S.D. Cal. Jun. 11, 2012); see also Baird v. Sabre Inc., No. CV 13-999 SVW, 2014 U.S. Dist. LEXIS 11246, at *5 (C.D. Cal. Jan. 28, 2014); Kolinek v. Walgreen Co., No. 13 C 4806, 2014 U.S. Dist. LEXIS 15986, at *4 (N.D. Ill. Feb. 10, 2014). The court now considers whether car2go is entitled to judgment on the pleadings that Mr. Aderhold gave his “prior express consent” to the text message he received. B. “Prior Express Consent” in the Courts If the number of recent decisions on the issue is any indication, the meaning of “prior express consent” in the TCPA is being litigated almost daily in the federal district courts. Few courts of appeals, however, have weighed in, or at least not in a way that addresses Mr. Aderhold’s circumstances. 1. Ninth Circuit The Ninth Circuit has given some guidance on the meaning of “prior express consent.” In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 949 (9th Cir. 2009), it considered the claims of a consumer who, to obtain a cellular ringtone, disclosed her cellular telephone number to a company (“Nextones”) via a registration form on the internet. She checked a box indicating that she wanted to “receive promotions from [Nextones] affiliates and brands.” Id. She later received a text message from another company (“Simon & Schuster”) promoting a novel. Id. The court found that the text came neither from an “affiliate” of Nextones nor from a Nextones “brand.” Id. at 955. It concluded that the consumer’s “consent to receive promotional material by Nextones and its affiliates and brands cannot be read as consenting to the receipt of Simon & Schuster’s promotional material.” Id. Read narrowly, Satterfield stands only for the proposition that a person’s “prior express consent” to receive communications from one entity is not “prior express consent” to receive communications from another entity. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 5 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 13 of 26 ORDER – 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Aderhold urges a broader reading of Satterfield, focusing on the court’s statement that “[e]xpress consent is ‘consent that is clearly and unmistakably stated.’” 569 F.3d at 955 (quoting Black’s Law Dictionary 323 (8th ed. 2004)). He argues that because the consumer in Satterfield had to take the affirmative step of checking a box to request promotional material, a similar affirmative step is required in every case. As he puts it, express consent must not only be clear and unmistakable, it must be affirmatively “stated.” He also argues that a disclosure as explicit as the one in Satterfield (i.e., a disclosure that checking a box would result in the receipt of promotional material from a specific sender (and its affiliates and brands) is necessary in every case. In its later analysis, the court will consider Mr. Aderhold’s attempt to stretch Satterfield beyond its holding. For now, the court considers how the district courts, including some who are bound by Satterfield, have interpreted express consent. 2. District Courts Interpreting “Prior Express Consent” Broadly, Consistent with Federal Communications Commission Rulemaking Some district courts take a broad view of “prior express consent,” suggesting that anyone who provides a cellular phone number to a business consents to the business’s use of the number to contact him or her. E.g., Pinkard v. Wal-Mart Stores, Inc., No. 3:12-cv- 2902CLS, 2012 U.S. Dist. LEXIS 160938, at *8-10 (N.D. Ala. Nov. 9, 2012); Roberts v. PayPal, Inc., No. C 12-622PJH, 2013 U.S. Dist. LEXIS 76319, *9-13 (N.D. Cal. May 30, 2013). Those courts base their analysis in part on the Federal Communication Commission’s 1992 rulemaking document implementing the TCPA (“1992 Ruling”). Pinkard, 2012 U.S. Dist. LEXIS 160938, at *8; Roberts, 2013 U.S. Dist. LEXIS 76319, at *7. In the 1992 Ruling, the FCC concluded that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” 7 F.C.C.R. 8742, 8769. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 6 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 14 of 26 ORDER – 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Aderhold mistakenly contends that the 1992 Ruling does not apply to car2go’s text message. He points out that the broad statement on which courts have relied applies only to calls that are “otherwise subject to the prohibitions of” a specific regulation. 7 F.C.C.R. 8742, 8769. But that regulation, which the 1992 Ruling reproduces in full, applies to any call “using an automatic telephone dialing system . . . .” 7 F.C.C.R. 8742, Appx. B. (quoting 47 C.F.R. § 64.1200(a)(1)). It thus applies to the text message car2go sent. 3. District Courts Interpreting “Prior Express Consent” in the Context of the Transaction in Which A Consumer Provides His Cellular Number Many courts who have not opined broadly about the meaning of express consent have nonetheless found consent to send text messages based on the context of the transaction in which a consumer provides her cellular number. Several courts have found that sending a text message to an entity for the purpose of opting out of receiving future text messages is nonetheless consent to receive a final text message confirming the opt- out request. Ibey v. Taco Bell Corp., No. 12-CV-583-H (WVG), 2012 U.S. Dist. LEXIS 91030, at *7-8 (S.D. Cal. Jun. 18, 2012); Ryabyshchuck v. Citibank N.A., No. 11-CV- 1236-IEG (WVG), 2012 U.S. Dist. LEXIS 156176, at *7-8 (S.D. Cal. Oct. 30, 2012). These rulings are consistent with a recent FCC declaratory ruling. In re SoundBite Comm’ns, Inc., 27 F.C.C.R. 15391 (Nov. 29, 2012) (concluding that “that sending a one- time text message confirming a consumer’s request that no further text messages be sent does not violate the T[CPA]”). The court in Emanuel v. Los Angeles Lakers, Inc. found that when a consumer sends a text message requesting a service, she consents to receipt of a text message confirming receipt of the request. No. CV 12-9936-GW(SHx), 2013 U.S. Dist. LEXIS 58842, at *12 (C.D. Cal. Apr. 18, 2013). Ibey, Ryabyshchuck, and Emanuel are specific examples illustrative of courts who focus on the nature of the transaction in which a consumer providers her cellular number Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 7 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 15 of 26 ORDER – 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to determine the scope of her “prior express consent.” In Roberts, for example, the consumer provided his cellular number while accessing the PayPal online payment website to make a payment. 2013 U.S. Dist. LEXIS 76319, at *3-4. He then received a text inviting him to learn more about PayPal’s mobile phone payment service. Id. at *4. The court distinguished Satterfield by noting that the “content of the complained-about text message is closely related to the circumstances under which plaintiff provided his cell phone number.” 2013 U.S. Dist. LEXIS 76319, at *13. Several of those courts (and others) have noted the Ninth Circuit’s endorsement, in a case addressing a different aspect of the TCPA, of “approach[ing] the problem with a measure of common sense.” Emanuel, 2013 U.S. Dist. LEXIS 58842, at *8 (quoting Chesbro v. Best Buy Stores, L.P., 697 F.3d 1230, 1234 (9th Cir. 2012)); Ryabyshchuck, 2012 U.S. Dist. LEXIS 156176, at *6 (same). Those courts, and others, have been guided by the legislative purposes of the TCPA. E.g., Ryabyshchuck, 2012 U.S. Dist. LEXIS 156176, at *6 (“[T]he purpose and history of the TCPA indicate that Congress was trying to prohibit use of [automated dialing equipment] in a manner that would be an invasion of privacy.”) (quoting Satterfield, 569 F.3d at 954); Emanuel, 2013 U.S. Dist. LEXIS 58842, at *8 (noting that the TCPA targets the “proliferation of intrusive, nuisance calls”) (quoting Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012)). Even in cases that Mr. Aderhold touts, courts determine “prior express consent” from the context of a transaction. In Mais v. Gulf Coast Collection Bureau, Inc., the court declined to defer to a 2008 FCC ruling that clarified the “prior express consent” defense in the context of calls from a creditor to a debtor. 944 F. Supp. 2d 1226, 1235- 1239 (S.D. Fla. 2013) (considering In re Rules and Regulations Implementing the TCPA, 23 F.C.C.R. 559 (Jan 4., 2008) (“2008 Ruling”)). It took a narrow view of “prior express consent,” ruling that there was no consent where there was no evidence that a hospital patient “expressly told the Hospital that it, or any of its agents or affiliates, could call Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 8 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 16 of 26 ORDER – 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff on his cell phone using an automatic telephone dialing system . . . for debt collection or payment purposes.” Id. at 1239 (“The TCPA plainly requires such ‘prior express consent’ before a party may be called; mere ‘implied consent’ will not do.”). But the Mais court acknowledged that “[i]n the context of retail purchases, consumer credit transactions, and the like, a debtor might reasonably expect a creditor to call the cell phone number he provided at the time of the debt-creating transaction, if he fails to pay his bill.” Id. at 1240. In Thrasher-Lyon v. CCS Commercial, LLC, the court held that a plaintiff who gave her cellular phone number to an insurance claims adjuster in connection with its investigation of a car accident had not consented to later automatically-dialed calls from an entity attempting to collect on the insurer’s subrogation claim against her. No. 11-c- 4473, 2012 U.S. Dist. LEXIS 125203, at *2-3, *7 (N.D. Ill. Sept. 4, 2012). The court held that the TCPA requires not merely consent to be called, but consent to be called with automatic dialing equipment. Id. at *8 (interpreting “‘prior express consent’ to require consent to robocalls, not just consent to receiving telephone calls”). Unlike the Mais court, the Thrasher-Lyon court found that it was bound by the 2008 Ruling,2 but the court also explained that the case did “not involve a debtor-creditor or other relationship where providing a phone number ‘reasonably evidences’ express consent to be called, even with automated equipment, about a debt.” Id. at *9-11. 2 Car2go places especial reliance 2008 Ruling’s elaboration on the application of the TCPA to instances in which consumer debtors disclose telephone numbers to creditors. That ruling does not apply directly to this case, as Mr. Aderhold is not debtor with respect to car2go and car2go is not his creditor. The court observes, however, that the FCC’s conclusion that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt” is consistent with the view of consent expressed by Satterfield and most district courts. 23 F.C.C.R. 559 at 564. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 9 of 18Case 9:16-cv-80967-BB Document 27-3 Ent red on LSD Docket 09/08/2016 Page 17 of 26 ORDER – 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Car2go Obtained Mr. Aderhold’s Prior Express Consent to the Text Message He Received. Before applying Satterfield and persuasive district court authority, the court considers in detail the facts surrounding Mr. Aderhold’s consent. 1. Car2Go’s Disclosures To Mr. Aderhold The car2go registration form that Mr. Aderhold completed informed him that the car2go Terms and Conditions, Trip Process, and Privacy Policy documents would “control [his] membership application and subsequent participation in the car2go trip process.”3 It required him to click three boxes, corresponding to each of the documents, agreeing to their provisions. It is the “Trip Process” document that contains the most specific explanation of the process of applying for a car2go membership. The first substantive section of that seven- page document explains that the applicant will “register through a self-initiated online car2go registration process.” Compl.., Ex. 3 at ¶ I. It explains that car2go “will validate personal information provided by the applicant.” Id. It also explains that car2go must approve a membership application before the registrant becomes a member, and that it might decline a membership application for specified reasons or for no reason at all. Id. It explains, however, that if “membership criteria are met, as determined at car2go’s sole discretion, and applicable fees, if any, have been paid, car2go will confirm acceptance of the application . . . .” Id. Later, in a portion of the Trip Process document devoted to an explanation of reserving and accessing car2go cars, car2go discloses as follows: [C]ar2go retains the right to refuse advance booking if the number of available vehicles is not sufficient to fulfill all reservation requests. 3 Mr. Aderhold makes a cursory argument that he should not be charged with knowledge of the disclosures of the Terms and Conditions, Trip Process, and Privacy Policy documents. He cites no Washington authority pertinent to that argument, and his pleadings assert no facts that would permit a court to reach the conclusion that he should not be deemed to be aware of what is disclosed in those documents. See Kwan v. Clearwire Corp., No. C09-1392JLR, 2011 U.S. Dist. LEXIS 150145, at *19-28 (W.D. Wash. Jan. 3, 2012) (discussing validity of “shrinkwrap,” “clickwrap,” and “browsewrap” contracts). Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 10 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 18 of 26 ORDER – 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [C]ar2go may confirm a registration via instant text message. Members should note that cell phone providers may charge a fee for receiving text messages. Members should contact their cell phone providers for any fees associated with receipt of text messages. [C]ar2go is not responsible for any fees assessed by the Member’s cell phone provider for receipt of text messages. Compl., Ex. 3 at ¶ IV(B) (emphasis added). The parties dispute the import of this provision. Car2go contends that it expressly discloses that it will confirm registration (i.e., the registration form that initiates the membership application process) with a text message. Mr. Aderhold contends that the clause, which is the sole mention of “registration” in a portion of the Trip Process document that refers solely to the reservation and use of cars, is misleading at best. He also notes that the Terms and Conditions document contains precisely the same disclosure except that it uses the term “reservation” in lieu of “registration.” Compl., Ex. 2 at ¶ 5.2. He suggests that car2go’s use of “registration” in the Trip Process document is an error, and that a reasonable reader would understand it to be an error. In addition to the Trip Process document, the Privacy Policy document contains the following disclosure, under the heading “Use of Personal Information”: As part of the membership application process, car2go may collect personal information . . . for the purpose of evaluating applications for car2go car- sharing membership. Any information collected may also be stored, retained or used in other car2go business processes including, but not limited to, membership renewal, periodic membership validation, member account-management and payment authorization. Compl., Ex. 4. 2. Applying Virtually Any Court’s View of the TCPA’s “Prior Express Consent” Defense, Mr. Aderhold Consented to the car2go Text Message. Considering all of the foregoing authority, the court concludes that Mr. Aderhold gave his “prior express consent” to receiving the text message from car2go. The court does not purport to rule upon what “prior express consent” means in every case, it merely holds that Mr. Aderhold consented to the message at issue. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 11 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/20 6 Page 19 of 26 ORDER – 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although it is tempting, the court declines to ground its conclusion solely in car2go’s disclosure in the Trip Process document that it could “confirm a registration via instant text message.” It is possible, perhaps even likely, that a reasonable reader of that document would understand the use of the term “registration” to refer to the registration form that Mr. Aderhold sent in. But given the context – specifically the use of the term in a section that otherwise does not bear upon the “registration” process and the use of the term “reservation” in place of “registration” in an otherwise identical disclosure in the Terms and Conditions – the court finds that reasonable people could either be confused about the meaning of “registration” or conclude that that car2go used the term in error. The court grounds its conclusion, instead, in the reasoning of Satterfield. Much like the consumer in Satterfield, Mr. Aderhold checked a box (three of them, actually) indicating his assent to particular conditions. Among those was the disclosure in the Trip Process document that car2go “will validate personal information provided by the applicant.” Compl.., Ex. 3 at ¶ I. The same document explained that “car2go will confirm acceptance of the application . . . .” Id. And more generically, the Privacy Policy disclosed that car2go would use his personal information in any car2go “business process,” including but not limited to “periodic membership validation.” The text message that Mr. Aderhold receives falls squarely within the scope of these disclosures. It “validated” that Mr. Aderhold had disclosed a valid cellular telephone number, it “confirm[ed] acceptance of [his] application,” and it was a form of “membership validation.” Unlike Mr. Aderhold, the court does not interpret the Satterfield panel’s declaration that express consent must be “clearly and unmistakably stated” to require any particular form of consent. See In re Rules and Regulations Interpreting the TCPA, 27 F.C.C.R. 1830, 1838 (“[W]e note that the TCPA is silent on the issue of what form of express consent – oral, written, or some other kind – is required for calls that use an Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 12 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 20 of 26 ORDER – 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 automatic telephone dialing system . . . to deliver a telemarketing message.”) (Feb. 15, 2012).4 In particular, it does not require specific consent to the medium by which a company contacts a consumer.5 The consumer in Satterfield did not consent to be contacted by text message, she merely consented to “receive promotions” on a form in which she provided her email address and cellular phone number. 569 F.3d at 949. The Satterfield court held that a “voice message or a text message are not distinguishable in terms of being an invasion of privacy,” id. at 954, and the court expects that the Satterfield court would have reached the same conclusion about email as well. In Mr. Aderhold’s case, although he arguably did not explicitly grant permission for car2go to contact him by text message regarding his registration form, no reasonable person in his shoes could have doubted that car2go would contact him in some manner. That car2go chose a text message (in addition to an email) is not significant. Mr. Aderhold clearly and unmistakably consented to being contacted about his registration for car2go. Satterfield is the touchstone of the court’s analysis, but court’s ruling today takes guidance from district court cases that the court has cited herein (and many more that it has not cited). Many of those cases apply Satterfield in a manner that is both faithful to that court’s reasoning and consistent with common sense. Although the text that car2go sent Mr. Aderhold is not a simple confirmation of receipt of a consumer’s text message, the cases addressing confirmatory text messages (Ryabyshchuck, Ibey, and Emanuel) embrace the notion that a customer who sends a text at least consents to receive a text confirming its receipt. Although the court has no need to consider how broadly to 4 Mr. Aderhold points the court to the FCC’s recent revamping of regulations pertaining to unwanted telemarketing calls. 27 F.C.C.R. 1830 (Feb. 15, 2012). The court has not analyzed those rules in detail, and suggests no view on whether they would prohibit or permit the text message that car2go sent in this case. The court merely notes that the revised rules did not become effective until at least February 2013. 27 F.C.C.R. 1830, 1857. 5 The Thrasher-Lyon court, not bound to follow Satterfield, ruled that a plaintiff must not merely consent to being called, she must content to be called via automatic dialing equipment. 2012 U.S. Dist. LEXIS 125203, at *8-9. This court finds that Satterfield implicitly forecloses that ruling. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 13 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 21 of 26 ORDER – 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 construe the consent of a consumer who provides his cellular phone number to an entity, this court concurs with others who have concluded that a consumer at least consents to text messages “closely related to the circumstances under which plaintiff provided his cell phone number.” Roberts, 2013 U.S. Dist. LEXIS 76319, at *13. Permeating this court’s conclusions is the common sense approach that courts construing the TCPA have advocated. Even if car2go had made no disclosures at all about the purposes for which it would use Mr. Aderhold’s cellular number, it defies logic to contend that he did not consent to be contacted regarding his membership application. When people provide their telephone numbers in commercial transactions, it would be odd to imagine that they do not consent to being contacted for purposes of completing that transaction. Could a person who provided a telephone number to a delivery service seriously contend that she had not consented to be telephoned by the service to inform her that her package was en route? Could a person who provided a telephone number to a mechanic claim that she did not consent to be called (or texted) when her car was repaired? According to Mr. Aderhold, if the delivery service and mechanic used an autodialer to make those calls, then they broke the law. The court is confident that Congress did not intend that result when it passed the TCPA. And although Mr. Aderhold is apparently an exception, the court doubts that most customers would feel that their privacy had been invaded by such calls. All of these considerations strengthen the court’s conclusion that Mr. Aderhold consented to the text message he received. 3. Car2Go’s Text Was Not “Telemarketing,” and Car2Go’s Alleged Deception Does not Vitiate Mr. Aderhold’s Consent. Mr. Aderhold’s additional attempts to convince the court that he withheld consent are not persuasive. Attempting to connect the car2go text he received to the sort of telemarketing call that is at the heart of the TCPA, he argues that because the text directed him to place an activation code into an email that ultimately connected to the car2go website which contains promotions for the car2go service, it was a telemarketing Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 14 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 22 of 26 ORDER – 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 text. The court has no difficult concluding that he is mistaken. There is no indication that the text was intended for anything other than the limited purpose stated in its two sentences: to permit Mr. Aderhold to complete registration. It is manifestly insufficient that Mr. Aderhold could, after choices of his own making, divert himself from the registration process to car2go marketing. The court need not decide if Mr. Aderhold consented to telemarketing texts, it suffices to conclude that the text he received was not telemarketing. Cf. Chesbro, 697 F.3d at 1234-35 (concluding that message informing plaintiff about expiration of “reward points” was implicitly an exhortation “to make future purchases). Mr. Aderhold also unsuccessfully argues that car2go’s alleged “deception” in soliciting registrations somehow vitiates his consent. The “deception” to which he points is that car2go offered registration either for no cost or for a fixed fee plus applicable taxes, but did not disclose the possibility that he would receive a text message that might result in a nominal charge6 from his or her cellular phone provider. In addition, he argues that car2go’s use of three documents in addition to its registration form is inherently deceptive. The court suggests no opinion on whether car2go’s failure to explicitly warn customers of a possible fee for a text message sent in connection with the registration process is “deceptive” within the meaning of any law. The court only concludes that the possibility of third-party fees (which can apply to voice calls as well as texts) is not relevant to whether a party who provides its phone number to an entity has consented to be contacted at that phone number. Similarly, the court has already indicated that Mr. Aderhold has not alleged facts from which the court could conclude, even taking all inferences in his favor, that car2go deceptively displayed the three documents referenced in the registration form. See supra n.3. 6 Mr. Aderhold’s complaint is silent as to the amount of the charge. He later declared that the text message cost him ten cents. Aderhold Decl. (Dkt. # 24) ¶ 10. Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 15 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 23 of 26 ORDER – 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Mr. Aderhold’s Motion to Strike Before moving beyond Mr. Aderhold’s TCPA claim, the court notes that its decision to grant car2go’s motion for judgment on the pleadings as to the TCPA claim makes it unnecessary to address Mr. Aderhold’s motion to strike car2go’s “prior express consent” affirmative defense. In particular, the court suggests no opinion as to whether a motion to strike an “insufficient defense,” via Federal Rule of Civil Procedure 12(f), is an appropriate vehicle to excise from an answer an affirmative defense that does not meet the plausibility-in-pleading standards of Twombly, Iqbal, and their progeny. The court also suggests no view on whether affirmative defenses are actually subject to plausibility- in-pleading standards. The court merely holds that because Mr. Aderhold’s pleadings suffice to demonstrate that car2go is entitled to judgment as to its “prior express consent” defense, it will not strike that defense from car2go’s answer. The court also notes that it could have directed the clerk to terminate Mr. Aderhold’s motion to strike because he ignored a court order in filing it. On June 24, 2013, the court ordered the parties to meet and confer before filing any motion and to certify that they had done so, in addition to certifying that they had attempted to propose reasonable limits on the number and length of their motions. Jun. 24, 2013 minute order (Dkt. # 30) at 2. Mr. Aderhold filed his motion to strike without including the required certification. The court will summarily strike any future motion that does not comply with that order, and will consider imposing sanctions. D. The Parties Must Meet and Confer Regarding the Fate of Mr. Aderhold’s Claims Under Washington Law. Although car2go insists that its motion for judgment on the pleadings is completely dispositive, its sole effort to address Mr. Aderhold’s Washington law claims is a footnote in its motion that states that the court cannot exercise supplemental jurisdiction over those claims once the court dismisses his TCPA claim. Def.’s Mot. (Dkt. # 13) at 20 n.9. Car2go is flatly wrong. Provided the court had original jurisdiction Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 16 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 24 of 26 ORDER – 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 over at least one federal claim (Mr. Aderhold’s TCPA claim suffices), it has supplemental jurisdiction over state law claims arising out of the same case or controversy. 28 U.S.C. § 1367(a). The court has discretion to decline to exercise supplemental jurisdiction after it “has dismissed all claims over which [it] has original jurisdiction,” § 1367(c)(3), but it has no mandate to do so. See, e.g., Sea-Land Serv. v. Lozen Int’l, LLC, 285 F.3d 808, 814 (9th Cir. 2002) (“Although the district court could have dismissed [plaintiff]’s state-law claim after dismissing the [federal] claim, it did not abuse its discretion by choosing to entertain the merits of the state-law claim.”) (emphasis in original). Car2go offered no argument as to why the court should exercise its discretion to decline jurisdiction over Mr. Aderhold’s Washington claims. Moreover, Car2go did not respond to Mr. Aderhold’s assertion that the Class Action Fairness Act gives the court an additional basis for jurisdiction, because Mr. Aderhold hopes to represent a class of at least one hundred people whose claims, in the aggregate, are worth more than $5 million. 28 U.S.C. § 1332(d). Not only does the court have no basis to decline jurisdiction as to Mr. Aderhold’s Washington claims, it has no basis to dismiss them. Car2go offered no argument that a conclusion that Mr. Aderhold gave his “prior express consent” in accordance with the TCPA has any impact on his Washington law claims. Although car2go has presented no valid no basis for dismissing Mr. Aderhold’s Washington claims, the court will not consider his class certification motion. To begin, his motion (including the structure of subclasses he proposes to represent) relies on his belief that he has a valid TCPA claim. He must, at a minimum, revise his motion accordingly. Perhaps more significantly, he filed that motion without taking discovery. He believed that he was required to do so in order to stave off car2go’s efforts to moot his claims by making him a fully favorable offer of judgment. The court has dismissed that Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 17 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 25 of 26 ORDER – 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 notion in the first of today’s orders. It seems unlikely that Mr. Aderhold prefers to file a class certification motion without the benefit of discovery. Accordingly, the court will terminate Mr. Aderhold’s class certification motion. No later than March 21, the parties must meet and confer and submit a joint statement to the court. Mr. Aderhold shall inform car2go whether he wishes to engage in class certification discovery. Assuming that he does, the parties shall discuss a reasonable timetable for discovery, including a reasonable deadline for Mr. Aderhold’s revised class certification motion. Alternatively, Mr. Aderhold may forego discovery, revise his class certification motion in accordance with today’s order, and file the revised motion. In either event, the parties shall file a joint statement no later than March 21. When the parties meet and confer, they shall also conduct a conference in accordance with Federal Rule of Civil Procedure 26(f), although they shall focus on discovery related to class certification. As part of their joint statement, the parties shall proffer deadlines for the exchange of initial disclosures. IV. CONCLUSION For the reasons previously stated, the court GRANTS car2go’s motion for judgment on the pleadings (Dkt. # 13) and dismisses Mr. Aderhold’s TCPA claim. The court DENIES Mr. Aderhold’s motion to strike. Dkt. # 35. The clerk shall TERMINATE Mr. Aderhold’s motion for class certification (Dkt. # 23), although Mr. Aderhold may file a new class certification motion in accordance with this order. The parties shall submit the joint statement described in this order no later than March 21, 2014. DATED this 27th day of February, 2014. A The Honorable Richard A. Jones United States District Court Judge Case 2:13-cv-00489-RAJ Document 74 Filed 02/27/14 Page 18 of 18Case 9:16-cv-80967-BB Document 27-3 Entered on FLSD Docket 09/08/2016 Page 26 of 26