53 F.4th 1109
8th Cir.2022Background
- BPP, a periodontal care provider in St. Louis, received a fax from Caremark (sent via vendor Welltok) announcing a three-day opioid supply limit option for patients under 20.\
- Caremark is a pharmacy benefits manager that sells services to plan sponsors (insurers, employers), not to individual providers or patients.\
- The fax informed providers of the coverage option, exemptions (e.g., cancer, palliative care), and prior-authorization procedures; Caremark’s marketing reviewed the draft.\
- BPP sued Caremark and Welltok under the TCPA, claiming the fax was an unlawful "unsolicited advertisement."\
- The district court granted summary judgment for defendants; the Eighth Circuit affirmed, holding the fax was not an "unsolicited advertisement" as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fax was an "unsolicited advertisement" under the TCPA | The fax gave public notice of Caremark's commercial PBM services and therefore was an unsolicited advertisement | An "advertisement" requires a commercial component promoting goods/services for sale or profit; the fax was primarily informational | Adopted Sandusky: advertisement requires commercial nexus/promotional aim; the fax was informational, not an ad |
| Whether courts must defer to the FCC's interpretation under Chevron | Court should defer to FCC guidance interpreting "unsolicited advertisement" | The TCPA definition is unambiguous; Chevron deference not triggered; FCC guidance does not support BPP's view | No Chevron deference: statutory term not ambiguous; FCC treats primarily informational faxes as non-ads |
| Whether factual disputes (e.g., marketing involvement, possible patient switching) precluded summary judgment | Marketing review and potential indirect business benefit create a triable issue of commercial intent | Marketing reviews both commercial and informational material; Caremark does not sell to doctors; plaintiff’s theory is speculative | No genuine dispute: evidence insufficient to show the fax promoted sales or had a commercial aim; summary judgment proper |
| Whether a minor or remote commercial purpose would make a fax unlawful | Minor or indirect commercial benefits (branding, patient switching) should suffice to classify a fax as an ad | Treating remote/minor benefits as dispositive would vastly expand the TCPA beyond its scope | Rejected: minor/remote commercial purposes are insufficient; a clear promotional/commercial purpose is required |
Key Cases Cited
- Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015) (defines "advertisement" to require a commercial/promotional component)\
- Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., 845 F.3d 92 (2d Cir. 2017) (fax with promotional sales pitch constituted an unsolicited advertisement)\
- Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to agency interpretations)\
- Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency authority can bind courts when statute ambiguous)\
- Onyiah v. St. Cloud State Univ., 5 F.4th 926 (8th Cir. 2021) (standard of review for summary judgment)\
- Lindeman v. St. Luke's Hosp. of Kan. City, 899 F.3d 603 (8th Cir. 2018) (summary judgment standard)