444 F.Supp.3d 775
E.D. Mich.2020Background
- Exclusively Cats Veterinary Hospital received an unsolicited fax from M/A/R/C Research on July 5, 2016 soliciting participation in a market-research survey about a new veterinary pain-management product.
- The fax stated it was "not selling anything," promised not to share the recipient's fax number, and offered a $20 Amazon gift card plus entry in a $500 sweepstakes as incentives.
- Plaintiff sued under the TCPA (47 U.S.C. § 227(b)(1)(C)) alleging the fax was an "unsolicited advertisement," and asserted a statutory-conversion claim under Michigan law for use of paper/toner; it also moved to certify a class.
- Defendant moved to dismiss, arguing the fax was informational (a survey), not an "advertisement" under the TCPA, and challenged the conversion claim.
- The court held the fax was an information-based survey (not a TCPA "advertisement") and that participation incentives did not convert it into an ad; it dismissed the TCPA claim with prejudice.
- The court declined supplemental jurisdiction over the novel state-law conversion claim and dismissed it without prejudice; the class-certification motion was denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the unsolicited fax was an "advertisement" under the TCPA | The fax solicited veterinarians and thus was an unsolicited advertisement subject to TCPA liability | The fax was a market-research survey requesting information, not promoting goods or services for sale | The fax was an information-based survey, not an "advertisement" under the TCPA; TCPA claim dismissed |
| Whether offering nominal incentives (gift card/sweepstakes) converts the survey into a TCPA advertisement | Incentives make the transmission a commercial solicitation/advertisement | Incentives are routine response incentives and do not convert a genuine survey into an advertisement | Incentives did not transform the survey into a TCPA-covered advertisement |
| Whether an unsolicited fax can support a Michigan statutory-conversion claim for paper/toner use | Conversion arises from unauthorized exertion of dominion over property (paper/toner) by sending the fax | The claim raises novel questions about dominion/use and Michigan law has no clear precedent | Court declined supplemental jurisdiction over this novel state-law issue and dismissed conversion claim without prejudice |
Key Cases Cited
- Sandusky Wellness Ctr., L.L.C. v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015) (defines TCPA "advertisement" as promoting goods/services for sale and treats informational faxes as non-ads)
- Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (addresses sender/established business relationship under TCPA)
- Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540 (6th Cir. 2014) (TCPA application to faxed offers to sell products)
- Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d 886 (6th Cir. 2016) (TCPA analysis in context of faxed service offers)
- N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929 (U.S. 2017) (statutory-interpretation principle cited regarding express exclusions)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (U.S. 2012) (Congress enacted TCPA in response to consumer complaints about abusive telephone practices)
- Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244 (6th Cir. 1996) (factors supporting dismissal of supplemental state-law claims after federal claims are dismissed)
- Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (U.S. 1988) (values informing discretionary decline of supplemental jurisdiction)
- United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990) (discussion of "commercially available" in TCPA context)
- Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc., 497 Mich. 337 (Mich. 2015) (Michigan elements of statutory conversion)