247 F. Supp. 3d 138
D. Mass.2017Background
- PHI (a Cincinnati healthcare provider) sued Vertex and TAG under the TCPA/Junk Fax Prevention Act, alleging three 2011 faxes inviting attendance at a satellite broadcast about Vertex’s drug Incivek were unsolicited advertising.
- TAG sent the faxes under a contract with Vertex to promote an Incivek educational broadcast; faxes bore Vertex/Incivek branding and invited in-person or online attendance.
- The faxes were addressed to PHI’s fax number (513-922-2009); PHI produced testimony and invoices supporting it was a subscriber, while Vertex pointed to ambiguous phone-company records.
- The broadcast presented FDA-approved clinical information about Incivek (slide deck with Incivek on every page) and included a live Q&A; Incivek was commercially available at the time.
- Parties filed cross-motions for summary judgment; the magistrate judge denied all motions, finding disputed factual issues precluded summary judgment on standing, whether the faxes were "advertisements," consent, and agency/sender liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | PHI received faxes on its fax line and suffered injury from occupation of its fax machine | No proof PHI subscribed to or owned the fax line; no concrete injury | Court: triable facts on subscription; occupation of fax machine is a concrete, particularized injury giving standing |
| Consent | Faxes were unsolicited; defendants bear burden to prove consent | Vertex/TAG: PHI consented or invited | Court: no evidence of consent by defendants; summary judgment denied |
| Advertisement under TCPA | Faxes promoted Incivek (logos, "New", slide deck) and could stimulate prescriptions => advertising | Faxes were educational/clinical, supplying safety and prescribing information, not promoting commercial availability | Court: fact question; reasonable jurors could find either way; summary judgment improper |
| Sender/Agency Liability | PHI: Vertex is liable as "sender" because TAG sent faxes on Vertex's behalf and faxes promoted Vertex's product | Vertex: TAG exceeded authority and breached warranties; Vertex not liable | Court: Vertex contracted TAG to send invitations; questions of fact remain but Vertex not entitled to summary judgment on sender liability |
Key Cases Cited
- Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994) (sham-affidavit doctrine limits contradictory post-deposition affidavits)
- Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002) (affidavits that explain opaque deposition testimony may be considered)
- Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969) (policy against defeating summary judgment with unexplained contradictory affidavits)
- Mahan v. Boston Water & Sewer Comm’n, 179 F.R.D. 49 (D. Mass. 1998) (procedural rationale for sham-affidavit rule)
- Ahern v. Shinseki, 629 F.3d 49 (1st Cir. 2010) (summary judgment standard and drawing inferences for nonmovant)
- Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228 (1st Cir. 1996) (cross-motions for summary judgment standard)
- Estate of Hevia v. Portrio Corp., 602 F.3d 34 (1st Cir. 2010) (consider each summary judgment motion separately)
- Mims v. Arrow Fin. Servs., 565 U.S. 368 (2012) (background on TCPA and consumer complaints prompting the statute)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete and particularized injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (constitutional standing framework)
- Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (TCPA injury includes occupation of fax machine; sender definition and statutory damages rationale)
- Imhoff Inv., LLC v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (direct liability under TCPA attaches to the entity whose goods are advertised)