Physicians Healthsource, Inc. v. Stryker Sales Corp.
65 F. Supp. 3d 482
| W.D. Mich. | 2014Background
- PHI filed a TCPA claim against Howmedica, Stryker entities, and related promoters for allegedly unsolicited faxes promoting PCP seminars.
- Howmedica sent 15,041 faxes to 8,065 unique numbers between December 3, 2009 and August 8, 2011 with Stryker branding and seminar content.
- Faxes included a cover letter and PowerPoint slides; it is disputed whether the content promoted specific Stryker products or was purely educational.
- Dr. Martinez (PHI) and AMA masterfile practices are cited as the source of fax numbers; opt-out language was not included on the fax at issue.
- PCP Seminar arrangements with Dr. Petrocy and Stryker’s PCP Agreement are discussed to show the relationship between promotional material and medical education.
- The court granted class certification earlier and then denied cross-motions for summary judgment, ruling the issue of solicitation and advertising to be fact-intensive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the fax an advertisement under TCPA? | PHI argues the fax promotes Stryker products and seminar benefits. | Howmedica argues the fax is informational about a seminar, not an advertisement. | Fact-intensive; cannot be decided as a matter of law |
| Was the fax unsolicited under TCPA? | PHI contends no express invitation or permission was provided specifically for this fax. | Defendants contend consent could defeat unsolicited status. | Unsolicited as a matter of law; no opt-out present, but further issues remain |
| Are the Stryker entities liable for the fax sent by Howmedica? | PHI asserts corporate liability via agency/veil piercing theories based on use of Stryker branding. | Stryker argues no involvement or veil piercing; entities are distinct. | Denial of summary judgment on liability issues; possible agency/veil theories remain for trial |
| Does the opt-out requirement defeat consent-based defenses? | Opt-out language was absent and the FCC/Regulations require it for all faxes. | Consent from AMA masterfile should suffice to defeat unsolicited status. | Opt-out requirement applies; consent defense fails; unresolved whether consent is sufficient under the TCPA |
Key Cases Cited
- Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013) (advertisement in a periodic material can establish TCPA violation; pretext matters)
- Green v. Time Ins. Co., 629 F. Supp. 2d 834 (N.D. Ill. 2009) (fax need not contain explicit sale to violate TCPA; context matters)