ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [Docket Nos. 72, 75, 79, 109, 111]
In this putative class action, plaintiff Physician’s Healthsource, Inc. (“PHI”) alleges violations of the Telephone Consumer Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 8227 (the “TCPA”). Specifically, PHI alleges that three faxes it received from the defendants constitute “unsolicited advertisements” in violation of the TCPA and seeks to represent a nationwide class of all persons who allegedly received similar faxes. All parties have filed motions for summary judgment. Docket Nos. 72, 75, 79.
I. PROCEDURAL BACKGROUND
On April 6,2015, PHI filed this action on behalf of itself and others similarly situated. Docket No. 1. PHI also filed a motion for class certification, which the Court denied without prejudice on December 7, 2015. Docket Nos. 2, 58.
On July 29, 2016, PHI and defendants Vertex Pharmaceuticals Incorporated (“Vertex”) and Tactical Advantage Group, LLC (“TAG”) filed cross-motions for summary judgment. Docket Nos. 72, 75, 79. The parties filed oppositions to each other’s motions for summary judgment on August 26, 2016. Docket Nos. 91, 93, 96, 97. The parties filed replies on September 9, 2016. Docket Nos. 103, 105, 106, 107. The Court heard oral argument on March 7, 2017.
A. Scope Of The Record
In order to determine precisely which materials are properly before the Court for purposes of deciding the cross-motions for summary judgment, the Court must first decide Vertex’s motions to strike certain portions of the summary judgment record. First, Vertex moves to strike the affidavit of Alicia Scutari Salerno (the “Salerno Affidavit”), which was submitted, by TAG in support of its motion for summaiy judgment. Docket No. 109. Vertex argues that the Salerno Affidavit must be stricken from the record because it contradicts the testimony of Stephen Taglienti, TAG’S Rule 30(b)(6) designee. Id.
• “When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, Inc.,
However, “[a] subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment.” Gillen v. Fallon Ambulance Serv., Inc.,
Vertex also moves to strike certain documents on the grounds that PHI’s production of those documents was untimely. Docket No. 111. PHI produced such documents well after the discovery deadline and, in some cases, after the deadline for filing dispositive motions. There are three categories of documents at- issue: (1) PHI’s June 2011 fax journals; (2) Cincinnati Bell phone bills; and (3) documents concerning PHI’s fax machine. With respect to the June 2011 fax journals, PHI has explained that it had mistakenly produced June 2010 journals and it was not until a deposition on June 14, 2016 that it realized its mistake. See Docket Ño.'90 at 6. Vertex has not provided any evidence that PHI’s late production of June 2011 fax journals was anything other than a mistake.
With respect to the phone bills, PHI .maintains that such documents were not responsive to any of Vertex’s discovery requests and that Vertex did not request such documents until June 2016. See Docket No. 90 at 2-5. However, PHI’s reading of Vertex’s discovery requests is much too narrow. Vertex’s Request No. 7 sought “[a]ll documents concerning any fax receiver that PHI alleges received Exhibit A, including but not limited to ... monthly invoices.” Docket No. 83 at 7-8. The phone bills are plainly responsive and PHI should have searched for and produced such documents in a timely manner. Similarly, PHI states that it did not come across the additional documents regarding its fax machine until it searched for the phone bills. Docket No. 90 .at 8. Again, PHI should have searched for, and produced such doc
B. Facts
Vertex is a publicly traded specialty pharmaceutical company that develops, manufactures, and markets small-molecule drugs for treatment of diseases.
Among the products developed, manufactured, and marketed by Vertex in 2011 was the pharmaceutical Incivek.
Incivek was a protease inhibitor developed by Vertex and approved by the FDA for the treatment of patients with hepatitis C (“HCV”).
Before the introduction of protease inhibitors, HCV was treated using a two-drug therapy of pegylated interferon and ribavirin.
To that effect, Vertex entered into a Master Professional Services Agreement, Service #7 (“MSA”) with TAG.
PHI alleges that on or about June 6, 2011 and June 7, 2011, defendants transmitted to PHI by telephone facsimile machine three invitations to the satellite broadcast.
Please join us for an interactive meeting presented via satellite broadcast!
INCIVEK:
A Change in the
Treatment Paradigm
Thursday, June 9, 2011
7:00 PM
Mitchell’s Fish Market
One Levee Way, Suite 2129
Newport, KY 41071
Moderated by:
Carrie Jennings, NP
U. of Cincinnati
The second page explains that “[fjour national experts will review the latest data on INCIVEK as a change in the treatment paradigm. The presentation will include a live Q & A session, followed by an in-depth discussion with your local moderator.”
The faxes provided a fax number and email address for invitees to sign up. They also indicated that “[i]f you are unable to join us in person, you are invited to view the presentation online at www. vertexmeetings.com/webcast.”
The intended recipient of the faxes was Jose Martinez, MD.
a. Background on HCV, including prevalence of infection, the HCV li-fecycle, and the mechanism for treatment of HCV using the three-drug regimen;
b. Indications and contraindications for Incivek;
c. Use of “response-guided therapy,” with related periodic testing and assessment requirements, to administer Incivek;
d. Dosage requirements and “treatment futility rules” indicating when treatment with Incivek should cease;
e. Research findings during Phase III clinical studies,; including detailed statistics concerning subjects’ responses to the therapy; ■
f. Potential side effects and their management, including anemia, rashes and anal burning;
g. Known and potentially significant drug interactions; and •
h. Warnings, precautions, and safety information.38
The faculty members presented the information in the slide deck and then responded to questions and answers concerning dosing and side effects in a segment moderated by Dr. Kimberly Brown.
III. . ANALYSIS
A. Standard Of Review
Summary judgment is appropriate “if the movant shows that there is no geiiuine dispute'as to' any material fact and the movant is entitled to judgment ás a matter of law,” Fed. R. Civ. P. 56(a). “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado,
The Court “must scrutinize the evidence in the light most agreeable to the nonmov-ants, who are entitled to the benefit of all reasonable inferences therefrom.” Ahern v. Shinseki,
“Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se.” Wightman v. Springfield Terminal Ry. Co.,
B. The TCPA
Congress passed the TCPA in 1991, prompted by “[v]oluminous consumer complaints about abuses of telephone technology.” St. Louis Heart Center, Inc. v. Forest Pharmaceuticals, Inc., No. 4:12-CV-02224,
The TCPA outlaws multiple abuses of telephone technology, At issue here, the TCPA “proscribes sending unsolicited advertisements to fax machines.” Id. (citing Mins,
C. Standing
The defendants argue that PHI lacks standing to bring this suit. Docket No. 77 at 14-20; Docket No. 74 at 15-17. If PHI lacks standing to bring this matter before the Court, the Court lacks jurisdiction to decide the merits of the case. Libertad v. Welch,
“Standing involves ‘a blend of constitutional requirements and prudential considerations.’ ” N.H. Right to Life Political Action Comm. v. Gardner,
In order to establish standing, PHI “must have (1) suffered an injury in
The defendants make two arguments in support of their assertion that PHI lacks standing. First, they argue that PHI has presented no evidence that it received the faxes on which it bases the claims in this case because there is no evidence in the record that PHI owned or subscribed to the fax line reflected on the faxes. Docket No. 74 at 15-18; Docket No. 77 at 15-17. Second, Vertex argues that PHI has presented no evidence that it sustained any concrete injury. Docket No. 77 at 17-20. The Court disagrees.
Whether PHI owned the fax or was the subscriber to 513-922-2009 in 2011 presents an issue of fact. PHI’s Rule 30(b)(6) representative testified, under oath, that 513-922-2009 was PHI’s “dedicated phone line that it used to send and receive faxes” in 2011.
Vertex points to documents produced by Cincinnati Bell and argues that those documents establish that 513-922-2009 was registered to Comprehensive Pain Solutions, not PHI. See Docket No. 77 at 16. However, those documents fail to establish that PHI was not the subscriber to that fax number. While those documents name Comprehensive Pain Solutions, they also name PHI. See Docket No. 81-16. Vertex has produced no evidence to interpret those documents so as to establish that PHI was not a subscriber to the number. In addition, PHI has produced Cincinatti Bell invoices for that fax line addressed to PHI.
Equally unavailing is Vertex’s argument that PHI has presented no evidence that it suffered a concrete injury. “Injury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase Article Ill’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’ ” Spokeo,
Citing to Spokeo and other cases discussing it, Vertex argues that PHI may not rest solely on evidence of a violation of the TCPA in order to establish a concrete injury. See Docket No. 77 at 17-20. In Spokeo, the Supreme Court recognized
The Supreme Court’s point in Spokeo was not that a statutory violation cannot constitute a concrete injury, but rather that where the bare violation of a statute conferring a procedural right could cause a congressionally identified harm or material risk of harm and just as easily could not, it is not sufficient simply to allege that the statute at issue was violated. Failure to ensure the accuracy of a consumer report may result in harm or material risk of harm the FCRA was intended to curb—loss of employment opportunities, for example, or a decrease in the consumer’s creditworthiness. But it may also fail to cause any harm or material risk of harm at all. Put differently, the procedural rights imposed through section 1681e(b) are attenuated enough from the interests Congress identified and sought to protect through the FCRA that charging a defendant with violating them is not necessarily the same as charging the defendant with causing a congressionally-identified concrete injury that gives rise to standing to sue.
The same cannot be said of the TCPA claims asserted in this case. Unlike the statute at issue in Spokeo) ..., the TCPA section at issue does not require the adoption of procedures to decrease congressionally-identified risks. Rather, section 227 of the TCPA prohibits making certain kinds of telephonic contact with consumers without first obtaining their consent. It directly forbids activities that by their nature infringe the privacy-related interests that Congress sought to protect by enacting the TCPA. There is no gap—there are not some kinds of violations of section 227 that do not result in the harm Congress intended to curb, namely the receipt of unsolicited telemarketing calls that by their nature invade the privacy and disturb the solitude of their recipients.
Aranda v. Caribbean Cruise Line, Inc.,
In this case, there is evidence that the faxes were sent to PHI’s fax line.
Accordingly, the Court' finds that the defendants are not entitled to summary judgment in their favor based on lack of standing.
D. Issues Of Fact Preclude Summary Judgment On The Merits Of PHI’s TCPA Claim
1. Consent
Vertex argues that it is entitled to summary judgment because PHI has not met'its burden to show that the faxes were unsolicited. Docket No. 77 at 8-9. However, it is Vertex who ultimately bears the burden of showing consent. Around the World Travel, Inc. v. Unique Vacations, Inc., No. 14-CV-12589,
2. Unsolicited Advertisements
The defendants also argue that PHI cannot show that the fax invitations at issue are “advertisements” under the TCPA. Docket No. 74 at 9-15; Docket No. 77 at 9-14. PHI argues that the faxes are advertisements as a matter of law. Docket No. 85 at 5-10; Docket No. 96 at 4-6. The Court finds that issues of fact preclude summary judgment on this issue.
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 prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). “Congress has not spoken directly on the issue of whether a,n advertisement for free services can be unsolicited advertisements under the TCPA.” North Suburban Chiropractic Clinic, Ltd. v. Merck & Co., Inc., No. 13 C 3113,
Because the TCPA is silent on the meaning of “advertisement,” the FCC has provided examples as to what constitutes an unsolicited, advertisement in its Regulations. See In re Rules and Reg. Implementing the Tel. Consumer Prot. Act of 1991 and the Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787 (Apr. 6, 2006). The FCC has clarified that four types of messages do not fall under the purview of the TCPA: (1) informational messages, (2) transactional messages; (3) non-commercial messages from non-profit organizations; and (4) non-advertisement messages with an incidental amount of advertising. Physicians Healthsource, Inc. v. Janssen Pharmaceuticals, Inc., No. 12-2132 (FLW),
The FCC and courts have recognized that “faxes promoting a free seminar may constitute an ‘unsolicited advertisement’ since free seminars are often a pretext to market products or services.” North Sub
On the other hand, courts have found that a fax inviting individuals to a free seminar on the latest advancements on orthopedics sent by a company that sold products used in joint replacement and trauma surgeries could be an advertisement under the TCPA. Physicians Healthsource, Inc. v. Stryker Sales Corp.,
Based on a review of the evidence before the Court, neither party is entitled to summary judgment on this issue. A reasonable fact-finder, drawing all inferences in favor of PHI, could conclude that the faxes, at least in part, promote the quality and availability of Incivek. The faxes display the Incivek and Vertex logos, and Incivek was commercially available at the time the faxes were sent. Docket No. 80-15. The faxes described Incivek as “New” and a “Change in the Treatment Paradigm.” Id. The slide deck used for the seminar contains the Incivek logo on every page. Docket No. 80-10. Based on that evidence, a jury could find that Vertex intended the seminar to promote the commercial availability of Incivek and to encourage physicians to prescribe it, which would in turn result in an increased demand for Incivek.
On the other hand, a reasonable fact-finder, drawing all inferences in favor of defendants, could conclude that the faxes concerned an educational program presenting important clinical and patient safety information concerning the treatment of HCV. The faxes do not say anything about the quality or commercial availability of Incivek; do not say that they are available for sale; where or how it can be purchased, or what Incivek is or actually does.
The issue of whether the faxes were advertisements, therefore, simply cannot be decided as a matter of law in this case. Accordingly, the Court will deny all parties’ motions for summary judgment.
3. Scope Of Authority
Finally, Vertex argues that it cannot be held liable for the faxes because
The TCPA makes it unlawful “to send” an unsolicited fax advertisement. 47 U.S.C. § 227(b)(1)(C). The FCC has issued regulations defining the sender as a “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R, § 641200(0(10). “The plain language of the TCPA and the FCC’s accompanying definition of “sender” together establish that under the TCPA direct liability attaches to the entity whose goods are advertised as opposed to the fax broadcaster.” Imhoff Investment, LLC v. Alfoccino, Inc.,
Here, according to Vertex’s own version of events, it contracted with TAG to assist in the development and execution of the broadcast, including sending the fax invitations at issue in this case.
IV. ORDER
For the foregoing reasons, the Court denies the parties’ motions for summary judgment.
Notes
. On November 19, 2015, the parties consented to the jurisdiction of a magistrate judge for all purposes. Docket No. 45.
. Vertex also seeks a finding of spoliation and sanctions. Docket No. 82. However, while PHI may have been lax with respect to its discovery obligations, Vertex has not shown that PHI destroyed any documents. Accordingly, the Court denies Vertex’s motion for sanctions.
. Because this case is before the Court on cross-motions for summary judgment, the Court sets out any disputed facts in the light most favorable to the non-moving party. See Ahern v. Shinseki,
. PHI SOF ¶ 1; Vertex Resp. to PI-1111 1; TAG Resp. to PHI ¶ 1.
. PHI SOF ¶ 2; Vertex Resp. to PHI ¶ 2; TAG Resp. to PHI ¶ 2.
. Vertex SOF ¶ 5; PHI Resp. to Vertex ¶ 5; TAG Resp, to Vertex 11 5.
. PHI SOF ¶ 4; Vertex Resp. to PHI ¶ 4; TAG Resp. to PHI ¶ 4.
. PHI SOF ¶ 6; Vertex Resp. to PHI ¶ 6; TAG Resp. to PHI 11 6; see also Vertex SOF ¶ 7; PHI Resp. to Vertex 117; TAG Resp. to Vertex ¶ 7.
. PHI SOF ¶ 5; Vertex Resp. to PHI ¶ 5; TAG Resp. to PHI ¶ 5.
. Vertex SOF ¶ 8; PHI Resp. to Vertex 11 8; TAG Resp. to Vertex ¶ 8.
. Vertex SOF ¶ 8; PHI Resp, to Vertex ¶ 8; TAG Resp. to Vertex ¶ 8,
. Vertex SOF ¶ 8; PHI Resp. to Vertex ¶ 8; TAG Resp. to Vertex ¶ 8.
. Vertex SOF ¶ 10; PHI Resp. to Vertex ¶ 10; TAG Resp, to Vertex ¶ 10.
. Vertex SOF ¶ 11; PHI Resp. to Vertex ¶ 11; TAG Resp. to Vertex ¶ 11.
. Vertex SOF ¶¶ 12-19; PHI Resp. to Vertex ¶¶ 12-19; TAG Resp. to Vertex ¶¶ 12-19.
. Vertex SOF ¶ 20; PHI Resp. to Vertex ¶ 20; TAG Resp. to Vertex ¶ 20.
. Vertex SOF ¶¶ 20-23; PHI Resp. to Vertex ¶¶ 20-23; TAG Resp. to Vertex ¶¶ 20-23.
. PHI SOF ¶ 10; Vertex Resp. to PHI ¶ 10; TAG Resp. to PHI ¶ 10.
. PHI SOF ¶ 11; Vertex Resp. to PHI ¶ 11; TAG Resp. to PHI ¶ 11.
. PHI SOF ¶ 12; Vertex Resp. to PHI ¶ 12; TAG Resp. to PHI ¶ 12.
. PHI SOF ¶ 13; Vertex Resp. to PHI ¶ 13; TAG Resp. to PHI ¶ 13.
. PHI SOF ¶ 18; Vertex Resp. to PHI ¶ 18; TAG Resp. to PHI ¶ 18.
. Complaint ¶ 12. The Complaint originally alleged a fourth fax. PHI admits that the fourth fax does not contain a header or any contact information and has withdrawn the document from consideration in this case. PHI Resp. to Vertex ¶¶ 61-64.
. See Vertex SOF ¶¶ 40, 43; TAG Resp. to Vertex ¶¶ 40, 43. There is no dispute that TAG
. Docket No. 80-15.
. Docket No. 80-15 at 3-4.
. Docket No. 80-15 at 5-6.
. Docket No. 80-15 at 7-8.
. Docket No. 80-15.
. Id.
. Id.
. Id.
. Id.
. Id.
. Vertex SOF ¶ 66; PHI Resp. to Vertex ¶ 66; TAG Resp. to Vertex ¶ 66.
. Vertex SOF ¶ 67; PHI Resp. to Vertex ¶ 67; TAG Resp. to Vertex ¶ 67.
, Vertex SOF ¶ 29; PHI Resp. to Vertex ¶ 29; TAG Resp.To Vertex ¶ 29.
. Vertex SOF ¶ 30; PHI Resp. to Vertex ¶ 30; TAG Resp.'to Vertex ¶ 30.
. Vertex SOF ¶ 31; PHI Resp. to Vertex ¶ 31; TAG Resp. to Vertex ¶ 31. .
. PHI Resp. to Vertex ¶ 31,
. Although some cases list lack of consent as one of the elements of a TCPA claim, the FCC and courts have interpreted consent as an affirmative defense under the TCPA. See St. Louis Heart Center, Inc.,
. PHI SOF ¶ 70; PHI Resp. to Vertex ¶ 72.
. PHI Resp. to Vertex ¶ 72.
. PHI Resp. to Vertex ¶¶ 72, 73.
. Docket No. 90-9.
. Docket No. 80-15; Docket No. 80-20 at 59.
. See generally Vertex SOF ¶¶ 35-47.