On March 5, 2018, a motion to dismiss a fax class action lawsuit brought under the Telephone Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act, in the United States District Court for the Northern District of Illinois was denied. In Florence Mussat, M.D. S.C. v. Enclarity, No. 1:16-cv-07643 (Tharp, J.), the plaintiff medical practice (“Mussat”) received three form faxes over the course of three years which, they alleged, were unsolicited advertisements prohibited by the TCPA. Defendant Enclarity, Inc. (“Enclarity”) is a health care data and information solutions company owned by LexisNexis Risk Solutions (“LexisNexis”). LexisNexis is said to have the largest and most accurate database of medical providers in the United States. On behalf of LexisNexis, Enclarity sends faxes to healthcare providers seeking verification of contact information and their secure fax numbers for patients-protected health information (which must, by law, be kept secure). It then provides that information to customers. Enclarity asserted that the subject fax transmissions did not advertise the commercial availability of goods or services, as required to trigger the consent requirements mandated by the TCPA. At this stage of the TCPA fax lawsuit proceedings, the District Court disagreed with Enclarity.

Why did the Court find that the Complaint Plausibly Alleges that the Faxes were Advertisements?

The District Court relied on prior caselaw from the Seventh Circuit holding that a fax which merely describes defendant’s services, even though it may not make an overt sales pitch, may be sufficient to constitute an advertisement within the meaning of the TCPA. In evaluating the fax transmissions sent to Mussat, the Court concluded that they promoted the commercial availability of LexisNexis’ services. Critical to arriving at this decision was the fact that the subject faxes promoted that LexisNexis clients can use the solicited information for clinical summaries, prescription renewals, and other sensitive communications. In addition, the Court found that the word “client” signaled that LexisNexis provides health care provider information for a fee, meaning that its availability is commercial in nature. Further, the Court explained that the faxes at issue could be construed as a pretext to an advertisement, as part of overall commercial efforts, sufficient to constitute prohibited unsolicited commercial advertising. In reaching that conclusion, the Court explained that it was alleged that the only way to stop receiving the subject faxes was to visit the LexisNexis website, where its products and services were offered.

The Importance of TCPA Lawyers – Protect your Business from a TCPA Fax Lawsuit

We have previously blogged about TCPA-related liability resulting from fax transmissions. If your business sends communications via telecopier, it is important to take steps to ensure that your faxes comply with TCPA regulations. Not only is this a very nuanced and technical area of the law, but TCPA rulings are often inconsistent from one jurisdiction to another. As such, the importance of working closely with knowledgeable counsel prior to engaging in any fax marketing campaign is crucial.