On July 17, 2017, the U.S. District Court for the Eastern District of Michigan rejected an expansive definition of “sender” under the TCPA, determining that the mere inclusion of a company’s products on a fax advertisement does not render that company a “sender” and subject to liability for any violations associated with the fax advertisement.
The lawsuit stems from August and September 2016 unsolicited fax advertisements sent by Mohawk, Inc., which promoted pharmaceutical products produced by defendants Pfizer, Inc. and Bristol-Myers Squibb Company. Plaintiff Health One Medical Center, Eastpointe PLLC alleged that these faxes did not contain the required opt-out notice, in violation of the TCPA. Further, the plaintiff argued, these defendants qualify as “senders” under the TCPA because the faxes promoted their products, and they are therefore liable for them and their content. The defendants filed motions to dismiss for failure to state a claim, and defendant Bristol-Myers Squibb also argued that the Court lacked personal jurisdiction.
Specifically, the defendants argued that they cannot be held liable for the faxes because the plaintiff failed to allege facts showing (1) any action or inaction on their part; (2) participation in the creation or transmission of the faxes; (3) a business relationship between them and Mohawk; (4) awareness that Mohawk sent the faxes; (5) that they sold products to Mohawk or knew Mohawk was selling their products; or (6) awareness of Mohawk. In granting the motions, the Court concluded that accepting the plaintiff’s argument that an advertisement that includes an entity’s products subjects that entity to liability as a sender “would lead to absurd and unintended results by vastly expanding the scope of liability.” Health One Med. Ctr., Eastpointe, P.L.L.C. v. Mohawk, Inc., No. 16-cv-13815, 2017 U.S. Dist. LEXIS 110285, at *8 (July 17, 2017).