Antitrust Law Daily Wrap Up, PRIVACY—E.D. Mo.: Fax transmission was “unsolicited advertisement” under TCPA, (Jun 9, 2015)

By Michael Menzhuber, J.D., LL.M.

A Medicare provider’s motion to dismiss a complaint that alleged a violation of the Telephone Consumer Protection Act (TCPA), conversion under Missouri common law, and a violation of the Missouri Fraud and Deceptive Business Practices Act (MPA) was denied by the federal district court in St. Louis. The Medicare provider’s alternate motion to Dismiss or Strike the Class A Allegations from the Complaint was also denied (Giesmann v. American Homepatient, Inc., June 8, 2015, White, R.).

Background. Radha Geismann, MD received an unsolicited facsimile (fax) from American Homepatient, Inc. (AH), a Medicare provider of respiratory products and services, that he alleged was an unsolicited advertisement. Geismann filed a complaint alleging that AH sent the fax ad to many other people and that sending the fax ad was a violation of the TCPA, conversion under Missouri common law, and a violation of the MPA. In response, AH filed to a motion to dismiss the complaint, or alternatively, to dismiss or strike the class allegation.

Telephone Consumer Protection Act (TCPA). AH argued that Geismann was unable to state a claim under the TCPA because the faxed letter was not an advertisement. The court disagreed. It determined that the faxed letter was an advertisement because it: (1) identified AH as a chosen Medicare provider for respiratory products and services; (2) invited the fax recipient to make AH the “respiratory provider of choice for your patients”; and (3) detailed the products and services that AH provided.

Class action claims. AH argued that Geismann’s class allegations did not support a class action under the TCPA, and should, therefore, be dismissed. Specifically, AH contended that the alleged class did not satisfy the commonality and typicality requirements under Federal Rule of Civil Procedure 23(a). As such, according to AH, class allegations plead an impermissible “fail-safe” class. Geismann disputed that the putative class was not a “fail-safe” class and argued that a motion to dismiss or strike the class allegation at the pleading state was premature.

The court noted that sufficient evidence is required to determine the nature of a class allegation and rule on compliance with Rule 23 requirements. It further noted that where the pleadings fail to demonstrate whether the Rule 23 requirements are met, the parties must be given an opportunity to discover and present documentary evidence on the class certification issue.

Geismann did not concede that the alleged class was a “fail-safe” class (a class where whether a person qualifies as a member depends upon whether the person has a valid claim) and the court was unable to determine form the face of the complaint whether the alleged class was impermissible.

The case is No. 4-14CV1538 RLW

Attorneys: Max G. Margulis (Margulis Law Group) for Radha Geismann. C. Gregory Shamoun (Shamoun and Norman, LLP) for American Homepatient, Inc.

Companies: American Homepatient, Inc.

Cases: Advertising Privacy MissouriNews