Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Faxes for free seminars may be unsolicited advertising under TCPA, (Sep 18, 2013)

By Edward L. Puzzo, J.D.

Unsolicited faxes advertising free seminars may constitute “unsolicited advertising” under the TCPA , as long as the recipients adequately plead that the faxes and free seminars are part of the sender’s marketing efforts, the federal district court in Chicago has ruled (North Suburban Chiropractic Clinic v. Merck & Co., September 13, 2013, St. Eve, A.).

North Suburban Chiropractic Clinic, on behalf of itself and others, alleged that Merck violated the Telephone Consumer Protection Act of 1991 (TCPA) by sending North Suburban and others unsolicited mass junk faxes. Merck responded that its fax was not an unsolicited advertisement so it did not violate the TCPA. Merck therefore moved to dismiss.

The faxes in question were unsolicited and invited recipients to “a medical education program on behalf of health care professionals only.” The program was a webcast with a speaker presenting on Merck’s behalf. The fax listed a website for recipients to register for the webcast. As part of the online registration for the webcast, registrants were required to agree to permit Merck to contact them in the future via e-mail regarding product information and educational opportunities from Merck. The website also provided a telephone number registrants could use to request that Merck not contact them in the future.

Unsolicited advertisements. In determining whether or not the fax in question was an unsolicited advertisement under the TCPA, the court noted that the legislation did not specifically address whether an advertisement for free services could be considered an unsolicited advertisement under the TCPA. However, the Seventh Circuit accepts the statutory construction of the Federal Communications Commission, which states that faxes promoting goods or services, including seminars, are unsolicited advertisements under the TCPA, even if they are offered at no cost. Courts in the Seventh Circuit have noted that free seminars are often a pretext to market products or services, and have also noted that limiting the recipients to only qualified individuals did not change its commercial nature.

Here, the free seminar topics listed on the fax did not explicitly mention any of Merck’s’ products or services, nor express an intent to market its products or services. However, North Suburban Chiropractic’s pleadings did allege the Merck used the fax advertisements and seminars as part of its marketing of its products and services. Accepting North Suburban Chiropractic’s allegations as true and drawing inferences in favor of them as the non-moving party, they have sufficiently stated a claim under the TCPA. Thus, the court concluded, Merck’s motion to dismiss must be denied.

The case is Civil Action No. 13 C 3113.

Attorneys: Joseph J. Siprut (Siprut PC) for North Suburban Chiropractic Clinic, Ltd. Stephanie Ann Scharf (Scharf Banks Marmor LLC) for Merck & Co., Inc.

Companies: North Suburban Chiropractic Clinic, Ltd.; Merck & Co., Inc.

Cases: Privacy Advertising IllinoisNews