Junk fax ad suit allowed to proceed vs Onsite Health, after judge said fax wasn't 'merely informational'

By David Hutton | May 30, 2017

CHICAGO — A federal judge has kept alive a home health company's junk fax lawsuit against a medical practice, saying a fax sent by the practice announcing the arrival of a new physician in Rockford was, in fact, an advertisement, and not merely an "informational" message.

U.S. DIstrict Judge Robert M. Dow Jr. dismissed all but one count against Onsite Health Care, striking four state law claims while refusing to reject a claim Onsite violated the federal Telephone Consumer Protection Act when it sent out faxes featuring its offerings, which the court found to be unsolicited advertisements.

According to the ruling, Dow found the complaint by Able Home Health, a company providing nursing and therapy services to "home bound patients," made a plausible claim that the fax it received from Onsite Health qualifies as an advertisement.

The TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send to a telephone facsimile machine, an unsolicited advertisement.”  

However, there are exceptions to the rule, including when the unsolicited advertisement is from a sender with an established relationship with the recipient, or if the sender secured the fax number voluntarily from the recipient.

Onsite contended its fax wasn’t an advertisement and the complaint didn’t establish that the fax was unsolicited.

The TCPA defines an “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.”

According to court documents, the fax announced the arrival of a new physician in the area. The fax also included a referral hotline and a form for patients to fill out, identifying who referred them and the services required.

Onsite asserted the fax did not constitute an advertisement, but “merely notifies Able Health that Dr. (Louis) Warren joined its practice group” and thus was “merely informational.”  

Onsite also asked the court to consider its corporate character. Specifically, it contends that “Onsite as a non-person cannot be licensed as a physician practicing internal medicine” under Illinois law, and because “Onsite cannot as a corporate entity practice medicine, Onsite cannot advertise for services it cannot legally or physically provide.” 

The court noted, however, that in another section Onsite contradicted its argument when it said in its reply brief that “under the Illinois Medical Practice Act of 1987, Onsite and Louis R. Warren MD for purposes of practicing medicine are one entity.”

Dow noted in the ruling that Onsite’s second argument - that the fax was not “unsolicited” - does not fare any better.

“Issues related to ‘consent’ and the existence of an existing business relationship are affirmative defenses for which defendant bears the burden of proof,” he wrote.

“Because the court must accept plaintiff’s allegations as true at this stage of the case, defendant’s contention that this fax was not ‘unsolicited’ as a matter of law cannot prevail,” Dow wrote. 

Dow agreed to dismiss claims by Able alleging nuisance, trespass to chattels, conversion and violation of the Illinois Consumer Fraud Act, which is a regulatory and remedial statute intended to protect consumers, borrowers and business persons against fraud, unfair methods of competition and other unfair and deceptive business practices.

A hearing is set for 9 a.m. on June 15 for the discussion of pre-trial scheduling and the possibility of a settlement.

This case is one of several class actions launched by Able Home Health under the TCPA. According to federal court records, Able Home Health has been the plaintiff in 39 such cases in Chicago federal court since 2006. Four remain pending, court records said.

Able Home Health is represented in this action, as in the others, by attorneys with the firm of Edelman, Combs, Latturner & Goodwin, of Chicago.

Onsite is defended by attorneys with the Jurisprudence Health Law Group P.C., of Naperville. 

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Edelman, Combs, Latturner & Goodwin, LLC U.S. District Court for the Northern District of Illinois

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