CHICAGO — Receiving an unwanted fax, inviting medical professionals to a "free seminar" discussing diabetes treatment options is harmful enough to allow a class action to continue against a drugmaker and a company that describes its mission as "connecting" nurse practitioners with drug companies' clinical research, a Chicago federal judge has said.
In November, U.S. District Judge Harry D. Leinenweber ruled a medical practice has standing to serve as the lead plaintiff in the junk fax class action lawsuit brought under the federal Telephone Consumer Protection Act.
The case arose from a fax sent to plaintiffs America’s Health & Resource Center and Affiliated Health Group Ltd. by defendants Promologics Inc., which does business as Health-Scripts, and Janssen Pharmaceuticals on May 29, 2016. The fax invited nurse practitioners and physician assistants to a free educational seminar on diabetes treatment, to include research on the drug Invokana, which is marketed by Janssen.
The plaintiffs claim the fax was an unsolicited advertisement and the seminar was simply designed to promote Janssen’s medications.
However, Leinenweber noted in his decision that "no statements on the fax specifically promote products or services commercially available from either Health-Scripts or Janssen.”
The faxed invitation asked invitees to RSVP, but it was not specifically addressed to either AHRC or Affiliated.
“In fine print, the RSVP form also provides: 'By submitting this form, I understand that I am giving Health-Scripts permission to use my personal information to provide me with information and offers from healthcare companies. I understand I may revoke my permission at any time by emailing us,'” Leinenweber noted in his decision.
The defendants asked the judge to dismiss both counts of the complaint against them.
"[The] defendants advance three arguments. First, they assert that plaintiffs’ allegations fail to give them sufficient notice as to the specific nature of AHRC’s and Affiliated’s claims or involvement in receiving the fax," Leinenweber said in the decision. "Second, defendants maintain that the fax is not an 'advertisement' within the statutory definition of the TCPA. Third, Promologics argues ... the failure of an unsolicited fax to set forth an 'opt-out' notice amounts to a bare procedural violation."
Leinenweber dismissed the conversion claim for failure to state a claim, and said only a minimal amount could be recovered.
But the judge let stand the TCPA claim, noting “courts in (the U.S. Seventh) Circuit have repeatedly held that mere receipt of a fax alleged to lack TCPA opt-out notices constitutes sufficient harm for purposes of Article III standing.”
Janssen is represented in the action by the firm of Drinker Biddle & Reath LLP, of Chicago and New York.
Promologics is represented by the firm of Gordon Rees Scully Mansukhani LLP, of Chicago.
Plaintiffs are represented by the firm of Bock, Hatch, Lewis & Oppenheim LLC, of Chicago.