The Sixth Circuit has affirmed the dismissal of a putative class action lawsuit against Pfizer and Bristol-Myers Squibb alleging violations of the Telephone Consumer Protection Act (TCPA), ruling that the companies have no liability for faxes sent by a third party without their knowledge, even though the faxes contained advertisements for their products. Shook Partner Becky Schwartz represented Pfizer in the district court win, and successfully defended it on appeal with Of Counsel Molly Carella.
Mohawk Medical, a pharmaceutical wholesaler, sent two unsolicited faxes to Health One Medical Center that included advertising for discount pricing on drugs manufactured by both companies. The U.S. District Court for the Eastern District of Michigan entered a default judgment against Mohawk; the drug companies later filed motions to dismiss asserting that they could not be liable as “senders” of the faxes under the TCPA when neither company had known of or granted permission for the faxes to be sent. The district court agreed and granted dismissal.
Saying the relevant text of the TCPA was “straightforward,” the Sixth Circuit held that to be liable under the Act a defendant must use a device to “send” an unsolicited advertisement, and gave the term “send” its ordinary meaning. The court said, “Here, Bristol and Pfizer neither caused the subject faxes to be conveyed, nor dispatched them in any way. Instead only Mohawk did those things. Bristol and Pfizer therefore did not ‘send’ the faxes and thus have no liability for them.”
The case is Health One Med. Ctr. v. Mohawk, Inc., No. 17-1973 (published opinion issued May 9, 2018). The district court case was Health One Medical Center Eastpointe v. Bristol-Myers Squibb Co., No. 16-13815 (E.D. Mich., opinion issued July 17, 2017.)