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Health One Medical Center, Eastpointe P.L.L.C. v. Mohawk, Inc.

United States Court of Appeals, Sixth Circuit

May 9, 2018

Health One Medical Center, Eastpointe P.L.L.C., a Michigan Professional Limited Liability Company, individually and as the representative of a class of similarly-situated persons, Plaintiff-Appellant,
Mohawk, Inc., Defendant, Bristol-Myers Squibb Company; Pfizer Inc., Defendants-Appellees.

          Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-13815-Judith E. Levy, District Judge.

         ON BRIEF:

          Phillip A. Bock, David M. Oppenheim, BOCK, HATCH, LEWIS & OPPENHEIM, LLC, Chicago, Illinois, for Appellant.

          Debra Bogo-Drnst, Michele Odorizzi, Christopher J. Ferro, MAYER BROWN LLP, Chicago, Illinois, for Appellee Bristol-Myers Squibb Company. Rebecca J. Schwartz, Molly S. Carella, SHOOK, HARDY & BACON L.L.P., Kansas City, Missouri, for Appellee Pfizer Inc.

          Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.



         Some questions seem to arise only in class-action lawsuits. Here, a seller of prescription drugs sent junk faxes to various medical providers, advertising the seller's prices on various drugs. The question presented is whether-for purposes of the Telephone Consumer Protection Act, which makes it unlawful "to send . . . an unsolicited advertisement" to a fax machine-the manufacturers of those drugs "sent" those faxes even though they knew nothing about them. The district court answered no, and so do we.

         Mohawk Medical, a pharmaceutical wholesaler, sent two unsolicited faxes to Health One Medical Center. The faxes listed Mohawk's contact information and offered discount prices on 14 different drugs, including one manufactured by Bristol-Myers Squibb (Bristol) and another by Pfizer. Health One later brought this putative class-action lawsuit, at first asserting claims only against Mohawk, which never answered the complaint. Hence the district court entered a default judgment against it. Health One then amended its complaint to assert claims against Bristol and Pfizer-largely on the theory that they had "sent" the unsolicited faxes simply because the faxes mentioned their drugs. Those defendants filed motions to dismiss under Civil Rule 12(b)(6), which the district court granted. We review that decision de novo. Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018).

         The relevant text of the Act is straightforward:

It shall be unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement[.]

47 U.S.C. § 227(b)(1)(C). Thus, to be liable under this provision, a defendant must "use" a fax machine or other device "to send . . . an unsolicited advertisement" to another fax machine. We focus here on the word "send, " which the statute does not define. Hence we give "send" its ordinary meaning. United States v. Zabawa, 719 F.3d 555, 559 (6th Cir. 2013). "Send" has two relevant meanings when used (as here) as a transitive verb. The first is "[t]o cause to be conveyed by an intermediary to a destination[.]" The American Heritage Dictionary 1642 (3d ed. 1992). For example, one might send a letter by courier, or by the U.S. Postal Service. A second meaning is "[t]o dispatch, as by a communications medium[.]" Id. For example, one might "send a message by radio[, ]" id., or-more to the point here-send a message by fax.

         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.

         Yet Health One argues that Bristol and Pfizer were each a "sender" of the faxes, as an FCC regulation defines that term. That regulation purports to define "sender" for purposes of the Act as "the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement." 47 C.F.R. § 64.1200(f)(10). Health One says that the drug companies here were "senders" of the Mohawk faxes because the faxes quoted Mohawk's prices for their drugs and thus (Health One says) the faxes "advertised or promoted" the drugs. The latter contention is dubious even on its own terms: the faxes touted Mohawk's discounted "AUGUST PRICES" for the drugs, rather than any feature or quality of the drugs themselves.

         But more importantly, Health One reads the regulation woefully out of context. A regulation's context of course includes the statutory text it aims to implement. See Utility Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 2442 (2014). Here, the statutory text makes clear that, to send a junk fax in violation of 47 U.S.C. ยง 227(b)(1)(C), one must "use" a fax machine or other device to convey or dispatch an unsolicited advertisement to another fax machine. Those requirements-the use of a fax machine or ...

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