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By Jimmy H. Koo
A medical supply order form faxed to a doctor by a company to confirm a patient’s purchase isn’t an unsolicited advertisement, a federal appeals court affirmed June 5 ( Florence Endocrine Clinic, PLLC v. Arriva Med., LLC , 2017 BL 188156, 11th Cir., No. 16-17483, 6/5/17 ).
The U.S. Court of Appeals for the Eleventh Circuit said that the faxes didn’t promote the sale of Arriva Medical LLC’s goods because they only requested information to finalize orders that had already been made.
To fall within the scope of federal Telephone Consumer Protection Act liability, a fax would have had to draw attention to the commercial availability or quality of Arriva products to promote their sale, Judge William Pryor wrote for the court.
After patients of the Florence Endocrine Clinic ordered products from Arriva, the company sent faxes to the clinic requesting that physicians complete an order form. The doctors filed a class action complaint, alleging that the faxes were “unsolicited advertisements” sent in violation of the TCPA.
Arriva supplies medical products to individuals by mail. In order to receive insurance reimbursement, individuals ordering Arriva products must obtain confirmation from their doctors that the products are necessary for their treatment. To facilitate the process, Arriva sends faxes directly to the individuals’ doctors, requesting order approval. The order forms allow patients to provide proof that they have a medical need for the products, the court said.
The appeals court agreed with the trial court that the time the doctors’ faxes were in use receiving the faxes, as well as the cost of ink and paper, represented an injury. But it also agreed that because the faxes weren’t unsolicited advertisements, there is no basis to pursue relief through the TCPA.
Edelman Combs Latturner & Goodwin LLC and Adkins Firm PC represented the clinic. King & Spalding LLP and Lightfoot Franklin & White LLC represented Arriva.
Judges Frank M. Hull and Stanley Marcus joined in the opinion.
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Full text of the court's opinion is available at http://src.bna.com/pvS.
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