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Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC

United States Court of Appeals, Eleventh Circuit

June 5, 2017

THE FLORENCE ENDOCRINE CLINIC, PLLC, Plaintiff-Appellant,
v.
ARRIVA MEDICAL, LLC, Defendant-Appellee.

         Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 3:16-cv-01289-AKK

          Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

          WILLIAM PRYOR, Circuit Judge.

         This appeal requires us to decide whether an order form faxed to a doctor by a company that supplies a medical product purchased by that doctor's patient constitutes an "unsolicited advertisement" within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227(a)(5). Arriva Medical, LLC, supplies medical products to individuals by mail. To receive an insurance reimbursement, the individual who orders a product from Arriva must obtain confirmation from the individual's doctor that the product is necessary for the individual's treatment. To facilitate this process, Arriva communicates directly with that individual's doctor to request approval for the order. So after patients of The Florence Endocrine Clinic, PLLC, ordered products from Arriva, Arriva sent faxes to the clinic requesting that physicians complete an order form. The clinic complained that the faxes were "unsolicited advertisements" sent in violation of the Telephone Consumer Protection Act, id. § 227(a)(5). Arriva moved to dismiss the complaint, which the district court granted. The district court ruled that the faxes were not "unsolicited advertisements." We agree. Because the faxes do not promote the sale of Arriva products, the faxes are not unsolicited advertisements, and we affirm.

         I. BACKGROUND

         Arriva supplies medical products by mail to persons with diabetes and other diseases. Arriva markets its products to individuals who then buy the products from Arriva. If the individual would like his insurer to reimburse him for the product, the individual's doctor must confirm that the product is appropriate to treat the individual's medical condition.

         After an individual orders a product, to facilitate reimbursement, Arriva requests the contact information for that individual's physician. Arriva then sends a fax to the physician explaining that a patient has ordered an Arriva product, such as a heating pad or a back brace. The fax includes an order form that the physician must complete and return to Arriva before Arriva will ship the product to the patient. Some faxes also include a product information form that describes the requested product. For example, a fax sent on behalf of a patient who requested a back brace from Arriva included a product information form that described two different back braces that the doctor could prescribe to the patient.

         On four separate occasions in July 2016, The Florence Endocrine Clinic received faxes sent by Arriva to doctors working at the clinic. In August 2016, the clinic filed a complaint against Arriva that alleged that the faxes were "unsolicited advertisements" sent by Arriva in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. The Act prohibits the use of a fax machine to send an unsolicited advertisement unless the sender is in "an established business relationship with the recipient, " the sender obtained the fax number from the recipient, or the advertisement contains a notice meeting the requirements of the statute. Id. § 227(b)(1)(C). The clinic also moved for class certification, seeking to represent a class consisting of all recipients of faxes from Arriva on or after a specified date where the faxes promoted its goods or services for sale and did not contain a compliant opt out notice.

         Arriva moved to dismiss the complaint on the grounds that the clinic lacked standing and that the faxes were not unsolicited advertisements. Arriva argued that the clinic lacked standing because it failed to "allege it suffered a concrete, particularized injury as a result of Arriva's purported TCPA violation." It argued that the clinic instead alleged a "bare violation of the statute, which does not satisfy Article III." Arriva argued in the alternative that the faxes it sent were not "unsolicited advertisements" because the faxes were "not directed to physicians for the purpose of marketing [Arriva] medical products" and the faxes "do not attempt to sell anything" to the clinic.

         The district court granted the motion for failure to state a claim. It reasoned that the clinic had standing to bring the complaint based on our precedent in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), but that the faxes were not "unsolicited advertisements" within the meaning of the Act. The district court explained that the faxes were not advertisements because the patients of the clinic had already purchased the products described in the complaint, and nothing in the complaint "allege[d] that Arriva intended the faxes to promote the products' commercial availability to" doctors at the clinic.

         II. STANDARD OF REVIEW

         We review the grant by a district court of a motion to dismiss de novo, "taking as true the facts as they are alleged in the complaint." Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003).

         III. DISCUSSION

         We divide our discussion in two parts. First, we explain that the clinic has standing based on circuit precedent. Second, we explain that the faxes sent by Arriva are not ...


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