Health One Med. Ctr., Eastpointe P. L. L.C. v. Mohawk, Inc. , 889 F.3d 800 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0089p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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, │ No. 17-1973
>
│
v. │
│
│
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.
Decided and Filed: May 9, 2018
Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
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.
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OPINION
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KETHLEDGE, Circuit Judge. 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
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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. § 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 other device, and the sender’s own responsibility for
the conveyance or dispatch—are ones that the agency must enforce, not elide.
The agency enforced those requirements here. Read in the context of the statute itself,
the regulation does not strip the “send” out of “sender.” Instead, the regulation purports to
allocate liability in cases where the party that physically sends (i.e., dispatches) the fax and the
party that causes it to be sent are not one and the same. That situation typically arises when a
person or company hires a fax broadcaster, “which transmit[s] other entities’ advertisements to
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Bristol-Myers Squibb Co., et al.
telephone facsimile machines for a fee[.]” 71 Fed. Reg. 25,967, 25,971 (May 3, 2006) (codified
at 47 C.F.R. pt. 64). Both kinds of entities appear to meet the statutory requirement of “send”:
the broadcasters because they in fact dispatch the advertisements via fax, the hirers (for lack of a
better term) because they cause the fax to be conveyed. In this statutory context, the regulation
by its terms would allocate liability under § 227(b) first to the hirers, as the party “whose goods
or services are advertised or promoted in the unsolicited advertisement[,]” or as the party who
otherwise put the broadcaster up to sending the fax (i.e., “the person or entity on whose behalf”
the junk fax was sent). 47 C.F.R. § 64.1200(f)(10). The FCC itself reads the regulation the same
way. See 71 Fed. Reg. at 25,971.
Whether the regulation is valid to the extent it exempts broadcasters from liability for
junk faxes might be open to question. (The FCC’s “synopsis” for the regulation more or less
says that broadcasters are jointly liable only for faxes that they knowingly send as junk. See id.)
But whether the regulation lawfully exempts certain senders (namely, innocent broadcasters)
from liability under § 227(b) is not the question before us today. What matters is that—read in
the context of the statute itself—the regulation does not purport to impose liability upon parties
that did not “send” the fax at all. Here, Bristol and Pfizer neither dispatched the faxes nor caused
them to be sent; instead Mohawk did both. Thus only Mohawk can be liable for them.
Neither of the cases that Health One relies upon—namely, Siding & Insulation Co. v.
Alco Vending, Inc., 822 F.3d 886 (6th Cir. 2016), and Imhoff Inv., LLC v. Alfoccino, Inc.,
792 F.3d 627 (6th Cir. 2015)—support a different result here. In both those cases the defendant
in fact hired a fax broadcaster to send out the junk faxes. Alco, 822 F.3d at 888; Imhoff, 792 F.3d
at 629-30. And thus in neither case did we hold, or have occasion to hold, that an innocent
party—like Bristol or Pfizer here—could by some legal alchemy be held liable for having “sent”
the faxes.
The remaining issues amount to housekeeping. Health One contends that we must
assume (for purposes of the motion to dismiss) that Bristol and Pfizer sent the faxes, because the
amended complaint alleges they did. But that allegation is conclusory, see, e.g., Am. Compl.
¶ 59 (“Pfizer . . . sent the faxes”); and Health One otherwise alleges no facts to make plausible
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the assertion that Bristol or Pfizer dispatched or otherwise caused the faxes to be sent. Thus the
claims were properly dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). (It bears
mention that the faxes on their face render utterly implausible the idea that Bristol or Pfizer had
anything to do with them.) And Health One’s argument as to its conversion claim is derivative
of the arguments rejected above. Hence we need not separately address that claim.
The district court’s judgment is affirmed.