A-S Medication Solutions (ASM) is a licensed pharmaceutical wholesaler and re-packager with the Food and Drug Administration. This week, a federal judge in the U.S. District Court for the Northern District of Illinois ordered the company to pay $5.7 million to a class of medical professionals, including named plaintiff Physicians Healthsource, having found that ASM violated the Telephone Consumer Protection Act (TCPA).
The suit against ASM was initially filed in 2012 and contained allegations that the company violated the TCPA when it purportedly sent marketing solicitations to over 11,000 individual fax numbers without first obtaining appropriate consent.
The owners of the 11,000-plus fax numbers, led by Physicians Healthsource Inc., were awarded class certification in 2016 and summary judgment against ASM in August of 2018, leaving only the issue of damages to be sorted out.
Attorneys for Physician’s Healthsource argued that all members of the class should receive $500—the statutory payment under the TCPA. ASM attempted to argue that some members of the class may not actually have received the fax. The judge rejected the argument, noting that (a) the time to argue who was or was not a member of the class was during the class certification phase of the litigation and (b) the record of where the faxes were sent is sufficient to demonstrate that the recipient’s fax machine actually received the fax.
In general, the TCPA requires consent to the receipt of advertising and other marketing materials via fax. There are exceptions to the rule—some of which can become complex in actual execution and the interpretation of which are subject to much litigation—so the best practice is to ALWAYS get consent. As a corollary to that rule, customers should always be provided with opportunities to opt out as well. Both practices can provide substantial safeguards against winding up on the receiving end of a civil suit alleging TCPA violations.
The FisherBroyles Pharmacy and Health Care Law team is pleased to keep you updated on events of interest to those in the healthcare and pharmaceutical industries. We are always ready to advise you regarding any issues of compliance with laws like the TCPA. Questions may be directed to any of the following attorneys:
Brian E. Dickerson