Elanco Urges SCOTUS to Reject Animal Hospital’s TCPA Cert Petition

The U.S. Supreme Court should reject Ambassador Animal Hospital's Nov. 20 cert petition to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s Telephone Consumer Protection Act complaint, said respondent Elanco’s brief Friday (docket 23-552) in opposition to the petition.

Elanco, a veterinary pharmaceutical company, allegedly sent petitioner Ambassador two faxes that didn’t mention products sold by Elanco but instead invited veterinarians to attend presentations conducted by veterinarians and approved for continuing education credit, said the brief. Ambassador filed its putative class-action lawsuit, alleging that the invitations were pretext for marketing Elanco’s veterinary drugs and thus were unsolicited advertisements under the TCPA, it said.

The district court dismissed the suit for failure to state a claim, and the 7th Circuit unanimously affirmed, said the brief. In doing so, the 7th Circuit relied on “a straightforward application” of the TCPA’s definition of an unsolicited advertisement, which focuses on whether a fax's content advertises the commercial availability or quality of a thing, it said.

Elanco’s faxes didn’t satisfy that test because nothing in them directly or indirectly alluded to the commercial availability or the quality of its products, said the brief. The 7th Circuit acknowledged that there could be situations in which a similar fax message would qualify as an indirect advertisement but held on the facts of this case that the faxes didn’t contain the promotional quality necessary to sustain allegations of TCPA wrongdoing, it said. The court held that there was no need to defer to a 2006 FCC order opining that invitations to free seminars are generally advertisements under the TCPA because that interpretation conflicts with the statutory text in several ways.

Nothing in that decision warrants SCOTUS review, said the brief. Though there are some differences in how lower courts have characterized the test for determining whether faxes are unsolicited ads under the TCPA, those differences aren’t nearly “as well-defined or extensive as Ambassador asserts,” it said. In particular, the 7th Circuit didn’t adopt the rule that Ambassador attributed to it, under which courts may consider only the face of a fax in determining whether the fax is an unsolicited ad, it said.

The 7th Circuit focused its analysis on the faxes’ content, consistent with the TCPA’s language, but also recognized that a fax may satisfy the statutory definition if it directly or indirectly alludes to the commercial availability or the quality of the sender’s offerings, said the brief. That test “recognizes that faxes may indirectly advertise a good or service even if the good or service is not expressly mentioned on the face of the fax, refuting Ambassador’s claim of a clearly defined circuit split on that issue,” it said.

This case is a “poor vehicle” to address the first question presented as to whether a court must inquire if the fax itself directly or indirectly promotes or sells something, as the 7th Circuit unanimously held, or if a court may rely on the sender’s motivations and subsequent actions, as Ambassador contends, said the brief. The answer to that question wouldn’t affect the case's outcome, it said.

As the district court held, the complaint fails to state a claim even under “the broader theory advocated by Ambassador,” said the brief. Regardless, any differences about the finer points of the TCPA’s unsolicited advertisement definition are “insufficiently important” to justify SCOTUS review, “particularly given the increasingly obsolete nature” of fax machines, it said.