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Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc.

United States Court of Appeals for the Second Circuit

September 29, 2015, Argued; February 3, 2017, Decided

Docket No. 15-288-CV


 [*93]  WINTER, Circuit Judge:

Physicians Healthsource appeals from Judge Underhill's dismissal of its class action complaint asserting violations of the [**2]  Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227 (the TCPA). The complaint alleges that appellees (collectively "Boehringer") sent an unsolicited fax invitation for a free dinner meeting to discuss ailments relating to appellees' business. According to appellant, this fax constituted an "unsolicited advertisement" prohibited by the TCPA.

Judge Underhill dismissed appellant's complaint for failure to state a claim -- holding that no facts were pled that plausibly showed that the fax had a commercial purpose. While we agree that ] a fax must have a commercial purpose to be an "unsolicited advertisement," we hold that the district court improperly dismissed appellant's complaint. Where it is alleged that a firm sent an unsolicited fax promoting a free event discussing a subject related to the firm's business, the complaint is sufficient to state a claim.

We therefore vacate and remand.


] In reviewing a Fed. R. Civ. P. 12(b)(6) dismissal of a complaint, we accept all factual allegations as true, drawing all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

The complaint alleges that, on April 6, 2010, Boehringer, a pharmaceutical company, sent an unsolicited [**3]  fax to appellant, inviting one of appellant's doctors to a free "dinner meeting" and discussion entitled, "It's time to Talk: Recognizing Female Sexual Dysfunction (FSD) and Diagnosing Hypoactive Sexual Desire Disorder (HSDD)." J. App'x at 24. The "invitation" stated that

Boehringer Ingelheim Pharmaceuticals, Inc. cordially invites you to join us for a dinner meeting entitled, It's Time to Talk: Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder. Based on recent data from a large US study (PRESIDE), 43% of US women aged > 18 years have experienced a sexual problem in their lives and 9.5% of the same group of women have experienced decreased sexual desire with distress. This program has been developed to discuss Female Sexual Dysfunction (FSD), including Hypoactive Sexual Desire Disorder (HSDD) including pathophysiology models, epidemiology, and diagnosis. We hope you will join us for this informative and stimulating program.

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847 F.3d 92 *; 2017 U.S. App. LEXIS 1937 **; 2017 WL 461002

Physicians Healthsource, Inc., Plaintiff-Appellant, v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc., Defendants-Appellees, John Does, 1-10, Defendants.

Subsequent History: Summary judgment granted by Physicians Healthsource v. Boehringer Ingelheim Pharms., 2018 U.S. Dist. LEXIS 64844 (D. Conn., Apr. 18, 2018)

Prior History: Appeal from a grant by the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge) of a Rule 12(b)(6) motion dismissing a complaint asserting violations of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227 [**1] . The principal issue is whether an unsolicited fax inviting doctors to a free dinner meeting featuring a discussion of an ailment -- to which an upcoming product, as yet unapproved by the FDA, was aimed -- was an "unsolicited advertisement." We vacate and remand. Judge Leval joins in the panel's opinion and concurs by separate opinion.

Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., 2015 U.S. Dist. LEXIS 3029 (D. Conn., Jan. 12, 2015)


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Antitrust & Trade Law, Consumer Protection, Telemarketing, Civil Procedure, Pleadings, Complaints, Requirements for Complaint, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Appeals, Standards of Review, Administrative Law, Agency Rulemaking, Rule Application & Interpretation