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Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc.

United States Court of Appeals for the Sixth Circuit

June 3, 2015, Decided; June 3, 2015, , Filed

File Name: 15a0110p.06

No. 14-4201


 [*220]  [***2]   McKEAGUE, Circuit Judge. It's under attack, but the fax lives on—in homes, offices, and, yes, judges' chambers around the country. Christopher Null, Why the fax still lives (and how to kill it), PCWORLD (Jan. 13, 2014 3:00 AM), . And it lives on in this case. A pharmacy benefit manager sent two faxes to a chiropractic company, listing medications available in the health plans of the chiropractors' patients. Innocent enough, right? Well, no, actually, if those faxes were "unsolicited advertisements" prohibited by [**2]  the Telephone Consumer Protection Act. 47 U.S.C. § 227(b)(1)(C). That's the question presented in this case: Were those faxes "advertisements"? No, we hold, because they lacked the necessary commercial aspects of ads. And so we affirm the grant of summary judgment to the defendants.

As a pharmacy benefit manager, Medco Health Solutions acts as an intermediary between health plan sponsors (often employers) and prescription drug companies. See Thomas Gryta, What is a 'Pharmacy Benefit Manager?', Wall St. J. (July 21, 2011 6:03 PM), . Medco provides services to plan sponsors that enable the plans to offer more informed and less expensive prescription drug benefits to their members (often employees). Those services include keeping and updating a list of medicines (known as the "formulary") that are available through a healthcare plan. Medco sends that list to the plan sponsors so they can offer the most attractive prescription drug plans to their members.

In addition to sending the formulary to its clients, Medco sends it to healthcare providers that prescribe medications to its clients' members. R. 21-2 (Medco's Statement of Undisputed Facts) at ¶ 2; see Fed. R. Civ. P. 56(e)(2) (allowing the court to treat these facts as "undisputed [**3]  for purposes of [Medco's summary-judgment] motion"). That way, the healthcare providers will know which medications are covered by their patients' healthcare plans. Sandusky Wellness Center is one such healthcare provider. R. 21-2 at ¶ 2. It provides chiropractic services—and prescribes medications—to patients who are members of prescription drug plans contracted with  [***3]  Medco. R. 21-4 (Amy Green Decl.) at ¶ 4. Its patients use their healthcare plans--and thus indirectly use Medco's services—to obtain the medications from Sandusky.

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788 F.3d 218 *; 2015 U.S. App. LEXIS 9222 **; 2015 FED App. 0110P (6th Cir.) ***; 62 Comm. Reg. (P & F) 1235

SANDUSKY WELLNESS CENTER, LLC, an Ohio limited liability company, individually and as the representatives of a class of similarly situated persons, Plaintiff-Appellant, v. MEDCO HEALTH SOLUTIONS, INC., Defendant-Appellee.

Subsequent History: Rehearing, en banc, denied by Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 2015 U.S. App. LEXIS 12411 (6th Cir., July 16, 2015)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:14-cv-00583—James G. Carr, District Judge.

Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 2014 U.S. Dist. LEXIS 166777 (N.D. Ohio, Dec. 2, 2014)


faxes, advertisements, solicitation, formulary, patients, healthcare, sending, drugs, district court, Black's Law, medications, Telephone, plans, prescription drug, regulations, providers, bought

Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Antitrust & Trade Law, Consumer Protection, Telemarketing, Telemarketing & Consumer Fraud & Abuse Prevention Act, Civil Procedure, Summary Judgment, Opposing Materials, Motions for Additional Discovery