Judge Dismisses Complaint Alleging Fax Messages Sent to Animal Hospital Violated TCPA

Judge Mary M. Rowland of the Northern District of Illinois ruled Thursday to dismiss a complaint by a veterinary hospital against an animal health product company and its former parent company that alleged that the defendants violated the Telephone Consumer Protection Act (TCPA) and state common law through unsolicited fax messages.

An April 10, 2020, class-action suit led by Ambassador Animal Hospital claimed that in April 2018, Elanco Animal Health, a division of pharmaceutical company Eli Lilly at the time, sent two unsolicited faxes to the plaintiff and, purportedly, “thousands” of other veterinary institutions, the court explained. The faxes were invitations to attend Elanco presentations, “Rethinking Management of Osteoarthritis” and “Canine and Feline Disease Prevention Hot Topics,” taking place in a nearby Illinois suburb. Ambassador filed suit, arguing it never gave permission to receive these communications and were unable to opt out and that receiving the messages “consumed Ambassador’s paper, toner, and employee time,” the judge explained.

The defendants moved to dismiss for failure to state a claim; the judge agreed.

The judge’s examination of the plaintiff’s TCPA allegation found that the plaintiff did not sufficiently show that the faxes were an “unsolicited advertisement,” a demonstration that is required to apply the TCPA.

“The text of the faxes includes Elanco’s name and logo but does not mention any of the company’s products or services,” according to the court. “As a result, the faxes do not advertise Elanco’s products.”

The judge explained that there still could be validity in the pleading if it was found that the faxes “served as a pretext for a commercial interest.” Ambassador, however, stated that none of its employees signed up for nor attended the presentations, rendering the plaintiff’s allegations about the intent of the events insufficient to survive dismissal.

Regarding the Illinois common law allegation, the judge declined to exercise jurisdiction. District courts have supplemental jurisdiction over state law claims and original jurisdiction over federal law claims, and “(t)he Court may decline to exercise supplemental jurisdiction when it ‘has dismissed all claims over which it has original jurisdiction,’” according to 28 U.S.C. § 1367(c)(3). The TCPA claim dismissal allows the judge to decline adjudicating the Illinois common law claim.

The plaintiff is represented by Bock, Hatch, Lewis and Oppenheim. Elanco is represented by Ice Miller and Eli Lilly by Covington & Burling and Shook, Hardy & Bacon.