Court finds SciMedica Group, Cephalon did have permission to send faxes

By Charmaine Little | Nov 20, 2018

PHILADELPHIA – A federal judge in Pennsylvania ruled that the defendants in a case over a fax sent to a doctor did in fact have permission to send it and granted their motions for summary judgment.

On Oct. 29, the U.S. District Court for the Eastern District of Pennsylvania ruled that SciMedica Group and Cephalon Inc. actually did have permission to send faxes to an employee of Physicians Healthsource Inc., which had filed a suit against the companies over allegations of violation of the Telephone Consumer Protection Act as amended by the Junk Fax Prevention Act of 2005 (JFPA).

Judge John R. Padova ruled on the case.

Despite Physicians Health Resource Inc. (PHS) allegations that it experienced injuries from two purportedly unsolicited ads sent via fax from SciMedica on behalf of Cephalon Inc., the court granted both Cephalon and SciMedicaGroup LLC's motions for summary judgment. 

The memorandum states the two advertisements in question were sent to one of PHS’ primary care physicians, Dr. Jose Martinez, in 2009. The first was an invitation to a dinner event concerning Amirix, a medicine to treat musculoskeletal pain, and the second was an invitation to a luncheon program in Las Vegas.

The faxes allegedly didn’t have an opt-out option for PHS to decline any further ads. PHS sued and requested its monetary loss from the violation or $500 for each violation under the JFPA for sending unsolicited advertisements without an opt-out option, whichever was greater.

Cephalon and SciMedica successfully argued that they’re owed a summary judgment because they had express permission to fax the plaintiff the advertisements and those ads weren’t a violation of JFPA because they weren’t unsolicited. 

While PHS said even if the ads weren’t unsolicited, they are required to have an opt-out notice, the court sided with the defendants. The court pointed out a previous case where the U.S. Court of Appeals for the D.C. Circuit determined the Federal Communications Commission doesn't have the “authority to require opt-out notices on solicited faxes,” according to the ruling. Considering this, the Solicited Fax Rule that requires an opt-out notice (that PHS relied on for its argument) is irrelevant.

Cephalon and SciMedica also cited Martinez’s deposition testimony that he interacted with representatives of Cephalon at a PHS office and gave them permission for Cephalon to fax him information. Cephalon representatives gave Martinez information, and he allowed them to follow up with more information.

Martinez received a follow-up fax from Cephalon representatives each month. The court decided this was enough to prove the defendants had express permission to send Martinez faxes at his PHS office and granted them summary judgment.  

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