CPAWorld has previously reported on the TCPA saga of Dr. Robert Mauthe and his campaign against unsolicited faxes from Optum, Inc. and Optum Insight, Inc. (Optum) seeking information on his experience. We last reported that the United States Supreme Court had turned down his request for review of the decision by the Third Circuit Court of Appeals adverse to the doctor’s TCPA claims of third-party based TCPA liability.

The Third Circuit in its Optum decision articulated a three-part test to establish such liability under the TCPA: “[T]he plaintiff must show that the fax: (1) sought to promote or enhance the quality or quantity of a product or service being sold commercially; (2) was reasonably calculated to increase the profits of the sender; and (3) directly or indirectly encouraged the recipient to influence the purchasing decisions of a third party.” In the Optum case, Dr. Mauthe fell short.

Never fear now comes Robert W. Mauthe M.D. v Spreemo, Inc., 2020 U.S. App. LEXIS 9319, Case No. 19-1470, United States Court of Appeals for the Third Circuit, March 25, 2019. In this case, Spreemo, a medical diagnostic services vendor, sent Dr. Mauthe a single-page unsolicited fax reciting “that Spreemo is the ‘Primary Diagnostic Vendor’ for Hartford” Financial Services Group, Inc., a health insurance provider that was a co-defendant in the doctor’s TCPA class action lawsuit.

The District Court had dismissed the case against Spreemo two months before the Third Circuit had decided Optum, so it had not had the chance to apply the Optum test.

Drawing on its Optum opinion, the Third Circuit recalled: “‘An example of a possible TCPA violation by the sending of a fax to an entity other than a possible direct purchaser of the sender’s product or services is a fax sent to a doctor encouraging the doctor to prescribe a particular drug to the doctor’s patients who, rather than the doctor, are the likely purchasers of the sender’s product.’”

This time, at least at this stage, the Appellate Court held that the good doctor hit the trifecta, ruling:

“‘All three elements for third-party based liability are met in this case, at least as alleged and judged at the pleading stage. As was the case in Optum, and likely the vast majority of third-party based liability cases, it should be reasonably obvious that the fax met the first two elements-it was sent to promote the availability of services, and was done with a profit motive. The deciding factor, therefore, is whether the fax was sent to encourage Mauthe to influence the purchasing decisions of a third party.’”

In that regard, the Court noted: “Nothing in the fax informed or suggested to the recipient that it must direct patients covered by Hartford to Spreemo for diagnostic testing, so the choice remained with the doctor as to whom to send patients for testing, and the fax can be considered as an attempt to influence that choice, with the patients being the ultimate purchasers of the diagnostic services.”

So, “construing the pleading in the light most favorable to the plaintiff,” Dr. Mauthe has “sufficiently pled a third-party based liability claim.”

Reversed and remanded to the District Court, so Dr. Mauthe can fight another day.