by Joshua Briones (Boston) and Esteban Morales (Boston)
The Third Circuit delivered bad news to Dr. Robert Mauthe while he was making his latest litigation round through the appellate court. The case is Mauthe v. Millennium Health LLC, No. 20-2265, 2023 U.S. App. LEXIS 1267 (3rd Cir. Jan. 19, 2023) and was filed after the defendant, a company operating labs that provide drug testing and medication monitoring services, allegedly sent Dr. Mauthe (a customer) a one-page fax about a free educational seminar.
The free seminar would "highlight national trends in opioid misuse and abuse...and discuss the role of medication monitoring as a valuable tool that provides objective, actionable information during the care of injured workers." Millennium Health, 2023 U.S. App. LEXIS 1267 at
*2. The fax did not discuss specific services offered by the defendant or include pricing information, discount offers, coupons, or product images. Nor did the actual seminar promote goods, services, or property for sale. The sender also did not follow up with registrants or attendees. Nonetheless, Dr. Mauthe sued under the TCPA's fax provisions claiming the fax was an unsolicited advertisement.