United States District Court, E.D. Pennsylvania
ROBERT W. MAUTHE, individually and as the representative of a class of similarly-situated persons, Plaintiff,
ITG, INC., et al., Defendants.
Introduction & Background
suit arises from Defendants' alleged sending of five
facsimiles ("faxes") to Plaintiff Robert Mauthe,
M.D., PC in violation of the Telephone Consumer Protection
Act (the "TCPA"). ECF No. 1, ¶ 1.
Plaintiff alleges that Defendants sent him and other
health professionals advertisements by fax without their
express consent "offering compensation in exchange for
their participation in one or more internet or telephone
surveys." ECF No. 1 at ¶¶ 2 & 52. During
the time the faxes were allegedly sent to Plaintiff,
Defendants were providing their customers with market
research on the healthcare market. Plaintiff claims that as
part of the "compensated market research program"
Defendants conducted on behalf of their clients, Defendants
"gather[ed] opinions and other valuable market research
data from participants and then provide[d] that information
to Defendants' paying clients in the health care
industry." Id. at ¶¶ 6 & 53.
of the faxes Defendants allegedly sent to Plaintiff are
one-page documents that invited Plaintiff to follow an
internet link to determine if he qualified to participate in
a telephone interview on "Catheter Usage in Spinal Cord
Injury Patients." Id., Exs. A-C. Those faxes
also advised Plaintiff that if he qualified and completed the
survey, he would receive $200. Id. The other two
faxes offered Plaintiff a $50-60 payment to participate in a
short internet study on "Neurological Movement
Disorders." Id., Exs. D & E.
filed Motions to Dismiss the Class Action Complaint (ECF Nos.
13 & 20) arguing that the faxes in question were not
"advertisements" as defined by the statute and were
thus unactionable. The Court denied those motions on November
29, 2018 (ECF Nos. 39 & 40).
4, 2019, Defendant ITG Investment Research, Inc.
(hereinafter, "M Science") filed a Motion for
Reconsideration (ECF No. 58) requesting that this Court
reconsider its denial of M Science's Motion to Dismiss
the Class Action Complaint (ECF No. 39) in light of alleged
new controlling law announced in Robert W. Mauthe, M.D.,
P.C. v. Optum Inc., 925 F.3d 129 (3d Cir. 2019).
Defendant ITG Inc. also filed a Motion for Reconsideration
(ECF No. 60) joining in M Science's request. For the
reasons set forth below, Defendants' Motions for
Reconsideration (ECF Nos. 58 & 60) will be granted
Standard of Review
Third Circuit has held that motions for reconsideration are
reserved 'to correct manifest errors of law or fact or to
present newly discovered evidence.'" Boardakan
Rest. LLC v. Atl. Pier Assocs., LLC, No. 11-5676, 2013
WL 5468264, at *4 (E.D. Pa. Oct. 2, 2013) (quoting Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
"Generally, a motion for reconsideration will only be
granted on one of the following three grounds: 1) there has
been an intervening change in controlling law; 2) new
evidence, which was not previously available, has become
available; or 3) it is necessary to correct a clear error of
law or to prevent manifest injustice." Id.
(quotations and citations omitted). "Because federal
courts have a strong interest in the finality of judgments,
motions for reconsideration should be granted
sparingly." Id. (quotations and citations
Mauthe, M.D., P.C. v. Optum Inc., the facts of the
case were essentially undisputed:
Defendants maintain a national database of healthcare
providers, containing providers' contact information,
demographics, specialties, education, and related data.
Defendants market, sell, and license the database typically
to health care, insurance and pharmaceutical companies, who
use it to update their provider directories, identify
potential providers to fill gaps in their network of
providers, and validate information when processing insurance
claims. Obviously, it is important that the information
contained in the database be accurate and Mauthe, who is a
healthcare provider, does not contend otherwise.
One of the ways defendants update and verify the information
in their database is to send unsolicited faxes to healthcare
providers listed in the database, requesting them to respond
and correct any outdated or inaccurate information.
The faxes also advise the recipients that "[t]here is no
cost to you to participate in this data maintenance
initiative. This is not an attempt to sell you
anything." Id. The fax that defendants sent
Mauthe included these provisions.
925 F.3d at 131-32 (3d Cir. 2019).
opposition to the motion for summary judgment, Mauthe
"advance[d] his third-party based liability argument on
a theory that, although he was not a purchaser of
defendants' products or services, defendants violated the
TCPA because they had a profit motive in sending him the fax
so that the fax should be regarded as an advertisement."
925 F.3d at 133. Moreover, "Mauthe assert[ed] that
defendants sought the ...