United States District Court, E.D. Pennsylvania
ROBERT W. MAUTHE, MD, PC, individually and as the representative of a class of similarly-situated persons, Plaintiff,
ITG, INC., et al., Defendants.
F. KENNEY, JUDGE.
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.
finding that the Third Circuit's decision in Robert
W. Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d
129 (3d Cir. 2019) presents an intervening change in
controlling law as it promulgates a clear standard for
third-party based liability actions under the TCP A, which
did not exist at the time this Court denied Defendants'
original motions to dismiss, the Court granted
Defendants' motion for reconsideration. ECF Nos. 68 &
69. However, the Court granted leave to Plaintiff to file an
amended complaint at Plaintiffs request and attestation that
an amended complaint "could incorporate additional
allegations meeting [the Optum] test." ECF No.
61 at p. 8.
thereafter filed an Amended Complaint (ECF No. 71), which
only varies minimally from the original Complaint (ECF No.
1). Contrary to Plaintiffs averment to the Court, Plaintiff
wholly failed to incorporate additional allegations that
would allow this Court to find that the allegations in the
new pleading meet the Optum test. Instead, Plaintiff
now asserts that Optum does not apply here because
in the case at hand Defendants are offering an inducement to
recipients to take the proposed survey whereas in
Optum there was no inducement being offered. The
Court finds this to be a distinction without a difference.
The fax senders in this case are agents of various companies,
who are offering rewards to recipients who complete surveys
in order to improve their products. The fact that the fax
senders in this case are agents of the companies trying to
improve their products and the fact that the recipients are
being offered a reward for completing the surveys do not
remove this case from Opium's
Court finds Plaintiffs failure to assert new allegations in
the Amended Complaint to meet the Optum test a
concession that Plaintiff cannot assert allegations in this
matter to meet the Optum test, which this Court has
already recognized as the operative standard for third-party
based liability actions under the TCPA in this Circuit.
Therefore, the Amended Complaint will be dismissed in its
foregoing reasons, Defendants' Motions to Dismiss the
Amended Complaint (ECF Nos. 72 & 73) will be granted with
prejudice. An appropriate Order follows.
 Although plaintiff is a professional
corporation, we refer to it as though it is Robert W. Mauthe
as an individual, just as the Third Circuit did in Mauthe
v. Nat'l Imaging Assocs., Inc., 767 Fed.Appx. 246,
247 (3d Cir. 2019).
 Plaintiff relies on Lyngaas v. J.
Reckner Assocs., Inc., No. 17-12867, 2018 WL 3634309
(E.D. Mich. July 31, 2018), an unreported case from the
Eastern District of Michigan, to support its new argument
that the faxes in this case are direct advertisements because
the inducements for survey participation should be thought of
as offers to buy services from the recipients. ECF No. 74 at
p. 12. While the Court finds that on its face this case
appears to be factually on point, the court in that case was
not subject to the analysis of Optum. Further,