20-1097 Kaye v. Merck

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of April, two thousand twenty one.

PRESENT: Guido Calabresi, Steven J. Menashi, Circuit Judges, John G. Koeltl, District Judge. * ____________________________________________

ROGER H. KAYE, on behalf of themselves and all others similarly situated, ROGER H. KAYE, MD PC, on behalf of themselves and all other similarly situated,

Plaintiffs-Appellants,

* Judge John G. Koeltl, United States District Judge for the Southern District of New York, sitting by designation. v. No. 20-1097

MERCK & CO., INC.; MEDLEARNING, INC.,

Defendants-Appellees. ____________________________________________

For Plaintiffs-Appellants: AYTAN Y. BELLIN, Bellin & Associates LLC, White Plains, NY (Roger Furman, Los Angeles, CA, on the brief).

For Defendants-Appellees: KIM E. RINEHART, Wiggin and Dana LLP, New Haven, CT (Jeffrey R. Babbin, Wiggin and Dana LLP, New Haven, CT; Matthew H. Geelan, Donahue, Durham & Noonan, P.C., Guilford, CT, on the brief).

Appeal from a judgment of the United States District Court for the District

of Connecticut (Chatigny, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs Roger H. Kaye and Roger H. Kaye, MD, PC (together, “Kaye”),

bring this putative class action under the Telephone Consumer Protection Act

(TCPA),

, alleging that Kaye received an unsolicited fax

advertisement from the defendants. The TCPA makes it unlawful to send

2 “unsolicited” advertisements to fax machines and creates a private right of action

entitling the recipient of such a fax to recover $500 in statutory damages. Kaye

argues that he consented to receive a fax but did not consent to receive an

advertisement. Merck & Co. (“Merck”) and MedLearning, Inc. (“MedLearning”)

deny that the fax Kaye received—an invitation to a telesymposium—was

unsolicited.

The district court granted summary judgment to Merck and ruled that the

faxed invitation was within the scope of the consent granted by Kaye’s answering

service. For the reasons that follow, we agree and AFFIRM. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

I

The main question is whether the fax Kaye received is sufficiently similar to

the one he gave permission to receive.

The TCPA generally prohibits an advertiser from sending advertisements

via fax unless it has (1) an established business relationship with the recipient and

follows certain requirements, or (2) the recipient’s prior express permission or

3 invitation. 47 U.S.C §§ 227(a)(5), (b)(1)(C). The TCPA defines “unsolicited

advertisement” as:

[A]ny material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.

(a)(5).

In December 2009, Merck 1 hired MedLearning to manage a series of

telesymposia discussing schizophrenia, bipolar disorder, and the use of Saphris, a

nongeneric drug used to treat these conditions. As part of the agreement between

Merck and MedLearning, the latter was responsible for recruiting all participants

from the list provided by the client. To recruit physicians to participate,

MedLearning employed callers to telephone physicians on a list provided by

Merck.

The callers were instructed to request permission to send a fax invitation to

the telesymposium using the following script:

Hello, my name is ___ and I am calling from MedLearning to invite Dr. ___ to participate in a telesymposium, sponsored by Merck, entitled Important Clinical Information about Schizophrenia and

1The contract was with Merck’s predecessor Schering Corporation, with which Merck merged in 2009.

4 Bipolar Disorder. We have several dates and times available. … May I fax an invitation? If Yes obtain the fax number. (Request the name of the person giving permission and mark on record.) Thank you for your time. We will fax the invitation. Joint App’x 491 (emphases omitted).

On April 28, 2010, a MedLearning representative called Kaye’s office and

reached the answering service. The representative used the above script and was

affirmatively given permission to fax the invitation. Later that day, MedLearning

faxed the invitation to Kaye’s fax machine.

On September 29, 2010, Kaye sued Merck and MedLearning over the receipt

of the fax. On October 30, 2019, Kaye filed a motion for summary judgment. On

March 27, 2020, the district court granted summary judgment in favor of Merck.

Kaye v. Merck & Co., Inc., No. 3:10-CV-1546,

(D. Conn. Mar. 27,

2020). The district court concluded that Kaye, by agreeing to receive a faxed

invitation to a telesymposium sponsored by Merck, consented to the receipt of an

advertisement.

The district court relied on our decision in Physicians Healthsource, Inc. v.

Boehringer Ingelheim Pharm., Inc.,

(2d Cir. 2017), explaining that:

If, as the Second Circuit has indicated [in Boehringer Ingelheim], a fax from a pharmaceutical company inviting a physician to a free seminar

5 is an advertisement, it is unclear to me how agreeing to receive such a fax is not agreeing to receive an advertisement. … In other words, if a fax containing that combination of information is sufficient to be an advertisement, a script containing the exact same combination of information—like the one used by defendants here—is sufficient to alert a party that they are consenting to receive an advertisement. Kaye,

, at *4-5. We review the grant of summary judgment de

novo. King v. Time Warner Cable Inc.,

(2d Cir. 2018).

We agree with the district court. There is a strong nexus between the fax to

which Kaye consented and the fax that Kaye received. The fax was an invitation

to a seminar on clinical information about medical conditions. It is hard to imagine

a symposium (at least one that a physician would want to attend) providing

clinical information that does not address treatment. A reasonable doctor would

expect a seminar addressing clinical treatment sponsored by Merck to showcase

treatments manufactured by Merck. Therefore, Kaye consented to a fax

advertisement, and the claim was properly dismissed.

II

On September 14, 2018, Merck filed its motion to strike Kaye’s class

allegations. On March 29, 2019, the district court granted the motion because

“individualized inquiry” would be required to determine whether class members

had consented to be sent fax advertisements. S. App’x 10. We need not reach

6 Kaye’s argument on this point, however. Because, having concluded that Kaye

provided his express consent to receive the fax advertisement, Kaye no longer has

a cognizable TCPA claim. See

(b)(1)(C), (a)(5). Accordingly, Kaye

is not an adequate class representative for any TCPA class action regarding the

Merck faxed advertisement, and thus class certification cannot be maintained. See

Fed. R. Civ. P. 23(a)(4); see also Irvin v. Harris,

(2d Cir. 2019) (“[T]he

named plaintiffs in a class action cannot represent a class of whom they are not a

part, and can represent a class of whom they are a part only to the extent of the

interests they possess in common with members of the class.” (citation and

internal quotation marks omitted)).

Because we conclude that class certification is not available to Kaye, we need

not consider his claims with respect to discovery concerning class certification.

***

We have considered Kaye’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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