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Pharmacy v. Promius Pharma

September 11, 2009


The opinion of the court was delivered by: Judge Blanche M. Manning


Plaintiff Glen Ellyn Pharmacy brought this putative class action against Promius Pharmacy and Medical Communications Technology, Inc. ("MCT") alleging a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), the Illinois Consumer Fraud Act, 815 ILCS 505/2 ("ICFA"), and a state law claim for conversion. According to Glen Ellyn, Promius used co-defendant MCT to transmit unsolicited and unauthorized faxes for the purpose of advertising Promius' products and services. Promius has moved for summary judgment arguing that it cannot be held vicariously liable for the transmission of unsolicited faxes. For the reasons stated below, Promius' motion is denied.*fn1

I. Facts

Glen Ellyn Pharmacy is a corporation located in Glen Ellyn, Illinois. Promius is a pharmaceutical company that develops, markets and sells dermatological and other products.

On February 3, 2009, Glen Ellyn received a one-page facsimile, the transmission of which Glen Ellyn alleges violated the TCPA, and the ICFA. Glen Ellyn also alleges that by sending the plaintiff and the putative class members unsolicited faxes, Promius and MCT converted to their own use ink or toner and paper belonging to the plaintiff and the putative class members.

Defendants Promius and MCT entered into a Master Services Agreement as of July 1, 2008. The Agreement states that Promius was retaining MCT to "provide medical communications services, specifically the intake, processing, dissemination of scientific, medical and technical information regarding Promius products to healthcare professional and consumers in the United States. . . ." Agreement at 1. Pursuant to Section 1 of the Agreement, all work to be performed by MCT was on a "project basis" and for each project, the parties were to enter into a Project Work Order ("PWO").

Section 4.1 of the Agreement is entitled "Independent Contractor Status" and states in relevant part:

For purposes of this Agreement and all Services to be provided hereunder, MCT shall not be considered a partner, co-venturer, agent, employee or representative of Promius, but shall remain in all respects an independent contractor. Except as expressly set forth in a PWO, no officer, director, employee, agent or consultant retained by MCT to perform work on Promius' behalf under this Agreement or any PWO shall be deemed to be an employee of Promius. Neither party hereto shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract, or otherwise assume any obligation or responsibility in the name of the other party.

In Section 8, MCT warranted that:

[MCT] will perform the Services in a manner commensurate with professional standards and expertise generally applicable to its industry; and shall be in compliance with all applicable laws and regulations related to the Services hereunder.

On October 2, 2008, Promius and MCT executed Project Work Order Number 2 in which the scope of services section indicated that "MCT will render . . . services as may be necessary to complete in a professional manner blast fax notification services targeting independent pharmacies, chain pharmacy headquarters, and chain retail pharmacies . . . ." The work order provided that MCT was to transmit the relevant advertisement to approximately 50,000 recipients. Promius designated the general categories of fax recipients including independent pharmacies, chain pharmacy headquarters, and chain retail pharmacies. Promius did not ask and claims it had no understanding as to how the list of recipient fax numbers was compiled by MCT. Moreover, Promius did not ask that any recipient be excluded from the list. Promius did not ask or instruct MCT to contact persons in order to determine if the recipient consented to receiving the fax nor was Promius informed as to whether the recipients were contacted and does not know if they were contacted. Promius ultimately paid MCT for the transmission of 53,795 faxes.

According to Vanessa Brill, an attorney and senior counsel for Promius who was personally involved in the drafting and negotiation of Project Work Order No. 2, Promius did not direct, control or participate in the actual transmission of any facsimiles pursuant to Project Work Order No. 2. Nor did Promius, according to Brill, direct or control the means or methods used by MCT to transmit any facsimiles. Glen Ellyn disputes these contentions as discussed in more detail in the Analysis section below. Brill also attests that Promius did not provide a list of facsimile numbers to MCT, and did not direct or control the means or methods used by MCT to obtain any facsimile numbers. Brill further states that at her insistence, the following language was inserted into Project Work Order No. 2:

MCT will also comply with all applicable laws and regulations in performing the Services, including, without limitation, the Federal Junk Fax Protection Act of 2005 (47 U.S.C. 227).

Finally, Brill states in her affidavit that she had no knowledge until the filing of this lawsuit that Glen Ellyn or anyone else was sent an unsolicited facsimile advertisement. She further attests that if Glen Ellyn did indeed receive a facsimile, it was transmitted by MCT and not Promius, and was transmitted without Promius' knowledge, consent or approval. Again, Glen Ellyn denies this last statement, notes that Brill did not provide it with a list of recipients such that MCT could limit the transmissions to current clients of Promius, and asserts that Brill knew or should have known that MCT was not going to obtain permission to send each of the 50,000 faxes.

The executed copy of Project Work Order No. 2 bears Brill's initials "VMB" on each page to reflect that she reviewed and approved the agreement on behalf of Promius. Project Work Order No. 2 is the second of six Project Work Orders entered into between ...

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