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Advantage Healthcare, Ltd. v. DNA Diagnostics Center, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 17, 2019

ADVANTAGE HEALTHCARE, LTD., Plaintiff,
v.
DNA DIAGNOSTICS CENTER, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE.

         Advantage Healthcare, Ltd. brings this suit against DNA Diagnostics Center, Inc., for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and a state law conversion claim. Currently before the Court is DNA Diagnostics' motion [84] for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons explained below, the motion is granted.

         Background

         The following facts are undisputed unless otherwise noted. Advantage Healthcare is a medical facility with its principal place of business in Illinois. DNA Diagnostics is a medical laboratory that offers paternity testing services. Since 1998, DNA Diagnostics utilized its marketing team to build rapport with medical providers with the goal of getting referrals for paternity testing services. James Hanigan managed DNA Diagnostics' medical marking team from 1998 until 2011. The marketing team made outbound telephone calls to medical providers to offer information about DNA Diagnostics' services.

         DNA Diagnostics used an information database called “FileMaker” to track its communications with medical providers. Hanigan trained employees to use a general verbal script when speaking with medical providers and cover certain points during every phone call. This call began with asking if the medical provider received inquiries about paternity issues and whether the provider had a practice of giving referrals for paternal testing. If so, the representative would ask for permission to send information to further educate them about DNA Diagnostics. Specifically, the representative would ask permission to send a fax immediately and then follow up with brochures by mail which would arrive a day or two later.

         DNA Diagnostics made the initial contact with Advantage Healthcare on April 5, 2005. A representative of DNA Diagnostics took notes in FileMaker during the phone call with a woman named “Barb” at Advantage Healthcare. During this call, the representative informed Advantage Healthcare about DNA Diagnostics' services and asked if he could send a fax and brochures by mail. The notes written by the representative in FileMaker state: “Sure, hold on. Must have went to speak with someone. Said you can send info how does this work. verified fax and address [sic].” Dkt. 93 at 28. The notes also contain a fax number for Advantage Healthcare. After the call, the representative immediately faxed a flyer with DNA Diagnostics' information and mailed hard-copy brochures to Advantage Healthcare.

         DNA Diagnostics made a follow-up call to Advantage Healthcare on April 11, 2007. The representative spoke with a receptionist at Advantage Healthcare and asked if he could send updated materials. The receptionist stated that Advantage Healthcare still had the DNA Diagnostics' information but would take updated materials, including materials in Spanish.

         DNA Diagnostics made another follow-up call on June 18, 2008. The representative asked an employee at Advantage Healthcare if it needed updated materials. The employee at Advantage Healthcare stated “Thank you but we have some.” The representative marked “Decline” in the disposition column on FileMaker. June 18, 2008 was the final time DNA Diagnostics sought permission to send updated materials.

         To test whether their marketing efforts were successful in getting referrals, DNA Diagnostics would sometimes make “ghost calls.” Here, a representative of DNA Diagnostics would call a medical provider and pose as an individual interested in paternity testing. On April 2, 2013, DNA Diagnostics made a “ghost call” to Advantage Healthcare seeking paternity testing services. An employee of Advantage Healthcare referred the “ghost caller” to DNA Diagnostics. In 2013, DNA Diagnostics sent three fax advertisements to Advantage Healthcare on January 31, June 20, and November 19.

         On January 27 and May 17, 2017, DNA Diagnostics sent fax advertisements to Advantage Healthcare. The fax on January 27 contained the following opt-out clause:

If you no longer wish to receive faxes from DDC, please email your fax number to contact@dnacenter.com or call 1-877-241-6512. We will honor opt-out requests within 30 days.

Dkt. 1-1.

         The opt-out clause on the May 17, 2017 fax went as followed:

If you no longer wish to receive faxes from DDC, please email your fax number to: info@dnacenter.com, call 1-877-241-6512, or fax 1-800-825-3084. We will honor ...

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