Class Action Over Health Care Spam Heads to High Court

(CN) – Poised to settle a jurisdictional issue that has bedeviled it for years, the Supreme Court took up a case Tuesday involving a publisher that was sued for faxing an advertisement to a West Virginia chiropractic office.

As the petitioner PDR Network LLC told the court in its bid for certiorari, a divided panel of the Fourth Circuit ruled in the the decision below that “the District Court lacked the jurisdiction to independently interpret the statutory term ‘advertisement’ and apply it to the single fax in question.”

“That decision contravenes basic judicial providence to say what the law is, directly conflicts with decisions of other circuits, and warrants this court’s review,” PDR’s petition continues.

Represented by attorneys at Blank Rome in Philadelphia, PDR explains in the petition that its fax in 2013 was promoting a copy of the Physicians’ Desk Reference, a guide that has kept health care providers apprised for over 70 years on drug labeling and prescribing information.

When the company Carlton & Harris Chiropractic received PDR’s fax, however, it brought a federal class action under the Telephone Consumer Protection Act of 1991.

A federal judge dismissed the case, finding that Carlton & Harris had not stated a valid claim under the TCPA, but in February 2018 the Fourth Circuit reversed.

Whereas the lower court here had employed a Chevron analysis, named for precedent that says courts are empowered to independently assess whether a statutory term is “unambiguous,” the Fourth Circuit said that the Hobbs Act controlled.

This would mean that the lower court was obligated to apply the interpretations of the TCPA by the Federal Communications Commission.

PDR argued in its petition that the Hobbs Act is intended “to prevent disjointed attacks on agency orders via a challenge to the order’s ‘validity.’”

“The practical consequence of the Fourth Circuit’s decision in this case, however, is to unjustifiably expand the Hobbs Act to strip all courts of jurisdiction to apply federal statutes and interpret agency guidance,” the petition continues. “In so ruling, the Fourth Circuit deepened a split of authority among circuit courts as to the reach of the Hobbs Act, as well as the appropriateness of engaging in a Chevron analysis to decide issues of statutory interpretation.

“Certiorari is warranted to resolve the jurisdictional issues presented, as well as equally important questions concerning the TCPA’s scope raised by the Fourth Circuit’s rulings on the law.”

Per its custom, the Supreme Court did not issue any comment in its order taking up the case. PDR’s was the one of two cases granted certiorari this morning in an order list containing dozens of denied petitions. The other case involves Virginia Republicans who want to preserve state legislative districts that were struck down as racially discriminatory.

Blank Rome attorney Jeffrey Neal Rosenthal has not returned an email seeking comment. Glenn Hara, of the firm Anderson + Wanca in Rolling Meadows, Illinois, represents Carlton & Harris. Hara declined to comment.

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