Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA.  The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients.  The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit.  Caremark (and its vendor that sent the fax at issue) moved for summary judgment.  The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA.  The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.