Ambassador Animal Hospital, Ltd. v. Elanco Animal Health Inc., et al.

Defendants sent brochures to Ambassador’s fax machine inviting the veterinarian to call a salesperson and RSVP to attend a free educational dinner program on a topic related to Defendants’ veterinary products. Ambassador alleged the faxes were “unsolicited advertisements” as defined by the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(a)(5), because (1) they contained enough advertising content supporting a plausible inference that they were sent with a marketing or promotional purpose or (2) additional facts supported a plausible inference that Defendants used the faxed invitations and dinner programs to promote the sale of goods. The Seventh Circuit held the faxes were not ads because they did not expressly offer to sell anything, contradicting a prior decision of the same court, Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013), and decisions of other circuit courts, Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 962 F.3d 882 (6th Cir. 2020); Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., 847 F.3d 92 (2d Cir. 2017); Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015). See also Carlton & Harris Chiro., Inc v. PDR Network, LLC, 80 F.4th 466 (4th Cir. 2023). The following question is presented: (1) Does the Panel Decision create a conflict between the Seventh Circuit and the