Class Action Alleges Select Medical Corporation Violated TCPA Through Unsolicited Faxes

Family Health Physical Medicine LLC (FHPM) is leading a class action in the Northern District of Ohio against Select Medical Corporation (SMC) over allegations that the defendant sent an unsolicited fax advertising its services to the plaintiff.

SMC is a provider of physical therapy services under the trade name NovaCare Rehabilitation. According to FHPM, it received a fax advertising NovaCare’s services on Aug. 22, 2019. The fax was not addressed to anyone, FHPM said, and the plaintiff claimed its purpose was to target medical professionals who may refer patients to NovaCare.

“The  NovaCare  Fax  offered  to  ‘better  serve  you  and  your  patients,’ ” the complaint said,  “invited  the intended  recipients  to  ‘make  a  referral,’  and  promised  to  ‘contact  your  patient  and  schedule them within 24 hours.’ ”

FHPM took action on behalf of itself and a proposed class of plaintiffs under the Telephone Consumer Protection Act (TCPA), citing the definition of an “unsolicited advertisement” under the TCPA as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s  prior  express  invitation  or  permission,  in  writing  or otherwise.”

According to the plaintiff, it did not give any permission to SMC for it to send advertisements to FHPM. The TCPA also requires that a faxed advertisement contain an opt-out notice that “is clear and conspicuous and on the first page of the unsolicited advertisement,” which the plaintiff alleged did not appear on the NovaCare fax it received.

The proposed class would include all individuals or entities who received a similar NovaCare advertisement via fax on or within four years before this class-action filing and who never gave permission to receive such faxes, according to the complaint.

The plaintiff requested a declaration that the case may proceed as a class action, an award of statutory damages for the plaintiff and class, and other relief.

Montgomery Jonson LLP represents FHPM.