In Boone’s Pharmacy, Inc. v. Ezrirx, LLC,1 the U.S. District Court for the Southern District Alabama dismissed the plaintiff’s TCPA complaint against a sender of fax advertisements, finding a phone conversation between the defendant and the plaintiff’s employee was sufficient to authorize and consent to the sending of future faxes by the defendant.
The plaintiff, Boone’s Pharmacy, is a small independent pharmacy; the defendant, EzriRx, is a pharmaceutical marketplace that connects wholesalers and pharmacies across the United States. In this case, the defendant had third parties call the plaintiff and other similarly situated entities to confirm the accuracy of their fax numbers and to obtain consent to be faxed advertisements.
In July 2021, the defendant’s representative called Boone’s Pharmacy. An employee answered the phone on behalf of the pharmacy and thereafter, confirmed the fax number so that the defendant would “be able to send [the pharmacy] marketing material about [EzriRx].” Following the conversation, the defendant sent two fax advertisements to the pharmacy.
The plaintiff filed suit alleging the defendant violated the TCPA by sending the two faxes without consent. The defendant moved to dismiss the complaint based on the fact that during the phone conversation, the plaintiff’s employee gave express permission or consent to receive future faxes, rendering the transmission solicited.
Prior Express Permission. According to the court, “Express permission” is permission that is clearly and unmistakably granted by actions or words. Here, the court found that plaintiff's complaint established that an employee of the pharmacy answered the phone, the conversation between the employee and the defendant took place, and the conversation took place prior to the faxes being sent by the defendant. These facts, along with the content of the conversation, which made it clear that by providing a fax number, the employee was agreeing to receive faxed advertisements from the defendant, were sufficient to establish prior express permission.
The Defendant argued that pursuant to Gorss Motels, Inc. v. Safemark Systems, LP,2 (which involved only the determination that a fax is solicited if the facsimile recipient provided his prior express invitation or permission to receive a fax) this express permission alone warranted dismissal; however, the court concluded that Gorss does not establish, as a matter of law, dismissal when there is a question of authority of the person giving the consent.
Authority to Consent. The plaintiff claimed that even if permission was given to the defendant, the employee lacked the requisite authority to consent to receive junk faxes under the TCPA. The plaintiff contended that the owner of the pharmacy did not give the employee express authority nor did the employee have apparent authority to consent, simply by virtue of her answering the defendant’s cold-call.
The court disagreed, finding no disputed facts as to the existence of an agency relationship between the employee and Boone’s Pharmacy. The court found that there were no facts pled claiming the employee was not permitted to give out or confirm the pharmacy’s fax number – instead, the complaint confirmed that these actions were taken in the “usual and ordinary course” of employment. The court also found that there was not factual support that the employee was acting outside the scope of her authority in this instance, where she answered the phone on behalf of Boone's Pharmacy and confirmed the fax number to EzriRx.
It’s important to note that the court’s analysis does not conclude that anyone who answers a “cold-call” from a fax advertiser at a business can bind the company to receive fax advertisements from the sender. Instead, it is limited to these specific facts, where the defendant called the plaintiff, during business hours, spoke to an agent of the plaintiff after she answered the phone on behalf of “Boone's Pharmacy” and thereafter, obtained express permission to send a fax advertisement to the location where the employee physically worked.
Finally, the court determined the plaintiff's position that a company must seek out an owner or authorized representative prior to communicating with a company defies practicality. In this case, the employee was tasked with communicating on behalf of Boone's Pharmacy – the fact that the employee was not the owner of the company does not equate to the impossibility that another employee could consent, for example as an agent, and does not defeat that the defendant obtained consent.
Bottom line: Where an employee is acting within the scope of his or her employment, has apparent authority and affirmatively consents to receive fax advertisements from a company, the court found that the subsequent faxes are deemed solicited and not in violation of the TCPA.
1 No. CV 22-00375-JB-N, 2023 WL 4874785 (S.D. Ala. July 31, 2023).
2 931 F.3d 1094 (11th Cir. 2019).
