Optum, Optuminsight ask court to dismiss TCPA lawsuit brought by doctor over fax

By Carrie Salls | Jul 3, 2017

PHILADELPHIA — Optum Inc. and Optuminsight Inc. are asking the U.S. District Court for the Eastern District of Pennsylvania to dismiss a class action lawsuit filed against them by a doctor who claims that the Optum entities illegally sent unsolicited faxes to him and other potential class members, according to a motion filed on June 15.

Dr. Robert W. Mauthe’s lawsuit alleges that Optum and Optuminsight violated the Telephone Consumer Protection Act (TCPA), “which generally prohibits certain calls and faxes from being made without a recipient’s consent,” according to the dismissal motion.

Specifically, Optum and Optuminsight said Mauthe claims that they sent him “a single unauthorized, one-page fax.”

The dismissal motion said the lawsuit alleges that Optum and Optuminsight’s transmission of the unsolicited fax to Mauthe makes them guilty of conversion under Pennsylvania law, "which is predicated on a theory that, by sending a one-page fax, defendants somehow ‘converted’ his fax machine, toner, paper and employee time.”

The defendants say the lawsuit should be dismissed because the law applies to unsolicited advertisements sent via fax, and the fax they sent to Mauthe was not an advertisement.

“Rather, as is evident from the face of the fax, it is an informational message that is exempt from TCPA liability,” Optum and Optuminsight said in their motion.

According to the dismissal motion, the fax sent to Mauthe read: “As part of ongoing data maintenance of our Optum Provider Database product, Optum regularly contacts health care practitioners to verify demographic data regarding your office location(s). This outreach is independent of and not related to your participation in any Optum network. By taking a few minutes to verify your practice information is current, your information will be promptly updated in the Optum Provider Database.”

The Optum entities said in the motion that the fax explains how the requested information will be used, as well as a statement that there is no cost to the doctor related to providing the information and that “this is not an attempt to sell you anything.”

Optum and Optuminsight also argued that the conversion claim should be thrown out because any actual harm that the fax may have inflicted on Mauthe was minimal and not enough to support a conversion finding.

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Optum, Inc. U.S. District Court for the Eastern District of Pennsylvania

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