Petition for Writ of Certiorari — Ambassador Animal Hospital, Ltd., Petitioner v. Elanco Animal Health Inc., et al.

No. ______________

IN THE

Supreme Court of the United States

AMBASSADOR ANIMAL HOSPITAL, LTD.,

v.

Petitioner,

ELANCO ANIMAL HEALTH INC.

and ELI LILLY AND COMPANY,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Phillip A. Bock, Counsel of Record

Robert M. Hatch

David M. Oppenheim

Barry J. Blonien

Bock Hatch & Oppenheim, LLC

203 N. La Salle St., Ste. 2100

Chicago, IL 60601

Telephone: (312) 658-5501

phil@classlawyers.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

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

ii

Second, Fourth, and Sixth Circuits on the

important issue of whether the TCPA’s

definition of “unsolicited advertisement”

permits consideration only of the content on

the face of a junk fax or also permits

consideration of the purpose and context

surrounding the sending of the fax.

Additionally, the Panel Decision is contrary to the

FCC’s regulation finding that faxes promoting free

seminars used to market the sender’s products are fax

“advertisements” under the TCPA. In the Matter of

Rules and Regulations Implementing the Telephone

Consumer Protection Act of 1991, Junk Fax

Prevention Act of 2005, 21 FCC Rcd. 3787, 3814 (FCC

April 6, 2006) (“2006 Order”) (“We conclude that

facsimile messages that promote goods or services

even at no cost, such as free magazine subscriptions,

catalogs, or free consultations or seminars, are

unsolicited advertisements under the TCPA’s

definition. In many instances, ‘free’ seminars serve as

a pretext to advertise commercial products and

services.”). The regulation represents the FCC’s

reasonable interpretation of statutory language, but

the Panel Decision gave it no deference.

Moreover, under the Hobbs Act, 28 U.S.C. §

2342(1), the Seventh Circuit lacked jurisdiction to

overrule the FCC’s regulation, because Ambassador’s

complaint was not an appeal from the FCC’s

regulation to an appellate court.

iii

The Court granted a petition for certiorari to

address this same issue in PDR Network, LLC v.

Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051

(2019), but the Court did not reach the question

presented. The following question is presented:

(2) Did the Hobbs Act require the district

court in this case to accept the FCC’s legal

interpretation of the Telephone Consumer

Protection Act?

iv

PARTIES TO THE PROCEEDING

The caption contains the names of all parties to the

proceeding below. Respondents Elanco Animal

Health, Inc. and Eli Lilly & Company are collectively

called “Defendants” in this petition.

CORPORATE DISCLOSURE STATEMENT

Petitioner Ambassador Animal Hospital, Ltd. has

no parent corporation and no publicly held company

owns 10% or more of its stock.

PROCEEDINGS IN OTHER COURTS

Ambassador Animal Hosp., Ltd. v. Elanco Animal

Health, Inc. and Eli Lilly & Co., No. 22-1304, U.S.

Court of Appeals for the Seventh Circuit. Judgment

entered on August 30, 2023.

Ambassador Animal Hosp., Ltd. v. Elanco Animal

Health, Inc. and Eli Lilly & Co., No. 20-cv-2886, U.S.

District Court for the Northern District of Illinois.

Judgment entered on February 22, 2022.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING .......................... iv

CORPORATE DISCLOSURE STATEMENT .......... iv

PROCEEDINGS IN OTHER COURTS.................... iv

TABLE OF CONTENTS ............................................ v

TABLE OF APPENDICES ...................................... vii

TABLE OF AUTHORITIES ................................... viii

PETITION FOR A WRIT OF CERTIORARI ............ 1

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

STATUTES AND REGULATIONS INVOLVED ...... 2

I. 47 U.S.C. § 227(a)(5)........................................ 2

II. In the Matter of Rules & Regulations

Implementing the Tel. Consumer Prot.

Act of 1991; Junk Fax Prevention Act

of 2005, 21 FCC Rcd 3787, 3814 (F.C.C.

April 6, 2006) ................................................... 2

INTRODUCTION ...................................................... 4

STATEMENT OF THE CASE ................................... 4

I. The Parties. ..................................................... 4

II. The TCPA bans unsolicited fax ads. ............... 5

III.Defendants sell veterinary products. ............. 5

vi

IV. Defendants sent unsolicited fax ads to

Ambassador and other veterinarians in

2018. ................................................................. 6

V. Procedural History. ......................................... 8

ARGUMENT/REASONS FOR GRANTING WRIT .. 9

I. The Panel Decision conflicts with prior

Seventh Circuit decisions and the

decisions of the other courts of appeal

that have addressed the issues. ...................... 9

II. The Panel Decision conflicts with a

final order of the FCC. .................................. 16

A. The

Seventh

Circuit

lacked

jurisdiction under the Hobbs Act to

reject the FCC’s 2006 Order. ................... 16

CONCLUSION ......................................................... 19

vii

TABLE OF APPENDICES

Page

APPENDIX A – OPINION OF THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT, FILED JULY

24, 2023. ...............................................................1a

APPENDIX B – MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT

COURT

FOR

THE

NORTHERN DISTRICT OF ILLINOIS,

FILED FEBRUARY 22, 2022. .............................8a

APPENDIX C – OPINION OF THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT, FILED

AUGUST 22, 2023. ............................................17a

viii

TABLE OF AUTHORITIES

Page

Cases

Ambassador Animal Hosp., Ltd. v. Elanco

Animal Health, Inc., 74 F.4th 829 (July 24,

2023) ........................................................................... 1

Ambassador Animal Hosp., Ltd. v. Elanco

Animal Health, Inc., No. 20-cv-2886 DKWKJM, 2022 WL 523122 (N.D. Ill. Feb. 22,

2022) ........................................................................... 1

Ambassador Animal Hosp., Ltd. v. Elanco

Animal Health, Inc., No. 20-cv-2886, 2021 WL

633358 (N.D. Ill. Feb. 18, 2021) ................................. 8

Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d

Cir. 2010) .................................................................. 14

Bais Yaakov of Spring Valley v. Fed.

Commc’ns Comm’n, 852 F.3d 1078 (D.C. Cir.

2017) ......................................................................... 16

Batterton v. Francis, 432 U.S. 416 (1977) ............... 18

Carlton & Harris Chiropractic, Inc v. PDR

Network, LLC, 80 F.4th 466 (4th Cir. 2023) ..... 10, 19

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........ 18

Green v. Beth, 663 F. App’x 471 (7th Cir. 2016)

.................................................................................. 14

Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682

(7th Cir. 2013) ....................................................... i, 10

ix

Matthew N. Fulton, D.D.S., P.C. v. Enclarity,

Inc., 962 F.3d 882 (6th Cir. 2020) ............... i, 9, 12, 19

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92

(2015) ........................................................................ 18

Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharms., Inc., 847 F.3d 92 (2d Cir.

2017) ............................................ 10, 12, 13, 14, 15, 19

Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharms., Inc., No. 3:14-cv-405

(SRU), 2015 WL 144728 (D. Conn. Jan. 12,

2015) ......................................................................... 13

Sandusky Wellness Ctr., LLC v. Medco Health

Sols., Inc., 788 F.3d 218 (6th Cir. 2015) ... i, 10, 12, 19

Statutes

28 U.S.C. § 1254(1)..................................................... 1

28 U.S.C. § 2101 ......................................................... 1

28 U.S.C. § 2342 ....................................................... 16

28 U.S.C. § 2344 ....................................................... 16

47 U.S.C. § 227(a)(5) .............................2, 5, 10, 11, 12

47 U.S.C. § 227(b)(1) .................................................. 5

5 U.S.C. § 553 ........................................................... 18

Other Authorities

John F. Manning, Nonlegislative Rules, 72

Geo. Wash. L. Rev. 893 (2004) ................................. 18

x

Rules

Sup. Ct. R. 13.3 .......................................................... 1

PETITION FOR A WRIT OF CERTIORARI

Ambassador Animal Hospital, Ltd. (“Ambassador”

or “Petitioner”) respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit.

DECISIONS BELOW

The decision of the Seventh Circuit below is

reported at Ambassador Animal Hosp., Ltd. v. Elanco

Animal Health, Inc., 74 F.4th 829 (July 24, 2023)

(“Panel Decision”). Appendix A, pp. 1a-7a. The

Seventh Circuit affirmed the decision of the district

court granting Defendants’ motion to dismiss,

reported at Ambassador Animal Hosp., Ltd. v. Elanco

Animal Health, Inc., No. 20-cv-2886 DKW-KJM, 2022

WL 523122 (N.D. Ill. Feb. 22, 2022). Appendix B, pp.

8a-16a. 1

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1). The Seventh Circuit denied

Ambassador’s petition for rehearing on August 22,

2023. Appendix C, pp. 17a-18a. This petition is timely

because it is being filed within 90 days after the

Seventh Circuit’s denial of rehearing and entry of

judgment. 28 U.S.C. § 2101(c); Sup. Ct. R. 13.3.

Citations to the Appendices to this Petition are denoted as

“Appendix [volume], pp. [page number(s)].” Citations to the

Appendix from the Seventh Circuit proceeding are denoted as

“APP [page].” All other citations are to CM/ECF system for the

district court proceedings denoted as” ECF [docket entry

number].”

1

2

STATUTES AND REGULATIONS INVOLVED

I.

47 U.S.C. § 227(a)(5)

§ 227. Restrictions on use of telephone

equipment

(a) Definitions. As used in this section—

(5)The term “unsolicited advertisement”

means 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.

II. In the Matter of Rules & Regulations

Implementing the Tel. Consumer Prot. Act

of 1991; Junk Fax Prevention Act of 2005, 21

FCC Rcd 3787, 3814 (F.C.C. April 6, 2006)

4. Offers for Free Goods and Services and

Informational Messages

52. We conclude that facsimile messages that

promote goods or services even at no cost, such

as free magazine subscriptions, catalogs, or free

consultations or seminars, are unsolicited

advertisements under the TCPA’s definition. In

many instances, “free” seminars serve as a

pretext to advertise commercial products and

services. Similarly, “free” publications are often

3

part of an overall marketing campaign to sell

property, goods, or services. For instance, while

the publication itself may be offered at no cost

to the facsimile recipient, the products

promoted within the publication are often

commercially available. Based on this, it is

reasonable to presume that such messages

describe the “quality of any property, goods, or

services.” Therefore, facsimile communications

regarding such free goods and services, if not

purely “transactional,” would require the

sender to obtain the recipient’s permission

beforehand, in the absence of an EBR.

4

INTRODUCTION

STATEMENT OF THE CASE

I.

The Parties.

Petitioner, Ambassador Animal Hospital, Ltd., is

an Illinois corporation operating a veterinary practice

in Oak Park, Illinois. APP011, 012 (First Amended

Complaint (“FAC”), ¶¶ 9, 18, 20).

Defendant Elanco Animal Health, Inc. (“Elanco”)

is a Delaware corporation with its principal place of

business in Greenfield, Indiana. APP011 (FAC, ¶ 10).

Elanco is an international provider of products and

services for the animal health and food-animal

production industries. APP011 (FAC, ¶ 14).

In April 2018, Elanco was an unincorporated

division of Eli Lilly and Company, but in September

2018, Lilly spun off part of its stake in Elanco through

an initial public offering and, later, sold its remaining

shares in March 2019. APPP011-012 (FAC, ¶ 14).

Defendant Eli Lilly and Company (“Lilly”) is a

Delaware corporation with its principal place of

business in Indianapolis, Indiana. APP011 (FAC,

¶ 11). Lilly is a global healthcare and pharmaceutical

company. APP012 (FAC, ¶ 15).

5

II. The TCPA bans unsolicited fax ads.

The TCPA prohibits sending “unsolicited

advertisements” by fax. 47 U.S.C. § 227(b)(1). The

TCPA defines an “unsolicited advertisement” 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.” 47 U.S.C.

§ 227(a)(5). The FCC has construed the TCPA’s

definition of fax “advertisement” to include faxes that

“promote goods or services even at no cost, such as

free … seminars” where they “serve as a pretext to

advertise commercial products and services.” In re

Rules & Regulations Implementing the Tel. Consumer

Prot. Act of 1991, 21 FCC Rcd 3787, 3814 (F.C.C. April

6, 2006) (emphasis added).

III. Defendants sell veterinary products.

Ambassador is an Illinois veterinary practice.

APP011-012 (FAC, ¶¶ 9, 16, 18, 20). Ambassador has

never done business with Defendants and has never

invited or given them permission to send advertising

material to its fax machine. APP012, 016 (FAC, ¶¶ 20,

40).

Lilly owned Elanco in April 2018. APP011 (FAC, ¶

14). Elanco sells products to veterinarians that

prevent and treat diseases in cats and dogs. APP011,

012, 013 (FAC, ¶¶ 14, 20, 24). Elanco also sells the

pain reliever Galliprant to treat arthritis in dogs.

APP014 (FAC, ¶ 30).

6

IV. Defendants sent unsolicited fax ads to

Ambassador and other veterinarians in

2018.

In April 2018, to market their products to

Ambassador and other veterinarians, Defendants

faxed form invitations en masse inviting the targeted

veterinarians to RSVP and attend free restaurant

dinners at which presenters would conduct programs

on subjects related to the veterinary products

Defendants sell. APP012 (FAC, ¶¶ 16, 18, 19).

Ambassador received at least two of these faxes.

APP012 (FAC, ¶ 16). Both faxes prominently featured

the Elanco trademark at the top and in the lower

right-hand corner. APP029, 030 (FAC, Exhibits A, B).

The first fax invited Ambassador to RSVP and

attend a program on “Canine and Feline Disease

prevention Hot Topics.” APP029 (FAC, Exhibit A).

The program was at Maggiano’s restaurant in

Woodfield, Illinois and included a free dinner. Id. The

RSVP contact was Jim Archer. Id. Archer describes

himself as a “Senior District Manager at ELANCO

ANIMAL HEALTH” who possesses an “outstanding

ability to establish productive business relationships

with existing accounts to guarantee client retention

and loyalty, while prospecting for new business

opportunities.” APP013 (FAC, ¶ 26) (emphasis

added).

The second fax touted a program titled,

“Rethinking Management of Osteoarthritis.” APP030

(FAC, Exhibit B). It was not at a restaurant but

7

included a free dinner catered by a Bucca Di Beppo

restaurant. Id. Nicole Cochran was one of the RSVP

contacts on the fax. APP014 (FAC, ¶ 31). Cochran

describes herself as an “Executive Territory Manager

at Elanco Animal Health” with a “focus on surpassing

goals through unique sales strategies.” APP014 (FAC,

¶ 32) (emphasis added).

Both faxes stated the offers were for

“veterinarians” and “Veterinary Practice Owners”

only and noted, “We regret that other guests cannot

be accommodated.” APP029-030 (FAC, Exhibits A

and B) (emphasis added). At the bottom each stated:

As a result of enacted state and federal

legislation, if you are a licensed veterinarian

with an active license from MN, a Veterans

Affairs employee, and/or a state government

employee, you may be restricted from accepting

industry-provided food/beverage and/or educational item(s). Please consult your state or

federal regulations or ethics laws.

This program is intended only for invited

animal healthcare professionals or other

appropriate

personnel

for

whom

the

information that is being presented will be

relative to their practice. We regret that

spouses or other guests who are not affiliated

with the practice cannot be accommodated.

Ibid. (emphasis added)

8

V. Procedural History.

Ambassador filed its original complaint in Illinois

state court on April 10, 2020. ECF 1-1 (Complaint, p.

1). Defendant removed the case to the district court

on May 13, 2020. ECF 1 (Notice of Removal).

Defendant then moved to dismiss. ECF 22 (Motion to

Dismiss). After briefing, the district court granted

Defendants’ motion, but granted Ambassador leave to

amend its complaint. Ambassador Animal Hosp., Ltd.

v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021

WL 633358, at *4 (N.D. Ill. Feb. 18, 2021).

Ambassador filed its First Amended Complaint on

March 18, 2021. ECF 48 (FAC, p. 1.) Defendants filed

an amended motion to dismiss on April 28, 2021. ECF

52 (Memorandum, p. 1). Over Ambassador’s

opposition, the district court granted Defendants’

motion and dismissed Ambassador’s claims. ECF 58

(Response); Appendix B.

Ambassador filed its Notice of Appeal on February

24, 2022. ECF 66 (Notice). The Panel Decision

affirming the district court was filed on July 24, 2023.

Appendix A. The Seventh Circuit’s order denying

rehearing was entered on Aug. 22, 2023. Appendix C.

Within ninety days of the entry of the order denying

rehearing on November 20, 2023, Ambassador filed

this petition for certiorari.

9

ARGUMENT/REASONS FOR GRANTING WRIT

I.

The Panel Decision conflicts with prior

Seventh Circuit decisions and the decisions

of the other courts of appeal that have

addressed the issues.

The Panel Decision holds that whether a fax is an

“unsolicited advertisement” within the TCPA’s

definition is governed exclusively by the content of the

fax, regardless of its context and purpose. Appendix

A, pp. 4a-5a. The Panel Decision rejects the idea that

the purpose in mass faxing invitations to free dinner

seminars to potential veterinarian customers is

relevant to whether those faxes were “unsolicited

advertisements” as defined by the TCPA. Ibid. The

Panel Decision also holds that Defendants’ plans to

conduct sales activities at those seminars were

irrelevant to whether the faxes were “unsolicited

advertisements.” The Seventh Circuit found that the

language of the TCPA’s definition of “advertisement”

strictly limited its inquiry to the contents of the fax

itself, and no extrinsic allegations could be considered

at all. Ibid.

The Panel Decision is contrary to the decisions of

every other circuit court of appeals to have reached

the issue, as they all held that allegations extrinsic to

the contents of a fax can be considered in determining

whether it is an “unsolicited advertisement” as

defined by the TCPA. Matthew N. Fulton, D.D.S., P.C.

v. Enclarity, Inc, 962 F.3d 882, 889 (6th Cir. 2020) (an

10

invitation to participate in a survey could be an

advertisement even if no product was promoted on its

face); Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharms., Inc., 847 F.3d 92, 96 (2d Cir.

2017) (invitation to free seminar); Sandusky Wellness

Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218,

225 (6th Cir. 2015) (rejecting four-corners argument

in dicta); see also Carlton & Harris Chiropractic, Inc

v. PDR Network, LLC, 80 F.4th 466 (4th Cir. 2023)

(faxed offer to receive a free reference book).

In fact, the Panel Decision is also inconsistent with

the Seventh Circuit’s own precedent, Ira Holtzman,

C.P.A. v. Turza, 728 F.3d 682, 687 (7th Cir. 2013),

where the court considered the fax sender’s

marketing purpose in sending the faxes, even though

not apparent from the face of the fax itself (which was

styled in the form of a newsletter).

The TCPA defines a fax “advertisement” as, “any

material advertising the commercial availability or

quality of any property, goods, or services.” 47 U.S.C.

§ 227(a)(5). Contrary to the Panel Decision, nothing

in this definition limits the inquiry to the four corners

of the fax itself.

The definition only demands that the fax contains

material that, in fact, advertises the sender’s

commercially available goods or services. Answering

that question often requires consideration of facts

outside the face of the fax itself. For example, no

sports fan would fail to recognize the famous

Goodyear blimp as an advertisement. The blimp is

11

commonly understood to be “any material

advertising” Goodyear’s commercially available tires.

But under the Panel Decision, it would not be an

“advertisement” because the court could not consider

that Goodyear’s purpose in flying its blimp over

sporting events is to market its tires, or that Goodyear

knows that sports fans recognize its brand knowing

Goodyear sells tires. A photo of the Goodyear blimp

sent without prior express invitation or permission to

a fax machine would be an “unsolicited

advertisement” satisfying the TCPA’s definition. 47

U.S.C. § 227(a)(5).

Similarly, Defendants here targeted veterinarians

already familiar with the Elanco name and

commercially available goods and services and invited

them by fax to RSVP and attend free dinner seminars

covering animal health topics addressed by

Defendants’ veterinary products. APP011, 012, 013,

014 (FAC, ¶¶ 14, 20, 24, 30); APP029, 030 (FAC,

Exhibits A, B).

In addition, the faxes identified sales representatives as the RSVP contacts, so responses would give

one of Defendants’ salespersons a chance to speak

with a potential customer. APP014 (FAC, ¶¶ 31, 32).

Under these circumstances, Ambassador plausibly

alleged that the faxes contained “any material

advertising” Defendants’ veterinary products. This is

all the TCPA’s definition of fax “advertisement”

requires, and the Panel Decision’s imposition of

cramped four-corners-of-the-fax-itself test is contrary

to the broad language Congress used when defining

12

“unsolicited advertisement” in the TCPA. 47 U.S.C. §

227(a)(5).

Every other court of appeals to address the issue

has held that allegations apart from the words

printed on a fax can be considered when determining

whether the fax is an “unsolicited advertisement”

under the TCPA. Common sense confirms that an

advertisement “‘need not be an explicit sale offer’”

because the “‘best ads’ are sometimes not ‘so overt,’”

and include “‘an indirect commercial solicitation, or

pretext for’ such a solicitation.” Fulton, 962 F.3d at

889 (quoting Sandusky, 788 F.3d at 225).

In Boehringer, on nearly identical allegations, the

Second Circuit reached a result nearly the opposite of

the Panel Decision. 847 F.3d at 94–97. Like

Defendants’ faxes, the Boehringer fax advertised a

“dinner meeting.” Id. at 96. The stated purpose “was

to discuss two medical conditions—Female Sexual

Dysfunction (FSD) and Hypoactive Sexual Desire

Disorder (HSDD)—and their ‘pathophysiology

models, epidemiology, and diagnosis.’” Id. The

defendant was a pharmaceutical company in the

business of treating diseases and medical conditions,

such as FSD and HSDD, and it had applied for FDA

approval of a new drug to treat those conditions. Id.

at 94, 96. The fax inviting attendance at the “dinner

meeting” clearly stated it was “sponsored by” the

defendant but did not mention any of the defendant’s

products by name. Id. The district court dismissed the

complaint because the plaintiff did not go to the

13

seminar and otherwise could not affirmatively allege

the contents of the seminar. Physicians Healthsource,

Inc. v. Boehringer Ingelheim Pharms., Inc., No. 3:14cv-405 (SRU), 2015 WL 144728, at *3 (D. Conn. Jan.

12, 2015); rev’d, 847 F.3d 92 (2d Cir. 2017).

The Second Circuit reversed, holding that “at the

pleading stage, where it is alleged that a firm sent an

unsolicited fax promoting a free seminar discussing a

subject that relates to the firm’s products or services,

there is a plausible conclusion that the fax had the

commercial purpose of promoting those products or

services.” Id. at 95. It explained: “Businesses are

always eager to promote their wares and usually do

not fund presentations for no business purpose. The

defendant can rebut such an inference by showing

that it did not or would not advertise its products or

services at the seminar, but only after discovery.” Id.

Not all faxes promoting free seminars are

“advertisements,” the Second Circuit observed, but

where the complaint alleges facts showing “a

commercial nexus to a firm’s business, i.e., its

property, products, or services,” those allegations

suffice “at the pleading stage.” Id. at 96. The court

reasoned that “[r]equiring plaintiffs to plead specific

facts alleging that specific products or services would

be, or were, promoted at the free seminar would

impede the purposes of the TCPA,” “[a]nd—unless

plaintiffs actually attended the free seminar—in

many cases it will be difficult for plaintiffs to know

whether it was in fact used to advertise a defendant’s

14

products or services.” Id. at 96 (citing Arista Records,

LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (“The

Twombly plausibility standard, which applies to all

civil actions ... does not prevent a plaintiff from

pleading facts alleged upon information and belief

where the facts are peculiarly within the possession

and control of the defendant.”) (internal quotation

marks omitted)); see also Green v. Beth, 663 F. App’x

471, 474 (7th Cir. 2016) (citing Arista for the

proposition that plaintiff can plead facts on

information and belief when they are uniquely in the

control of the defendant).

The Second Circuit offered two hypotheticals to

distinguish between advertisements and nonadvertisements:

Two fanciful examples illustrate the

distinction. If a complaint alleged that the

Handy

Widget

Company

funded

a

professorship at a local law school in the name

of its deceased founder and faxed invitations

on its letterhead to an inaugural lecture

entitled “The Relevance of Greek Philosophers

to Deconstructionism,” the complaint would

not state a claim under the TCPA because the

Handy Widget Company is not in the business

of philosophical musings. In contrast, if the

Handy Widget Company faxed invitations to a

free seminar on increasing widgets’ usefulness

and productivity, a claim under the TCPA

would be validly alleged. Of course, the Handy

15

Widget Company could rebut at the summary

judgment stage with evidence showing that it

did not feature its products or services at the

seminar.

Id. at 97.

The court concluded that the Boehringer plaintiff

had plausibly alleged an “advertisement” because: (1)

the fax advertised a “dinner meeting” to discuss two

medical conditions—Female Sexual Dysfunction

(FSD) and Hypoactive Sexual Desire Disorder

(HSDD)—and their “pathophysiology models,

epidemiology, and diagnosis;” (2) the defendant “was

generally in the business of treating diseases and

medical conditions, such as FSD and HSDD;” (3) “the

fax ma[d]e clear … that the dinner meeting was

“sponsored by [the defendant];” and (4) the defendant

“was seeking approval from the FDA for the

marketing of Flibanserin,” which was intended to

treat FSD and HSDD. Id.

Ambassador’s complaint contained very similar

allegations. The Panel should have followed the sound

reasoning of the Boehringer court and reversed the

district court’s order dismissing Ambassador’s action.

The decisions of the Second Circuit, Fourth

Circuit, Sixth Circuit, and Seventh Circuit cited

above were correct, and the conflicting Panel Decision

in this case was wrong. The Court should grant

Ambassador’s petition and resolve the conflict.

16

II. The Panel Decision conflicts with a final

order of the FCC.

A. The Seventh Circuit lacked jurisdiction

under the Hobbs Act to reject the FCC’s

2006 Order.

The Hobbs Act, 28 U.S.C. § 2342(1), provides that

only an appropriate court of appeal has “exclusive

jurisdiction to enjoin, set aside, suspend (in whole or

in part), or determine the validity of … final orders of

the Federal Communications Commission made

reviewable by section 402(a) of Title 47.” The act also

provides that “[a]ny party aggrieved” by the order

may challenge the order in the court of appeals

“within 60 days after” entry of the order. 28 U.S.C.

§ 2344.

As a practical matter, however, a party that wants

to challenge an FCC order after it has been sued for a

violation of the TCPA in district court may seek a

declaratory ruling with the FCC as to the validity of

the order and thereby begin a new sixty-day period for

appeal after the FCC rules on the declaratory ruling.

See, e.g., Bais Yaakov of Spring Valley v. Fed.

Commc’ns Comm’n, 852 F.3d 1078, 1081 (D.C. Cir.

2017) (seeking a stay in the district court and

successfully appeal FCC declaratory ruling to the

court of appeals in accord with the Hobbs Act). So,

while the district court is without jurisdiction to set

aside in whole or in part an FCC order, there is a

proper mechanism for staying the district court

17

proceeding and invoking the FCC’s process to resolve

the issue in a court of appeals. Id.

This case commenced in the district court, and no

party sought a declaratory ruling from the FCC, so

the district court and the Seventh Circuit were

without jurisdiction to ignore a final order of the FCC

to dismiss Ambassador’s action.

On April 6, 2006, the FCC entered a final order

stating in part, “We conclude that facsimile messages

that promote goods or services even at no cost, such

as free magazine subscriptions, catalogs, or free

consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many

instances, ‘free’ seminars serve as a pretext to advertise

commercial products and services.” In the Matter of

Rules and Regulations Implementing the Telephone

Consumer Protection Act of 1991, Junk Fax

Prevention Act of 2005, 21 FCC Rcd. 3787, 3814 (FCC

April 6, 2006) (“2006 Order”) ((emphasis added).

The Panel Decision is directly contrary to the

FCC’s 2006 Order because the order expressly

recognized that faxes offering free seminars could be

“advertisements” where they were a pretext to

“advertise” and did not offer any goods or services on

their face. Contrary to the restrictions on its

jurisdiction in the Hobbs Act, the Seventh Circuit

simply rejected the FCC’s 2006 Order and gave it no

deference at all. Appendix A, pp. 6a-7a.

18

In PDR Network, the Court explained that when

an order is merely an “interpretive rule” rather than

a “legislative rule,” it does not have the “force and

effect of law.” 139 S. Ct. at 2055 (citing Chrysler Corp.

v. Brown, 441 U.S. 281, 302-303 (1979) (quoting

Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977)).

Where, as here, the order is promulgated by means of

the FCC’s formal notice and comment procedure, it is

a “legislative rule” with the force of law. Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 97 (2015) (“noticeand-comment obligation makes the process of issuing

interpretive rules comparatively easier for agencies

than issuing legislative rules”); 5 U.S.C. § 553

(allowing agencies to promulgate “interpretative

rules” without formal notice and comment period).

John F. Manning, Nonlegislative Rules, 72 Geo.

Wash. L. Rev. 893 (2004) (“When an agency wishes to

promulgate a rule, the default position under the

Administrative Procedure Act (‘APA’) requires public

notice, an opportunity for comment, and the issuance

of a ‘concise and general statement of basis and

purpose.’ The resulting documents are called

“legislative rules” because they are capable of binding

with the force of statutes.”)

The FCC’s 2006 Order was duly adopted only after

the formal notice and comment process, so it is a

“legislative rule” with the “force and effect of law.” 21

FCC Rcd. 3787, 3817; Perez, 575 U.S. at 97. The

Seventh Circuit, therefore, lacked jurisdiction to

ignore it and, the Court should grant Ambassador’s

petition and reverse the Panel Decision.

19

Finally, even if the Seventh Circuit had

jurisdiction, the FCC’s 2006 Order is a reasonable

interpretation of the TCPA. Indeed, the other circuits

have found it persuasive. Fulton, 962 F.3d at 889;

Boehringer, 847 F.3d at 96; Sandusky, 788 F.3d at

225; see also Carlton & Harris, 80 F.4th at 479.

Therefore, the Panel Decision was in error when it

gave the FCC’s 2006 Order no deference and it should

be reversed for this reason as well. Appendix A, pp.

6a-7a.

CONCLUSION

For the foregoing reasons, the petitioner,

Ambassador Animal Hospital, Ltd., requests that the

Court grant its petition for a writ of certiorari.

20

Respectfully submitted,

/s/ Phillip A. Bock

Phillip A. Bock, Counsel of Record

Robert M. Hatch

David M. Oppenheim

Barry J. Blonien

Bock Hatch & Oppenheim, LLC

203 N. La Salle St., Ste. 2100

Chicago, IL 60601

Telephone: (312) 658-5501

phil@classlawyers.com

Counsel for Petitioner

November 17, 2023

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, FILED JULY 24, 2023 . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS , EA ST ERN

DIVISION, FILED FEBRUARY 22, 2022 . . . . . . . 8a

A P P E N DI X C — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT, FILED

AUGUST 22, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, FILED JULY 24, 2023

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 22-1304

AMBASSADOR ANIMAL HOSPITAL, LTD.,

Plaintiff-Appellant,

v.

ELANCO ANIMAL HEALTH INC.

AND ELI LILLY & CO.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20-cv-2886 — Mary M. Rowland, Judge.

October 28, 2022, Argued

July 24, 2023, Decided

Before Scudder, K irsch, and Jackson-A kiwumi, Circuit

Judges.

Kirsch, Circuit Judge. Ambassador Animal Hospital,

Ltd., brought a putative class action suit against

Elanco Animal Health Inc. and its parent company

Eli Lilly & Co., alleging that Elanco sent Ambassador

2a

Appendix A

two unsolicited fax advertisements in violation of the

Telephone Consumer Protection Act, 47 U.S.C. § 227.

The district court dismissed the amended complaint for

failure to state a claim, concluding that the faxes did not

constitute unsolicited advertisements under the TCPA.

We affirm, holding that the faxes do not indicate—directly

or indirectly—to a reasonable recipient that Elanco was

promoting or selling some good, service, or property as

required by the TCPA.

I

Elanco Animal Health (an animal health products and

services company) sent Ambassador Animal Hospital two

unsolicited faxes inviting Ambassador’s veterinarians and

its owner to RSVP for two free dinner programs. The

faxes listed the topics of the dinner programs—one titled

“Canine and Feline Disease Prevention Hot Topics” and

the other “Rethinking Management of Osteoarthritis”—

and indicated that both programs had been approved for

continuing education credits. The faxes also provided

the names of the programs’ presenters. The top left

and bottom right corners of each invitation included

the trademarked “Elanco” logo, and the bottom of each

fax contained a notice encouraging recipients to consult

their state or federal regulations or ethics laws about

restrictions on accepting industry-provided educational

and food items.

Ambassador filed suit in state court, alleging violations

of the TCPA, 47 U.S.C. § 227 and state law. Ambassador

argued that the two faxes were unsolicited advertisements

3a

Appendix A

under the TCPA because the free dinner programs were

used to market or sell Elanco’s animal health goods and

services. Elanco removed the case to federal court and

moved to dismiss the complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). The

district court dismissed the TCPA claim with prejudice

and relinquished jurisdiction over the state law claims

under 28 U.S.C. § 1367(c).

II

We review Rule 12(b)(6) dismissals de novo, accepting

all well-pleaded factual allegations as true and drawing all

reasonable inferences in the plaintiff’s favor. Rock River

Health Care, LLC v. Eagleson, 14 F.4th 768, 772 (7th Cir.

2021). We also review questions of statutory interpretation

de novo. Bernstein v. Bankert, 733 F.3d 190, 199 (7th Cir.

2013).

With limited exceptions not relevant here, the TCPA

prohibits sending unsolicited advertisements by fax without

the recipient’s consent. 47 U.S.C. § 227(a)(5), (b)(1)(C).

The TCPA defines an unsolicited advertisement 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.” Id. § 227(a)(5).

The sole question in this case is whether the two faxes

Elanco sent to Ambassador fall within this definition.

Ambassador argues that they do because, although they

mentioned no products or services, Elanco’s goal was to

4a

Appendix A

advertise the commercial availability or quality of its

goods or services. Relying on facts external to the faxes,

Ambassador asserts that Elanco chose subjects for the

seminars that overlapped with products it sold, offered

free dinners and continuing education credits to encourage

local veterinarians to attend, and assigned sales managers

to receive RSVPs. In short, the free educational dinners

were a ploy to advertise Elanco’s products and services.

We start and end with the plain language of the

statute. Section 227 asks whether the content of a fax

advertises the commercial availability or quality of a thing.

See Florence Endocrine Clinic, PLLC v. Arriva Med.,

LLC, 858 F.3d 1362, 1366-67 (11th Cir. 2017). It does not

inquire of the seller’s motivation for sending the fax or the

seller’s subsequent actions. The absence of any reference

to the sender’s purpose in § 227 is particularly significant

because the TCPA expressly considers a sender’s purpose

in other provisions. See, e.g., id. § 227(a)(4) (defining

“telephone solicitation” as “the initiation of a telephone call

or message for the purpose of encouraging the purchase or

rental of, or investment in, property, goods, or services”);

id. § 227(b)(2)(B)(i) (authorizing the FCC to adopt an

exemption for “calls that are not made for a commercial

purpose”). “Where Congress includes particular language

in one section of a statute but omits it in another section

of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion

or exclusion.” Russello v. United States, 464 U.S. 16,

23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) (cleaned up).

Accordingly, to be an unsolicited advertisement under

the TCPA, the fax itself must indicate—directly or

5a

Appendix A

indirectly—to a reasonable recipient that the sender is

promoting or selling some good, service, or property. In

other words, the “material ... which is transmitted”—

the faxed document—must perform the advertising.

An unsolicited advertisement “does not depend on the

subjective viewpoints of either the fax sender or recipient,

and thus an objective standard governs whether a fax

constitutes an unsolicited advertisement.” Robert W.

Mauthe M.D., P.C. v. Millennium Health LLC, 58 F.4th

93, 96 (3d Cir. 2023).

Ambassador argues that Elanco’s faxes did, in

fact, contain advertising content. Namely, Ambassador

emphasizes that Elanco included its name and logo on

the faxes, the seminar topics related to products sold

by Elanco, and the invitations targeted recipients and

requested RSVPs of particular employees. But none

of these features transformed Elanco’s invitations to

free dinners and continuing education programs into

advertisements for a good, service, or property. Use of

Elanco’s trademarked logo on the invitations did not

reasonably encourage readers to buy any of Elanco’s

products or services. Nor did simply mentioning subject

matter related to Elanco’s business. The TCPA does

not go so far as to prohibit sending faxes on company

letterhead to promote free education on topics that relate

to the sender’s business—it prohibits advertising products

or services. And even if Elanco targeted veterinarians

familiar with its products or directed RSVPs to individuals

in the marketing or sales departments, Elanco’s faxes

did not contain the promotional quality necessary for an

advertisement.

6a

Appendix A

The faxes certainly promoted goodwill for Elanco and

helped the company manage its brand and image. And

there could be situations in which a similar fax message

would qualify as an indirect advertisement—perhaps

if Elanco had said something like “Join us for a free

dinner discussion of how Alenza [Elanco’s product] can

help manage canine inflammation” or “RSVP for a free

event hosted by Elanco on the best medication available

for canine osteoarthritis.” But not only did these faxes

lack that promotional aspect, nothing in them directly or

indirectly alluded to the commercial availability or the

quality of Elanco’s products, as the statutory definition

requires.

Ambassador also argues that the invitations served as

a pretext for unsolicited advertising and asks us to follow

the Federal Communications Commission’s guidance

on the statute. See In the Matter of Rules & Reguls.

Implementing the Tel. Consumer Prot. Act of 1991, Junk

Fax Prevention Act of 2005, 21 FCC Rcd. 3787 (April 6,

2006) (hereinafter 2006 Order). The 2006 Order states that

fax messages “that promote goods or services even at no

cost, such as free magazine subscriptions, catalogs, or free

consultations or seminars, are unsolicited advertisements

under the TCPA’s definition.” Id. at 3814. According to

the FCC, “[i]n many instances, ‘free’ seminars serve as a

pretext to advertise commercial products and services.”

Id.

As a preliminary matter, we need not decide whether

the pretext portion of the 2006 Order is interpretive

guidance or a legislative rule. But see Carlton & Harris

7a

Appendix A

Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d 258,

263-64 (4th Cir. 2020) (concluding that the pretext portion

of the 2006 Order is non-binding interpretive guidance).

Because we conclude that it conflicts with the statutory

text, the pretext provision is not entitled to deference. See

Utility Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321,

134 S. Ct. 2427, 189 L. Ed. 2d 372 (2014).

The text of the TCPA creates an objective standard

narrowly focused on the content of the faxed document.

The FCC’s interpretation, however, asks us not only to

assume subjective motivations behind faxes that advertise

no goods or services, but to assume that subsequent

conduct of senders is relevant to the TCPA analysis.

Moreover, the TCPA is limited to advertisements that

promote “commercial” property, goods, and services. 47

U.S.C. § 227(a)(5). A bare offer for a free good or service

is not an advertisement unless the fax also promotes

something that the reader can acquire in exchange for

consideration. See Mauthe, 58 F.4th at 96 (“Nowhere in the

fax is a discussion of anything that can be bought or sold—

the fax speaks only about a free event.”). We therefore

decline to manufacture a pretext element unsupported

by the TCPA’s text.

A ffirmed

8a

B

APPENDIX B — Appendix

MEMORANDUM

OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION,

FILED FEBRUARY 22, 2022

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

Case No. 20-cv-2886

AMBASSADOR ANIMAL HOSPITAL,

LTD., INDIVIDUALLY AND AS THE

REPRESENTATIVE OF A CLASS OF

SIMILARLY SITUATED PERSONS,

Plaintiff,

v.

ELANCO ANIMAL HEALTH, INCORPORATED

AND ELI LILLY AND COMPANY,

Defendants.

February 22, 2022, Decided;

February 22, 2022, Filed

Judge Mary M. Rowland

9a

Appendix B

MEMORANDUM OPINION AND ORDER

Plaintiff Ambassador Animal Hospital, Ltd. brings

this putative class action against Elanco Animal Health,

Incorporated and its former parent company, Eli Lilly

and Company, for violations of the Telephone Consumer

Protection Act (TCPA) and Illinois conversion law. In its

original complaint, Plaintiff claimed that Defendants sent

her faxes without her consent for commercial purposes.

Defendants did not deny sending the faxes but maintained

that the complaint failed to plausibly allege that the faxes

constituted unlawful commercial advertisements. This

Court agreed and granted Defendants’ motion to dismiss

and allowed Plaintiff an opportunity to amend. Plaintiff

timely filed an amended complaint [48], which Defendants

have again moved to dismiss [51]. For the reasons

explained below, this Court concludes that Plaintiff’s

amended complaint fails to cure the factual deficiencies

identified previously, and thus, grants Defendants’

renewed motion to dismiss [51].

I.

Background

This Court presumes familiarity with, and incorporates

by reference, its prior opinion on Defendants’ original

motion to dismiss, see Ambassador Animal Hosp., Ltd. v.

Elanco Animal Health, Inc., No. 20-CV-2886, 2021 U.S.

Dist. LEXIS 30268, 2021 WL 633358 (N.D. Ill. Feb. 18,

2021). The following facts come from Plaintiff’s amended

complaint.

Defendant Elanco provides products and services for

the animal health and food-animal production industries.

10a

Appendix B

[48] ¶ 14. As of April 2018, Elanco was a division of

Defendant Lilly; in September 2018, Lilly spun off part of

its stake in Elanco, and then disposed of its other shares

in 2019. Id.

Plaintiff alleges, on information and belief, that

Defendants have sent thousands of advertisements

via fax to targeted recipients. Id. ¶ 16. They sent two

of those faxes to Plaintiff in April 2018. Id. The faxes

invited veterinarians or veterinary practice owners to

attend and participate in programs on topics of interest

to veterinarians. Id. ¶ 18. The faxes sent to Plaintiff

prominently feature the Elanco logo and say they are

“Fm: Elanco Animal Health.” Id. The faxes also appear

to offer a free meal and “CE Credit” in exchange for

attendance. Id. ¶ 19.

Plaintiff did not expressly invite or give permission

to anyone to receive these faxes. Id. ¶ 40. Plaintiff did

not respond to either program invitation and did not

attend any of the offered programs. Id. ¶ 21. Plaintiff

alleges, on information and belief, that Elanco used the

program invitations and programs to market its animal

health goods and services. Id. ¶ 22. The first fax directed

recipients to RSVP by calling Jim Archer, Senior District

Manager at Elanco, and the second directed recipients

to call either a Taylor Johnson or Elanco’s Executive

Territory Manager, Nicole Cochran. Id. ¶¶ 25-26, 31-32.

As it did in its original complaint, Plaintiff brings a

two-count amended complaint for violations of the TCPA

(Count I) and conversion (Count II). Id. ¶¶ 54-71, 72-79.

11a

Appendix B

II. Legal Standard

A motion to dismiss tests the sufficiency of a

counterclaim, not the merits of the case. Gunn v. Cont’l

Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). To survive a

motion to dismiss under Rule 12(b)(6), the counterclaim

“must provide enough factual information to state a claim

to relief that is plausible on its face and raise a right to

relief above the speculative level.” Haywood v. Massage

Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir.

2018) (quoting Camasta v. Jos. A. Bank Clothiers, Inc.,

761 F.3d 732, 736 (7th Cir. 2014)); see also Fed. R. Civ.

P. 8(a)(2) (requiring a complaint to contain a “short and

plain statement of the claim showing that the pleader is

entitled to relief”). A court deciding a Rule 12(b)(6) motion

accepts the well-pleaded factual allegations as true and

draws all permissible inferences in the pleading party’s

favor. Degroot v. Client Servs., Inc., 977 F.3d 656, 659 (7th

Cir. 2020).

Dismissal for failure to state a claim is proper “when

the allegations in a complaint, however true, could not

raise a claim of entitlement to relief.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 167 L. Ed.

2d 929 (2007). Deciding the plausibility of the claim is “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Bilek v. Fed. Ins. Co., 8 F.4th 581, 586-87 (7th Cir. 2021)

(quoting W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d

670, 676 (7th Cir. 2016)).

12a

Appendix B

III. Analysis

A.

TCPA and the Court’s First Opinion

TCPA liability rests upon showing that a defendant

used a facsimile machine, computer, or other device to send

to a facsimile machine an “unsolicited advertisement,”

which means “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.” Ambassador Animal Hosp.,

2021 U.S. Dist. LEXIS 30268, 2021 WL 633358, at *2

(first quoting 47 U.S.C. § 227 (b)(1)(C); then quoting 47

U.S.C. § 227(a)(5)). Courts in this district determine

whether a fax constitutes an unsolicited advertisement

by assessing whether the “fax, on its face, constitutes an

advertisement,” or alternatively, whether the “fax is a

pretext to an advertisement.” Podiatry in Motion, Inc.

v. Interviewing Servs. of Am., LLC, No. 20 C 3159, 2020

U.S. Dist. LEXIS 185087, 2020 WL 5909063, at *2 (N.D.

Ill. Oct. 5, 2020) (first citing Phillips Randolph Enters.,

LLC v. Adler-Weiner Rsch. Chi., Inc., 526 F. Supp. 2d 851,

853 (N.D. Ill. 2007); then quoting James L. Orrington, II,

D.D.S., P.C. v. Scion Dental, Inc., No. 17 C 884, 2019 U.S.

Dist. LEXIS 173845, 2019 WL 4934696, at **3, 5 (N.D.

Ill. Oct. 7, 2019)), appeal dismissed sub nom. Podiatry

in Motion, Inc. v. Interviewing Serv. of Am., LLC, No.

20-3157, 2021 U.S. App. LEXIS 13687, 2021 WL 1784748

(7th Cir. Mar. 15, 2021).

13a

Appendix B

B. Amended TCPA Allegations

Like the first round of motion to dismiss briefing,

the sole dispute as to the TCPA claim concerns whether

Defendants’ faxes constitute such an “unsolicited

advertisement” within the meaning of the TCPA. In

its prior opinion, this Court determined that they are

not. This Court held that the faxes do not constitute

advertisements on their face because they mention

Elanco’s name and logo but do not mention any of the

company’s products or services. Ambassador Animal

Hosp., 2021 U.S. Dist. LEXIS 30268, 2021 WL 633358,

at *3. The amended complaint also did not plausibly plead

that the faxes serve as a pretext to an advertisement

because Plaintiff admitted that it did not know the content

or purpose of Defendants’ free seminars and could only

state, upon information and belief, that Elanco used the

seminars to market its goods and services. Id.

The amended complaint falls short of curing the factual

deficiencies this Court previously identified. The faxes are

the same, so on their face, they are not advertisements as

they do not advertise Defendants’ goods or services. See

Advanced Dermatology v. Fieldwork, Inc., No. 19 C 05821,

550 F. Supp. 3d 555, 2021 U.S. Dist. LEXIS 135844, 2021

WL 3077663, at *4 (N.D. Ill. July 21, 2021) (holding that

a fax did not facially constitute an advertisement because

the defendant’s “goods or services are not advertised on

the face of the fax itself”).

Nor does the amended complaint allege any new facts

raising an inference that the faxes served as a pretext for

14a

Appendix B

marketing Defendants’ goods or services. Plaintiff raises

several arguments this Court previously rejected. First, it

suggests that Defendants “showed the commercial purpose

of their seminars” by offering seminars tailored to the

products they hoped to sell. [58] at 6-7. But as this Court’s

explained before, the faxes do not themselves contain

information showing that Elanco made drugs related to

osteoarthritis or feline disease prevention. Ambassador

Animal Hosp., 2021 U.S. Dist. LEXIS 30268, 2021 WL

633358, at *3. And even if a recipient of Defendants’ faxes

knew about Defendants’ business, no authority exists

for the proposition that a “reader’s possible knowledge

[about a defendant’s products] can transform an otherwise

benign fax into an advertisement.” Id. This Court also has

rejected Plaintiff’s argument that Defendants’ offer of a

free dinner evidenced the commercial purpose of its faxes.

See 2021 U.S. Dist. LEXIS 30268, [WL] at *4; contra

[58] at 7-8. Although Defendants may have intended to

generate goodwill for the company by offering a free meal,

the mere fact that they may gain a hypothetical economic

benefit fails to convert a noncommercial communication

into a commercial solicitation. Ambassador Animal Hosp.,

2021 U.S. Dist. LEXIS 30268, 2021 WL 633358, at *4

(citing Orrington, 2019 U.S. Dist. LEXIS 173845, [WL]

at *5).

Plaintiff also contends that Defendants “showed the

commercial purpose” of their seminars by requiring fax

recipients to RSVP to senior or executive managers, not

ministerial employees. [58] at 7. On this point, Plaintiff

points to its new allegations that the faxes directed

recipients to RSVP to Jim Archer, Senior District

15a

Appendix B

Manager at Elanco, and Nicole Cochran, Elanco’s

Executive Territory Manager. [58] at 7. Missing from the

amended complaint, however, are further facts from which

this Court could conclude that Defendants’ RSVP request

served as anything other than what it was—an RSVP

mechanism to a free seminar for continuing education

credit—rather than a way to elicit business. Indeed,

because Plaintiff continues to admit that it did not respond

to either program invitation and did not attend any of the

offered programs, [48] ¶ 21, it necessarily could not have

known about the nature of the offered programs nor what

an Elanco employee would have said on the phone to a

recipient who RSVP’d to one of the faxes.

And in contrast to other cases where courts have

declined to dismiss a complaint, Plaintiff does not and

cannot allege that registration for Defendants’ programs

required consent to receive future marketing emails to

have its information sold. Ambassador Animal Hosp.,

2021 U.S. Dist. LEXIS 30268, 2021 WL 633358, at *4

(collecting cases). In short, Plaintiff simply has not alleged

further facts that plausibly suggest a commercial purpose

to Defendants’ faxes; it has not raised a right to relief

above the speculative level. Haywood, 887 F.3d at 333.

For these reasons, this Court dismisses Count I, this time

with prejudice.

C.

The Conversion Claim in Count II

Generally, when a district court dismisses all of a

plaintiff’s federal claims, it should relinquish supplemental

jurisdiction over state-law claims rather than resolve them

16a

Appendix B

on the merits. Cortezano v. Salin Bank & Tr. Co., 680 F.3d

936, 941 (7th Cir. 2012); Wright v. Associated Ins. Cos.

Inc., 29 F.3d 1244, 1252 (7th Cir. 1994) (pendent state-law

claims “should be left to the state courts.”); 28 U.S.C. §

1367(c). Because this Court dismissed the federal claim in

Count I, it declines to exercise supplemental jurisdiction

over Plaintiff’s state-law conversion claim in Count II.

IV. Conclusion

For the reasons explained above, this Court grants

Defendants’ motion to dismiss [51] the amended complaint

[48]. This Court dismisses Count I with prejudice and

declines to exercise supplemental jurisdiction over Count

II. The Clerk is directed to enter a judgment of dismissal

with prejudice on Count I and dismissal without prejudice

on Count II. Defendant Lilly’s motion to strike in part the

proposed class and class definition [55] is denied as moot.

Civil case terminated.

Dated: February 22, 2022

ENTER:

/s/ Mary M. Rowland

MARY M. ROWLAND

United States District Judge

17a

Appendix COF THE UNITED

APPENDIX C — OPINION

STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, FILED AUGUST 22, 2023

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

August 22, 2023

Before

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

CANDACE JACKSON-AKIWUMI, Circuit Judge

No. 22-1304

AMBASSADOR ANIMAL HOSPITAL, LTD.,

Plaintiff-Appellant,

v.

ELANCO ANIMAL HEALTH INCORPORATED

AND ELI LILLY AND COMPANY,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

18a

Appendix C

No. 1:20-cv-02886

Mary M. Rowland, Judge.

ORDER

Plaintiff-Appellant filed a petition for rehearing and

rehearing en banc on August 7, 2023. No judge in regular

active service has requested a vote on the petition for

rehearing en banc, and all judges on the original panel

have voted to deny the petition for rehearing.

Accordingly, the petition for rehearing and rehearing

en banc is DENIED.