PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 18-2894

______________

ROBERT W. MAUTHE, M.D., P.C., 

Individually and on behalf of all others similarly situated

v.

OPTUM INC., OPTUMINSIGHT, INC.

ROBERT W. MAUTHE, M.D., P.C.,

Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 5-17-cv-01643)

Honorable Edward G. Smith, District Judge 

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Argued March 8, 2019

BEFORE: AMBRO, RESTREPO, and GREENBERG, 

Circuit Judges
2

(Filed: May 28, 2019)

______________

Phillip A. Bock (argued)

Daniel J. Cohen

Molly F. Stemper

David M. Oppenheim

James M. Smith

Bock Hatch Lewis & Oppenheim

134 North La Salle Street

Suite 1000

Chicago, IL 60602

Richard E. Shenkan

Shenkan Injury Lawyers 

6550 Lakeshore Street

West Bloomfield, MI 48323

 Attorneys for Appellant

Kathryn M. Ali

Jessica L. Ellsworth (argued)

Benjamin A. Field

Kaitlyn Golden

Adam K. Levin

Hogan Lovells US

555 Thirteenth Street, N.W.

Columbia Square

Washington, DC 20004
3

Stephen A. Loney, Jr.

Hogan Lovells US

1735 Market Street

23rd Floor

Philadelphia, PA 19103

 Attorneys for Appellee

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OPINION

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GREENBERG, Circuit Judge

I. INTRODUCTION

This matter comes on before this Court on the appeal of 

plaintiff Robert W. Mauthe M.D. P.C. challenging the District 

Court’s grant of summary judgment against its complaint 

brought under the Telephone Consumer Protection Act, 47 

U.S.C. § 227 (“TCPA”). We consolidated this case for 

argument with Mauthe v. Nat’l Imaging Assocs., Inc., No. 18-

2119, 2019 WL 1752591 (3d Cir. Apr. 17, 2019) (“NIA”), a 

case that the same plaintiff filed against a different defendant 

under the TCPA because the two cases raised similar issues. 

Although the plaintiff in both cases is a professional 

corporation, we will refer to the plaintiff as Robert W. Mauthe, 

as though an individual, as we did in NIA. In this case, Mauthe 

alleged that he received an unsolicited advertisement via fax 

from defendants Optum, Inc. and OptumInsight, Inc., related 

entities, in violation of the TCPA and included in his complaint 
4

a supplemental state law claim for common law conversion. 

Defendants moved for summary judgment, and the Court 

granted their motion on the TCPA claim and dismissed the state 

law claim without prejudice, as it declined to exercise 

jurisdiction over it. Robert Mauthe, M.D. PC v. Optum, Civ. 

No. 17-1643, 2018 WL 360912 (E.D. Pa. July 27, 2018) 

(“Optum”). For the reasons stated below, we will affirm the 

order of the Court in both respects.

II. FACTUAL BACKGROUND

The facts of this case are essentially undisputed. 

Defendants maintain a national database of healthcare providers, 

containing providers’ contact information, demographics, 

specialties, education, and related data. Defendants market, sell, 

and license the database typically to health care, insurance and 

pharmaceutical companies, who use it to update their provider 

directories, identify potential providers to fill gaps in their 

network of providers, and validate information when processing 

insurance claims. Obviously, it is important that the information 

contained in the database be accurate and Mauthe, who is a 

healthcare provider, does not contend otherwise. 

One of the ways defendants update and verify the 

information in their database is to send unsolicited faxes to 

healthcare providers listed in the database, requesting them to 

respond and correct any outdated or inaccurate information. The 

faxes inform the recipients that:

As part of ongoing data maintenance of our 

Optum Provider Database product, Optum 

regularly contacts healthcare practitioners to 

verify demographic data regarding your office 
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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 Optum Provider 

Database.

This data is used by health care related 

organizations to aid in claims payment, assist with 

provider authentication and recruiting, augment 

their own provider data, mitigate healthcare fraud 

and publish accurate provider directories.

Optum, 2018 WL 3609012, at *2. The faxes also advise the 

recipients that “[t]here is no cost to you to participate in this data 

maintenance initiative. This is not an attempt to sell you 

anything.” Id. The fax that defendants sent Mauthe included 

these provisions.

III. STANDARD OF REVIEW

We exercise de novo review on this appeal. See Bradley 

v. West Chester Univ. of Pa. State Sys. of Higher Educ., 880 

F.3d 643, 650 (3d Cir. 2018). “Our review of the District 

Court’s [summary judgment] decision is plenary, and we apply 

the same standard as the District Court to determine whether 

summary judgment was appropriate.” State Auto Prop. & Cas. 

Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). 

“[S]ummary judgment is properly granted ‘if the movant shows 

that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.’” Sconiers v. 

United States, 896 F.3d 595, 597 n.3 (3d Cir. 2018) (quoting 
6

Fed. R. Civ. P. 56(a)).1

IV. DISCUSSION

Under the TCPA, it is unlawful to send an unsolicited 

advertisement by fax. NIA, 2019 WL 1752591, at *2. Mauthe

asks us to hold that the fax was an unsolicited advertisement 

which the TCPA prohibited defendants from sending to him. In 

NIA, we articulated the standard to determine when a fax has 

been sent to a potential direct purchaser of a product or service 

in violation of the TCPA, but we also opined that liability for a 

TCPA violation is not necessarily limited to a situation in which 

a fax is sent to potential direct purchasers of the sender’s 

product or services. Id. at *3 n.3. Mauthe does not claim to be a

potential direct purchaser of defendants’ services and defendants 

disclaim any intention to sell him anything. Indeed, their fax to 

him recited as much, as it said that the fax was not an attempt to 

sell him anything. After our examination of the fax we have 

concluded that there is no basis on which defendants can be held 

to have violated the TCPA on the basis of the fax if the meaning 

of the advertisement is viewed in a conventional way. 

Consequently, we consider a possible broader basis for liability 

predicated on the fact that this case involves third parties beyond 

defendants and Mauthe, i.e., the users of defendants’ database.

An example of a possible TCPA violation by the sending 

of a fax to an entity other than a possible direct purchaser of the 

sender’s product or services is a fax sent to a doctor encouraging 

the doctor to prescribe a particular drug to the doctor’s patients 

 

1 The District Court had jurisdiction under 28 U.S.C. § 1331 and 

we have jurisdiction under 28 U.S.C. § 1291.
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who, rather than the doctor, are the likely purchasers of the 

sender’s product. Id. We refer to liability in such situations as 

“third-party based liability,”2as the sender is not attempting to 

sell the recipient anything. Id. But in NIA because potential 

third-party based liability was not at issue, we did not address 

the question of whether there could be a third-party based 

liability by reason of the sending of a fax. That issue now is 

squarely before us because defendants sent the fax to Mauthe in 

order to update their database to be accessed by third parties 

who were not the recipients of defendants’ faxes and the faxes 

were not an attempt to sell Mauthe or the putative class 

members anything.

Mauthe advances his third-party based liability argument 

on a theory that, although he was not a purchaser of defendants’ 

products or services, defendants violated the TCPA because they 

had a profit motive in sending him the fax so that the fax should 

be regarded as an advertisement. Mauthe asserts that defendants 

sought the information in the fax to enhance the accuracy of 

their database and thus increase their profits. We agree with the 

stated factual basis for his claim because defendants were using 

the faxes to improve the accuracy of their database. However, 

the TCPA only prohibits unsolicited advertisements, not any and 

all faxes even if sent for a commercial purpose. Itseems beyond 

doubt that a fax does not become an advertisement merely 

because the sender intended it to enhance the quality of its 

products or services and thus its profits. After all, a commercial 

entity takes almost all of its actions with a profit motivation. 

 

2 We used the term “third-party based liability” even though the 

parties do not do so in their briefs. They do, however, refer to 

third parties in their briefs.
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But as we opined in NIA, “[a]dvertising is the action of drawing 

the public’s attention to something to promote its sale. So to be 

an ad, the fax must promote goods or services to be bought or 

sold, and it should have profit as an aim.” NIA, 2019 WL 

1752591, at *2 (internal quotations, quotation marks and 

citations omitted).

We are satisfied that to establish third-party based 

liability under the TCPA a plaintiff must show that the fax: (1) 

sought to promote or enhance the quality or quantity of a 

product or services being sold commercially; (2) was reasonably 

calculated to increase the profits of the sender; and (3) directly 

or indirectly encouraged the recipient to influence the 

purchasing decisions of a third party. As we explained in NIA, 

“the fax must convey the impression . . . that a seller is trying to 

make a sale[.]” NIA, 2019 WL 1752591, at *2. It is not enough 

that the sender sent a fax with a profit motive—in order to show 

that the sender is trying to make a sale, there must be a nexus 

between the fax and the purchasing decisions of an ultimate 

purchaser whether the recipient of the fax or a third party. The 

liability standard articulated in NIA, and the one we articulate 

here in a third-party based liability situation, hinges on whether 

the fax was somehow intended to influence a potential buyer’s 

decision in making a purchase, irrespective of whether the 

sender sent the fax to the potential buyer or to a third party and 

must have been intended to or at least be capable of influencing 

a buyer’s purchasing decision. If we adopted a less demanding 

standard, we would risk extending too far the prohibitions that 

the TCPA established. We believe that our construction of the 

TCPA faithfully adheres to what the TCPA facially prohibits, 

while broadly construing the TCPA to provide plaintiffs with an 

alternative theory of liability even when the fax is not sent to 
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potential direct purchasers of a defendant’s products or services.

We give an example that supports our conclusion and 

demonstrates why we must be concerned with possible 

overreaching of the application of the TCPA that we derive from 

the analogous field of telemarketing, a practice that the TCPA 

regulates. In dealing with telemarketing the TCPA prohibits

any telephone call to any residential telephone 

line using an artificial or prerecorded voice to 

deliver a message without the prior express 

consent of the called party, unless the call is 

initiated for emergency purposes [or is] exempted 

by rule or order by the Commission under 

paragraph (2)(B).

47 U.S.C. § 227(b)(1)(B). Under the rules promulgated by the 

Federal Communications Commission, calls are exempt from 

the statutory prohibition “if not made for a commercial purpose” 

or, as germane here, if they do “not include or introduce an 

advertisement or constitute telemarketing.” 47 C.F.R. § 

64.1200(a)(3). The FCC has also opined that “calls conducting 

research, market surveys, political polling or similar activities 

[that] do not involve solicitation as defined by our rules” are

exempt from the statutory prohibition on artificially prescribed 

calls. In the Matter of Rules and Regulations Implementing the 

TCPA, 1992 WL 690928, at *15, 7 FCC Rcd. 8752, 8774 ¶ 41 

(Oct. 16, 2012). Consequently, a marketing firm making calls to 

conduct pure market research, and a pollster conducting a 

political poll by telephone, do not violate TCPA’s telemarketing 
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prohibition.3

Commercial entities conducting research sometimes do 

so by sending faxes. Under Mauthe’s theory, these firms would 

violate TCPA’s prohibition on the sending of an unsolicited fax 

advertisement because they would send their faxes for the 

purposes of improving their operations and thus their profits. 

But such faxes would not promote the sale of any products or 

services, or seek to influence the purchasing decisions of a 

potential buyer. We will not adopt a construction that broadly 

would limit commercial activities to the extent Mauthe invites. 

See NIA, 2019 WL 1752591, at *2-3. The requirement for 

establishing TCPA liability that we set forth is that there be a 

nexus between the sending of the fax and the sender’s product 

or services and the buyer’s decision to purchase the product or 

services accomplishes the TCPA objective without infringing on 

other commercial activities.

4

 

3 We note that there is a petition for expedited declaratory ruling 

on whether market research surveys are fax advertisements as 

defined by the TCPA pending before the FCC. See Lyngaas v. 

J. Reckner Assocs., Inc., No. 2:17-cv-12867, 2019 WL 166227, 

at *1-2 (E.D. Mich. Jan. 10, 2019).

4

In fact, under Mauthe’s theory an employer with a letterhead 

listing its address, telephone number and products and services 

would violate the TCPA if it sent a fax on its letterhead to 

inquire about the qualifications of a job applicant from the 

applicant’s former employer because employee selection is 

certainly related to making a profit.

 
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Turning to the facts of this case, Mauthe’s claim does not 

survive our standard for third-party based liability or any other 

theory of liability under the TCPA. Though defendants intended 

their faxes to obtain information enhancing the quality of their 

services, and thus reasonably calculated their faxes to increase 

their profits by keeping their database updated, the faxes did not 

attempt to influence the purchasing decisions of any potential 

buyer, whether a recipient of a fax or a third party. Moreover, 

the fax sent to Mauthe did not encourage him to influence the 

purchasing decisions or those of a third party. Though we 

appreciate the annoyance and/or harassment Mauthe felt 

receiving unsolicited faxes, we are constrained in reaching our 

decision by what the TCPA actually prohibits—it does not 

prohibit all unsolicited faxes, just advertisements. We will not 

distort the meaning of “advertisement” to accommodate 

Mauthe’s case. Therefore, we will uphold the District Court’s 

conclusion that defendants’ fax was not an “advertisement” 

under the TCPA.

The District Court also held that the fax was not a pretext 

to more commercial solicitation. Optum, 2018 WL 3609012, at 

*7. As we stated in NIA, we have not endorsed and do not now 

do so the pretext theory of liability under the TCPA, a matter 

that is still open. 2019 WL 1752591, at *3. However, for the 

same reasons that we set forth in NIA in rejecting a pretext 

claim even if such a claim is potentially viable, Mauthe’s pretext 

claim fails because there was no evidence that defendants 

“intended to send Mauthe any future faxes, let alone any more 

advertisements.” Id. at *3 n.4. We recognize that defendants 

may send Mauthe another fax to verify his information, but that 

fax will no more be an advertisement than the fax here if it is of 

similar content. Moreover, there is no evidence that the fax that 
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defendants already sent was a pretext so that it later could send 

an additional fax. Thus, we also will uphold the District Court’s 

ruling that defendants’ fax was not a pretext to further 

commercial solicitation.

Inasmuch as we hold that the District Court did not err in 

granting summary judgment in favor of defendants on Mauthe’s 

TCPA claim, the only federal claim in the case, we also hold 

that the Court did not err in declining to exercise supplemental 

jurisdiction over Mauthe’s state law claim. In this regard a court 

does not err if it declines to exercise supplemental jurisdiction 

over state claims after it dismisses a federal claim on which its 

jurisdiction is based in the absence of extraordinary 

circumstances. Bright v. Westmoreland Cty., 380 F.3d 729, 751 

(3d Cir. 2004). There are no extraordinary circumstances here. 

V. CONCLUSION

For the foregoing reasons we will affirm the order of 

July 27, 2018.