UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

HEALTH ONE MEDICAL CENTER, EASTPOINTE P.L.L.C., ┐ a Michigan Professional Limited Liability Company, │ individually and as the representative of a class of │ similarly-situated persons, │ Plaintiff-Appellant, │ No. 17-1973 > │ v. │ │ │ MOHAWK, INC., │ Defendant, │ │ BRISTOL-MYERS SQUIBB COMPANY; PFIZER INC., │ │ Defendants-Appellees. ┘

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-13815—Judith E. Levy, District Judge.

Decided and Filed: May 9, 2018

Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.

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COUNSEL ON BRIEF: Phillip A. Bock, David M. Oppenheim, BOCK, HATCH, LEWIS & OPPENHEIM, LLC, Chicago, Illinois, for Appellant. Debra Bogo-Drnst, Michele Odorizzi, Christopher J. Ferro, MAYER BROWN LLP, Chicago, Illinois, for Appellee Bristol-Myers Squibb Company. Rebecca J. Schwartz, Molly S. Carella, SHOOK, HARDY & BACON L.L.P., Kansas City, Missouri, for Appellee Pfizer Inc. No. 17-1973 Health One Med. Center, Eastpointe v. Page 2 Bristol-Myers Squibb Co., et al.

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OPINION _________________

KETHLEDGE, Circuit Judge. Some questions seem to arise only in class-action lawsuits. Here, a seller of prescription drugs sent junk faxes to various medical providers, advertising the seller’s prices on various drugs. The question presented is whether—for purposes of the Telephone Consumer Protection Act, which makes it unlawful “to send . . . an unsolicited advertisement” to a fax machine—the manufacturers of those drugs “sent” those faxes even though they knew nothing about them. The district court answered no, and so do we.

Mohawk Medical, a pharmaceutical wholesaler, sent two unsolicited faxes to Health One Medical Center. The faxes listed Mohawk’s contact information and offered discount prices on 14 different drugs, including one manufactured by Bristol-Myers Squibb (Bristol) and another by Pfizer. Health One later brought this putative class-action lawsuit, at first asserting claims only against Mohawk, which never answered the complaint. Hence the district court entered a default judgment against it. Health One then amended its complaint to assert claims against Bristol and Pfizer—largely on the theory that they had “sent” the unsolicited faxes simply because the faxes mentioned their drugs. Those defendants filed motions to dismiss under Civil Rule 12(b)(6), which the district court granted. We review that decision de novo. Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018).

The relevant text of the Act is straightforward:

It shall be unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited