A lawsuit filed by a physician’s group against Stryker (NYSE:SYK) won its 3rd bid for class action status this week, after a federal judge in Michigan agreed to set the terms for eligibility for the class.
The lawsuit, filed by Physicians Healthsource Inc. in July 2012, alleges that Stryker and 3 of its subsidiaries broke the Telephone Consumer Protection Act by sending out more than 15,000 faxes, aiming to entice doctors to attend seminars promoting Stryker’s hip and knee implant products, without including an opt-out option as required by the TCPA.
Judge Robert Jonker of the U.S. District Court for Western Michigan granted class certification Dec. 11, ruling that members of the class include anyone who meets certain criteria.
The class consists of "All persons who: (1) on or after four years prior to the filing of this action, (2) were subscribers of a fax number that received, (3) a fax invitation to attend a presentation for primary care physicians on advancements in orthopaedics, arthritis, joint replacement, or joint treatment options, (4) received from one or more of Defendants, and (5) that did not display a proper opt-out notice," according to court documents.
The plaintiff had asked for class certification twice before, with Jonker denying the 1st bid in October 2012 and the 2nd in March 2013, court records show.
The lawsuit alleges that none of the 15,014 faxes sent to 8,065 fax numbers had any opt-out information as required by the TCPA, according to the documents.
"Stryker purchased lists of fax numbers from a list provider company called Redi-Mail Direct Marketing Inc. The invoices show that Stryker paid RediMail over $75,000 for the use of the fax lists. At all times, RediMail obtained the fax lists on behalf of Stryker from the American Medical Assn.," according to the records. "On Oct. 12, 2009, 1 or more of defendants faxed plaintiff an invitation to attend a presentation on ‘the latest advancement in orthopaedics,’ at Jeff Ruby’s Steakhouse in Cincinnati, Ohio. … Plaintiff has introduced evidence that one or more of Defendants successfully sent at least 15,041 similar faxes to 8,065 unique fax numbers between Dec. 3, 2009 and August 8, 2011."