|MATTHEW N. FULTON, D.D.S., P.C., individually and
as the representative of a class of similarly situated
ENCLARITY, INC.; LEXISNEXIS RISK SOLUTIONS, INC.;
LEXISNEXIS RISK SOLUTIONS GA, INC.; LEXISNEXIS
RISK SOLUTIONS FL, INC.; JOHN DOES, 1–12,
| No. 17-1380|
On Remand from the Supreme Court of the United States.
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:16-cv-13777—Denise Page Hood, Chief District Judge.
Decided and Filed: June 19, 2020
Before: GIBBONS, WHITE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Plaintiff Matthew N. Fulton, DDS, PC, a dental
practice in Linden, Michigan, brings this suit on behalf of itself and others similarly situated.
Fulton alleges that his dental practice received a fax from Defendants in September 2016 that
was an unsolicited advertisement under the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227, but failed to include the requisite opt-out provision. Arguing that the fax did not
qualify as an advertisement under the TCPA, Defendants moved to dismiss the complaint. The
district court agreed and dismissed the complaint for failure to state a claim. This court reversed
and remanded the case for additional proceedings. Matthew N. Fulton, D.D.S., P.C. v. Enclarity,
Inc., 907 F.3d 948 (6th Cir. 2018). We denied the Defendants’ petition for rehearing by the
panel and for rehearing en banc.
Defendants filed a petition for a writ of certiorari. Enclarity Inc. v. Fulton, 140 S. Ct. 104
(2019). The Supreme Court issued an order—known as a grant, vacate, and remand order
(GVR)—directing us to reconsider the appeal in light of its recent opinion in PDR Network, LLC
v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019). “[O]ur law is clear that a GVR
order does not necessarily imply that the Supreme Court has in mind a different result in the
case, nor does it suggest that our prior decision was erroneous.” In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013) (collecting cases).
Rather, our task following the GVR is to “determine whether our original decision” to reverse
the district court’s order was correct or whether PDR Network “compels a different resolution.”
PDR Network does not impact the resolution of this case. Applying the standards
governing dismissal of a complaint for failure to state a claim, we find that Fulton has plausibly
alleged that the fax was an unsolicited advertisement insofar as it alleged that the fax served as a
pretext to send Fulton additional marketing materials. We REVERSE and REMAND this case
for additional proceedings consistent with this opinion.