What constitutes “solicitation” in the context of a non-solicitation provision? A recent decision from the U.S. District Court for Central District of Illinois attempted to shed some light on that question.

In this case, a dermatologist, with no patients, joined the plaintiff’s dermatology practice. After approximately nine years, the dermatologist left the practice to establish his own dermatology practice. To get patients, the dermatologist sent a bulk mail solicitation to 52,000 individuals, targeted by ZIP code and addressed to “postal customer,” that informed the recipient of his new dermatology practice. After the bulk mailing had been sent, 71 patients from the plaintiff’s dermatology practice requested that their medical records be transferred to the dermatologist’s new practice.

The court found that the dermatologist’s bulk mailing was not a solicitation. The court focused on the fact that whether particular client contact constitutes a solicitation depends on the method employed and the intent of the solicitor to target a specific client in need of his or her services. Direct solicitation, as opposed to a general advertisement, suggests a private communication directed at a person or persons, known by the person doing the solicitation to have an immediate or potential need for the services. Conversely, a general advertisement does not constitute solicitation because solicitation implies a personal petition addressed to a particular individual to do a particular thing.

In this case, there was no evidence that the dermatologist had his former employer’s patient address list or that the bulk mailing was specifically targeted, as it was sent to “postal customers” within certain ZIP codes. The court recognized that while the bulk mailing may be more targeted than a general newspaper or radio advertisement, it was still not a “personal petition to a particular individual” to sign up with the dermatologist’s new company and it was not a private communication directed at a person or category of persons known by the dermatologist to have an immediate need for his services.  

The case referred to above is Christie Clinic, LLC v. Jeremy Youse, M.D., et al., 2021 WL 1095332 (C.D. Ill. 2021).