FTC Beat
May 19
2014

TCPA Plaintiff Loses—Express Consent Given to Health Insurance Plan Trumps Claim

In a recent case in the U.S. District Court for the Eastern District of Missouri, the district court held that the plaintiff’s Telephone Consumer Protection Act (“TCPA”) claim should be dismissed. The court ruled that the plaintiff gave prior express consent when she agreed to the terms of her health insurance plan, which stated that the company could share her number with other businesses who work for the plan.

The plaintiff Suzy Elkins enrolled to receive prescription benefit management services through a group plan offered by her employer. The plaintiff then reenrolled after her employer changed plans to receive prescription management services from the Defendant, Medco Health Solutions, Inc. (“Medco”) through Coventry Health of Missouri (“Coventry”). On the reenrollment form, Elkins provided her cell phone number as her home phone number and certified that the information she provided was true and accurate. Ms. Elkins refilled several prescriptions using Medco’s retail pharmacy network.

Elkins filed a complaint alleging that the automated and prerecorded calls she received from Medco through her enrollment in her employer’s health insurance plan, Coventry, violated the TCPA’s prohibition on autodialed/prerecorded calls to mobile phones and the federal “do not call” rules. Elkins had registered her number in the federal do not call database. Elkins alleged that Medco called her cell phone twice utilizing autodialed, prerecorded calls in an attempt to sell prescription medications. Medco claimed that it was attempting to make Elkins aware of certain pharmacy benefits, such as obtaining refills at reduced prices. Both parties disputed whether the calls were actually autodialed or prerecorded, and the court did not address that issue.

Instead, the district court found that the plaintiff’s TCPA claim was barred because she gave her express prior consent to be called at the number she provided when she gave that number at the time of enrollment as hercontact number related to healthcare benefits. The court noted that the Certificate of Coverage that the plaintiff agreed to with Coventry stated that Coventry could use or share her personal information with “other businesses who work for the Plan . . . [t]o tell you about treatment options or health related services.” The Certificate of Coverage also provided that members have certain rights including the right to ask for restrictions.However, the plaintiff never provided notice requesting that she not be contacted at that number with respect to her health benefits.

The court concluded that the calls that were the basis of the complaint were made by a pharmacy benefits specialist on behalf of her existing health plan regarding the pharmacy benefits she was receiving on an ongoing basis. The court reasoned that the provision of her cell phone number reasonably evidenced prior express consent by the plaintiff to be contacted at that number regarding pharmacy benefits.

The district court also found that the plaintiff had an established business relationship with the defendant which barred liability under the “do not call” rules. The court held that it was uncontroverted that there was an established business relationship since the plaintiff had utilized Medco’s prescription benefit management services to fill twelve prescriptions in a six month period before the calls that served as the basis for the complaint.

This decision represents a victory for TCPA defendantsin that the court found that prior express consent was given by the plaintiff when she gave her phone number and agreed to the terms of the Certificate of Coverage, which authorized Coventry to share her phone number. TCPA litigation has been increasing significantly in the past few years. While this court did not address the recent changes that have gone into effect that placed stricter requirements on businesses that engage in marketing via mobile messaging and prerecorded telephone calls, this decision does serve as guidance for consent, at least to non-telemarketing calls.

It is unclear whether the consent in this case would pass muster as “prior express written” consent for prerecorded or autodialed telemarketing calls to mobile phones and residential lines under the new rules, but since the calls at issue in this case predated the new rules the court did not need to address that point. We recommend businesses obtain “prior express written” consent for TCPA-covered calls and texts, consistent with the requirements under the new rules. It is important to note, however, this this court acknowledged that express consent can be extended to third parties through the plaintiff’s agreement to the terms if those terms are sufficiently broad to cover third parties. Finally, for non-autodialed or prerecorded telemarketing calls to mobile phone and live telemarketing calls to residential lines, this case is a useful reminder that an existing business relationship still constitutes a valid defense.

Ifrah Law is a leading white-collar criminal defense firm that focuses on .

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Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, healthcare, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen, David Deitch, and associates Rachel Hirsch, Jeff Hamlin, Steven Eichorn, Sarah Coffey, Nicole Kardell, Casselle Smith, and Griffin Finan. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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