Savett v. Anthem Inc.
Filing
41
Memorandum Opinion and Order For reasons set forth in this order, Defendant Anthem Inc.'s 29 Motion for summary judgment is GRANTED. Entered by Judge Pamela A. Barker on 11/4/2019. (L,Ja)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADAM SAVETT, individually and on
behalf of all others similarly situated,
CASE NO. 1:18-CV-274
Plaintiff,
vs.
JUDGE PAMELA A. BARKER
ANTHEM, INC., an Indiana corporation,
Defendant.
MEMORANDUM OPINION AND
ORDER
Plaintiff Adam Savett brings the present suit against Defendant Anthem, Inc. for calls made
by Anthem to Savett’s landline phone. Savett argues that the calls violated the Telephone
Consumer Protection Act (“TCPA”) under 47 U.S.C. § 227 et seq. Anthem says that it had consent
to call Savett’s landline and that the TCPA does not prohibit the disputed calls.
Anthem seeks summary judgment. Savett opposes.
For the foregoing reasons, Anthem’s motion for summary judgment is GRANTED.
I.
Background
On May 8, 2006, an unnamed individual (hereinafter “Member”) applied for a Medicare
Advantage membership with Anthem. (Doc. No. 29-1 at ¶ 10.) The Member gave a residential
landline phone number ending in 0299 (the “0299 number”) as his primary phone number. (Id.)
On or about February 2009, Savett became the owner of the 0299 number after it was reassigned
to him. (Doc. No. 32-2 at 22:21-22.) As a consequence of the number’s reassignment, Savett
received calls intended for the 0299 number’s previous owner. (Doc. No. 31-2 at 26:1-13.)
From the time of the reassignment until mid-2017, Anthem made nine prerecorded calls to
the 0299 number. (Doc. No. 32-1 at 36:22-37:19.) The calls were made through an Anthem
affiliate, Eliza, in an effort to reach the Anthem Medicare Advantage Member who previously
owned the phone number. (Doc. No. 29-1 at ¶ 9.) Anthem provided Eliza with the number for the
call. (Id. at ¶¶ 7-8.)
During the same time period, other Anthem affiliates’ live agents called the 0299 number
seven times on Anthem’s behalf. (Doc. No. 32-3 at 6; Doc. No. 32-1 at 53:8-16; 83:10-84:11.)
On June 15, 2017, Savett received a call from a live Anthem agent. (Doc. No. 29-1 at ¶
19.) Savett informed the Anthem agent of the number reassignment. (Id.) The 0299 number was
placed on Anthem’s internal do-not-call list. (Id.)
The nine prerecorded calls that form the basis of the lawsuit fall into three categories: calls
concerning flu shots (four calls), calls seeking the email address of the Member (two calls), and
calls regarding telehealth and online services (three calls). Anthem provided scripts of each of the
calls. The relevant portions of each call are summarized below.
a. Flu Shot Calls
Savett received four calls regarding flu shot reminders. The script provides for different
prerecorded messages to play based on the called individual’s responses to the call’s prompts.
Despite the individual’s answers, however, the substantive information provided by Anthem’s
affiliate during the call is the same. The flu shot calls provide the following information:
Protecting yourself from the flu is easier than you might think. Getting a flu shot
is your best chance to avoid the flu. So, just like every year, you’ve got a choice.
Get the flu shot and avoid the flu or don’t and risk getting sick. Keep in mind, the
flu shot doesn’t cause the flu. It keeps the flu away so you don’t have to lie in bed
for days, feeling sick.
(Doc. No. 29-2 at 7.)
Whether the individual states that they are getting the flu shot or not, the following
information is provided:
[The flu shot] is recommended for everyone age 6 months and older. It’s especially
important for anyone with a chronic condition and those who live with or take care
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of someone at risk of complications from the flu. The good news is that the flu shot
is a covered benefit for most of our members when they get it at a participating
provider. And, in addition to your doctor’s office there are many other places where
you can get a flu shot—like your local pharmacy or grocery store.
(Id. at 10.)
If the Anthem member is 65 or older, the call continues: “You may also want to ask your
doctor if a pneumonia vaccine could be right for you—since it is recommended for everyone 65
and older.” (Id. at 9.)
If the individual answering the call is not the intended recipient and says so, the call script
asks them to take a message. (Id. at 12.) If they accept, the call provides the substantive
information as above. If the individual declines to take a message, then the call ends without
communicating any of the information about the flu shots. 1 (Id. at 13.)
b. Email Address Collection Calls
The second variety of calls Savett received at the 0299 number requests the Member’s
email address. Like the flu shot calls, the called individual’s responses to the prompts determine
which parts of the prerecorded script are played. In substance, however, the call conveys the
following:
As your health plan, we want to give you the latest news about your benefits in a
way that works best for you. A lot of our members like to get emails from us when
we have important information to share. We’d love to send you an email from time
to time with details about your benefits, health programs, or other plan information.
(Id. at 25.)
If the individual provides their email, the following message plays:
1 Anthem provided two scripts for the flu shot calls. The scripts differ slightly, though both scripts end the call without
providing the substantive information if the individual answering the call states that he or she is not the individual Anthem is trying
to reach and does not consent to taking a message. The script of the second flu shot call states the following: “Do you know how
easy it is to protect yourself from the flu? Getting the flu shot is the best way – and you can get one at no cost. Simply go to your
primary care provider, or visit a local health department. Plus, adults with . . . coverage can get their flu shots at a network pharmacy
for free. Doctors recommend everyone 6 months of age or older needs a flu shot every year. This includes pregnant women. The
flu shot protects against both seasonal flu and H1N1 flu. When you go for a flu shot, also ask about a pneumonia shot. A pneumonia
shot is most important for those age 65 or older, children under the age of 5 and people with certain health conditions.” (Doc. No.
29-2 at 18.)
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Thank you. We’ll send you a confirmation email in the next few weeks. If you do
not receive a confirmation email, please log on to to double
check your email preferences. Keep in mind, you can change your email
preferences at any time in your online profile.
(Id.)
The message also states:
By the way, we mail a large packet of materials every September called the Annual
Notice of Changes. This set of materials lets you know what to expect in the
coming year. It includes your January plan changes, Evidence of Coverage, a list
of covered drugs or formulary, and tips for finding doctors. We can skip paper, and
quickly send electronic versions of these documents to your email.
(Id.)
If the individual is not the person Anthem is trying to reach and they decline to take a
message, the information does not play. (Id. at 27.) If Anthem is unable to verify that the
individual is the Anthem member it is trying to reach, the message does not play. (Id. at 29.)
c. Telehealth and Online Services Calls
The final type of call Savett received concerned telehealth information. The script for that
call reads:
We’re calling to tell you about LiveHealth Online, an easy and convenient way to
see a doctor or therapist using your computer or mobile device. So when your own
doctor isn’t available, use LiveHealth online to see a doctor 24 hours a day, 7 days
a week. They can assess your condition and send a prescription to the pharmacy
you select, if needed. Using LiveHealth Online, you can also visit with a therapist
by appointment, every day of the week. It’s a great way to get the care you need
from the comfort and privacy of your home. Plus, online visits using LiveHealth
Online are no cost for you as [a] . . . Medicare member and it’s free to register.
Getting started is easy, all you have to do is register.
(Id. at 33.)
If the member declines, the following message plays:
Well, you may be interested to know that based on our user feedback survey, almost
everyone who’s used LiveHealth Online said they’d use it again. It’s such a
convenience to be able to see a doctor or therapist when you need one, wherever
you are—at home, when you’re traveling, or even if you want to talk with a doctor
in the middle of the night. Keep in mind, it doesn’t cost you anything to sign up or
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use LiveHealth Online. It just means you’re a few clicks away from seeing a doctor
or therapist. So we hope you don’t mind if we ask you one more time . . . .
(Id. at 34.)
Just as with the other two types of calls, if Anthem is unable to verify that the individual
called is an Anthem member or if the individual declines to take a message, then the above
information does not play. (Id. at 37-39.)
II.
Standard of Review
The Court grants summary judgment if the movant demonstrates that there is no genuine
dispute of material fact and he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A
genuine issue of material fact exists if a reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the evidence,
and draws all reasonable inferences, in the light most favorable to the non-moving party. E.g.,
Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018).
III.
Discussion
Plaintiff’s sole cause of action in this matter is a violation of the Telephone Consumer
Protection Act (“TCPA”). (Doc. No. 1 at 8.) The TCPA, in relevant part, makes it unlawful “for
any person within the United States . . . to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a message without the prior express consent
of the called party, unless the call is initiated for emergency purposes, . . . or is exempted by rule .
. . .” 47 U.S.C. § 227 (b)(1)(B). In addition to the emergency purposes exemption, calls that fall
into any of the following categories are exempted by rule: calls not made for a commercial purpose,
calls made for a commercial purpose that do not include an advertisement or constitute
telemarketing, and calls that deliver a “health care” message for a “covered entity” as defined by
law. 47 C.F.R. § 64.1200(a)(3).
Defendant Anthem argues that the calls placed to the 0299 number fall under the TCPA’s
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exemptions. (Doc. No. 29 at 9.) Anthem also argues it did not violate the TCPA because it had
the Member’s consent to call the 0299 number. (Id. at 29.) Anthem says that it was reasonable
for Anthem to continue contacting the number the Member provided because it did not have
knowledge that the phone number was reassigned to Savett. (Id.)
Plaintiff Savett argues that no exemptions apply. (Doc. No. 31 at 12.) He also argues that
Anthem’s lack of procedures for recognizing reassigned numbers and Anthem’s unheeded notice
of the number’s reassignment are factual issues to be resolved, precluding summary judgment.
(Id. at 30.)
The Court first assesses whether any of the calls made to the 0299 number fall under the
exemptions to the TCPA. Calls made pursuant to an exemption do not require the consent of the
called party.
a. The Non-Telemarketing Exemption
Under the TCPA, the FCC may exempt from TCPA liability calls made to residential
landlines that are “made for commercial purposes” but “do not include the transmission of any
unsolicited advertisement.” 47 U.S.C. § 227(a)-(b). Accordingly, the FCC issued the following
regulation:
[N]o person or entity may [i]nitiate any telephone call to any residential line using
an artificial or prerecorded voice to deliver a message without the prior express
written consent of the called party, unless the call . . . is made for a commercial
purpose but does not include or introduce an advertisement or constitute
telemarketing.
47 C.F.R. § 64.1200(a)(3)(ii)-(iii).
The FCC does not define “commercial purpose,” but has stated that the non-commercial
purpose exemption serves to exempt “prerecorded messages that are non-telemarketing,
informational calls, such as calls by or on behalf of tax-exempt non-profit organizations, calls for
political purposes, and calls for other noncommercial purposes, including those that deliver purely
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informational messages such as school closings.” In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 1830, 1831 (2012).
Courts analyzing similar calls have done so under the non-telemarketing exception, thereby
implicitly deciding that the calls have a commercial purpose. See Williams v. National Healthcare
Review, No. 2:15-cv-0054-RFB-PAL, 2017 WL 4819097, at *7-8 (D. Nev. Oct. 25, 2017) (finding
that calls inquiring about consumer’s health insurance status fell under the non-telemarketing
exemption); Smith v. Blue Shield of California Life & Health Insurance Company, 228 F. Supp.
3d 1056, 1066 (C.D. Cal. 2017) (holding that calls regarding insurance plan information were
exempt under the non-telemarketing exemption).
The Court likewise proceeds under the
assumption that the calls have a commercial purpose.
To fall under the non-telemarketing exemption, the calls may not introduce an
advertisement or constitute telemarketing.
47 C.F.R. § 64.1200(a)(3)(iii).
The term
“advertisement means any material advertising the commercial availability or quality of any
property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). The term “telemarketing means the
initiation of a telephone call or message for the purpose of encouraging the purchase or rental of,
or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R.
§ 64.1200(f)(12). “Offers for free goods or services that are part of an overall marketing campaign
to sell property, goods, or services constitute [an advertisement].” In re Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14097-98
(2003).
All of Anthem’s calls fall under the non-telemarketing exemption. Plaintiff Savett argues
that the calls were meant to induce the consumer to engage in commercial activity by getting a flu
shot from an Anthem provider or signing up for Telehealth services provided by Anthem. (Doc.
No. 31 at 7-8.) At no point, however, was Anthem selling any product or using the calls as a
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pretext to sell a product in the future. The calls all “lack[ed] the commercial components inherent
in ads.” Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 222 (6th
Cir. 2018).
1. The Telehealth Calls
Other courts have found that calls analogous to the telehealth calls fall under the exemption.
Anthem’s telehealth calls are similar to those in Smith. In Smith, the consumer received a
call that “notified recipients that they should have received information about changes to their
insurance plan, encouraged them to seek out information about their plan by examining the
information packet and visiting Blue Shield’s website, and directed them to call the member
service number (as opposed to the sales department) to resolve any questions or issues.” Smith,
228 F. Supp. 3d at 1066. The court found that the call was informational and therefore not
telemarketing. Id.
The Smith court analyzed cases distinguishing between informative messages and
telemarketing. Examples of informative messages included: a welcome text after opting into a
rewards program, a text message with an activation code, and a text message asking a consumer
to complete an online order. Id. (collecting cases). In contrast, telemarking calls included: an ad
for a 99-cent root beer float, a message to encourage consumer to call for a cash advance, calls for
individual to redeem retail chain “points,” a fax encouraging the purchase of a certain stock, and
a message offering a discount in store or online. Id.
In Smith, the court expressly rejected the plaintiff’s theory that because Blue Shield’s
overarching goal was to retain customers and receive premiums, the call had the “clear implication
of encouraging purchase of a good, product, or service.” Id. at 1068. The court stated that such a
holding “would transform practically all communication from any entity that is financially
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motivated and exchanges good or services for money into telemarking or advertising” and
contravene the definitions in the regulations. Id.
Just as in Smith, Anthem’s telehealth calls were meant to provide information to members
about their insurance plan’s benefits. Also, like the Smith calls, the telehealth calls were purely
informational, and members could take further steps if they desired but were not being asked to
make any purchase. Anthem provided the telehealth services for free to members, as explained in
the message. (Doc. No. 29-2 at 33.)
Similar to the call at issue in Suriano, Anthem’s members had already paid for the service
Anthem was describing by virtue of them being Anthem members. Suriano v. French Riviera
Health Spa, Inc., No. 18-9149, 2018 WL 6702749, at *3 (E.D. La. Dec. 20, 2018) (holding that
texts encouraging consumer to find out more about personal training services were exempt because
the consumer had already joined the gym and signed up for the personal training services). The
lack of products for purchase distinguishes Anthem’s calls from the fax 2 at issue in Physicians
Healthsource where the court found that summary judgment was not proper because a “reasonable
fact-finder . . . could reasonably conclude that the fax, at least in part, promotes the quality and
availability of Stryker products.” Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp.
3d 482, 489 (W.D. Mich. 2014). 3
The telehealth calls were purely informational and therefore are exempt.
2 Although the message at issue was a fax, the FCC’s regulations likewise prohibit “unsolicited advertisements” by
facsimile. 47 C.F.R. § 64.1200(a)(4).
3 The parties dispute the applicability of another case, Fulton v. Enclarity, Inc., 907 F.3d 948 (6th Cir. 2018), concerning
unsolicited fax advertisements. That case, however, was recently vacated and remanded to the Sixth Circuit for further
consideration in light of the Supreme Court’s decision in another case concerning unsolicited fax advertisements. See Enclarity
Inc. v. Fulton, No. 18-1258, 2019 WL 4921145, at *1 (Oct. 7, 2019).
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2. The Email Collection Calls
The email collection calls are comparable to the faxes and calls at issue in Mauthe and
Williams. In both of those cases, although businesses sent messages to collect information, the
courts found that the calls fell under the non-telemarketing exemption.
In Williams, the defendant company called a patient with a prerecorded message after
discharge from the hospital in an effort determine if the patient had insurance and to determine if
the patient was eligible for financial assistance. Williams, 2017 WL 4819097, at *2-4. The
company helped non-insured patients apply for state and federal programs or charities to help pay
for medical bills. If patients received coverage through the company’s assistance and the hospital
was paid for the patient’s treatment, the company received a portion of the hospital’s payment. Id.
at *4.
Despite the fact that the company making the calls stood to gain from enrolling the noninsured patient in an insurance program, the court found that the calls were not telemarketing or
advertising. Id. at *7. Likewise, in Mauthe, the Third Circuit recently held that faxes sent to
confirm and update a health provider’s information for its database, access which was sold to
healthcare related organizations to use for claim authentication, provider directories, and other
purposes, were not advertising. Mauthe v. Optum Inc., No. 18-2894, 2019 WL 2262706, at *4 (3d
Cir. May 28, 2019). The court noted that the faxes were not an “attempt to influence the purchasing
decisions of any potential buyer” or a “pretext to more commercial solicitation.” Id.
The courts in Williams and Mauthe found that messages collecting information were
exempt from the statute, in spite of the fact that the defendants intended to monetize the data. In
the present case, Anthem’s collection of the email address is not for monetary gain, but simply to
communicate electronically with its members. The email collection messages are therefore also
exempt from the statute.
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3. The Flu Shot Calls
Finally, in the context of the flu shot calls, similar to the calls in Smith, Mauthe, and
Williams, Anthem’s calls with flu shot information were not attempting to sell any products to the
call recipients. Anthem’s prerecorded messages stated that in most cases the immunizations were
free for members. (Doc. No. 29-2 at 9.) Indeed, at least one other court has found that “flu shot
calls [do] not contain telemarketing or advertising under the FCC’s guidance.” Jackson v.
Safeway, Inc., No. 15-cv-04419-JSC, 2016 WL 5907917, at *5 (N.D. Cal. 2016).
Even if the calls were effective at inducing a member to obtain a flu shot, Anthem is not in
the business of providing or selling immunizations and was not attempting to do so through the
telephone messages. In this way, Anthem’s calls are like those in Sandusky Wellness Center, LLC
v. Medco Health Solutions, Inc., where the Sixth Circuit found that faxes sent by a pharmacy
benefit manager to inform a doctor about which medications were covered by his patients’
insurance fell under the exemption. 788 F.3d 218, 222 (6th Cir. 2018). In Sandusky the court
found that the exemption applied because “in everyday speak, [the] faxes [were] not
advertisements: They lack[ed] the commercial components inherent in ads.” Id. The court also
noted that its decision was in line with other courts finding the same in similar cases. Id. at 223
(collecting cases).
The flu shot reminder calls are notably distinguishable from the calls in Chesbro, a case in
which a retail store’s message encouraged the consumer to redeem points from the retailer’s points
program by making a purchase on its website. Chesbro v. Best Buy Stores, L.P., 705 F.3d 913,
918 (9th Cir. 2012). Because the call encouraged the individual to make future purchases at Best
Buy, the Ninth Circuit found that it contained unsolicited advertisements. Id. The court’s analysis
considered the FCC’s guidance that some calls may serve a “dual purpose” and implicate
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advertising from the context of the information given. Id. (citing 18 FCC Rcd. 14014). According
to the FCC, such dual purpose calls are prohibited under the TCPA. Id.
The reasoning in Chesbro is not applicable in the present case. Although Anthem sent the
calls to encourage members to use their insurance benefits by receiving a flu shot, Anthem did not
stand to gain monetarily from the vaccinations (except perhaps from costs saved down the line if
it avoided having to pay for members’ flu treatments). The calls were not dual-purpose, thinly
veiled enticements to purchase a product or spend further money on Anthem’s services. Indeed,
Anthem was not asking the member to purchase a product from Anthem at the time of the call or
at any time in the future. Instead, Anthem was informing the called consumers about the benefits
of receiving the vaccination. Such informational messages are exempt from the TCPA under the
non-telemarketing exception.
b. The Other Exemptions
The parties also dispute the applicability of two other TCPA exemptions, the health care
exemption and the emergency purpose exemption. Because the Court has determined that
Anthem’s calls to the 0299 number fall under the non-telemarketing exemption, the Court declines
to decide whether the calls also fall under one of the other two exemptions Anthem claims.
c. The Consent Requirement
Under the TCPA, consent is only needed if the calls placed to the consumer do not fall
under one of the enumerated exemptions. As explained above, the Court has determined that
Anthem’s calls to Savett fall under the non-telemarketing exemption. The Court therefore does
not reach the question of whether Anthem had the requisite consent for the calls, as consent was
not necessary.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s motion for summary
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judgment.
IT IS SO ORDERED.
Dated: November 4, 2019
s/Pamela A. Barker
PAMELA A. BARKER
UNITED STATES DISTRICT JUDGE
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