Publication Details

Ninth Circuit Affirms That Company is Not Liable when Plaintiff Provided Prior Express Consent through Insurance Enrollment Form

Apr 30, 2018 | Posted by Elizabeth  N. Chiba | Topics: Class Actions, Telephone Consumer Protection Act

The Ninth Circuit in Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789 (9th Cir. 2018)  recently affirmed the entry of summary judgement in a Telephone Consumer Protection Act (“TCPA”) class action because Plaintiff Audrey Fober (“Plaintiff”) provided prior express consent. 

Specifically, Plaintiff received several calls from Management and Technology Consultants, LLC (“MTC”) asking about the quality of her experience with her primary care physician.  Prior to receiving calls from MTC, Plaintiff provided her phone number on a health insurance enrollment form.  In addition, Plaintiff agreed that her insurer could disclose her information “for purposes of treatment, payment, and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs.”  (Emphasis added.) 

The Ninth Circuit relied on its decision in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) in analyzing whether Plaintiff had provided “prior express consent” to the phone calls from MTC.  The Ninth Circuit reasoned that in completing the enrollment form, Plaintiff agreed to receive calls meant to improve the quality of her health plan.  The calls that Plaintiff ultimately received—calls to assess her satisfaction with her primary care physician’s services—were made with the purpose of improving the quality of Plaintiff's care.  Thus, the calls fell within the scope of the consent that Plaintiff gave in the enrollment form.

Plaintiff argued that the calls fell outside the “prior express consent” exception because she only consented to calls concerning the quality of her insurer’s services, not calls concerning the quality of her primary care physician.  The Ninth Circuit rejected this argument on the grounds that the term “quality improvement” on the disclosure form was broad enough to cover the quality of service provided by a doctor assigned to Plaintiff through her insurer, and it was logical to assume that the feedback requested through the calls would assist in improving the quality of Plaintiff’s insurance services generally. 

This case is not only a victory for MTC, but is also instructive on how expansive language in consent forms can assist companies in avoiding liability under the TCPA.