Quick one for you this morning TCPAWorld.
So Humana was allegedly sending prerecorded marketing calls to members. One guy named James Coleman claimed he asked Humana to stop making calls to him but they continued. Specifically Plaintiff alleges: “repeatedly advised the callers that he was not interested in the service and requested to be removed from the calling lists.”
Humana moved to dismiss arguing these allegations were not sufficient because Plaintiff never actually alleged the date of the revocation–so perhaps all of the calls were placed before he asked repeatedly to be removed from the list.
This was a definite tweener in my view. The Court is supposed to give the benefit of the doubt to the Plaintiff at the complaint phase. And allegations of “repeated” requests for calls to stop certainly suggest the calls continued after a request was made to stop.
But the Court sided with Humana on this one:
This failure [to allege a revocation date] is critical because only calls made by Humana after plaintiff revoked consent are plausibly actionable. Without any alleged date of revocation, plaintiff has simply failed to nudge his claim across the line from conceivable to plausible. Twombly, 550 U.S. at 570. Though plaintiff argues that his allegations are sufficient because he has alleged dates that he received calls, the telephone number he received calls from, and the content of the calls, none of this information provides the specificity necessary to plead that he revoked his consent. See, e.g., Cataldi v. Ocwen Loan Servicing, LLC, 17-11487, 2017 WL 5903440, at *2 (E.D. Mich. Nov. 30, 2017) (“Simply alleging that she asked Defendant to stop calling ‘at some point’ after [plaintiff] began receiving calls does not provide the necessary factual content”). Without any reference to when plaintiff allegedly revoked his consent, he has essentially alleged he revoked consent “at some point.”
The Court also provides a pretty good breakdown of CMS rules related to medication therapy management programs and how those rules intersect with the TCPA:
Medicare Part D sponsors like Humana must automatically enroll certain participants in their MTM programs, and those MTM programs must provide both quarterly and annual medication reviews. While a participant may opt-out of a part of the MTM program, declining a particular service does not remove them from the MTM program. A participant may also elect to permanently opt-out of the MTM program in the current and future years, but that participant may subsequently elect to re-enroll in the MTM program if he or she meets the eligibility criteria.
Take away here is pretty clear–a Plaintiff cannot just allege they revoked consent “at some point” and expect to state a claim. A clear data of alleged revocation must be stated. Pretty good stuff for a Wednesday morning.
Case is Coleman v. Humana, No. 5:22-CV-321-BO, 2023 WL 3485242 (E.D. Cal. May 16, 2023)