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Reese v. Anthem, Inc.

United States District Court, E.D. Louisiana

March 12, 2018

RENEE REESE, ON BEHALF OF HERSELF AND OTHER PERSONS SIMILARLY SITUATED
v.
ANTHEM, INC., ET AL.

         SECTION L (4)

          ORDER AND REASONS

          ELDON E. FALLON, UNITED STATES DISTRICT JUDGE

         The Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) prohibits making automated telephone calls to cellular telephones without the “prior express consent” of the recipient. Plaintiff alleges that Defendants Anthem, Inc., Anthem Foundation, and the American Heart Association (“AHA”) violated the TCPA when they sent text messages to Plaintiff and other consumers nationwide. Defendants deny the alleged misconduct, and thus file the instant motion to dismiss. Rec. Doc. 10. Having considered the parties' submissions, arguments, and applicable law, the Court now issues this Order and Reasons.

         I. BACKGROUND

         This putative class action asserts two causes of action against Defendants Anthem, Inc., Anthem Foundation, and AHA for negligently and willfully violating the Telephone Consumer Protection Act.

         Plaintiff alleges that Defendants violated the TCPA by using automatic telephone dialing (“ATDS”) equipment (systems designed for mass, automated communications) to send out promotional text messages to thousands of consumers across the country. See Rec. Doc. 1 at 3. Plaintiff claims that consumers never expressly consented to receiving these promotional text messages. Id. at 4. Plaintiff avers that she was thus harmed by receiving these text messages because these unsolicited text messages violated her privacy, cost her money, diminished the value of her telephone equipment and service, lost her time spent on dodging the text messages, resulted in a loss of battery, and increased her electrical costs. Id. at 4-5. Plaintiff seeks to certify an uncertain class of persons who allegedly received similar messages from Defendants.

         Plaintiff states that she and other consumers began receiving these unwanted communications after enrolling in the AHA's texting program, which she initially believed to be a plan that would send out healthy reminders, such as information about cardiopulmonary resuscitation (“CPR”). Id. at 8. However, Plaintiff alleges that AHA's goal of this texting program is, in disguise, selling advertising space to its branding partners, e.g., Anthem, Inc. and Anthem Foundation. See Id. Plaintiff asserts that Defendant Anthem Foundation is the charitable subsidiary of Defendant Anthem, Inc., a for-profit health insurance company, and both jointly advertised through AHA's text messages. Id. at 4, 8-9. The text messages that Plaintiff received all begin with “AHA/Anthem Foundation.” From that heading, Plaintiff suggests that AHA and Anthem Foundation (Anthem's charitable arm) have formed a partnership to devise this advertising scheme. See Id. Plaintiff further asserts she and other potential class members received dozens of such text messages from Defendants. Id. at 5. Plaintiff believes this constitutes sending unsolicited text messages without consent using automatic telephone dialing equipment, and therefore violates the TCPA. Id. at 12. Plaintiff also believes that additional text message sent through the program offering for-pay classes in CPR training were a violation of the TCPA. Id. at 11-12.

         Plaintiff, on behalf of herself and the class, seeks an injunction requiring Defendants to cease sending the text messages, statutory damages for herself and each member of the class, and reasonable costs and attorney's fees. Id. at 1. Plaintiff believes she and the class are entitled to a minimum of $500.00 in statutory damages for each violation under 47 U.S.C. § 227(b)(3)(B). Id. at 8. Additionally, Plaintiff believes the Defendants' conduct was willful and knowing, and thus asks that the Court treble the amount of statutory damages pursuant to 47 U.S.C. § 227(b)(3). Id. at 9. Plaintiff additionally requests an order certifying the dispute as a class action, appointing her as class representative and her attorneys as class counsel. Id.

         Defendants have filed the instant motion to dismiss under the Federal Rule of Civil Procedure 12. Defendants proffer four reasons for dismissal. First, Defendants claim that Plaintiff provided them with prior express consent to receive ATDS calls. Second, Defendants affirm that Anthem and Anthem Foundation did not make any ATDS calls to Plaintiff. Third, according to Defendants, the ATDS calls that Ms. Reese received were not “telemarketing.” Finally, even if they were telemarketing, AHA and Anthem Inc. argue that they did not need Ms. Reese's express written consent because they are nonprofit entities that require only prior express consent. The Court will address the parties' arguments below.

         II. LEGAL STANDARD

         To start with the basics, Rule 8(a) only requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To satisfy plausibility, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard requires more than a sheer possibility that the defendant acted unlawfully, and Plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although courts must presume that the plaintiff's factual allegations are true, “legal conclusion[s] couched as . . . factual allegation[s]” are not given such deference; a plaintiff must provide the grounds of his entitlement to relief beyond mere “labels and conclusions.” See id.

         In considering a motion to dismiss for failure to state a claim, a court must typically limit itself to the contents of the pleadings, including their attachments. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “If, on a motion under 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Nevertheless, uncontested documents referred to in the pleadings may be considered by the Court without converting the motion to one for summary judgment even when the documents are not physically attached to the complaint. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002). The Court may also consider documents attached to a motion to dismiss without converting the motion into one for summary judgment if the documents are referred to in the complaint and are central to the plaintiff's claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).

         III. DISCUSSION

         A. Telephone ...


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