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Law360
March 14, 2018
Law360 (March 14, 2018, 1:30 PM EDT) -- A Louisiana federal judge has nixed a proposed class action accusing a health insurance provider of duping consumers into signing up for informational texts that were really part of a charity's advertising scheme, saying the texts were solicited and clearly not commercial.

U.S. District Judge Eldon E. Fallon found Monday that the texts, which offered tips on how to perform CPR and links to a mix of free and for-pay training classes, were exactly what plaintiff Renee Reese signed up for when she gave the American Heart Association Inc. her cellphone number: "information about CPR and healthy living."

Reese had alleged that AHA tricked consumers into signing up for its texts and instead sent joint messages from Anthem Foundation — insurer Anthem Inc.'s charitable arm, according to Judge Fallon's synopsis of the case. Each text message began with “AHA/Anthem Foundation," and the presence of  AHA's alleged branding partner Anthem Foundation in the texts amounted to selling advertising space in violation of the Telephone Consumer Protection Act, Reese claimed.

Judge Fallon didn't take a charitable view on the claims. Although Reese alleged that joint texts equaled unsolicited texts, the judge said that it was irrelevant because the entity actually sending them was AHA. Neither AHA nor Anthem made money off the messages, which are allowed to contain links to training classes because no court considers that to be a commercial activity. 

"Likewise, in this case, common sense tells the court that the information in which plaintiff labels as 'commercial' is undoubtedly informational," Judge Fallon said. "Defendants AHA and Anthem Foundation provide individuals with a public resource to seek CPR training." 

Highlighting a few other examples, Judge Fallon noted that many of the text messages contained life-saving tips, like “AHA/Anthem Foundation: Rib fractures are often caused by CPR compressions but are easy to heal from. Don’t be afraid to push hard and fast on the chest!”

Another read, “AHA/Anthem Foundation: Sometimes victims will take a single breath during CPR. If they take one breath and stop, keep pushing. They still need your help!”

But the one in particular that Reese had pointed out as an outlier read: “AHA/Anthem Foundation: CPR with breaths is important for cardiac emergencies involving infants/kids, drownings, & more. Find a course" and contained a shortened link that landed consumers on AHA's website, which encouraged consumers to enter their zip code to find the closest CPR course.

Judge Fallon said he followed the instructions, noting, "At this point, the court sees no commercial information. Nonetheless, the court continues and enters its zip code." 

The case dates to August, when Reese slapped the insurer, AHA and the foundation with the suit, seeking to represent a nationwide class of consumers who received the automated texts. She had asked the court to triple the damages for each violation, arguing that the organizations' actions were willful. 

Bu the organizations pushed back in October and urged the court to dismiss the claims, arguing that Reese had given her prior express consent to receive the texts, which didn't rise to telemarketing. Even if the court decided they had a commercial bent, AHA and Anthem argued that they didn't need Reese' express written consent to send them because, as nonprofits, they only had to get prior express consent. 

Roberto Luis Costales, counsel for Reese, said he was “comfortable” with the court’s interpretation of the law.

“It is important to test the boundaries of the TCPA, as we did in this case, so that consumers and legislatures will be compelled to reexamine its effectiveness in preventing aggressive marketers from invading the highly personal space of our cellular phones,” Costales said. 

An attorney for AHA said the organization was pleased with the ruling. 

The American Heart Association, Anthem, and Anthem Foundation are represented by Michael C. Drew, Covert J. Geary, Samantha M. Schott of Jones Walker LLP. Anthem is also represented by Chad R. Fuller, Alan D. Wingfield, Virginia Bell Flynn and Justin M. Brandt of Troutman Sanders LLP. The American Heart Association is also represented by Mark A. Olthoff and Robert V. Spake, Jr. of Polsinelli.

Reese is represented by Roberto L. Costales, Jonathan Mille Kirkland and Emily Westermeier of the Costales Law Office and by William Henry Beaumont. 

The case is Reese v. Anthem Inc. et al, case number 2:17-cv-07940, in U.S. District Court for the Eastern District of Louisiana. 

--Editing by Emily Kokoll.

Update: This story has been updated with comment from the parties’ attorneys and with additional counsel information for Anthem and the American Heart Association.