A judge in California recently dismissed a putative Telephone Consumer Protection Act class action against Blue Shield of California, an insurance provider. In Smith v. Blue Shield of California Life & Health Insurance Co. (C.D. Cal.), the judge found that the telephone call at issue was, as a matter of law, not the type of call regulated by the TCPA, rejecting plaintiff Shannon Smith’s efforts to subject Blue Shield to millions of dollars in statutory damages.
Smith had health insurance coverage through Blue Shield, which was permitted to auto-renew her policy while still making certain changes, such as raising premiums. Blue Shield was required to provide consumers such as Smith written notice of the renewal. Blue shield complied with that obligation by mailing consumers a packet of information on their upcoming insurance renewal and, having seen numerous packets come back undeliverable, Blue Shield also instituted a policy to call existing members using a pre-recorded message to alert them to the fact that packets had been mailed. The prerecorded message simply informed recipients, including Smith, that information about upcoming policy changes had been mailed to them and was also available online, and that if they did not receive the packet, or if they had questions, they could contact Blue Shield directly.
Smith received a call from Blue Shield in December 2015 at the number she provided Blue Shield in her application, informing her of her forthcoming renewal packet. Smith did, in fact, renew her coverage. She then sued, alleging Blue Shield’s call violated the TCPA because it was a prerecorded call made without prior express written consent. She sought to represent herself and a class of persons nationwide who received similar calls. Blue Shield moved for summary judgment, and the court granted the motion.
Blue Shield’s primary argument, and the one that was dispositive for the court, was that the calls at issue were not advertising calls of the type that requires express written consent under the TCPA’s regulations. The court agreed, noting that it had to evaluate the content of the call using a “measure of common sense.” The court agreed with Blue Shield that the call made to Smith was purely informational, rejecting Smith’s arguments that the calls constituted advertising due to the fact that they were (1) intended to retain existing customers, (2) written by Blue Shield’s marketing team, and (3) initially (but not in the end) included a specific link to a Blue Shield renewal page and a statement that the company hoped to retain the consumers’ business.
The court found the call was akin to an informational message one might receive immediately after joining a rewards program, or a communication providing an update about an order status. It also contrasted the calls with the types of telemarketing and advertising content that ran afoul of other courts, which were communications that overtly advertised a particular product and the caller’s ability to benefit the recipient, none of which was present in Blue Shield’s calls. In the end, the court concluded that Blue Shield was within its rights to keep an existing customer informed about an important mailing, bookending its opinion with the finding that it “makes no sense to the Court that a single call tracking Blue Shield’s mandatory communications regarding insurance enrollment and renewal would expose Blue Shield to millions of dollars in liability under the TCPA.”