Saying he understands many of his colleagues have ruled differently, a federal judge in Chicago has denied an attempt by a group of pet adopters to turn their legal beef into a class action against a pet health insurance provider, saying the company did not “harm” the new pet owners by calling to urge them to take advantage of a “gift” of 30-day free health insurance for their new pet, which the new owners had been told was included with the adoption of their animal.
On Aug. 15, U.S. District Judge Robert W. Gettleman sided with PetHealth Inc. and PTZ Insurance Agency, denying the request by two plaintiffs to expand their lawsuit against the companies into a class action, for allegedly violating federal telecommunications laws forbidding robocalling or calling people without their written consent.
“… Defendants have submitted affidavits from shelter employees who conducted the adoption processes,” Judge Gettleman wrote. ”Those employees state that after taking the adopters’ cell phone numbers, the employees told the adopters to expect to receive ‘communications’ from defendants. Whether such ‘communications’ included cell phone calls as well as e-mail messages would depend on the nature of the conversations between the shelter employees and the adopters, and the adopters’ expectations resulting from the conversations.
“This evidence convinces the court that the trial in this case will be consumed and overwhelmed by testimony from each individual class member, and the shelter employee who assisted that member in the adoption process, to determine whether the class member consented to receive the calls in question. In short, the trial will involve hundreds, if not thousands, of mini-trials on the issue of consent alone.”
The decision comes as the latest step in litigation dating back to 2014, when attorneys with the firm of Keogh Law, in Chicago, filed suit in federal court against the companies on behalf of named plaintiffs Christopher Legg and Page Lozano, accusing the defendant companies of violating the federal Telephone Consumer Protection Act when they called pet adopters who had not consented in writing to receive promotional phone calls.
According to the lawsuit, PetHealth and PTZ offer new pet adopters who adopt through partnering animal shelters 30 days of free pet health insurance. The shelters, according to court documents, “gather information from adopters during the adoption process for the purpose of providing the 30-day free gift.” As part of the adoption process, court documents said adopters must “provide a valid email address and ‘opt-in’ to receiving communications” from the pet health insurance providers.
“The paperwork provides that unless they opt-out they may be sent information and special offers by mail or email regarding products or services that may be of interest, and that their personal information may be shared with third parties so those third parties may ‘contact you by mail or email for their own marketing purposes,’” the judge wrote in his decision.
PetHealth and PTZ then would routinely send two emails and place two “pre-recorded robocalls” to new adopters, encouraging them to sign up for the pet health insurance.
Plaintiffs alleged these calls broke the law, but the companies argued the calls didn’t harm the new adopters in any way, as the adopters had agreed to receive marketing communications from “third parties.”
As there was no “harm,” the companies argued the Supreme Court’s decision in Spokeo v Robins, which held technical violations of laws like the TCPA don’t merit class action lawsuits unless there was concrete harm to those suffering the calls, should cage up any class actions in this case.
Gettleman noted other judges have found even technical violations of the TCPA could establish “concrete injury.”
But in this case, he said, the plaintiffs consent during the pet adoption process to receive the third-party communications make this case different from many others.
“In the instant case, defendants argue that adopters have expressly agreed to receive the calls, that they just did not do so in writing,” Gettleman wrote. “The lack of a writing does not make the calls unsolicited. If the class members agreed to receive the calls, they lack a ‘genuine controversy.’”
PetHealth and PTZ were represented in the action by attorneys with the firm of SmithAmundsen LLC, of Chicago.