Nonprofit’s Texts Within Plaintiff’s Scope of Consent

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

Texts sent on behalf of a nonprofit organization with tips about how to respond to a cardiac arrest event were within the category of messages the plaintiff consented to receive, a Louisiana federal court said, dismissing her putative class action.

Renee Reese signed up to receive texts from the American Heart Association (AHA) but filed a Telephone Consumer Protection Act (TCPA) suit after she claimed to have received promotional texts from the organization’s branding partners, Anthem Inc. (an insurance company) and Anthem Foundation (a philanthropic arm of the company).

Reese said she enrolled in the texting program because she believed it would send out healthy reminders, such as information about cardiopulmonary resuscitation (CPR). Instead, she alleged the messages were in fact advertisements for CPR training classes.

The AHA and its partners moved to dismiss the suit. Reese provided prior express consent to receive the messages, they argued, none of which were telemarketing. U.S. District Judge Eldon E. Fallon agreed, granting the motion to dismiss.

Beginning with the issue of consent, the court noted the plaintiff voluntarily provided her cell phone number to the AHA at a CPR training event, and that despite her protestations to the contrary, the text messages all came from the AHA—not its partners.

“[A]lthough the text messages reference Anthem Foundation, this is irrelevant because the sender was, in fact, AHA,” the court said. “Plaintiff has not cited any persuasive cases that says a nonprofit’s association with a donor or another charitable entity—i.e., Anthem Foundation—gives rise to a TCPA claim when she voluntarily sought to receive certain communications and information.”

The court then turned to the “nature” of the texts and whether they fell within the scope of communication which Reese voluntarily asked to receive. Examples of the texts included: “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!” and “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!”

“Plaintiff consented to receiving communications about … CPR and healthy living,” Judge Fallon wrote. “And that is precisely what she received.” Reese did not receive any information about purchasing insurance or information that might have financially benefited the defendants, leaving the messages well within the scope of what she consented to receive, the court said.

Further, the text messages did not constitute telemarketing under the TCPA, the court found. Reese identified one particular message as advertising because it contained a link to register for CPR classes and read: “AHA/Anthem Foundation: CPR with breaths is important for cardiac emergencies involving infants/kids, drownings, & more. Find a course—[link].”

The link took consumers to the AHA’s website, featuring a map that helps consumers find the closest CPR course. After entering a ZIP code, the site presents the closest locations and contact information for the classes, some of which are free and some of which are for cost. “Federal courts have found that such information does not constitute telemarketing,” the court said, as it is merely informational and not commercial.

“Likewise, in this case, common sense tells the Court that the information which Plaintiff labels as ‘commercial’ is undoubtedly informational,” the court wrote. “Defendants AHA and Anthem Foundation provide individuals with a public resource to seek CPR training. This resource is the type of communications Plaintiff wanted and signed up to receive: information about CPR and healthy living. Her complaint is unwarranted. Accordingly, the Court finds that Plaintiff cannot bring a TCPA claim against Defendants.”

To read the summary order and reasons in Reese v. Anthem, Inc., click here.

Why it matters: The court wasted little ink on its decision that the plaintiff consented to receive the texts and that the messages were not advertising. Charitable partnerships with for-profit entities (such as an insurance company and its 501(c)(3) arm) do not necessarily render the communications commercial, the court said, even when the company is referenced in the text.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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