A call promoting pet insurance made to a recent kitten adopter constituted an “advertisement” pursuant to the Telephone Consumer Protection Act (TCPA), an Illinois federal court has ruled.

In Legg v. PTZ Insurance Agency, Ltd., one of the defendants, Pethealth, offered various services related to pet adoption and pet insurance. One service offered by its subsidiary defendant PTZ Insurance Agency (PTZ) is an initial 30-day free gift of pet health insurance. The gift is offered to adopters of pets from PTZ’s partner animal shelters, generally for pets that have a microchip implanted for safety.

During the adoption process, adopters fill out paperwork providing the shelter with their name, address, email address and telephone number. The paperwork provides that unless adopters opt out, they may be sent information and special offers by mail or email regarding products or services that may be of interest to them.

Adopters are sent at least two emails reminding them of the 30-day gift. In addition, they receive at least two prerecorded robocalls.

The “Day Two Call” stated: “Hi from the 24PetWatch Insurance Team. This is a friendly reminder to please confirm your 30-day gift of insurance if you haven’t done so already. It’s easy—check your inbox for the 24PetWatch email, click on the link and confirm your gift. If you have already confirmed, press 1 now to speak to a representative to extend your gift for [] days at absolutely no cost to you. Have a great day, and congratulations on adopting your new best friend.”

Slightly different, the “Day Six Call” stated: “Hello. We’re calling from 24PetWatch Pet Insurance to remind you that when you adopted your pet, you were given a 30-day gift of insurance and you only have [] day[] to activate it. Protect your pet from the unexpected and press 1 now to activate it or call [].”

Plaintiff Christopher Legg adopted a kitten from the Florida Humane Society in November 2014. As part of the adoption process, the kitten was fitted with a microchip and registered with 24PetWatch. The paperwork Legg completed specified only mail or email communications, but he did not opt out of receiving the offers.

Legg claimed he received four prerecorded calls on his cellphone from the defendants, offering the 30-day free gift. He filed suit under the TCPA and moved for summary judgment, arguing that the defendants made unsolicited advertising calls to his cellphone without his express written consent. The defendants countered that calls were simply reminders of a free gift and neither included the commercial availability of any product.

U.S. District Judge Robert W. Gettleman of the Northern District of Illinois considered each call in turn to reach a mixed decision.

The Federal Communications Commission’s (FCC) implementing regulations make it unlawful to use a prerecorded voice to initiate a call to a cellular phone that “includes or introduces an advertisement … other than a call made with the prior express written consent of the called party.” The regulations define an “advertisement” as “any material advertising the commercial availability or quality of any property, goods or services.”

The Day Two Call “does more than simply remind the recipient of the free gift,” Judge Gettleman said. “It points the recipient to an email sent from 24PetWatch.”

That email provided: “Dear Christopher Legg, You have only 24 hours left to confirm your 24PetWatch 30-day Gift of Insurance. Click here to confirm your gift now before this offer expires. Don’t forget that new adopters are also eligible for an $8.95 credit towards one of our comprehensive insurance policies; please call one of our agents at [] to find out about this upgrade today!”

“This email obviously touts the commercial availability of a product and constitutes an advertisement as defined by the regulations,” the judge wrote. “Because the Day Two Call introduces this email, the court concludes that the Day Two Call is an advertisement that requires prior express written consent. The court rejects defendants’ argument that it cannot look beyond the content of the calls to demonstrate that they are advertisements. The regulation prohibits calls that include or introduce an advertisement.”

As Legg pointed out, numerous courts have held that communications are advertisements when the call “leads” the recipient to other materials, Judge Gettleman said, citing decisions from federal courts in the District of Columbia and Illinois.

“Consequently, because the court concludes that the Day Two Call is an advertisement and requires express written consent, which plaintiff undisputedly did not give, plaintiff would be entitled to statutory damages for each Day Two Call he received,” the court wrote. “As noted, however, it is unclear how many, if any, such calls plaintiff received.”

Judge Gettleman reached a different conclusion, however, with respect to the Day Six Call, which made no reference to any email or other material. “That call was simply a reminder that the recipient had already received the free gift and that there were a limited number of days left to activate it,” the court wrote. “The call itself neither includes nor introduces the commercial availability of any product.”

Although the plaintiff argued that the Day Six Call directed recipients to “press 1,” which connected them to a sales agent who pitches defendants’ insurance products, the judge was not convinced. “But what happens when a recipient presses 1 (plaintiff did not) is hotly contested and cannot support a finding on summary judgment that the call constitutes an advertisement,” the court said.

Because the Day Six Call was not an advertisement, the defendants did not need express written consent to place it. They did need prior express consent in some form, the court said, but failed to establish they had it.

“All of the paperwork and computer screen shots indicate, however, that [the] communications would be by ‘mail or email,’” Judge Gettleman wrote. “Defendants have no evidence that even remotely suggests, let alone would support a jury verdict, that plaintiff Legg ever expressly agreed to receive pre-recorded telephone communications.”

Unable to demonstrate a genuine issue for trial, the court granted summary judgment in favor of the plaintiff, awarding statutory damages of $2,000 for the four calls. The court trebled the damages to $6,000, as the defendants did not respond to Legg’s argument that the violations were willful and knowing.

To read the memorandum opinion and order in Legg v. PTZ Insurance Agency, Ltd., click here.

Why it matters: As we previously reported, the court had denied class certification in this case based on the predominance of individualized issues of consent, but the defendants were not able to walk away with a second victory. Instead, Judge Gettleman found that one of the two calls did constitute an advertisement under the TCPA, and while the second did not, the defendants lacked the necessary consent and were therefore liable under the statute, with trebled damages.