Readers of our blog may recall a piece from last year in which we discussed a Telephone Consumer Protection Act lawsuit pending in the United States District Court for the Middle District of Florida. At issue in Morris v. Lincare, Inc., among other things, was whether Morris’ prior express written consent provided to Lincare’s predecessor extended to Lincare as the successor entity. Morris and Lincare filed motions for summary judgment on several issues, including the scope of TCPA consent. Below, we discuss the Court’s decision in further detail.
Transferability of TCPA Consent
Due to a medical condition, Morris purchased necessary medical supplies from American HomePatient (“AHP”). As part of AHP’s purchase process, Morris signed a consent form agreeing to receive calls from AHP and others on AHP’s behalf. In 2018, Lincare acquired AHP and made prerecorded voice calls to Morris and other consumer telephone numbers acquired from AHP. Morris then sued on behalf of herself and a putative class alleging that Lincare’s placement of prerecorded messages to her cell phone, without her consent, violated the TCPA. After the Court granted class certification, Lincare moved for summary judgment claiming, among other things, that Morris provided prior express consent under the TCPA to be contacted regarding medical supplies. In response, Morris argued that she provided consent to AHP, not Lincare, and that the calls from Lincare were intended to encourage the purchase of supplies and were not exempt under the TCPA’s implementing regulation which exempts prerecorded calls that deliver a “health care” message.
In granting summary judgment to Lincare, the Court evaluated whether Lincare had adequate TCPA consent to place prerecorded calls to Morris regarding medical supplies. Because the prerecorded calls to Morris bore some relation to her initial provision of consent, the Court found that the calls placed to Morris fell within the scope of the consent she provided. Next, the Court analyzed whether Morris’ provision of consent to AHP, Lincare’s predecessor, extended to Lincare. Because Morris consented to receive calls from or on behalf of AHP, the Court agreed with Lincare that it had proper consent under the TCPA to contact Morris regarding her medical supplies and, as such, awarded summary judgment to Lincare.
Why Does Lincare Matter to Your Business?
In arriving at its decision, it is important to note that the Court also found that the prerecorded calls to Morris were health care-related and thus, Lincare only needed prior express consent, not prior express written consent, to contact Morris. Because Lincare had prior express consent, the Court found that the prerecorded calls were exempt under the TCPA’s regulation exempting health care-related prerecorded calls. Notably, Lincare relied on two rulemakings from the Federal Communications Commission (“FCC”) which, after the Supreme Court’s recent decision allowing district courts to independently evaluate agency rulemakings, are certain to be challenged in other TCPA lawsuits.
The attorneys at Klein Moynihan Turco have decades of experience defending countless TCPA claims on behalf of the telemarketing industry. Our first-rate litigation defense team will leverage this experience to assist your business with all of its telemarketing-related needs.
If you need assistance defending against a TCPA lawsuit or with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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