An Illinois federal court has ruled that a number of calls a pet insurer made to a man adopting a kitten constituted an “advertisement” and was pursuant to a federal law that restricts telephone-based solicitations.
One of the defendants named in the Legg v. PTZ Insurance Agency, Ltd case, PTZ Insurance Agency, offers an initial 30-day free gift of pet health insurance. The free insurance is given to those who adopt pets from any of the animal shelters partnered with PTZ – particularly pets that have been implanted with a microchip for safety.
Adopters have to fill out paperwork as part of the adoption process, providing the shelter with their name, address, email address and telephone number. The paperwork states that unless adopters opt out, they may be sent information and special offers by mail or email on products or services.
Customers are sent at least two emails reminding them of the 30-day insurance offer. They also receive at least two prerecorded robocalls.
JDSupra produced a transcript of the first robocall, called the “Day Two Call”:
“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.”
The other “Day Six Call” went:
“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 [].”
The plaintiff, Christopher Legg, had adopted a kitten from the Florida Humane Society in November 2014. The kitten was fitted with a microchip and registered with 24PetWatch, as per the adoption process.
Although the paperwork Legg filled out specified only mail or email communications, he did not opt out of receiving offers.
Legg claimed he received four prerecorded call on his cellphone from the defendants. He later filed a suit under the Telephone Consumer Protection Act (TCPA) and moved for summary judgment. Legg argued that the defendants made unsolicited advertising calls to his cellphone without his express written consent.
The defendants, however, asserted that the calls were reminders of a free gift; neither call indicated the commercial availability of any product.
JDSupra reported that US District Judge Robert W. Gettleman, of the Northern District of Illinois, had considered each call, reaching a mixed decision.
According to Gettleman, the Day Two Call “does more than simply remind the recipient of the free gift,” adding that the call “points the recipient to an email sent from 24PetWatch.”
That email says:
“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 ruled.
“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 the 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.”
The Day Six call, however, was not considered an advertisement by Gettleman. The call directed recipients to “press 1,” which connected them to a sales agent.
“But what happens when a recipient presses 1 is hotly contested and cannot support a finding on summary judgment that the call constitutes an advertisement,” the court said.
Legg did not press “1” when he received the call.
Due to the ruling, the defendants have been deemed liable under the TCPA.
