Sometimes the line between what is and isn’t an “advertisement” within the meaning of the TCPA isn’t quite clear.  But as illustrated by today’s ruling in Legg v. Ptz Ins. Agency, No. 14 C 10043, 2018 U.S. Dist. LEXIS 137811, at *4 (N.D. Ill. Aug. 15, 2018), it’s better to be safe than sorry in determining when a message might be considered one.

In Legg, Plaintiff sued the Defendant – a pet insurance company – in a nationwide class action for making a call with a prerecorded message advertising the availability of pet insurance services. Plaintiff claimed that, although he had provided his phone number to a pet adoption agency when adopting a cute little kitty named Mr. Bojangles (I’m just guessing that’s his name), the Defendant did not have the required prior express written consent required to send him the message.

The story here begins a few years back when Plaintiff adopted Mr. Bojangles from a rescue that had a booth at a local Petsmart down in Florida. Bless his heart. After he filled out some forms in which he provided his phone number, he took his cute little pal home and did whatever people do with cats. A few days after that, he allegedly received some prerecorded messages reminding him that he had received a free 30-day gift of the Defendant’s pet insurance services when he adopted Mr. Bojangles. And naturally, because this is TCPAland, Plaintiff turned around and sued the pet insurance company in a nationwide class action.

Notably, the court had denied class certification earlier in the case based on the predominance of individualized issues of consent. Legg v. PTZ Ins. Agency, Ltd., 321 F.R.D. 572, 578 (N.D. Ill. 2017). The Plaintiff then moved for summary judgment on his individual claim. The central question in the motion was whether the message at issue constituted an “advertisement” within the meaning of the TCPA.

To fully understand the issue, we need a quick primer. In the world of prerecorded messages, the TCPA prohibits using a prerecorded voice to initiate a call to a cell phone that “includes or introduces an advertisement,” unless the caller has the prior express written consent of the called party. And under the prior express written consent standard, just providing a phone number in connection with a transaction won’t do. The consumer needs to provide consent in a written agreement that’s signed, and that specifies the phone number at which the consumer is authorizing calls to be made. The consumer also must be provided with certain “clear and conspicuous” disclosures.  That allegedly didn’t happen in the Legg case.

Thus, the central issue in Legg was whether the message sent by Defendant included or “introduced” (key word) an “advertisement”. As defined under the TCPA, an “advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services.” So is a message reminding a customer of a gift they had already received an “advertisement”? Under most circumstances it probably wouldn’t. But this message went a little further. It also “point[ed]” the recipient to an email sent by Defendant which promoted their pet insurance services. And because the TCPA’s regulations prohibit prerecorded messages that not only include – but also “introduce” – and advertisement, the message required prior express written consent. The court reasoned that pointing the recipient to an e-mail that separately advertised Defendant’s services constituted the “introduction” of an advertisement, and referenced to a few other cases where courts found that communications are “advertisements” when the call “leads” the recipient to other materials.

Based on its finding, the court granted Plaintiff’s summary judgment motion as to the prerecorded calls at issue and awarded him a whopping . . . wait for it . . . $6,000 in statutory damages. Maybe after taking out fees and costs there will be a little money left to get Mr. Bojangles something nice like a new collar, or a couple of cans of Fancy Feast.  But at least we all get a valuable lesson here: although a prerecorded message might be strictly informational on its face, chances are prior express written consent will still be required to send it if the message “introduces” or “leads” to other materials that promote the caller’s goods or services.