Audrey Fober v. Mgmt. & Tech. Consultants, LLC
886 F.3d 789
| 9th Cir. | 2018Background
- Plaintiff Audrey Fober enrolled in a Health Net of California insurance plan and completed an Enrollment Form providing her phone number and consenting to Health Net’s disclosure of her health information "for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs."
- Health Net assigned Fober to a primary care physician (Dr. Barry Schwartz, via ADOC); Regal Medical Group managed ADOC and transmitted Fober’s contact and visit information to MTC.
- MTC, under contract with the Heritage Provider Network, placed several automated quality-of-care/satisfaction survey calls to Fober about her visits with Dr. Schwartz.
- Fober sued MTC under the Telephone Consumer Protection Act (TCPA), alleging unlawful autodialed calls to a cellular number.
- MTC moved for summary judgment asserting Fober gave "prior express consent" to such calls by signing the Enrollment Form; the district court granted summary judgment for MTC.
- The Ninth Circuit affirmed, holding the Enrollment Form’s broad consent encompassed the calls MTC placed (even though MTC was a third party, not Health Net itself).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fober gave "prior express consent" under the TCPA for MTC’s autodialed calls | Consent was limited to calls by Health Net about Health Net’s services, not calls about an assigned doctor or calls from third parties | Enrollment Form authorized disclosure for quality-improvement purposes, and that consent covers calls assessing care quality even if placed by a third party | Court held Enrollment Form granted prior express consent for calls assessing health-care quality, including those by MTC |
| Whether providing a phone number or consenting to disclosure suffices to permit indirect third-party calls | Providing number/disclosure does not alone permit unrelated calls; scope must be topic-limited | Consent may be to a topic/purpose; third parties receiving data can call for that authorized purpose | Court held consent is topic/purpose-based; third parties receiving information may call for the authorized purpose |
| Whether caller must act "on behalf of" the original disclosing entity (Health Net) | Plaintiff argued caller must be calling on Health Net’s behalf to be covered by consent | No statutory requirement that caller act on behalf of disclosing entity; scope of consent controls | Court held no such requirement; scope of consent governs whether a call is permitted |
| Whether Enrollment Form language was ambiguous | Fober argued the form was ambiguous and did not clearly authorize these calls | MTC argued language was broad and unambiguous, authorizing disclosures and downstream calls for quality improvement | Court found the Enrollment Form broad (not ambiguous) and sufficient to convey consent for the calls |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (TCPA protects against unsolicited automated calls; consent excludes expected calls)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (consent scope depends on transactional context; calls must relate to reason number was provided)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014) (consent analysis focuses on topic of consent, not how number was obtained)
- Baisden v. Credit Adjustments, Inc., 813 F.3d 338 (6th Cir. 2016) (consent to disclose health information can permit downstream third-party callers for authorized purposes)
- Metro. Life Ins. Co. v. Parker, 436 F.3d 1109 (9th Cir. 2006) (standard of review: de novo review of summary judgment)
- US W. Commc’ns, Inc. v. Jennings, 304 F.3d 950 (9th Cir. 2002) (presumption of validity for properly promulgated FCC regulations)