Wellpath, LLC offers medical and behavioral healthcare to persons in jails, prisons, and inpatient and residential treatment facilities. It might be surprising, then, that the company allegedly has chosen to advertise via unlawful telemarketing, a method which arouses such strong psychological reactions in consumers. The complaint for this class action alleges that Wellpath sends advertising text messages to consumers in violation of the Telephone Consumer Protection Act (TCPA).
Congress passed the TCPA in 1991, when the proliferation of automatic telephone and messaging systems resulted in an explosion of the telemarketing business. Its hope was to give consumers some control over the advertising messages they received.
The TCPA makes it unlawful for a company to make non-emergency calls to consumer cell phones using automatic dialing systems or artificial or prerecorded voices unless the consumer has given prior express written consent to receive such calls. The term “calls” includes normal voice-to-voice calls, voicemails, and text messages.
In this case, plaintiff Jillian Barnett received a text message on her cell phone from Wellpath on February 4, 2019. The message said, “New Year, New You, New Job? It’s Jaci w/Wellpath! Seeking Mental Health Professionals for the Ma Dept of Corrections! Great pay & Benefits. Reply yes for info!”
Does this fit the definition of telemarketing? The complaint argues that it does. “The message constitutes dual purpose telemarketing because among other things they [sic] inquire about [Barnett’s] employment plans and are sent with the intent to solicit [Barnett] to use [Wellpath’s] staffing services.” It adds, “The information contained in the message advertises [Wellpath’s] ‘Great pay & Benefits,’ which [Wellpath] sends to promote its business.”
The complaint argues that the “impersonal and generic nature” of the message is a sign that it was sent as part of a mass mailing campaign with the use of an automatic dialing system.
Barnett claims that she never gave Wellpath her prior express written consent to receive such messages.
The class for this action is all persons