Earlier this year, United HealthCare Services, Inc. (“Defendant”) agreed to settle a class action robocall lawsuit for $2.5 million. In Samson v. United Healthcare Services, Inc, filed in the United States District Court for the Western District of Washington, Defendant was sued for allegedly violating the robocall provisions of both the Revised Code of Washington (“RCW”) and the Telephone Consumer Protection Act (“TCPA”). The RCW contains provisions colloquially known as a “Mini-TCPA,” or Washington’s own set of telemarketing laws, which are designed to regulate the delivery of intrastate telemarketing communications. Every day, numerous complaints under the TCPA and/or its state analogs are filed across the country.
The TCPA and RCW require that telemarketing companies obtain prior express consent before contacting consumers using an automatic telephone dialing system (“ATDS”) or prerecorded voice. If companies do not obtain prior express consent, they expose themselves to being named as defendants in robocall lawsuits. Under both the TCPA and RCW, robocall claims are often brought as private rights of action for the recovery of statutory damages.
Robocall Claims in the Wake of Facebook
As our readers are aware, Facebook settled a longstanding circuit split by determining that an ATDS (within the meaning of the TCPA) must have the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Prospective TCPA plaintiffs faced new hurdles after the United States Supreme Court decided in Facebook that “random or sequential number generator” modifies both the “store” and “produce” language contained in the statute. However, opportunistic plaintiffs continue to file ATDS claims by capitalizing on a single sentence in footnote 7 of the Facebook decision. This sentence reads: “For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” In Samson, Plaintiff carefully worded his operative ATDS allegation in an effort to employ footnote 7 as a basis to prevail in his action against Defendant.
The Factual Allegations in Samson
In Samson, Plaintiff alleged that he received several dozen prerecorded voice calls on his cellphone promoting Defendant’s healthcare services. Plaintiff claimed that the prerecorded messages were sent using an ATDS, citing to the fact that there was a pause before the start of each prerecorded voice message. In an attempt to strengthen his robocall lawsuit, Plaintiff alleged that the equipment utilized by Defendant “not only had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, but was programmed to sequentially or randomly access stored telephone numbers to automatically call such numbers.”
On at least two occasions, Plaintiff claimed that he attempted to opt out of these telemarketing communications by speaking with a live agent. Plaintiff alleged that he never conducted business with Defendant, nor consented to the receipt of the subject telemarketing calls. On January 15, 2025 the Court granted preliminary approval of the $2.5 million settlement.
Maintain Strict Compliance Procedures to Avoid Robocall Lawsuits
As demonstrated by the Samson settlement, robocall lawsuits carry significant potential liability. Whether filed pursuant to the ATDS provisions of the TCPA, or a “Mini-TCPA,” companies are financially liable for every individual telemarketing communication that they deliver.
Companies can decrease their odds of being named in robocall lawsuits if they comply with each respective statute’s consumer consent requirements. As a bright line rule, when utilizing an ATDS to place marketing calls/texts to cellphones or sending prerecorded marketing messages to any phone (cellphone or landline), companies must obtain prior express written consent from consumers.
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