Weingrad v. Top Healthcare Options: Nine Calls, One Answered, and Not Enough for a Federal Case (Yet)

The Calls

The plaintiff's residential number had been on the National Do Not Call Registry since before December 2022. On December 13 and 15, 2023, a Florida health insurance marketer called him nine times from nine different local numbers. He answered one. The caller said they were with "National Health Enrolment Centre" and that "the purpose of the call was to sell [him] health insurance."

He filed a class action under the Telephone Consumer Protection Act (TCPA) and the Pennsylvania Telemarketer Registration Act, since the company wasn't registered as a telemarketer with the state.

Problem One: Only One Solicitation

A Do Not Call claim requires "more than one telephone call within any 12-month period" that violates the rules, meaning more than one telephone solicitation. The court followed a New York decision holding that missed, blocked or declined calls aren't solicitations, because there's nothing to show what they were for.

The plaintiff answered one call. The other eight came from eight different numbers, and he alleged nothing about their content. The court noted cases going the other way involved calls from the same number, voicemails or callbacks that revealed the purpose. Different numbers with no content didn't get there.

Problem Two: Not Enough About the One Call

The court also wanted more about the answered call. Saying its purpose was "to sell health insurance" was a conclusion without "further factual enhancement." The plaintiff argued the caller's name and the open enrollment timing filled the gap. The court disagreed, comparing cases where plaintiffs described specific products, websites or further conversations.

Problem Three: Willfulness

For treble damages, the plaintiff pointed to the fake business name and the rotating numbers as proof the company knew it was breaking the law. A bare allegation that violations were "negligent, willful or knowing," plus the false name, wasn't enough.

The State Claim: Only the Attorney General Can Sue

Pennsylvania's General Assembly gave enforcement of the Telemarketer Registration Act to the Attorney General, so there's no private right of action. The plaintiff tried to route it through Pennsylvania's consumer protection law instead, but that law only covers people who purchase or lease goods or services and suffer a loss. Lost battery life and phone storage don't count when he didn't buy anything from the company. That claim was dismissed with prejudice.

Injunctive Relief

No calls were alleged after December 2023, so there was no plausible threat of future harm. Past exposure to illegal conduct isn't enough for injunctive relief standing.

The TCPA claim and injunctive relief were dismissed without prejudice, so the plaintiff could amend.

Takeaways

• Answer, or document. Unanswered calls from rotating numbers may not count as solicitations without voicemails, callbacks or other content.
• Say what was pitched. Describe the product, the script and anything the caller offered.
• Compare other courts. Some judges infer a solicitation purpose from repeated calls from the same number; different numbers with no content are harder.
• State registration laws may lack a private right. Check before pleading them.

Read the Eastern District of Pennsylvania memorandum.