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Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind.

First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL 1251108 (E.D. Wis. Mar. 18, 2024), the United States District Court for the Eastern District of Wisconsin granted the defendant’s motion for summary judgment, finding that an unsolicited advertising call must “encourage the purchase of any good or service.” Id. at *6 (emphasis added). The defendant’s services at issue, however, were being offered for free. Specifically, the defendant contracted with the Wisconsin Medicaid program to provide free nutritional consulting to state-funded plan holders. Defendant promoted its free services via calls and texts and would bill the state a fee “per eligible member per month, whether or not the member utilized [defendant]’s services.” Id. at *1. Plaintiff, a state-funded health plan user, sued defendant for approximately 20 calls and texts he received promoting defendant’s services. Id. Defendant moved for summary judgment on the grounds that, notwithstanding plaintiff’s advertising allegations, the calls and texts were distinct; they were not actually solicitations because they promoted a free service—at least to the plan holders. The court agreed and ruled in favor of the defendant.

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