Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
By Jimmy H. Koo
Consumers can’t sue a company that made Affordable Care Act enrollment reminder robocalls for the government over alleged telemarketing law violations, a Virginia federal court held May 1 ( Cunningham v. Gen. Dynamics Info. Tech., Inc. , 2017 BL 144380, E.D. Va., No. 1:16-cv-00545, 5/1/17 ).
Dismissing the class complaint on derivative sovereign immunity grounds, the U.S. District Court for the Eastern District of Virginia found that the Centers for Medicare and Medicaid Services properly authorized General Dynamics Information Technology Inc. (GDIT) to make the phone calls about the ACA.
Petrina Hall McDaniel, a privacy and data security partner at Dentons in Atlanta, told Bloomberg BNA May 2 that the issue of derivative sovereign immunity is a “zero sum game.” Either government contractors are acting under authority validly conferred by the federal government or they aren’t, she said. However, it isn’t a blanket immunity and must be analyzed on a case-by-case basis, she said.
In Campbell-Ewald Co. v. Gomez, the U.S. Supreme Court held that the federal government and government contractors have qualified immunity and are exempt from the Telephone Consumer Protection Act (TCPA) claims—as long as the defendants can show they were lawfully acting on behalf of the government—McDaniel said. Companies making calls on behalf of the government must ensure they are working within the governmental grant of authority, she said.
Named plaintiff Craig Cunningham alleged that GDIT used an automatic telephone dialing system to call his mobile phone and left a pre-recorded message reminding him to enroll in the ACA. He alleged that, because he didn’t give permission to receive such calls, they violated the TCPA.
Dismissing the claim with prejudice, Judge Liam O’Grady said the U.S. Supreme Court’s decision in Yearsley v. W.A. Ross Const. Co. protects “federal contractors from both state and federal causes of action.” GDIT did exactly what it was authorized and instructed to do, the court concluded.
Kaufman & Canoles PC represented the plaintiff. Wiley Rein LLP and Davis Polk & Wardwell LLP represented GDIT.
To contact the reporter on this story: Jimmy H. Koo in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Donald Aplin at email@example.com
Full text of the court's opinion is available at http://src.bna.com/orr.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)