UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

MELISSA WILKES and BENJAMIN 

WILKES, on behalf of themselves and all 

others similarly situated, 

 Plaintiffs, 

v. Case No. 4:16-CV-38 JVB 

CARESOURCE MANAGEMENT GROUP 

CO., CARESOURCE INDIANA, INC., and 

ELIZA CORPORATION, 

 Defendants. 

OPINION AND ORDER 

 This matter is before the Court on Defendants’ Caresource Management Group Co. and 

Caresource Indiana, Inc.’s (“Caresource”1) motion for summary judgment (DE 51). Plaintiffs 

Melissa Wilkes and Benjamin Wilkes filed a two-count complaint alleging violations of the 

Telephone Consumer Protection Act.2

 Defendants seek summary judgment on both counts. 

A. Summary Judgment Standard 

A motion for summary judgment must be granted “if the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 

of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment, after 

 

1

 There is a third Defendant, Eliza Corporation, who has not joined in the motion or filed its own motion for 

summary judgment. 

2

 Plaintiffs’ Complaint was filed on behalf of themselves and all others similarly situated, but no class has 

been certified. 
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adequate time for discovery, against a party “who fails to make a showing sufficient to establish 

the existence of an element essential to that party’s case, and on which that party will bear the 

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

 A party seeking summary judgment bears the initial responsibility of informing a court of 

the basis for its motion and identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, which it believes 

demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving 

party supports its motion for summary judgment with affidavits or other materials, it thereby shifts 

to the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of 

Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). 

 Rule 56(e) specifies that once a properly supported motion for summary judgment is made, 

“the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth 

specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In 

viewing the facts presented on a motion for summary judgment, a court must construe all facts in 

a light most favorable to the non-moving party and draw all legitimate inferences and resolve all 

doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate the weight of 

the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but 

instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 

477 U.S. 242, 249–50 (1986). 

B. Facts 

Having read all the briefs in this case, including Plaintiffs’ proposed sur-response, and 
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having reviewed all evidence, and viewed it in the light most favorable to the Plaintiffs, the Court 

finds the following facts pertinent to Caresource’s motion for summary judgment: Plaintiffs are a 

husband and wife who applied for health insurance coverage under the Affordable Care Act 

through the Health Insurance Marketplace (“Marketplace”) at healthcare.gov. In their application, 

the Plaintiffs provided Melissa Wilkes’s cellular telephone number. The website contained a 

disclosure that an applicant’s information may be shared with insurance companies that issue 

plans. 

 When consumers select a plan and submits an application to the Marketplace, their 

applications (including contact information) are reduced to an extract file, which is then 

transmitted to the insurance provider. Once an insurer receives the extract file, they are bound to 

provide coverage to the applicant. Plaintiffs received coverage from Caresource for 2015 following 

this method, and Caresource received Plaintiffs contact information through the extract file. 

 In August 2015, Plaintiffs’ fourth child was born, and they sought to add him to their 

insurance coverage. During this process, Plaintiff Melissa Wilkes called and spoke with 

Caresource representatives. She provided both her telephone number and her husband’s telephone 

number to the representatives. 

Plaintiffs made their final premium payment in November 2015, and as mandated by the 

Affordable Care Act, their health insurance policy automatically renewed for the 2016 calendar 

year. On January 28, 2016, Melissa called Caresource requesting that their enrollment be 

terminated. Caresource directed her to instead terminate coverage through the Marketplace, which 

she did. Similar to an application for coverage, the termination of coverage is provided to an 

insurance company through an extract file. Defendants received the extract file terminating 
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Plaintiffs’ coverage effective February 12, 2016. However, Caresource was processing claims for 

the Wilkes family through May 2016. 

Caresource contracted with Defendant Eliza Corporation (“Eliza”) to place automated 

“welcome calls,” which were to “share information with Indiana Marketplace members regarding 

their healthcare benefits and assist them in accessing health care providers and wellness 

programs.” (DE 71 at 10). Five of these welcome calls were placed to Melissa’s cell phone number 

between April 14 and April 27, 2016, well after the family’s coverage had ended. On April 27, 

2016, Melissa called Caresource inquiring about the automated calls. A representative of 

Caresource offered to put Melissa on a do-not-call list, and she accepted that offer. No further calls 

were made to Plaintiffs after that date. 

C. Analysis 

The issues before the Court are simple. First, the Court must decide whether Defendants 

 had prior express consent to call Plaintiffs under the Telephone Consumer Protection Act. Next, 

if Defendants had prior express consent to call the Plaintiffs, the Court must decide when that 

consent was revoked. If any calls were made to the Plaintiffs after the consent was revoked, the 

Plaintiffs prevail. If not, the Defendants prevail. 

 The Telephone Consumer Protection Act (“TCPA”) states that “[i]t shall be unlawful for 

any person . . . to make any call (other than a call . . . made with the prior express consent of the 

called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . 

. to any telephone number assigned to a . . . cellular telephone service.” 42 U.S.C. § 227(b)(1)(A). 

Persons can give consent to be called simply by providing their phone numbers as a contact number 

with a company. See In Re Rules and Regulations Implementing the Telephone Consumer 
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Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (1992). Automated calls must be “reasonably 

related” to the purpose for which a person provides their telephone number. Blow v. Bijora, Inc., 

855 F.3d 793, 804-5 (7th Cir. 2017). “[A]n effective consent is one that relates to the same subject 

matter as is covered by the challenged calls.” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 

1037, 1044-5 (9th Cir. 2017). 

 In the present case, Plaintiffs gave Defendants express consent to be called. They provided 

Melissa’s cell phone number as part of their application for insurance, which was then transmitted 

to Defendants via the extract file. Furthermore, while the welcome calls were made to Plaintiffs 

mistakenly after they had ended their coverage and did not apply to them, the content of those 

messages – health care benefits, providers, and wellness programs – were reasonably related to the 

insurance coverage for which Plaintiffs originally provided their cell phone number. 

 Having decided that Defendants had prior express consent to call Plaintiffs at their provided 

cell phone number, the Court next turns to when Plaintiffs revoked their consent to be called. 

Plaintiffs initiated their consent to be called through submitting their application for insurance on 

the Marketplace. If, in turn, Plaintiffs’ consent to be called was revoked when they terminated their 

coverage through the Marketplace, Defendants’ welcome calls would be in violation of the TCPA. 

On the other hand, if, as Defendants argue, Plaintiffs did not revoke their consent to be called until 

April 27, 2016, when Melissa Wilkes accepted a Caresource representative’s offer to be placed on 

a do-not-call list, then the TCPA was not violated. 

 The Federal Communications Commission has stated that “[c]onsumers have the right to 

revoke consent, using any reasonable method including orally or in writing.” In the Matter of Rules 

and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 

7961, 7996 ¶ 64 (2015). Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), 
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a Court of Appeals for the Ninth Circuit case, is instructive. In Van Patten, the plaintiff signed up 

for a gym membership, and in doing so, provided his cell phone number. Id. at 1039. He called the 

gym to cancel his membership three days later. Id. Three years later, the gym, under new 

ownership, sent the plaintiff automated text messages advertising the change and inviting the 

plaintiff to return as a member of the gym. Id. The plaintiff contended that he revoked his consent 

by cancelling his gym membership and “sufficiently communicated his desire to no longer be 

contacted.” Id. at 1048. The court disagreed, holding that “[r]evocation of consent must be clearly 

made and express a desire not to be called or texted.” Id. A clear revocation, according to the court, 

could include simply telling the defendant not to contact him on his cell phone. Id. 

 In the present case, simply canceling insurance coverage on February 12, 2016, through 

the Marketplace was not sufficient to revoke consent to be called under the TCPA. The welcome 

calls that were made to her cell phone between April 16 and April 27, 2016, were, therefore, not 

in violation of the TCPA. On the other hand, Melissa plainly and unequivocally told Defendants 

she no longer wished to receive calls on April 27, 2016. This was effective revocation of her 

consent to be called, which the Defendants honored. Accordingly, Defendants are entitled to 

summary judgment. 

D. Conclusion 

For the foregoing reasons, Defendants’ Caresource Indiana Inc. and Caresource Management 

Group Co.’s motion for summary judgment (DE 51) is GRANTED. Defendants’ motion for a 

hearing (DE 54) and Plaintiffs’ motions to take judicial notice (DE 73), motion for leave to file 

surresponse (DE 81), and motion to seal (DE 82) are DENIED as moot. 

 SO ORDERED on September 27, 2018. 
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s/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN 

UNITED STATES DISTRICT JUDGE