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District Court Dismisses TCPA Class Action for Pharmacy Reminder Calls Under "Emergency Purposes" Exception

A federal district court recently dismissed a putative Telephone Consumer Protection Act (“TCPA”) class action against CVS Health Corporation (“CVS”) Lindenbaum v. CVS Health Corp., Case No. 17-CV-1863 (N.D. Ohio Jan. 22, 2018), because the reminder calls to renew prescriptions fell within the “emergency purposes” exception of the TCPA.

Plaintiff Shari Lindenbaum alleged that CVS made at least six prerecorded prescription reminder calls to her cellphone in early 2017. She claimed that she received these calls because she had a “recycled” cell phone number — a number that once was used by an individual from whom the caller obtained consent but had since been reassigned to a different individual — and that she had never provided “prior express written consent” to receive the calls.  CVS asked the court to dismiss Lindenbaum’s claims, primarily arguing that the calls fell within the TCPA exception for “emergency purposes.”

The TCPA exempts calls “made for emergency purposes” from liability under the statute. 47 U.S.C. § 227(b)(1)(A).  Federal law defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.”  47 C.F.R. § 64.1200(f)(4). The district court followed the Federal Communications Commission’s suggestion that the “emergency purposes” exception should be interpreted broadly in finding that the alleged CVS calls fell within that exception.

The court found that the prescription reminder calls were “necessary,” relying on a case from the Eastern District of Missouri, Roberts v. Medco Health Solutions, Inc. No. 4:15 CV 1368 CDP, 2016 WL 3997071, at *3 (E.D. Mo. July 26, 2016)which found that “in many instances a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.” The Roberts court had found that the exception’s plain language did not limit the exception to large-scale emergencies such as power outages, severe weather, terrorist attacks, or AMBER alerts, as Lindenbaum had argued.  The court also found that the CVS calls were made for the “health and safety of consumers” because “information about where, when, and how to refill a prescription concerns the health and safety of consumers, who may be reliant on their medication.”

The court noted that this exception would not necessarily apply to all pharmacy reminder calls, relying on a case from the Northern District of California, St. Clair v. CVS Pharmacy, Inc., 222 F. Supp. 3d 779, 780 (N.D. Cal. 2016).  The court agreed with St. Clair that that there could not be an “emergency” if the customer already had told the pharmacy that she did not want or need the reminder calls.  However, Lindenbaum did not allege any affirmative action she took to tell CVS that it was calling the wrong number or that she did not want to receive the calls.  In absence of such affirmative action, even if Lindenbaum had never consented to receive the calls, the calls would fall within the “emergency purposes” exception.  Accordingly, the court held that the calls were exempt from liability and dismissed the action.

Of note, because the calls in question were deemed to be “made for emergency purposes,” they are outside the scope of the TCPA entirely, rather than falling within an exception to the TCPA such as the “health care purposes” exception. 47 U.S.C. § 227(b)(1)(A)Accordingly, the calls did not require consent in any form. This means that such calls are not subject to the FCC’s pronouncements on calls to reassigned numbers, including those set forth in the FCC’s July 2015 TCPA Order (“July 2015 Order”) (previously discussed here). Pursuant to that Order, calls to reassigned numbers (even where the caller has TCPA-compliant consent from the previous subscriber) are deemed to be made without consent, and all calls to a reassigned number (except for the first call post-reassignment) may be TCPA violations.  This ruling therefore presents a powerful defense in certain instances to TCPA claims predicated on calls to preassigned numbers.

Copyright 2019 K & L Gates

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About this Author

Joseph C. Wylie II, KL Gates Law Firm, Commercial Litigation Attorney
Partner

Mr. Wylie’s practice focuses on complex class-action defense and complex commercial litigation with a particular emphasis on consumer and securities matters. He represents clients in defending against a wide range of individual and class-action consumer claims, including consumer fraud actions and claims brought under the Telephone Consumer Protection Act. He also represents investment advisers and mutual fund families in connection with government investigations and investor claims, including claims made under the Investment Company Act. Mr. Wylie also represents...

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Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney
Partner

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial disputes, including contract and business tort litigation and internal investigations.

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Lexi Bond, Commercial Litigation, KL Gates Law Firm
Associate

Alexandria (Lexi) Bond focuses her practice on commercial litigation, including the representation of clients in contractual disputes, business torts, false advertising and unfair competition claims, consumer complaints, and investment company and securities litigation. Her investment company litigation experience includes representing investment advisers and independent trustees in class actions, derivative lawsuits, and actions brought pursuant to Section 36(b) of the Investment Company Act of 1940. Ms. Bond also practices in the areas of regulatory compliance, internal investigations,...

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