September 27, 2021

Volume XI, Number 270

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September 24, 2021

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Pharmacy Obtains Dismissal of TCPA Class Under Emergency Exception For Communicating COVID-19 Procedures

The TCPA does not prohibit all calls or texts.  Among other exceptions, it carves out calls or texts made for an emergency purpose.  The FCC has determined that Congress intended a “broad” interpretation of this emergency exception.  See In the Matter of the Tel. Consumer Prot. Act. of 1991, 7 F.C.C. Rcd. 2736 (1992).  And Courts interpreting and applying the emergency exception have taken the same view, typically concluding that any calls “necessary in any situation affecting the health and safety of consumers” qualify for the emergency exception.

A recent decision out Washington applied this exception and granted a pharmacy’s motion to dismiss.  See Gabertan v. Walmart, Inc., 2021 U.S. Dist. LEXIS 41988, *2 (W.D. Wash. March 5, 2021).  The text–which the Plaintiff provided verbatim in his complaint–provided an update about COVID-19 procedures for pharmacy pickup:

Are you 60+, high-risk, self-quarantining, or have COVID-19 symptoms? Use curbside pickup or have your Rx mailed. More info [at the link to pharmacy website.]

Seeking dismissal, the pharmacy argued (“persuasively,” according to the District Court), that the text “was facially an informational communication made for an emergency purpose.”  The District Court agreed.  It noted that the the FCC “unilaterally issued a Declaratory Ruling” that “concluded that the COVID-19 pandemic is an imminent health risk”; further, the Court explained that FCC guidance interpreting the TCPA “does not prohibit health care providers from making informational calls necessitated by it which are directly related to the pandemic’s health risks to the public.”

The Court rejected the plaintiff’s argument that this text was “akin to one promoting a commercial delivery service.”  Unlike such a service, the Court explained, the text here came “from a health care provider, providing information to its customer about safe access to prescription medications during the pandemic.”  The Court also distinguished earlier decisions refusing to apply the emergency exception.  Both cases, the Court explained, pre-dated the pandemic, and neither case involved actual emergencies. In contrast, the Court concluded, for the text here “the pandemic” was an emergency and the information related directly to it.

Finally, the Court also rejected the argument that dismissal was improper because the exception was an “affirmative defense” on which the pharmacy bears the burden of proof.  Rather, the Court explained, the “entirety of the text at issue is presented on the face” of that complaint.  Given that, the Court reasoned it could resolve the issue on the pleadings and “as a matter of law.”

This a good win for TCPA readers to keep in mind as they navigate the interplay between the pandemic and the TCPA.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 68
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
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