Rite Aid Wins Summary Judgment in TCPA Class Action Over Flu Shot Reminder Calls

A New York U.S. District Court Judge granted summary judgment in favor of defendant Rite Aid Headquarters Corp. in a putative TCPA class action involving flu vaccine reminder calls. The opinion in Zani v. Rite Aid Headquarters Corp., 14-cv-9701, was recently unsealed after originally being filed under seal on March 30, 2017. In Zani, the court found that Rite Aid’s call to the plaintiff’s cellphone that used a pre-recorded voice to remind him to get his flu shot fell under what the Court referred to as the “Health Care Rule,” which exempted the call from the prior written consent requirement for telemarketing calls under the TCPA.

Plaintiff Zani received a single flu shot reminder call in 2014. The record showed that Rite Aid made these calls only to individuals who had received a flu shot from Rite Aid the previous year, and Zani was one of those individuals. It was undisputed that in connection with his previous shot, Zani signed a flu shot form and provided Rite Aid with his cellphone number. It was also undisputed that, in connection with previous prescription refills, Zani signed several written notices agreeing to be contacted by Rite Aid “about refill reminders . . . or health related benefits and services.”

Armed with these facts, Rite Aid sought summary judgment, arguing (among other things) that the flu shot reminder call fell under the Health Care Rule, which the FCC adopted under the TCPA in October 2013. That rule exempts calls that deliver a “health care message” made by health care providers regulated by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) from any consent requirement where the calls are made to residential land lines and from the requirement for prior express written consent when the calls are made to cellphones. 47 C.F.R. § 64.1200(a)(2). Rite Aid argued that the rule applied and exempted the call from the requirement for written consent and that Zani had supplied the requisite consent when he provided Rite Aid with his cellphone number. Zani countered that Rite Aid’s own documents characterized flu shot communications as “marketing,” which showed that the call Zani received had a marketing purpose (to sell flu shots) and that the forms Zani signed did not meet the heightened written consent requirements for telemarketing calls.

In agreeing with Rite Aid, the court concluded that the call at issue delivered a “health care message” because it (1) concerned the availability of a prescription medication; (2) was made within an established health care treatment relationship; and (3) concerned the individual healthcare needs of Zani. The court was careful to emphasize that although the presence of those three conditions was sufficient to show that the call delivered a health care message, the court was not holding that all three conditions were necessary for a call to fall within the Health Care Rule.

The court easily dispatched Plaintiff’s argument that the underlying marketing purpose of the call prevented it from falling under the Health Care Rule by pointing out that the plain text of the regulation enacting the rule denotes that it is an exception to the consent requirements imposed on telemarketing calls; meaning if a call relays a health care message, it does not require written consent despite its marketing purpose. Otherwise, the court reasoned, the Rule would be superfluous because it would only exempt calls from the written consent requirement that are already exempt.

This ruling is a victory for pharmacies and other health care providers—and for their patients who rely on timely notifications regarding their treatment options—in that it reinforces the understanding that health care messages are exempt from the heightened consent requirements that attach to telemarketing calls, even if the calls concern medicines available for purchase and thus might be alleged by a plaintiff to have an underlying marketing purpose.

Bradley J. Andreozzi

About the Author: Bradley J. Andreozzi

Bradley Andreozzi defends clients in high-stakes civil litigation, with a particular focus on class action trials and appeals. Brad is among the relatively small group of lawyers who have tried class actions before juries. He also has won pretrial dismissals and defeated class certification in courts across the country and prevailed on appeal in defeating purported billion-dollar class claims. Brad has a reputation for innovative arguments that limit or defeat claims and for the strategic use of motion practice to position cases for an early cost-effective resolution or limit the size and exposure of the case should it move forward. In addition to his trial work, Brad has won appeals in virtually every federal appellate court, including the U.S. Supreme Court.

Justin O. Kay

About the Author: Justin O. Kay

Justin Kay advises and defends business clients regarding their interactions and communications with consumers. He appears regularly on behalf of clients before federal and state courts, federal agencies and independent self-regulatory bodies, such as the National Advertising Division of the Better Business Bureau. Justin’s practice focuses on defending clients in the growing number of complex class actions arising under federal and state consumer protection and privacy laws such as the federal Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act. He is a deputy leader of the litigation practice group.

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