National Pharmacy Avoids TCPA Claim for Flu Shot Robocall under Health Care Rule Exemption

A judge in the Southern District of New York recently held that an automated, pre-recorded message sent on behalf of Rite Aid informing recipients to obtain a flu vaccine shot was exempted from the Telephone Consumer Protection Act (TCPA), by virtue of the FCC’s Health Care Rule exemption. The exemption permits health care providers to contact customers in order to convey important "health care messages" as defined and covered by HIPAA.

The case, Zani v. Rite Aid Headquarters Corp., 14-cv-9701, involved an automated, pre-recorded message sent on behalf of Rite Aid informing recipients to obtain a flu vaccine shot from their local Rite Aid Pharmacy. In 2013, the putative plaintiff went to his local Rite Aid pharmacy and received a flu shot. He provided Rite Aid with his cell phone number and signed a privacy notice consenting to receiving health related communications by Rite Aid. Roughly a year after receiving his flu shot, he received a voice message reminder to get another flu shot at Rite Aid, as did all previous customers who obtained a flu shot and signed the privacy notice. More ›

Selling a Car, Texting and the TCPA

After a car dealership (allegedly) texted a person who listed a car for sale on Craiglist, the would be seller filed a class action suit against the dealer claiming the texts were unsolicited, made without consent, and violated the Telephone Consumer Protection Act (TCPA).

The Florida federal court, in light of the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ordered briefing on whether texting created standing for the Craiglist seller to sue. On review, the federal court concluded receiving prohibited text messages and calls amount to sufficiently concrete and particularized harm. The court acknowledged other cases from around the country in which courts held that violations of the TCPA alone do not create injury for standing to sue but disagreed with this analysis.  Instead, just the unsolicited telephone contact was the injury and any analysis of how the person was contacted does not matter for standing.  With ongoing disagreement among courts throughout the country on what constitutes an injury sufficient to bring suit in federal court, expect rulings to continue to come down on both sides of the issue until the appellate courts provide further guidance.

The case is Mohamed v. Off Lease Only, Inc., Case No. 15-23352-Civ-COOKE/TORRES.

87 Debt Collection Calls in 3 Weeks? Maybe too much

We return to the issue of retail debt collection with a case out of Illinois in which a federal judge has asked a jury to decide if a debt collection agency’s constant calling to a Banana Republic credit card holder violated the Fair Debt Collection Practices Act (FDCPA). The debt collector called the cardholder three to five times each day, with no two calls made less than two hours apart, for a total of eighty-seven calls between December 5 and December 23. On the 87th call, the cardholder answered and told the debt collector she could not pay the debt and to stop phoning her. Even though the debt collector did not call the cardholder again, the federal court refused summary judgment and decided a jury should review whether the volume and pattern of calling amounted to harassment under the FDCPA. We previously reported on a case out of California where a federal judge dismissed an FDCPA claim under the same circumstances and against the same debt collector. More ›