Rite Aid HDQTRS. Corp. (“Rite Aid”) has recently sought summary dismissal of a putative class action lawsuit pending in the Southern District Court of New York alleging violations of the Telephone Consumer Protection Act (“TCPA”). Rite Aid’s exposure to TCPA liability stems from its use of prerecorded phone calls to certain pharmacy patients’ cellphones placed to remind them to get flu shots for the upcoming flu season.

What are the arguments that Rite Aid has made in support of dismissal of the TCPA suit?

Rite Aid has argued that it cannot be held liable for the immunization reminder phone calls for the following reasons:

  • The Federal Communications Commission’s (“FCC”) Healthcare Rule precludes liability because no prior express consent is required for such calls so long as the recipient has previously provided his/her cell phone number;
    • Rite Aid has argued that immunization reminders, such as the one at issue, are the precise healthcare messages to which the Healthcare Rule applies.
  • The Federal Trade Commission has exempted from the Telemarketing Sales Rule healthcare-related prerecorded message calls that are otherwise subject to the Health Insurance Portability and Accountability Act (“HIPAA”), such as the calls at issue;
  • Even though consent was not required to place the healthcare-related call, Rite Aid claims that it obtained sufficient consent for the calls by way of:
    • Plaintiff’s provision of his phone number to a healthcare provider, an act that the FCC has deemed to be prior express consent for healthcare calls subject to HIPAA by a HIPAA-covered entity; and
    • Plaintiff’s signing various notices each time Plaintiff filled prescriptions with Rite Aid, which provided Rite Aid with express written consent to place the calls at issue.

Rite Aid’s motion is currently awaiting a decision by the Court.

Protect Your Business From TCPA Liability

We have written extensively about increased interest, from regulators and class action attorneys alike, in telemarketing calls placed to cell phones. Should Rite Aid lose on its motion, and a nationwide class ultimately be certified, Rite Aid could be exposed to hundreds of millions of dollars in liability. This should serve to reinforce the notion that, in today’s regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff or federal regulator brings suit for alleged telemarketing-related violations.