Last week, the Northern District of Ohio dismissed a Telephone Consumer Protection Act (TCPA) case filed against CVS Health Corp., Lindenbaum v. CVS Health Corporation. The plaintiff sued CVS for placing at least six prerecorded prescription reminder calls to her cell phone, for which she allegedly had not provided prior express consent. She asserted that the calls were likely meant for the previous subscriber of the cell phone number, which had recently been reassigned to her.
CVS filed a motion for judgment on the pleadings at the outset of the case. CVS argued that the calls fell within the TCPA’s “emergency purposes” exception, which exempts from liability any calls that are “necessary in any situation affecting the health and safety of consumers.” The court agreed with CVS, finding that the prescription reminders were clearly made for the health and safety of consumers and were necessary because “in many instances, a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.” The court noted that the Federal Communications Commission, which promulgates regulations under the TCPA, has recognized that the “emergency purposes” exception should be interpreted broadly.
The court found the plaintiff’s reliance on a similar case, St. Clair v. CVS Pharmacy, misguided. There, the Northern District of California held that the prescription reminder calls did not fall under the “emergency purposes” exception because the plaintiff had received reminder calls after specifically asking CVS to stop. The St. Clair court therefore held that there could not be an “emergency” when the customer had already told CVS he did not want or need the calls. The court noted that, unlike in St. Clair, the plaintiff failed to allege she took any action to inform CVS it was calling the wrong number. Accordingly, St. Clair was inapposite, and the “emergency purposes” exception shielded CVS from TCPA liability.