Rite Aid wants TCPA (pre-recorded phone call) lawsuit dismissed

Rite Aid pharmacy patients were mad as Hell over pre-recorded phone calls they received on their cell phones, reminding them to get a flu shot for the upcoming influenza season. A law firm filed a punitive class action lawsuit against the major pharmacy chain, for violating the Telephone Consumer Protection Act (“TCPA”) for using the pre-recorded calls to promote the sale of flu shots to pharmacy consumers. Notice how different it sounds when you compare “notifying patients of a healthcare condition” versus “advertising flu shots to pharmacy consumers.” Rite Aid officials defend their actions, arguing they did nothing wrong, and are protected by exceptions to the TCPA law prohibiting automated and pre-recorded communications to cell phones. Whether the argument that an exception should apply to Rite Aid is a matter for a jury, and the outcome may influence how other healthcare pill and product vendors conduct their business.

What is the Telephone Consumer Protection Act?

The TCPA, passed by Congress in 1991 limits the use of automated dialing equipment, artificial and pre-recorded phone messages used in commerce, without prior written consent[i]. The TCPA also covers the use of text messages and fax machines. The TCPA specifically prohibits solicitors from calling people’s homes during certain hours, from calling people on the National Do Not Call Registry, from calling homes using pre-recorded or artificial recordings, for example. Violations of the TCPA may be worth $500 per violation when consumers and subscribers report and take action against companies and entities that ignore the TCPA.

When Rite Aid made pre-recorded phone calls to its customers, attorneys representing those customers, argue that Rite Aid violated the TCPA provisions prohibiting pre-recorded calls by using them to sell flu shots. Rite Aid representatives disagree, stating that even if the pre-recorded calls were used for a marketing purpose, they are shielded from TCPA liability under the healthcare-related exception, making the calls permissible and not against the law.

A Healthcare Rule exemption to the TCPA rules prohibiting pre-recorded phone solicitation

The Federal Communications Commission (FCC), the agency that created the TCPA rules, created an exception to the application of the rules against pre-recorded phone calls and the other covered activities, where they apply to the healthcare industry. Health care messages may be sent without prior written consent. To be covered, the “health care messages” must be consistent with the HIPAA. The only problem is that the HIPAA privacy rule does not specifically define, “health care messages.” Despite the lack of a clear definition of “health care messages” there are several accepted subjects of communication that fall within the Healthcare Rule exception.

Healthcare messages regarding patient appointments and examinations, hospital instructions, lab results, prescription notifications and instructions for home healthcare have been accepted as appropriate health care messages. These activities are either logistic or instructional and are based on current or recent healthcare services. These are not marketing messages. The issue before the federal court, regarding Rite Aid’s use of pre-recorded messages is whether the pre-recorded calls were related to or necessary for healthcare services, consistent with HIPAA, and whether the exemption for health care messages applies to a reminder to obtain a flu shot.

Do you think Rite Aid’s messages were health care messages, within the exemption?

In a recent news article about this case it is reported that Rite Aid responded to the lawsuit and argued, “that immunization reminders, such as the one at issue, are the precise healthcare messages to which the Healthcare Rule applies.[ii]

Rite Aid also argues that even though it believes consent was not required to place (what it is calling) a healthcare-related call, that it otherwise had consent because the people called had previously given the Rite Aid pharmacy their phone numbers and by signing for prescriptions when they had them filled, they were giving express written consent to being notified.

If the federal district (trial court level) court finds that Rite Aid acted beyond the Healthcare Rule exemption, there could be significant punitive fines in the class action lawsuit. The determinations as to what constitutes health care messages are tricky, and if you allow one type of communication, what will happen with others – for example, so long as there is a reasonable tie to health care, are other marketing calls to be allowed?

As the telecommunication laws catch up with technology, the Zamparo Law Group will keep following and writing article summaries to keep us all up to date so when we see something wrong, we can say something and report it to the proper agencies and authorities.

If you are the victim of a violation of a consumer rights law, such as the TCPA, take good notes and call the Zamparo Law Group for a case review to find out if you have a legal right to recovery of damages. The lawyers at the Zamparo Law Group are advocating for consumers like you!

The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.


[i] Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227

[ii] Lexology, Is Rite Aid Immune from TCPA Liability? Jun. 8, 2016.

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Telephone Consumer Protection Act in news and courts

Victoria’s Secret and the United States Supreme Court (“SCOTUS”) made recent news in connection with the violation and litigation of the Telephone Consumer Protection Act (“TCPA”). The TCPA is one of the lesser-known federal consumer rights laws. Many consumers know they have rights when it comes to phone calls and text messages, beyond a do-not-call list. In fact, consumer’s rights are easy to learn and violations are easy to spot when you know what to look for. The TCPA restricts telemarketing calls and the use of automatic dialing systems, prerecorded voice messages, text messages and faxes. The restrictions protect consumers from unsolicited advertisements and individuals with whom we do not otherwise have an established business relationship. Violations of the TCPA are often litigated in class action lawsuits and a recent SCOTUS opinion better protects plaintiff consumers.

Victoria’s Secret customers may be more cautious when agreeing to receive the company’s ad texts.

The TCPA restricts how a company such as a clothing retailer may contact and communicate by text messaging. Consider the variety of occasions in which your favorite store could obtain, verify and retain your phone number. The click-wrap text at a point-of-sale purchase could include language in which you agree to receive a single or limited number of text messages to receive offers and information. What happens when you opt-in and consent to receive special deal texts, and you get more than you expected?

Victoria’s Secret is the named defendant in a proposed class action lawsuit for over texting. The plaintiff, a man from California alleges Victoria’s Secret violated the TCPA when it sent him just short of 100 text messages in one day. The opt-in message agreement the plaintiff entered into with the retailer was to receive no more than six text messages a month. The automated telephone dialing system used by Victoria’s Secret sent the plaintiff 97 text messages on one day in November 2015.[i]

The restrictions of the TCPA apply to a text messaging ad campaign.

The law generally prohibits phone calls to people, made by automatic telephone dialing systems or an artificial or prerecorded voice. There is an exception to the TCPA, if the call is placed for an emergency purpose or the caller has the prior express consent to initiate what some call “robo-calls.” The prior express consent element of the exception may be derived from the underlying existing relationship with the caller, such as between bank and credit card holder or cell phone provider and customer. In various communications sent to us by our service providers and banks, we might find fine print, which says we consent to receiving text messages when we agree to an offer or simply continue using the service.[ii]

Going beyond the limits of the consumer’s consent may violate the protective restrictions of the TCPA. The California plaintiff has a right to a private action against Victoria’s Secret and may be able to recover for any actual monetary loss in connection with the TCPA violation, as well as a statutory amount of $500 for each violation. If the plaintiff can prove that Victoria’s Secret willfully or knowingly violated their opt-in agreement and the TCPA, the court may award triple the damage award.[iii]

Class action litigation in TCPA cases and the recent SCOTUS landscape opinion.

Supreme Court of the U.S.

The U.S. Navy contracted with a marketing company to send text messages to 18 to 24-year-olds who opted-in to receiving text messages. The company allegedly exceeded the scope of its op-in list of recipients and messages were sent to unintended recipients, well beyond the recipient age range limits.

In the Navy case, a full settlement offer was made to a named plaintiff, and the SCOTUS ruled that the defendants cannot rely on a settlement offer to one plaintiff, to argue that the claims of that plaintiff are then moot, because of the settlement offer, and seek dismissal of those claims. The SCOTUS relied on contract law principals to conclude that unaccepted settlement offers and unaccepted offers of judgment do not deprive a plaintiff of their interest in a lawsuit.[iv]

Companies defending against TCPA class action suits could previously expect to attempt to defeat a subject class action by offering a full settlement to the class representative. Under the new SCOTUS ruling, an unaccepted settlement offer will not prevent a consumer plaintiff from continuing to prosecute their claims against the TCPA violator, in individual and class action litigation.

Telemarketers using auto-dialers to call and text you their advertisements expect you to do nothing when they violate the TCPA. Prove them wrong. The Zamparo Law Group can help.

Zamparo Law GroupThe Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs harmed by telemarketers violating the TCPA and other similar federal and state laws. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law and instead, use illegal tactics to market their products and services.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.


[i] Data Privacy and Security Insider, Victoria’s Secret hit with TCPA class action for text messages, by Kathryn Rattigan, Feb. 2, 2016.

[ii] Telephone Consumer Protection Act 47 U.S.C. § 227 (b)(1), Restrictions on use of Automated Telephone Equipment

[iii] Telephone Consumer Protection Act 47 U.S.C. § 227 (c)(5), Private Right of Action

[iv] U.S. Supreme Court Campbell-Ewald Co. v. Gomez, No. 15-857 Decided January 20, 2016.

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