On December 19, 2014, a class action lawsuit was filed in the
United States District Court for the Middle District of Florida,
alleging that CVS Pharmacy, Inc. ("CVS") has been sending
consumers unsolicited text messages in violation of the Telephone
Consumer Protection Act ("TCPA"). The TCPA class
action lawsuit seeks an unspecified amount of damages, as well as
an injunction and payment of all attorneys' fees incurred in
connection with the litigation. CVS is no stranger to TCPA
class actions, as two separate class actions are presently pending
against the company in Illinois, each alleging that it violated the
"robocall" provisions of the TCPA. CVS must answer
the most recent complaint filed in Florida by January, 2015.
Alleged Violations of the TCPA
According to the complaint, starting in or around February 2012,
CVS implemented an automated system that sent text message alerts
related to customer prescriptions. The text messages were not
limited to "pick-up" reminders, but also included
marketing notifications relating to services such as text-based
refill options and other in-house services offered by CVS.
However, according to the complaint, CVS failed to obtain customer
prior express written consent, and instead automatically enrolled
anyone filling a prescription into the text message system.
With respect to the named plaintiff, she alleges that she
received text message alerts for someone other than herself.
In addition, despite responding "STOP" in accordance with
the instructions included with the text message that she received,
the named plaintiff continued receiving text message alerts from
CVS' Third TCPA Class Action Lawsuit
Earlier this year, two separate class action complaints were
filed against CVS in Illinois. In both lawsuits, CVS is
alleged to have placed robocalls to consumers in violation of the
TCPA. In the first lawsuit, CVS alleges that it received
consent from the named plaintiff to place robocalls when an
associate of the named plaintiff gave CVS the plaintiff's
telephone number. CVS moved to stay the litigation while the
Federal Communications Commission considers issuing regulations
dealing with such circumstances, specifically whether third-parties
may give consent for the receipt of text messages and/or
robocalls. The Court denied CVS' motion to stay the
litigation proceedings. Discovery is currently pending in
that action, while CVS has yet to answer the complaint filed in the
Earlier this year, we
blogged about the fact that Rite Aid was sued for similar
business practices. The CVS class actions raise interesting
questions about what constitutes consent under the TCPA and who can
provide it. We will continue to monitor the status of the
three TCPA actions currently pending against CVS.
If you are interested in this topic or if you have been served
with legal process relating to your telemarketing practices, please
e-mail us at email@example.com or
call us at (212) 246-0900.
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We have previously written about an established class action plaintiff who is making a name for himself throughout the Internet marketing industry by virtue of his liberal use of the New Jersey Consumer Fraud Act ("CFA") to bring class action lawsuits.
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