United States: Camp Drugs' Class Action Survives Novel Dismissal Attempts

Action is one of many filed against alleged pharma fax fanatics

Keeping Busy

Camp Drug Stores has a number of chestnuts in the legal fire—in this case, the Illinois Southern District Court. Since May 2017, the company has filed seven TCPA class actions there against various defendants working in or around the pharmaceutical industry.

Each action alleges that the defendant sent Camp Drugs ads by fax in violation of the Telephone Consumer Protection Act. The facts are the same across each filing and contain a litany familiar to anyone who's become acquainted with TCPA lawsuits—Camp Drugs never asked to be sent anything by the named defendant, and there was no clear opt-out option included in the fax as required under the TCPA.

Lotsa Dockets

Each action seeks damages under the TCPA, of course, but also for conversion, which effectively accuses the defendants of seizing control of Camp Drug's fax machines and taking possession of its ink, toner and paper (and employee time necessary to deal with the faxes in the first place).

The actions have yet to meet with unvarnished success. Three are currently underway; a fourth is before the Seventh Circuit Court of Appeals. Three have been voluntarily dismissed by Camp Drugs.

The Takeaway

Before the latest self-dismissal, which took place on Jan. 11, 2018, one of the cases, Camp Drug Store, Inc. v. Emily Corporation, took a strange turn. Or two strange turns, to be precise.

Emily moved to dismiss the second count—conversion—arguing that the claim duplicated the damages that Camp Drugs sought through the first TCPA-related claim and should therefore be dismissed.

The court rejected the argument, noting that, while a claim is a set of facts that produces one injury, a count is the expression of a legal theory on which a claim can be based. "Since [the conversion count] is premised on the same facts as Count I," the court maintained, "it is not a distinct 'claim,' but an alternative legal theory under which Camp Drug Stores might claim entitlement to relief."

Emily marshalled a second argument, that the conversion count should be dismissed because the damages Camp Drugs alleges are de minimis, or trivial, and do not state a claim for conversion. The court also disposed of this argument, noting a previous decision that ruled that claims might be dismissed in this way, "but [federal rules] do not provide a basis for striking individual legal theories."

Regardless of the ultimate potential success of the cases, they demonstrate the need for advertisers to exercise care in meeting compliance obligations under the TCPA and state laws regarding telemarketing by phone, text or fax. The requirements are complex and the TCPA's inclusion of statutory damages and a private right of action make these kinds of cases a cottage industry for the class action bar.

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