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.
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 second action.
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.
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