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Summary Judgment Granted In Favor of Safeway in TCPA Flu Shot Reminder Case

Bill Murphy, John Dahlberg and Cross Creason recently succeeded in getting a motion for summary judgment granted in favor of Safeway Inc. Lawyers representing a Safeway pharmacy patient who received prerecorded flu shot reminder calls filed a class action lawsuit against Safeway in the U.S. District Court in San Francisco in Fall 2015. The Complaint alleged that flu shot reminder calls were made to patients’ cellular telephones without their consent, and so violated the federal Telephone Consumer Protection Act (“TCPA”). The lawsuit sought statutory damages of $500 per phone call, and treble damages of $1,500 per call because, plaintiffs alleged, the TCPA violations were knowing and willful. Given that hundreds of thousands of prerecorded flu shot calls are made annually, the potential exposure was huge.

After limited discovery focused solely on the substantive merits of the case, Safeway moved for early summary judgment. Safeway’s motion contended (a) that no prior express consent was required because the flu shot reminder calls were exempted from the TCPA by a Federal Communications Commission (“FCC”) “safe harbor” rule for prerecorded calls containing an exigent health care message, provided certain conditions were met, (b) that the calls were properly characterized as “emergency” calls exempted from the TCPA, and (c) that under longstanding FCC rulings, Plaintiff gave her prior consent for Safeway to call her on her cell phone by giving Safeway her cell phone number when she received a flu shot during the preceding flu season.

On October 11, 2016, the U.S. District Court granted Safeway’s motion and dismissed the lawsuit. Jackson v. Safeway (N.D. Calif. 2016) 2016 WL 5907917. The Court held that Safeway’s prerecorded call scripts fully complied with all of the preconditions of the FCC-created “safe harbor” exempting callers from the requirement of getting prior express consent before making certain “exigent” calls to wireless telephone numbers that have a “healthcare treatment purpose” and are not charged to the called party. The Court also held that Safeway was entitled to summary judgment under the TCPA because the calls delivered a “health care message”, as defined in the regulations, and Plaintiff had given her prior express consent to Safeway to contact her at the phone number she previously gave Safeway in connection with a prior flu shot. The Court rejected Plaintiff’s arguments that prior written consent was required for such calls or that Safeway’s calls exceeded the scope of the prior express consent given by Plaintiff.

Of course, it is still important to double check with counsel before using prerecorded or automatically dialed phone calls to reach out to patients and other customers to remind them to get flu shots, to refill or pick up prescriptions or for any other purpose. The law and regulations are detailed, and a failure to comply fully has potentially draconian consequences. But the good news is that, correctly managed, prerecorded and automatically dialed reminder phone calls remain in the pharmacists’ tool box to promote the health of their patients and the general public, notwithstanding the TCPA.

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