Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: $11M settlement of TCPA claims over Walgreens prescription refill calls gets final approval, (Nov 24, 2015)

By Linda O’Brien, J.D., LL.M.

The federal district court in Chicago has given final approval to an $11 million settlement between Walgreens and pharmacy customers that resolves claims in relation to Walgreens’ prerecorded prescription refill telephone calls (Kolinek v. Walgreen Co., November 23, 2015, Kennelly, M.).

Background. Consumer Robert Kolinek filled a prescription at a Walgreens pharmacy in early 2012. The pharmacist told Kolinek that his telephone number was needed for verification purposes. Kolinek then began receiving prerecorded calls from Walgreens on his cellular telephone, reminding him to refill his prescription.

In July 2013, Kolinek filed suit, alleging that the calls were violations of the Telephone Consumer Protection Act (TCPA). Subsequently, the parties reached a settlement, which provided for both injunctive and monetary relief. In April 2015 the court granted preliminary approval to the proposed settlement. Kolinek now moves for final approval of the proposed class settlement.

For purposes of the settlement, the court certified a class defined as all individuals in the United States to whom Walgreens placed a prerecorded prescription call to their cellular telephone.

Settlement. Under the terms of the settlement, Walgreens will establish a settlement fund of $11 million, for the payment of all claim awards, administrative costs, incentive awards, and attorneys’ fees. Additionally, Walgreens has agreed to implement new safeguards to ensure that it knows whether the phone numbers in its databases belong to cellular telephones, including expert analysis, third-party data, and improved customer confirmation practices.

The court first determined that the proposed settlement class satisfied the requirements of Federal Rule of Civil Procedure 23(a). The members of the class were so numerous that joinder was impracticable; there were questions of law or fact common to the proposed class; the class representative’s claims were typical of the claims of the class; and the class representative would fairly and adequately represent the interests of the class.

In approving the proposed settlement, the court found that the settlement was fair, reasonable, and adequate. The reasonable of the settlement was considered in light of (1) the strength of the plaintiff’s case compared to the defendant’s settlement offer; (2) the complexity, length, and expense of continued litigation; (3) the low level of opposition to the settlement; (4) the amount of discovery completed; and (5) the absence of collusion.

Attorney fee and incentive awards. An attorney fee award in the amount of $2.8 million or 36 percent of the settlement fund was also granted. The court found that class counsel had significant class action litigation experience, conducted discovery, vigorously litigated to withstand Walgreen’s motion to dismiss, and participated in arm’s-length negotiation of their fee.

Finally, an incentive award of $5,000 to Kolinek as the named plaintiff was approved. Kolinek participated in the pre-filing investigation and discovery, and the amount was comparable to incentive awards given in similar cases.

The case is No. 1:13-cv-04806.

Attorneys: Rafey S. Balabanian (Edelson PC) for Robert Kolinek. Bradley Joseph Andreozzi (Drinker Biddle & Reath LLP) for Walgreen Co.

Companies: Walgreen Co.

Cases: Privacy IllinoisNews