Antitrust Law Daily Wrap Up, PRIVACY—S.D. Ohio: Class claims dismissed against CVS over automatic prescription refill telephone calls, (May 8, 2014)

By Linda O’Brien, J.D., LL.M.

In a putative class action brought by a consumer against CVS pharmacy regarding prerecorded telephone calls derived from CVS’ automatic prescription refill program, the federal district court in Columbus, Ohio, has granted the defendant’s motion to strike the class allegations as impermissible since the issue of consent would require individualized fact-finding (Sauter v. CVS Pharmacy, Inc., May 7, 2014, Graham, J.).

Consumer Chris Sauter filled a prescription at CVS and was enrolled in an automatic prescription refill program. Subsequently, Sauter received several telephone calls to his cell phone number from CVS in which an automatic telephone dialing system (ATDS) was used to deliver a prerecorded message with general information about the prescription refill and the location of his local CVS pharmacy. Sauter filed suit against CVS, alleging violations of the Telephone Consumer Protection Act (TCPA). Sauter claimed that he did not consent to be enrolled in CVS’s automatic prescription refill program, provide his cellular telephone number to CVS, or subscribe to a telemarketing service offered by CVS.

Sauter sought to represent a class comprised of “all persons within the United States who received a non-emergency telephone call from CVS to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls” in the four years prior to the filing of the Plaintiff’s Complaint.” He also sought to represent two additional subclasses – persons who did not provide prior express written consent for such calls and persons who expressly revoked consent previously given to CVS for such calls. The defendant moved to strike the class allegations.

CVS argued that Sauter’s proposed class and subclasses were impermissible “fail-safe” classes—the class cannot be defined until the case is resolved on the merits—and the court agreed. The TCPA prohibits the making of any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to a cellular telephone.

In this case, each of Sauter’s proposed classes was defined to include only those individuals who did not expressly consent to the receipt of CVS’s phone calls made with the use of an ATDS, according to the court. If the plaintiff successfully shows that CVS made calls using an ATDS or prerecorded message to class members’ cell phones without their consent, then the class wins. If the plaintiff is unsuccessful in meeting his burden, then the class does not exist and the class is not bound by a judgment in favor of CVS. This was the definition of a prohibited fail-safe class, the court concluded.

The case is No. 2:13-cv-846.

Attorneys: Brian K Murphy (Murray Murphy Moul & Basil) for Chris Sauter. Joseph C. Pickens (Taft Stettinius & Hollister LLP) for CVS Pharmacy, Inc.

Companies: CVS Pharmacy, Inc.

Cases: Privacy OhioNews