BAILEY v. CVS PHARMACY, INC.
3:17-cv-11482
| D.N.J. | Aug 14, 2018Background
- Plaintiff Jaclyn Bailey enrolled in CVS’s “CVS Ready Text Program” by providing her mobile number at a CVS pharmacy to receive prescription-ready text alerts.
- On November 24, 2014 Bailey received a single automated text: “CVS/pharmacy: JACLYN, your order is ready at 246 NORWOOD AVE.. Flu shots available. Questions? … Reply HELP for Help.”
- Bailey alleges she never consented to receive messages about flu shots and brings negligent and willful TCPA claims on behalf of a class of recipients who received texts containing “Flu shot available” during the 2014–15 season and had never obtained a flu shot at CVS.
- CVS moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing lack of concrete injury/standing, that the message falls within the TCPA’s healthcare exemption, and that Bailey consented to receive the messages.
- The court found federal jurisdiction proper, but held the message is a healthcare message sent by a covered entity, and Bailey gave prior express consent by providing her phone number for the prescription-alert program.
- Court granted CVS’s motion to dismiss the TCPA claims as exempt under the Healthcare Exemption and denied the motion to strike class allegations as moot, closing the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / concrete injury | TCPA violations are intangible injuries Congress sought to prevent; Susinno supports standing | No concrete injury because Bailey gave express consent to receive the text | Court: standing exists; federal claim properly alleged, so 12(b)(1) denied |
| Whether message is exempt as a "health care message" | Message was not a health-care communication and thus not exempt; Bailey did not consent to flu-shot notices | Message relates to health care (flu shot availability), sent by a covered healthcare entity (pharmacy), qualifying for the Healthcare Exemption | Court: "Flu shots available" is a health-care message and meets the Zani factors; exemption applies |
| Scope/nature of consent | Bailey contends she did not consent to flu-shot notices and that the message exceeded consent scope | CVS argues providing number for the prescription-alert program constitutes prior express consent and messages closely relate to the purpose for which number was provided | Court: provision of phone number for the Ready Text Program constituted prior express consent and the flu-shot text was closely related to that consent |
| Whether any amendment could cure defects | Implied by plaintiff’s single-message facts plaintiff might cure by amendment | CVS: healthcare exemption dispositive | Court: Healthcare Exemption applicable; amendment would be futile, dismissal with prejudice implied |
Key Cases Cited
- Susinno v. Workout World, 862 F.3d 346 (3d Cir. 2017) (TCPA injuries may be concrete when they mirror harms Congress sought to prevent)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (TCPA applies to automated text messages)
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009) (texts fall within §227’s scope)
- Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017) (framework for assessing whether texts fall under the Healthcare Exemption)
- Latner v. Mount Sinai Health Sys., 879 F.3d 52 (2d Cir. 2018) (flu-shot reminder texts can be health-care messages and fall within the Healthcare Exemption)