284 F. Supp. 3d 1343
N.D. Ga.2018Background
- Coleman, a non-customer, received repeated prerecorded automated prescription-related calls from Rite Aid to his cell phone beginning June 2016.
- Coleman informed a Rite Aid pharmacy employee the calls were reaching the wrong person and requested they stop, but calls continued.
- Coleman sued under the TCPA; after amendments he proceeded only on a TCPA claim alleging calls to a cellular phone using prerecorded messages without his consent.
- Rite Aid moved to dismiss under Rule 12(b)(6), arguing two TCPA exceptions applied: the emergency-purpose exception and health-care-related exceptions.
- The Court accepted Coleman's well-pleaded allegations as true for the motion-to-dismiss posture and denied the motion, concluding neither exception shielded Rite Aid given Coleman’s allegations that he revoked/opted out and that no appropriate opt-out mechanism was provided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prerecorded prescription calls fall within the TCPA (elements) | Coleman alleges calls to his cell were autodialed/prerecorded and made without his consent | Rite Aid did not dispute the basic TCPA elements | Court assumed elements were met for motion-to-dismiss survival |
| Whether calls are exempt as "emergency purposes" | Coleman: calls are not emergency-exempt where recipient asked caller to stop | Rite Aid: prescription notifications are "emergency" calls affecting health/safety | Court: Emergency exception does not apply after Coleman told Rite Aid to stop; dismissal denied |
| Whether 47 C.F.R. §64.1200(a)(2) (Health Care Rule) eliminates consent requirement | Coleman: he did not consent, so the Health Care Rule cannot shield Rite Aid | Rite Aid: health-care-message calls exempt from written/prior consent under the Rule | Court: Regulation ambiguous but defers to FCC—Health Care Rule still requires at least prior express consent; not applicable where no consent alleged |
| Whether the FCC's 2015 "Health Care Treatment" exemption applies | Coleman: Rite Aid failed prerequisites (immediate honoring of opt-outs; opt-out mechanism) | Rite Aid: prescription notifications fit the FCC's health-care-treatment exemption | Court: Rite Aid failed to satisfy prerequisites (continued calls after opt-out; inadequate opt-out method); exemption unavailable |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (limits on accepting legal conclusions as true)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of ambiguous regulation)
- Powell v. Thomas, 643 F.3d 1300 (accept well-pleaded facts on motion to dismiss)
- St. Clair v. CVS Pharmacy, Inc., 222 F. Supp. 3d 779 (continuing prescription calls after opt-out are not "emergency")
- Latner v. Mount Sinai Health Sys., Inc., 879 F.3d 52 (Health Care Rule construed as exempting only from written-consent requirement)
- Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (distinguishing written-consent exemption from broader TCPA exemption)
- Augustin v. Santander Consumer USA, Inc., 43 F. Supp. 3d 1251 (elements required to state a TCPA claim)