Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835

Background

Plaintiff Robert Zani received a single prerecorded automated call in Sept. 2014 from Rite Aid HQ notifying him (a prior-year flu-shot recipient at a Rite Aid pharmacy) of availability of flu vaccines, including high-dose vaccine for 65+.
Zani had given his cell number to the local Rite Aid pharmacy when receiving prescriptions and signed notices of privacy practices; Rite Aid HQ maintained a customer profile and used vendors (designated business associates under HIPAA) to place the calls.
Rite Aid’s campaign called only prior-year pharmacy patients and used a generic script similar to other Rite Aid advertising; Rite Aid’s internal materials sometimes described the calls as marketing.
Plaintiff sued under the TCPA alleging negligent and willful violations for the automated call, seeking class certification; Rite Aid moved for summary judgment arguing the call fell within FCC’s “Health Care” exception and required only prior express consent.
The district court found as a matter of law that (1) the calls were made by/on behalf of a covered entity or its business associate, (2) the calls conveyed a “health care message” under HIPAA/FCC rules, and (3) therefore the calls were exempt from the FCC’s heightened prior-express-written-consent telemarketing rule; summary judgment for Rite Aid granted and class motion denied as moot.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prerecorded flu-shot call qualifies as a “health care message” under 47 C.F.R. § 64.1200(a)(2)	The call was generic, promotional, aimed at marketing, and therefore is telemarketing/advertising, not a health-care message	The call informed prior-year patients about availability of a prescription vaccine and was sent by/on behalf of a covered entity/business associate—thus a health-care message	Court: Call conveyed a health-care message as a matter of law (prescription vaccine, sent to patients in existing treatment relationship about individual health need)
Whether the call was made by or on behalf of a HIPAA “covered entity” or “business associate”	Implied contest that HQ wasn’t the health-care provider and the call was corporate marketing	Rite Aid HQ is a business associate of branded pharmacies, had patient data, and placed calls on behalf of pharmacies	Court: Undisputed that Rite Aid HQ was a business associate and made calls on behalf of the pharmacies
Whether evidence of marketing purpose (advertising intent, generic script) makes the Health Care Rule inapplicable	Marketing purpose and generic messaging show the call is telemarketing and subject to prior‑express‑written‑consent	The Health Care Rule is an exception to the Telemarketing Rule; a message may be marketing yet still qualify if it is a health-care message	Court: Marketing purpose is immaterial; Health Care Rule is an exception to Telemarketing Rule, so health-care content controls
Standing (Article III injury)	Implicit: receipt of an unwanted call may be only a procedural violation; standing contested in reply by defendant	Defendant argued Spokeo requires concrete harm beyond a bare procedural violation	Court: Followed Second Circuit precedent (Leyse summary-order guidance) — actual receipt/listening to a prerecorded message suffices for concrete injury; plaintiff has standing

Key Cases Cited

Roe v. City of Waterbury, 542 F.3d 31 (2d Cir.) (summary-judgment materiality standard)
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181 (2d Cir. 2005) (Article III jurisdictional considerations)
Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (deference to agency interpretation of its own regulation)
Christensen v. Harris County, 529 U.S. 576 (U.S. 2000) (limits on deference to agency interpretations)
Duncan v. Walker, 533 U.S. 167 (U.S. 2001) (avoidance of superfluity in statutory/regulatory interpretation)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (Article III standing requires concrete injury)