CVS Faces TCPA class action

By Kyla Asbury | May 30, 2014

CHICAGO, Ill. (Legal Newsline) - A class action lawsuit was filed against CVS Pharmacy after the plaintiffs claimed it violated the Telephone Consumer Protection Act and the Automatic Telephone Dialers Act.

The lawsuit alleges that the pharmacy autodialed cell phone users from blocked numbers and played pre-recorded advertising messages, urging them to visit a nearby CVS store for flu shots and other services.

CVS and MinuteClinic caused Carl Lowe and Kearby Kaiser to receive unsolicited autodialed and pre-recorded voice calls, which impeded caller identification, according to a complaint filed May 20 in the U.S. District Court for the Northern District of Illinois.

"Within the four years prior to the filing of this action, defendants used equipment to dial the telephone number of potential customers, including plaintiffs," the complaint states. "The equipment defendants used to call plaintiffs and others not only had the capacity to store or produce telephone numbers to be called using a random or sequential number generator...but was programmed to sequentially or randomly access stored telephone numbers to automatically connect a telephone with a recorded message.

These calls were made with equipment capable of dialing numbers without human intervention, according to the suit.

The plaintiffs claim CVS's calls did not use live voice interaction, but consisted of taped communications soliciting goods and services.

"Many of the people whose phones were called as a result of defendants' autodialing and pre-recorded voice message practices never actually consented to receive such calls, including plaintiffs," the complaint states.

Many of these individuals were called more than once and the defendant lacks an adequate system for preventing autodialed or pre-recorded voice calls to phones for which they do not have consent to call, according to the suit.

The plaintiffs claim the defendants intended to make the calls and were well aware of the TCPA, ATDA and other federal and state statutes' prohibitions against use of autodialers and pre-recorded messages in calls to consumers, but made the business decision to make these calls anyway.

"Defendants also knew that the TCPA, ATDA and other state and/or federal laws prohibit manipulation of caller ID information, but did this anyway," the complaint states.

The plaintiffs did not give CVS permission or consent to make calls to their cell phones, according to the suit.

"Plaintiffs and the classes have been substantially damaged by defendants' calls," the complaint states. "Their privacy was improperly invaded, many were charged for the calls and they were annoyed."

On Oct. 27, Lowe claims CVS called him in and left a voicemail message alerting "Anna" that her prescription was ready, then offering flu shot services, however, he claims no one named Anna has access to his cell phone number.

Lowe claims he has received similar calls from CVS for Anna in the past and went to the store a year earlier to tell it to stop calling his number.

Kaiser claimed on Sept. 11, he received a call from an anonymous number stating that CVS's MinuteClinic was offering a 20 percent shopping pass for those who came in to get flu shots.

Kaiser received several similar calls in the past, according to the suit.

The plaintiffs are seeking at least $500 in damages for each violation and an injunction forbidding CVS from making similar calls in the future. They are being represented by Alexander H. Burke of Burke Law Offices LLC; and Daniel J. Marovitch of Marovitch Law Firm LLC.

The case has been assigned to District Judge John Z. Lee.

U.S. District Court for the Northern District of Illinois case number: 1:14-cv-3687

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.

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