BROOKLYN, N.Y. (Legal Newsline) - "No good deed goes unpunished," CVS says as it fights a class action lawsuit over its fundraising efforts for the American Diabetes Association.
Plaintiff Kevin McCabe and lawyer Todd Bank sued CVS in May in New York federal court, alleging fraud in a nationwide campaign during November 2021 that asked customers if they'd like to make a donation to the ADA when they checked out.
The screen featured several pre-selected amounts that customers could select, or one that said no. The lawsuit said CVS was using the goodwill of its customers to pay off a debt it owed to the ADA.
In an Oct. 14 motion to dismiss, CVS challenges the plaintiff's interpretation of the alleged $10 million "debt."
"As is plain from the agreement, CVS has no debt to the ADA," the motion says. "Rather, CVS agreed to fundraise from its customers and turn over the donations to the ADA.
"CVS further promised that at the conclusion of three-plus years of fundraising, CVS would (if necessary) make up the difference between the cumulative customer donations and $10 million. Obviously, upon signing, CVS did not assume an unconditional $10 million debt to the ADA."
The lawsuit seeks reimbursement under the consumer protection laws of several states. CVS says the attorney Bank used an alias that did not identify him as an attorney to obtain pertinent information about the ADA agreement before he filed suit.
The terms of that agreement are inconsistent with the allegations in Bank's amended complaint, CVS says.
"CVS's principal financial responsibility in the campaign is to fundraise, not to donate," the motion says. "Thus, the ADA agreement expressly permits - and indeed requires - that CVS's conditional promise be reduced by all amounts donated by its customers."