A class action suit against CVS Pharmacy and its MinuteClinic will proceed after a federal judge in Chicago denied a motion to dismiss the complaint, saying the drug store chain can’t shake the lawsuit accusing them of breaking federal anti-robocalling laws when the clinic placed calls to people’s mobile phones to remind them about getting flu shots.
U.S. District Judge John Z. Lee issued a memorandum opinion and order Feb. 9 allowing plaintiffs Carl Lowe and Kearby Kaiser to continue to press their complaint. They accuse CVS of violating the Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialers Act by using an automated system to place unsolicited, prerecorded calls regarding flu shots.
The complaint alleged CVS called Kaiser’s cell phone on Sept. 11, 2013, using an auto-dialing service from West Corporation, which is also named as a defendant, to report that flu shots were available. Kaiser, who lives in Chicago, got a flu vaccine at CVS in 2012. The defendants moved to dismiss based on Kaiser’s testimony he was on vacation out of the country the date of the call, arguing a lack of personal jurisdiction over MinuteClinic. In response, Kaiser submitted evidence to correct his deposition testimony reflecting he actually was in Illinois on Sept. 11, 2013.
Before considering the merits of CVS’ objections, Judge Lee analyzed whether, as Kaiser argued, the defendants waived their objections to the matter of personal jurisdiction. Although he agreed with Kaiser, Lee also said he would address the larger issue.
“Kaiser’s deposition testimony does not unequivocally establish that he was out of the country when he received MinuteClinic’s call,” Lee wrote, noting that his deposition “was internally inconsistent” and the affidavit he filed later was done, not to contradict, but rather “aims to explain and resolve the inconsistency.” Regardless, Lee said, “the court would still have personal jurisdiction over MinuteClinic. … Kaiser would have learned of the call only when he returned to Illinois following his vacation, as he testified that his phone was turned off when the call was placed. Thus, the relevant injury would center around Kaiser’s retrieval of the voicemail in question upon his return to Illinois. …
“Leaving a prerecorded voicemail that is later retrieved in Illinois, where the area code of the phone number at issue is affiliated with Illinois, the number was obtained when a customer visited a MinuteClinic in Illinois, and the message directs the customer to the Illinois market, is sufficient to constitute purposeful direction from which this court can exercise jurisdiction.”
CVS attempted to argue subjecting MinuteClinic to the personal jurisdiction might lead to future TCPA claims in any state where someone listened to a voicemail, but Lee stressed Kaiser listened to the call in Illinois, which should not have surprised CVS, as it called his 312 area code phone number and had record of him visiting an Illinois MinuteClinic.
Lee concluded by noting his “exercise of jurisdiction over MinuteClinic comports with traditional notions of fair play and substantial justice, particularly given that MinuteClinic has already participated in litigation before the court for over two years and it would be most just and efficient to permit Kaiser’s claims to proceed.”
Since Lee found personal jurisdiction over MinuteClinic appropriate, he similarly found it acceptable to extend that jurisdiction to CVS and West, since the claims arise from the Sept. 11 voicemail and other calls.
The plaintiffs are represented in the action by attorneys with the firms of Broderick & Paronich, of Boston; Murray Murphy Moul Basil LLP, of Columbus, Ohio; Law Office Of Matthew Mccue, of Natick, Mass.; Burke Law Offices LLC, of Chicago; and Broderick Law P.C., of Boston.
CVS and MinuteClinic are defended by the firm of Foley & Lardner, of Chicago.