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
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
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.
and MinuteClinic are defended by the firm of Foley & Lardner, of Chicago.