CHICAGO — A federal judge has approved a $15 million settlement in a class action accusing CVS of improperly using a robocalling system to contact customers about flu shots.
In an order filed Jan. 30, U.S. District Judge John Lee signed off on the agreement, which ends a lawsuit that originated in 2014. In that complaint, plaintiffs Carl Lowe and Kearby Kaiser accused CVS and its Minute Clinic of violating the federal Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialers Act by allegedly using an automated system to place unsolicited, prerecorded calls to tell people a new round of flu shots were available, often as part of a message advising them their prescription medications were ready to be picked up.
Another named defendant, West Corporation, provided the auto-dialing service CVS used to make its phone calls, according to the initial complaint. The complaint said there are 233,079 phone numbers on the list CVS used for its 2013 flu shot reminder campaign.
Under the terms of the deal, each of the confirmed 231,253 class members will get about $40, while $5 million of the settlement fund will be set aside for plaintiffs’ attorneys. These include lawyers from the firms of Broderick & Paronich, of Boston; Murray Murphy Moul Basil, of Columbus, Ohio; Law Office Of Matthew McCue, of Natick, Mass.; Burke Law Offices, of Chicago; and Broderick Law, of Boston. Kaiser will get a $15,000 plaintiff incentive as the sole remaining named plaintiff attached to the court action.
According to the Jan. 16 motion for final approval, which CVS did not oppose, the settlement process included “extensive discovery efforts” and sessions with two different mediators. Class members could submit a claim for a cash award through a settlement website or mail a one-page form to the settlement administrator. Further, administrators used a reverse-lookup process to identify settlement class members and confirmed through CVS’ records.
“The settlement was designed to ensure the widespread, equitable distribution of relief to as many class members as possible — including by removing the need for the vast majority of class members to submit any claim at all,” according to the motion. “Indeed, the fairness of the claims process is evident by its success in reaching and, if approved, ensuring payment to, more than 99 percent of the entire class.”
The motion further said only one person objected to the settlement, “which, rather than challenging any aspect of the settlement, misunderstood it as compensation for alleged problems with the flu shot itself.” It also noted “neither any state attorney general nor the Attorney General of the United States has objected.”
In arguing for settlement, plaintiffs' lawyers acknowledged the difference in Kaiser's claim compared to other lawsuits alleging TCPA violations. Kaiser, who lives in Chicago, received a flu vaccine at CVS in 2012 and provided his phone number in relation to health care services. CVS argued that relationship established consent, distinguishing it from litigation involving telemarketing calls to noncustomers.
Kaiser disagreed, though, noting the call was not just a flu shot reminder, but also referenced a “shopping pass” for people who got 2013 flu shots at CVS. He further said the Federal Communications Commission has granted recent TCPA exemptions to certain calls related to health care, meaning settling the case would be in the best interests of class members.
CVS and MinuteClinic were defended by the firm of Foley & Lardner, of Chicago.