Pharmacy Moves for Judgment on the Pleadings for Call That Plaintiff Requested
Brenda Everett’s class action is her “strained attempt” to get money from defendant Exact Care Pharmacy under the Telephone Consumer Protection Act for a call that she “not only consented to but requested,” said the pharmacy’s brief Tuesday (docket 4:23-cv-01649)…
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in U.S. District Court for Middle Pennsylvania in Williamsport in support of its motion for judgment on the pleadings. Everett’s complaint said her number has been listed on the national do not call registry since June 4 (see 2310050003). Congress passed the TCPA to protect individuals from receiving only unwanted calls, said Exact Care’s brief. “Prior express consent is an absolute defense to liability under the TCPA,” it said. Because the plaintiff “consented to the call she now complains of, her claims should be dismissed under Rule 12,” it said. Correspondence between counsel for the parties indicates that Everett doesn’t dispute that she provided Exact Care with express written consent to be called, emailed or texted from ExactCare and its marketing partners about health-related offers using automated technology, it said. Instead, it appears that her alleged dispute about Exact Care’s communication is that, as she now claims, her consent didn’t allow Exact Care to contact her by a prerecorded voice message, it said. In other words, she claims that automated technology doesn’t “encompass prerecorded voice messages,” it said. This “hair-splitting argument” fails for several reasons, it said. It’s “self-evident” that consent to be contacted by automated technology includes consent to be contacted “by all forms of automated technology, including prerecorded voice messages,” said the brief. The TCPA was designed to protect individuals from intrusive, unwanted calls, not calls like the one at issue in this case that an individual “requests and then attempts to manipulate into a TCPA claim,” it said.