On October 11, 2016, the District Court for the Northern District of California granted summary judgment to Safeway, Inc. in a Telephone Consumer Protection Act (TCPA) putative class action arising from the receipt of prerecorded telephone messages promoting Safeway’s flu shots.

Plaintiff first received a seasonal flu shot from Safeway in 2014. In connection with her flu-shot visit, Plaintiff completed a Consent and Release form, where she provided her cell phone number to Safeway.  Later, Safeway contacted their existing pharmacy patients, including Plaintiff, to remind them to get a flu shot for the new flu season.  Plaintiff subsequently filed suit against Safeway alleging that the flu shot reminders violated the TCPA.

Safeway requested summary judgment on three alternative grounds: (1) Plaintiff gave Safeway prior express consent to call her cell phone about the flu shots; (2) the flu shot calls are exempt from the TCPA as emergency calls; and (3) the flu shot calls fall within the FCC’s 2015 exemption from the TCPA for certain exigent health care calls not charged to the called party. The Court granted summary judgment based on grounds (1) and (3).

As to the first ground, the Court held that the flu shot call delivered a “health care” message and was within the scope of Plaintiff’s prior express consent. “[E]very reasonable trier of fact would have to find that Safeway’s flu shot reminder calls to Plaintiff for future flu seasons bear sufficient relation to the original reason for which Plaintiff provided her number – namely, for her to receive flu shots from Safeway[.]”

With respect to the third ground, the Court concluded that “every reasonably trier of fact would have to find that the flu shot calls qualify for the Exigent Healthcare Treatment Exemption” under the TCPA, which exempts certain wellness checkup calls from the TCPA’s consent requirement.