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Kolinek v. Walgreen Co.

United States District Court, N.D. Illinois, Eastern Division

February 10, 2014

ROBERT KOLINEK, individually and on behalf of all others similarly situated, Plaintiff,
v.
WALGREEN CO., Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Robert Kolinek has filed suit on behalf of a putative class against Walgreen Co. (Walgreens), alleging that it made unsolicited calls to its current and former customers on their cellular telephones in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii). Walgreens has moved to dismiss for failure to state a claim. It argues that Kolinek consented to receiving the alleged calls on his cell phone by voluntarily providing his phone number to Walgreens and, in addition, that the calls are authorized by the TCPA's "emergency purposes" exemption. For the reasons stated below, this Court concludes that Walgreens has established its consent defense and therefore grants its motion to dismiss.

Background

The Court accepts as true the following facts alleged in Kolinek's complaint. See, e.g., Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

Kolinek filled a prescription at Walgreens "as many as ten years" before 2012. Compl. ¶ 18. At that time, he provided his cellular phone number to a Walgreens pharmacist, "who told him that his number was needed for potential identity verification purposes." Id. Kolinek says he gave no express consent to receive automated calls. Id. ¶¶ 18-19.

In early 2012, Kolinek began receiving automated "robocalls" from Walgreens on his cellular phone, in which he was reminded to refill his prescription. Id. ¶¶ 18 & 4. Kolinek alleges that Walgreens made thousands of such calls to its current and former customers across the United States. Id. ¶ 7.

Kolinek asserts a claim under the TCPA on behalf of himself and a nationwide putative class. He contends that Walgreens violated the TCPA because the calls in question were made using a prerecorded voice and without the recipients' consent.

Discussion

In considering a motion to dismiss for failure to state a claim, a district court "must construe all of the plaintiff's factual allegations as true, and must draw all reasonable inferences in the plaintiff's favor. However, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption." Virnich, 664 F.3d at 212. To survive the motion, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

This case involves a provision of the TCPA that concerns automated telephonic communications by or to U.S. parties. The provision states that

[i]t shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States -
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice -
...
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for ...

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