Los Angeles, CA: Wal-Mart Stores Inc. is facing a proposed class action filed by a customer who alleges the discount retail giant repeatedly called his cellphone without permission in an effort to have him return his prescription refill business to them. This is in violation of the Telephone Consumer Protection Act (TCPA).
According to the lawsuit, plaintiff James Poole alleges Wal-Mart made unwanted calls to his cellphone several years after he took his prescription refills to another pharmacy from Wal-Mart. Poole claims that the calls were made with an autodialer and contained a prerecorded message urging him to switch his business back to Wal-Mart.
According to the lawsuit, the Federal Communications Commission (FCC) prohibits the use of prerecorded messages or autodialers to make any call to a wireless number in the absence of an emergency because those calls are a greater nuisance and invasion of privacy than live solicitation calls. Those calls can also be costly and inconvenient.
Further, the TCPA class action alleges that while the messages did present Poole with the option to opt out of receiving the calls by pressing a certain number, doing so only replayed the original message, effectively not enabling him to opt out of the calls.
Additionally, the lawsuit charges that FCC requires "unambiguous written consent"before a telemarketer can make an autodialed or prerecorded call to a wireless number, even if the telemarketer has a previous business relationship with the consumer, the suit claims. "Wal-Mart failed to honor plaintiff' request to opt out of receiving the calls, and failed to comply with the TCPA' requirement that consumers be allowed to opt out via an automated, interactive voice-and/or key press-activated opt-out mechanism,"the suit claims.
A plea to Wal-Mart' corporate offices asking that the calls be stopped was also to no avail, the complaint alleged, because personnel at the office informed him that they had no power to do so.
The lawsuit seeks to represent a nationwide class of all consumers who received unsolicited, nonemergency phone calls from Wal-Mart within the last four years that related to prescription medications. Two subclasses that include consumers who did not have any pending prescriptions with Wal-Mart and who attempted to opt out of receiving the calls are also proposed in the lawsuit.
The number of people in the proposed classes is believed to be at least in the thousands, according to the complaint. Poole' suit alleges that Wal-Mart negligently and willfully violated the Telephone Consumer Protection Act by contacting consumers without their prior written consent, and asks the court to award each member of the class penalties totaling $2,000 for each unsolicited call.
James Poole is represented by John Allen Yanchunis Sr. of Morgan & Morgan Complex Litigation Group; Sergei Lemberg of Lemberg Law LLC; and Keith J. Keogh, Timothy Sostrin, Michael Hilicki and Katherine Bowen of Keogh Law Ltd.
The case is Poole v. Wal-Mart Stores Inc., case number 1:14-cv-23519, in the U.S. District Court for the Southern District of Florida.
