Kolinek v. Walgreen Co.

Filing 38

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 2/10/2014. For the reasons stated in this memorandum opinion and order, the Court grants Walgreens' motion to dismiss [dkt. no. 18] and directs the Clerk to enter judgment dismissing this action with prejudice. The status hearing set for February 18, 2014 is vacated.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

)
)
)
)
)
)
)
)
)
)

Case No. 13 C 4806

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 –
2

(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 which the called party is
charged for the call[.]
47 U.S.C. § 227(b)(1)(A). An "automatic telephone dialing system" is defined as
"equipment which has the capacity to store or produce telephone number to be called,
using a random or sequential number generator, and to dial such numbers." Id. §
227(a)(1).
"[P]rior express consent" under the TCPA is an affirmative defense on which the
defendant bears the burden of proof; it is not a required element of the plaintiff's claim.
See Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898, 905 (N.D. Ill. 2012);
D.G. v. Diversified Adjustment Serv., Inc., No. 11 C 2062, 2011 WL 5506078, at *3
(N.D. Ill. Oct. 18, 2011); Martin v. Bureau of Collection Recovery, No. 10 C 7725, 2011
WL 2311869, at *1 (N.D. Ill. June 13, 2011); see also Grant v. Capital Mgmt. Servs.,
L.P., 449 F. App'x 598, 600 n.1 (9th Cir. 2011); Pinkard v. Wal-Mart Stores, Inc., No.
3:12-cv-02902-CLS, 2012 WL 5511039, at *2 (N.D. Ala. Nov. 9, 2012); cf. In re Rules &
Regs. Implementing Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565 ¶ 10 (Jan.
4, 2008) ("Should a question arise as to whether express consent was provided, the
burden will be on the creditor to show it obtained the necessary prior express
consent."). As a general rule, dismissal under Rule 12(b)(6) is inappropriate when the
motion to dismiss seeks to establish an affirmative defense. Dismissal is appropriate,
however, when a defense is set out entirely in the plaintiff's complaint – though the
3

motion in this situation is better characterized as a Rule 12(c) motion for judgment on
the pleadings. See Jones v. Bock, 549 U.S. 199, 215 (2007); see also Brownmark
Films, LLC v. Comedy Partners, 682 F.3d 687, 690 & n.1 (7th Cir. 2012); Indep. Trust
Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012); United States v.
Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
The TCPA does not define "prior express consent." Walgreens relies on an
interpretation of the defense by the Federal Communications Commission (FCC). The
TCPA authorizes the FCC to "prescribe regulations to implement the requirements" of
section 227(b). 47 U.S.C. § 227(b)(2). Pursuant to this authorization, the FCC has
stated the following with regard to the prior express consent defense:
[P]ersons who knowingly release their phone numbers have in effect given
their invitation or permission to be called at the number which they have
given, absent instructions to the contrary. Hence, telemarketers will not
violate our rules by calling a number which was provided as one at which
the called party wishes to be reached.
In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752,
8769 ¶ 31 (Oct. 16, 1992).
If the FCC's interpretation governs, Kolinek has no claim, because he admits in
his complaint that he knowingly gave his cell phone number to Walgreens. And the
FCC's interpretation of the TCPA is, in fact, binding on this Court. A federal statute
called the Administrative Orders Review Act, more commonly known as the Hobbs Act,
reserves to the courts of appeals the power “to enjoin, set aside, suspend (in whole or in
part), or to determine the validity of” all final FCC orders. See 28 U.S.C. § 2342(1); 47
U.S.C. § 402(a). Were this Court to decline to apply the FCC's ruling in deciding
Kolinek's case, that would be the same as invalidating the ruling, something a federal

4

district court lacks the authority to do. The Seventh Circuit so held in CE Design, Ltd. v.
Prism Business Media, Inc., 606 F.3d 443, 449-50 (7th Cir. 2010).
This Court does, of course, have the authority to decide whether the FCC's
interpretation of the consent defense governs this case. Id. at 450. The Court
concludes it does. Kolinek argues that the FCC interpreted the statute only in a narrow
and focused context, concerning businesses responding to incoming customer calls.
See Pl.'s Resp. to Def.'s Mot. to Dismiss at 4. That may have been the scenario that
prompted the FCC's ruling, but the FCC responded by describing the general rule and
then applying it to that scenario. The general rule—"persons who knowingly release
their phone numbers have in effect given their invitation or permission to be called at the
number which they have given, absent instructions to the contrary"—is what bars
Kolinek's claim. His complaint does not identify any "instructions to the contrary" that he
imposed at the time he provided his cell phone number to Walgreens.
Finally, though Kolinek notes that his consent came ten years before the
robocalls in question, see Pl.'s Resp. to Def.'s Mot. to Dismiss at 3, he does not argue
that the passage of time vitiated his consent. Any such argument would fail, because
consent under the TCPA does not expire on its own; it must be revoked. See Beal v.
Wyndham Vacation Resorts, Inc., ___ F. Supp. 2d ___, No. 12-cv-274-bbc, 2013 WL
3870282, at *14-17 (W.D. Wis. June 20, 2013).
Conclusion
For the reasons stated above, the Court grants Walgreens' motion to dismiss
[dkt. no. 18] and directs the Clerk to enter judgment dismissing this action with

5

prejudice. The status hearing set for February 18, 2014 is vacated.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 10, 2014

6