Every once in a while you will see a team win big in a playoff game but lose a key player to an ejection or injury and you hear talk of a “costly win.”

Safeway enjoyed (?) just such a “costly win” on Friday.

Here’s what happeed.

Safeway was sued in a TCPA class action over SMS messages sent to advise of the availability of flu shots and COVID vaccinations.

The Plaintiff argued these text messages were telephone solicitations under the TCPA’s DNC provisions.

Wait, didn’t we just talk about that?

Well for starters the Court did NOT address whether texts are “calls” for TCPA DNC purposes.

Instead the court focused on two issues.

First, is the case subject to arbitration?

This is where the big loss comes in.

Safeway moved to compel plaintiff to dismiss the class action and pursue the case only as an individual arbitration but the court denied this motion– a massive loss for Safeway. The Court found a key piece of evidence was not subject to the business record exception and (more importantly) that Safeway’s entire enrollment process did not require affirmative assent to its arbitration terms.

Holy POS.

Really big problem for Safeway here since a court just rejected its entire arbitration opt-in paradigm. Like.. holy smokes. That’s going to hurt across the country.

But its not going to hurt much here.

With the arbitration motion denied the court went on to the second issue– do messages advising of a COVID vaccine constitute telephone solicitations?

And here Safeway enjoyed a big (albeit costly) win.

The court had little trouble finding CVS’ messages did not constitute marketing:

Here, too, the June 24, 2021 text message appears to fall within the emergency purposes exception. Safeway is a health care provider, and the purpose of its June 24, 2021 text message was to inform Sapan that COVID-19 vaccines were available to eligible individuals. Texts regarding access to COVID-19 vaccines clearly fall within the FCC’s emergency purposes exception. See Gabertan, 523 F. Supp. 3d at 1261 (“Curbside pick-up and mailing prescriptions—contactless access to prescriptions as part of an effort to mitigate the pandemic’s health risks—are facially, squarely within the emergency exception as articulated in the Ruling.”); see also Horton, 2022 WL 702536, at *2 (finding “text issued to [p]laintiff that ‘let [him] know that everyone … is eligible for the free COVID vaccine’ [was] made to affect the health and safety of its recipients–here, [p]laintiff –and inform its recipients of the availability of, and eligibility for, the COVID 19 vaccination” and was therefore exempt from the TCPA). The Court finds that the June 24, 2021 text message is subject to the emergency purposes exception. 

Pretty straightforward– and seems like the right result.

Not sure why the plaintiff’s counsel decided to bring such a tricky class action to begin with honeatly– chasing after COVID vaccine messages feels like the longest way to go to a TCPA win. But… whatever.

Justice was served here in my opinion.

Little worried about Safeway though– that arbitration loss has got to sting.