Eighth Circuit Court of Appeals Affirms Dismissal of TCPA Claims on Grounds of Prior Express Consent
In Zean v. Fairview Health Services, the U.S. Court of Appeals for the Eighth Circuit recently affirmed the district court's dismissal of a putative class action complaint under the Telephone Consumer Protection Act (TCPA). This ruling affirms that written consent forms signed by the named plaintiff were properly considered by the district court in connection with the defendant's Rule 12(b)(6) motion to dismiss. The ruling also affirms that the written consent forms submitted to the district court in connection with the motion to dismiss were properly redacted in light of state and federal health care privacy laws, including the federal Health Insurance Portability and Accountability Act (HIPAA) and the Minnesota Health Records Act (MHRA), which controls if its restrictions are more stringent than HIPAA's.
Plaintiff brought a putative class action in the U.S. District Court for the District of Minnesota against a nonprofit corporation that operates hospitals and clinics in Minnesota. The plaintiff alleged that he purchased a medical device from the defendant and that afterward he received purported telemarketing calls and voicemail messages soliciting him to buy home medical supplies from the defendant in violation of the TCPA.
The defendant moved to dismiss the putative class complaint on the grounds that the plaintiff gave prior express consent for the calls at issue. In support of its motion, the defendant submitted two written consent forms executed by the plaintiff in which the plaintiff provided his cell phone number to the defendant and authorized the defendant to contact him by phone (including cell phone), including with the use of auto-dialers or pre-recorded messages. The consent forms were submitted to the district court in redacted form in light of state and federal health care privacy laws.
The district court granted the defendant's motion to dismiss, concluding that the plaintiff had not stated a plausible claim that the defendant made the calls without the plaintiff's prior express consent in violation of the TCPA. In particular, the district court concluded, over the plaintiff's objection, that the redacted consent forms could be considered in deciding the motion to dismiss because the forms were "embraced by the pleadings" and established that the plaintiff gave the defendant prior express consent to make calls to his cell phone relating to the purchase of replacement supplies for the medical device he purchased from the defendant.
Eighth Circuit Affirms District Court's Dismissal of Putative TCPA Class Complaint
The Eighth Circuit affirmed the district court's dismissal of the putative TCPA class complaint. With respect to the district court's consideration of the written consent forms in connection with a Rule 12(b)(6) motion, the panel majority observed that, although materials outside the pleadings cannot normally be considered on a Rule 12(b)(6) motion, consideration of the consent forms was proper in this case because the documents were part of a "contractual relationship" between the plaintiff and defendant and were thus embraced by the pleadings.
The Eighth Circuit also affirmed that the defendant's redaction of the written consent forms was proper in light of state and federal health care privacy laws, including HIPAA and the more stringent MHRA. The panel majority found persuasive the fact that at no time before the district court ruled did the plaintiff (i) give consent to disclose the unredacted consent forms, (ii) affirm or deny that he signed the consent forms or that they were part of his contractual relationship with the defendant, or (iii) ask the court to convert the motion to one for summary judgment with the opportunity for limited discovery on the issue of prior express consent. The panel majority observed further that "[t]he reason for [plaintiff's] tactical decision is not hard to infer, because opening up these fact-intensive issues would likely preclude class certification or establish that [plaintiff] was not a member of the putative class."
Finally, the panel majority agreed with the district court's conclusion that the calls at issue fell within the scope of plaintiff's prior express consent because the calls were "closely related to the purpose for which the telephone number was originally provided."
Putative TCPA class action claims in the health care context implicate unique issues—including state and federal health care privacy laws—that can significantly impact dispositive and class certification motion practice. Defendants facing such claims should be sure to carefully consider whether written consent forms could provide a basis for dismissal of the named plaintiff's claims or could lead to a denial of class certification in light of the individualized fact issues implicated by providing and/or revoking prior express consent under the TCPA.
Health systems, hospitals and health care providers should also be sure to periodically review their consent forms and procedures for compliance with the TCPA, especially if they make calls to patients regarding home medical equipment or replacement supplies.
For more information about our class action and health law practices, the effect of this decision on your organization or to discuss approaches for avoiding and resolving TCPA consent issues, please contact Jessica Kracl, Sara Noel, Todd Noteboom, Bryant Tchida or the Stinson Leonard Street contact with whom you regularly work.