ST. LOUIS (Legal Newsline) –The U.S. Court of Appeals for the Eighth Circuit has upheld the dismissal of a class action lawsuit filed against Fairview Health Services alleging that the company made unauthorized telemarketing calls in violation of the Telephone Consumer Protection Act (TCPA).

According to the opinion released May 26, Samuel Zean, who filed the complaint in Minnesota, had given prior express written consent to receive the calls.

The three-judge panel ruled 2-1 in favor of Fairview. Judge James Loken, writing the opinion for the majority, noted that the court affirmed the district court's grant of Fairview's motion to dismiss, holding that whether consent is an affirmative defense is irrelevant to the inquiry.

Fairview Health Services is a nonprofit corporation that operates hospitals and clinics in Minnesota and sells medical devices under the business name Fairview Home Medical Equipment.

According to Zean’s complaint, after he purchased a medical device from Fairview in 2014, he received a number of telemarketing calls and voicemail messages soliciting him to buy home medical supplies from Fairview, calls that allegedly violated the TCPA.

Loken noted that Congress passed the TCPA to balance individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade.

The statute prohibits any person from making “any call (other than a call made...with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded any telephone number assigned to a…cellular telephone service.”

Fairview moved to dismiss, and as evidence it presented redacted documents showing Zean's prior express consent.

The document included the unredacted text that read “I understand Fairview may need to contact me in regard to my services and accounts. I give permission for Fairview and its approved agents to contact me by phone (including my cell phone). This may include the use of auto-dialers or pre-recorded messages.”

The document included Zean’s signature. It was dated Aug. 29, 2014.

In another document, Zean had provided his cellular telephone number to Fairview. That document also is signed and dated Aug. 23, 2013.

Zean’s attorney argued that the documents were heavily redacted and noted that nearly a year separated the two documents.

The district court asked counsel for Fairview during rebuttal about the documents. The lawyers stated that they would like to offer full documents, but HIPAA and the Minnesota Health Records Act prevented them from offering unredacted documents.

On appeal, Zean argued the district court erred in concluding, contrary to governing FCC rulings, that lack of “prior express consent” is an element of his prima facie TCPA case, rather than an affirmative defense that Fairview must plead and prove.

“This contention ignores the relevant inquiry,” Loken wrote. “The TCPA statute provides that Fairview is not liable if it made the calls in question ‘with the prior express consent of the called party.’”

Judge Jane Kelly dissented, noting that she disagreed with the court’s conclusion that the authenticity of the documents was not a viable issue in genuine dispute.

“Because I believe the court erred in relying on these heavily redacted and contested documents without converting the motion into one for summary judgment, and Zean’s complaint alleges that he did not consent to receive robocalls, ... I would remand the case,” Kelly wrote.

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