The U.S. Court of Appeals for the Eighth Circuit recently affirmed the dismissal of a putative class action brought under the federal Telephone Consumer Protection Act (TCPA) for making unsolicited telemarketing calls.

The Eighth Circuit held that the plaintiff had given prior express written consent to receive the calls, and the trial court properly considered redacted business records that showed the consumer had given his prior express written consent to be called.

A copy of the opinion in Zean v. Fairview Health Services is available at:  Link to Opinion.

A consumer who purchased a medical device filed a putative class action against the seller, alleging that it violated the TCPA by making telemarketing calls and leaving voicemail messages “soliciting him to buy home medical supplies.”

The defendant moved to dismiss for failure to state a claim, arguing that the plaintiff had given his prior express written consent to contact him at his cellular phone number using an auto-dialer or prerecorded messages. In support, the defendant attached a sworn declaration from its employee authenticating heavily-redacted business records that purported to show the plaintiff gave prior express written consent to the autodialed calls and prerecorded messages.

The trial court granted the defendant’s motion to dismiss, holding that “lack of prior express consent” was a required element in order to state a prima facie case under the TCPA, and that it could consider the business records attached to the declaration because they fell within the scope of the pleadings and such records showed plaintiff gave his prior express written consent to be called on his cell phone “relating to the purchase of replacement supplies for the medical device he purchased ….” The plaintiff appealed.

On appeal, the Eighth Circuit explained that the TCPA “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 voice … to any telephone number assigned to a … cellular telephone service.'” It also provides a private right of action for violations, and confers on the Federal Communications Commission (FCC) certain powers to adopt regulations implementing the Act.

In 1992, the FCC issued an administrative ruling providing that “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.”

In 2008, the FCC issued a ruling clarifying “that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible calls made with the ‘prior express consent’ of the called party. … However, ‘prior express consent is deemed to be granted only if the wireless number was provided by the consumer … during the transaction that resulted in the debt owed.’ In addition because ‘creditors are in the best position to have records … showing such consent,’ if a question arises as to whether express consent was provided, ‘the burden will be on the creditor to show it obtained the necessary prior express consent.'”

Finally, in 2015, the FCC extended its 2008 rule beyond debt collection calls, such that “regardless of the means by which a caller obtains consent, … if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.”

The Court rejected the plaintiff’s argument that the trial court erred in ruling that prior express consent is part of his prima facie case rather than an affirmative defense on which the defendant bears the burden of proof, reasoning that “[r]egardless of which party bears the ultimate burden of persuasion on the question of consent, [plaintiff’s complaint] would not have stated a facially plausible claim for TCPA relief without an allegation that [defendant] did not have his ‘prior express consent.'”

Thus, the Eighth Circuit held, “whether consent is an affirmative defense is irrelevant to the Rule 12(b)(6) inquiry under [the Supreme Court’s holding in Ashcroft v. Iqbal]. If an affirmative defense ‘is apparent on the face of the complaint … [it] can provide the basis for dismissal under Rule 12(b)(6).”

The Court also rejected the plaintiff’s argument that “his prior express consent was not apparent from the face of the Complaint,” and the exhibits attached to the defendant’s declaration were not “embraced” by the four corners of the complaint.

First, the Eighth Circuit found that the declaration exhibits were embraced by the complaint because it “alleged breach of a statutory TCPA duty arising out of a contractual relationship, [appellant’s] purchase of a medical device ….” Because the complaint contained the conclusory allegation that the plaintiff did not give his express consent and the declaration exhibits were “documents reflecting the contractual relationship that refute this conclusory allegation[,]” the trial court did not err by concluding that the exhibits were embraced by the pleadings and could be considered on a motion to dismiss without converting it to a motion for summary judgment.

Second, the Court found that “authenticity is a bogus issue” because although plaintiff’s counsel objected to the trial court considering the exhibits because they were redacted, he never argued that they “were not properly authenticated in accordance with Rule 901 of the Federal Rules of Evidence.”

Thus, the Eighth Circuit held that the trial court did not commit plain error in concluding that the exhibits “were properly authenticated documents reflecting an aspect of the parties’ contractual relationship.”

The Court further explained that plaintiff’s counsel did not respond to the argument of defendant’s counsel at the hearing on the motion to dismiss that the redactions were required by the federal and state laws prohibiting the release of a person’s protected health information without written consent.

The Eighth Circuit also noted that the plaintiff did not give his written consent to disclose the redacted information, or “affirm or deny” that he signed the exhibits and “are or are not part of his contractual relationship with one or more [defendant-related] entities, or … ask the court to convert the motion to dismiss into one for summary judgment and permit limited discovery on the issues of prior express consent, the scope of any prior consent given, and the authenticity of [the exhibits]. The reason for this 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.”

Because the complaint showed a contractual relationship, the trial court “did not err in considering the documents as reflecting [plaintiff’s] pre-purchase consent.” The district court’s judgment was affirmed.