17-99-cv

Latner v. Mt. Sinai Health System, Inc. 

In the

United States Court of Appeals

For the Second Circuit ________

AUGUST TERM 2017

No. 17-99-cv

DANIEL LATNER, individually and on behalf of others similarly 

situated,

Plaintiff-Appellant,

v.

MOUNT SINAI HEALTH SYSTEM, INC, WEST PARK MEDICAL GROUP,

P.C.,

Defendants-Appellees.

________

Appeal from the United States District Court

for the Southern District of New York.

No. 1:16-cv-00683 ― Alvin K. Hellerstein, Judge.

________

ARGUED: DECEMBER 7, 2017

DECIDED: JANUARY 3, 2018

AMENDED: JANUARY 9, 2018

________
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Before: CABRANES AND LIVINGSTON, Circuit Judges, and GOLDBERG,

Judge. ∗

________

Plaintiff-Appellant Daniel Latner commenced this putative 

class action against Defendants-Appellants Mount Sinai Health 

System, Inc. and West Park Medical Group, P.C., seeking redress for 

autodialed text message telemarketing communications made by or 

on behalf of defendants to the cell phones of Plaintiff and others in 

violation of the Telephone Consumer Protection Act (“TCPA”). The 

United States District Court for the Southern District of New York 

(Alvin K. Hellerstein, Judge) granted Defendant-Appellants’ motion 

for judgment on the pleadings.

We hold that the message at issue does not violate the TCPA, 

and thus, for reasons different from those stated by the District Court, 

we AFFIRM the December 14, 2016 judgment of the District Court. 

________

ALEXANDER H. BURKE, Burke Law Offices, LLC, 

Chicago, Illinois, for Plaintiff-Appellant.

 ∗ The Honorable Richard W. Goldberg, of the United States Court of International Trade, sitting 

by designation. 
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STUART M. GERSON, Patricia M. Wagner, Tanya v. 

Cramer, Epstein Becker & Green, P.C., 

Washington, DC, for Defendants-Appellees.

________

JOSÉ A. CABRANES, Circuit Judge:

The question presented is whether a flu shot reminder text 

message sent by a hospital violated the Telephone Consumer 

Protection Act (“TCPA”), 47 U.S.C. § 227.

This appeal from the United States District Court for the 

Southern District of New York (Alvin K. Hellerstein, Judge), PlaintiffAppellant David Latner (“Latner”) challenges the District Court’s 

decision granting Defendants-Appellants Mount Sinai Health 

System, Inc.’s (“Mt. Sinai”) and West Park Medical Group, P.C.’s 

(“WPMG”) motion for judgment on the pleadings.

In 2003, Latner went to a Mt. Sinai facility, WPMG, for a routine 

overall health examination, and reviewed and filled out new patient 

forms. He signed a New Patient health form containing his contact 

information and an Ambulatory Patient Notification Record that 

granted consent to Mt. Sinai to use his health information “for 

payment, treatment and hospital operations purposes.” 

In June 2011, Mt. Sinai hired a third party, PromptALERT, Inc., 

to send mass messages on behalf of Mt. Sinai, including transmitting 

flu shot reminder texts for WPMG. In November of that year, Latner 

returned to WPMG and declined any immunizations. 
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On September 19, 2014, he received the following text message 

from WPMG: 

Its flu season again. Your PCP at WPMG is thinking of you! 

Please call us at 212-247-8100 to schedule an appointment for a 

flu shot. (212-247-8100, WPMG).

A-26. Latner did not receive any further text messages from 

WPMG. In limited discovery below, Mt. Sinai stated that it sent flu 

shot reminder texts to all active patients of WPMG who had visited 

the office in the three years prior to the date of the texts; Latner’s 2011 

visit fell within that timeline. 

Latner filed suit, alleging that Mt. Sinai violated 

§227(b)(1)(A)(iii) of the TCPA.1 On December 14, 2016, the District 

Court granted Mt. Sinai’s motion for judgment on the pleadings and 

dismissed the case. This timely appeal followed.

We review a district court’s order granting a defendant’s 

motion for judgment on the pleadings de novo. Hayden v. Paterson, 594 

F.3d 150, 160 (2d Cir. 2010). We accept all factual allegations in the 

complaint as true and construe them in the light most favorable to the 

non-moving party. Id. We may affirm the decision of the District 

Court for any reason supported by the record. Beal v. Stern, 184 F.3d 

117, 122 (2d Cir. 1999).

 1 47 U.S.C. § 227 (b)(1)(A)(iii) provides that, “It 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...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 prerecorded 

voice... to any telephone number assigned to a... cellular telephone service.”
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The TCPA makes it unlawful to send texts or place calls to cell 

phones through automated telephone dialing systems, except under 

certain exemptions or with consent. 47 U.S.C. § 227(b)(1)(A)(iii). 

Congress delegated authority to issue regulations under the TCPA to 

the Federal Communications Commission (“FCC”). 47 U.S.C. § 

227(b)(2). Prior express consent is an affirmative defense to liability 

under the TCPA. The FCC first interpreted the TCPA’s prior-express 

consent provision in a 1992 Order implementing the TCPA, where it 

concluded 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 the Matter of Rules and Regulations Implementing the Tel. Consumer 

Prot. Act of 1991, 7 FCC Rcd. 8752, 8768-69, ¶ 31 (1992). In 2008, the 

FCC extended this proposition to cell phone numbers. In the Matter of 

Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

23 FCC Rcd. 559, 564 ¶ 9 (2008) (holding that provision of cell phone 

numbers as part of hospital admissions constituted prior express 

consent to receive calls relating to medical debt). In 2014, the FCC 

clarified that “the scope of [an individual’s prior express] consent 

must be determined upon the facts of each situation.” Matter of 

GroupMe, Inc./Skype Commc’ns S.A.R.L Petition for Expedited Declaratory 

Ruling Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991, 29 F.C.C. Rcd. 3442, 3446, ¶ 11 (March 27, 2014).

In 2012, the FCC devised a “Telemarketing Rule” requiring 

“prior written consent for autodialed or prerecorded telemarketing 

calls.” In the Matter of Rules and Regulations Implementing the Tel.
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Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1838 (2012) (emphasis 

added). The FCC exempts from written consent calls to wireless cell 

numbers if the call “delivers a ‘health care’ message made by, or on 

behalf of, a ‘covered entity’ or its ‘business associate,’ as those are 

defined in the HIPAA Privacy Rule.” 47 C.F.R. § 64.1200(a)(2) (the 

“Healthcare Exception”). HIPAA defines health care to include “care, 

services, or supplies related to the health of an individual.” 45 C.F.R. 

§ 160.103. It exempts from its definition of marketing all 

communications made “[f]or treatment of an individual by a health 

care provider... or to direct or recommend alternative treatments” to 

the individual. Id. at 164.501. 

The District Court granted Mt. Sinai’s motion on the pleadings, 

holding that the text message qualified for the FCC’s Healthcare 

Exception. A-210. As an initial matter, we note that the District 

Court’s analysis was incomplete. It (correctly) determined that the 

text message “deliver[ed] a ‘health care’ message made by, or on 

behalf of, a ‘covered entity’ or its ‘business associate,’ as those are 

defined in the HIPAA Privacy Rule,” 47 C.F.R. § 64.1200(a)(2). But it 

did not then go on to determine whether Latner provided his prior 

express consent to receive the text message. Seeid.; see also In the Matter 

of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

30 F.C.C. Rcd. 7961, 8030, ¶ 143 n.481 (July 10, 2015) (“2015 Order”) 

(noting that calls that qualify for the Healthcare Exception “are 
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exempt from the . . . written consent requirement but are still covered 

by the [TCPA’s] general consent requirement”).2

Nonetheless, we affirm the District Court’s judgment on the 

grounds that, considering “the facts of the situation,” the text message 

did indeed fall within “the scope of [Latner’s prior express] consent.” 

See 29 F.C.C. Rcd. at 3446, ¶ 11. Latner provided his cell phone 

number when he first visited WPMG in 2003. He also signed a consent

form acknowledging receipt of various privacy notices. A-130. In 

signing this form, Latner agreed that Mt. Sinai could share his 

information for “treatment” purposes, and the privacy notices stated 

that WPMG could use Latner’s information “to recommend possible 

treatment alternatives or health-related benefits and services.” A-139. 

Considering the circumstances, we hold that Latner provided his 

prior express consent to receiving a single text message about a 

“health-related benefit[]” that might have been of interest to him. 

 2 It is also possible that the District Court held that the text message fell under the 

TCPA’s Healthcare Treatment Exemption. The FCC introduced the Healthcare 

Treatment Exemption in 2015. It exempts companies from receiving consent from 

consumers before making certain health-related communications to them. In the 

Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC 

Rcd. 7961, ¶147. It mandates that senders must not charge recipients for receiving 

health-related communications and must include an explicit opt-out option in any 

message. The order also narrows the scope of the required prior express consent 

under the TCPA, stating that for a recipient to have granted consent, “the call must 

be closely related to the purpose for which the telephone number was originally 

provided.” Id., n. 474 (emphasis added). If that is the case, we hold that this 

exemption does not apply here because the FCC only introduced it after Mt. Sinai 

sent the flu reminder text message received by Latner. There is no language in the 

2015 FCC order suggesting any intent to make the Exception retroactive, much less 

the justification for any asserted retroactivity, precluding its application in this 

instance.
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CONCLUSION

For the foregoing reasons, we AFFIRM the December 14, 2016 

judgment of the District Court.