17‐1230‐cv Zani v. Rite Aid Hdqrts. Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of February, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

ROBERT ZANI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff‐Appellant,

v. 17‐1230‐cv

RITE AID HDQTRS. CORP., Defendant‐Appellee,

RITE AID CORPORATION, Defendant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: TIMOTHY J. SOSTRIN, (Keith J. Keogh, on the brief), Keogh Law, LTD, Chicago, Illinois.

FOR DEFENDANT‐APPELLEE: KARIN DOUGAN VOGEL, (Rena Andoh, Shannon Z. Petersen, and Lisa S. Yun, on the brief), Sheppard, Mullin, Richter & Hampton LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Nathan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Robert Zani appeals a March 30, 2017, judgment of the

district court granting summary judgment for defendant‐appellee Rite Aid

Headquarters Corp. (ʺRite Aidʺ) on Zaniʹs claims that Rite Aid violated the Telephone

Consumer Protection Act (the ʺTCPAʺ),

, in connection with a

prerecorded, automated call Rite Aid made to Zaniʹs cell phone in 2014 alerting him to

the availability of flu shots at Rite Aid pharmacies. We assume the partiesʹ familiarity

with the underlying facts, procedural history, and issues on appeal.

We review de novo a district courtʹs grant of summary judgment,

ʺconstruing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in its favor.ʺ Mitchell v. City of New York,

(2d Cir. 2016) (internal quotation marks omitted).

2 The facts are largely undisputed and are summarized in the light most

favorable to Zani as follows: On September 7, 2013, Zani filled a prescription at a Rite

Aid‐branded pharmacy in Highland Falls, New York. The pharmacy was owned and

operated by Rite Aid of New York, Inc., an affiliate of Rite Aid. That day, Zani

provided his cell phone number along with other personal information. Zani filled

prescriptions at this Rite Aid pharmacy at least twice more in the following year. Each

time Zani had a prescription filled at this location, he signed a Notice of Privacy

Practices which indicated that Rite Aid ʺmay contact [Zani] to provide refill reminders

or information about treatment alternatives or other health related benefits and services

that may be of interest.ʺ Special App. at 4.

On October 24, 2013, Zani received a flu shot from the same Rite Aid

pharmacy. On September 26, 2014, Zani received a phone call, placed by a vendor hired

by Rite Aid, with a prerecorded message informing him of the availability of flu shots

for the upcoming flu season at Rite Aid pharmacies. The call stated:

Get your flu shot at Rite Aid today and shield yourself from this seasonʹs strains of the flu. Rite Aid now offers patients sixty five and over the Fluzone High Dose vaccine designed for older patients and covered by Medicare Part B. Because our immune systems may need more help as we get older, the Fluzone High Dose vaccine available at Rite Aid may deliver a stronger immune response. Come in today and shield yourself. No appointment necessary and most insurance plans accepted. Vaccines available while supplies last. See your Rite Aid pharmacist for details. Goodbye.

App. at 221.

3 On December 23, 2014, Zani filed a complaint, on behalf of himself and

others similarly situated, against Rite Aid alleging violations of the TCPA based on the

2014 phone call. Rite Aid moved for summary judgment, arguing that Rite Aid

conveyed a ʺʹhealth careʹ message,ʺ which can be lawfully sent to all who have given

ʺprior express consent.ʺ

(a)(2). The district court granted Rite Aidʹs

motion for summary judgment. Zani v. Rite Aid Hdqtrs. Corp.,

(S.D.N.Y. 2017). After the entry of judgment, this appeal followed.

Under the TCPA, it is unlawful for ʺany person within the United Statesʺ

to, inter alia, ʺmake 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 . . . artificial or prerecorded voice . . . to any telephone number

assigned to a . . . cellular telephone service.ʺ

(b)(A)(iii). The TCPA

delegated the authority to implement these requirements to the Federal

Communications Commission (the ʺFCCʺ). See

(b)(2). Pursuant to its

authority under the TCPA, in 2012, the FCC promulgated regulations that required

ʺprior express written consent,ʺ for all calls that included ʺadvertisements or

telemarketing messages.ʺ

(a)(2), (f)(8). The FCC created an

exemption from the prior express written consent requirement for a ʺʹhealth careʹ

message made by, or on behalf of, a ʹcovered entityʹ or its ʹbusiness associate,ʹ as those

terms are defined in the HIPAA Privacy Rule.ʺ

(a)(2) (quoting 45

4 C.F.R. 160.103). Under this exemption, the entity placing the call must have ʺthe prior

express consent of the called party when the call . . . delivers a health care message.ʺ

(a)(2) (internal quotation marks omitted). In other words, automated

telephone calls (with certain exceptions) require ʺprior express written consent,ʺ but

automated health care calls require only ʺprior express consent,ʺ that is, the prior

consent need not be in writing or subject to specific disclosures.

Both parties agree that Zani gave Rite Aid prior express consent when he

provided his cell phone number in connection with a flu shot received in a prior year.

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

7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992) (ʺ[P]ersons who knowingly release their

phone numbers have in effect given their invitation or permission to be called at the

number which they have given . . . .ʺ). Zani contends, however, that because the call in

question did not convey a health care message, express written consent was required,

and he had not provided it.

The issues presented in this appeal are virtually identical to those that this

Court recently addressed in Latner v. Mount Sinai Health System, Inc.,

(2d Cir.

2018). There, we held that the defendant, a New York‐based hospital, did not violate

the TCPA by sending, through a hired third‐party, text messages reminding customers

to get a flu shot. The text message read: ʺIts [sic] flu season again. Your PCP at WPMG

is thinking of you! Please call us . . . to schedule an appointment for a flu shot.ʺ

at

5 54. As relevant to this appeal, in Latner, we held the following: (1) ʺ[t]he FCC exempts

from [express] 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,ʺ

at 54‐55 (quoting

(a)(2)) (internal quotation marks omitted); (2) the district court ʺ(correctly)

determined that the text message ʹdelivered a health care message made by, or on

behalf of, a covered entity or its business associate,ʹʺ

(brackets omitted); and (3)

by providing his cell phone number when he first visited the pharmacy and signing a

consent form acknowledging receipt of various privacy notices, ʺLatner provided his

prior express consent to receiving a single text message about a health‐related benefit

that might have been of interest to him.ʺ Id.(internal brackets and internal quotation

marks omitted).

As in Latner, we hold that Rite Aidʹs cell phone message was a ʺhealth

careʺ message exempt from the written consent requirement of the TCPA. We further

hold that Zani provided ʺprior express consentʺ when he provided his cell phone

number to the Rite Aid pharmacy and signed the privacy notice consenting to receiving

messages.1

1 In light of this disposition, we need not decide whether Zaniʹs signing of the privacy notice constituted sufficient ʺprior express written consent.ʺ

6 Zani attempts to distinguish Latner by arguing, inter alia, that there both

parties agreed the text message was a ʺhealth care message.ʺ Even if this were the case,

and it is not obvious that it is, this Court was clear that the text message in Latner did, in

fact, deliver a health care message. Latner,

. There may well be messages

that, though purportedly delivering a health care message, are so laden with marketing

material as to raise a factual issue as to whether they fall outside the health care

exemption. But the text of Rite Aidʹs message here, which is not substantially different

from the message in Latner, raises no such concerns and comes within the exemption as

a matter of law. Zani also argues that Latner can be distinguished because the call in

this case had a marketing purpose, which Zani contends was absent in Latner. Even

assuming there was a marketing purpose to the call here, however, the health care

exemption excepts these messages from the normal requirements imposed on

telemarketing messages. See Jackson v. Safeway, Inc., No. 15‐cv‐04419‐JSC,

, at *9 (N.D. Cal. Oct. 11, 2016) (ʺ[I]t would have been odd for the FCC to create

an exception to the general rule only for calls that contain no advertising or

telemarketing, given that the general rule itself only applies to a call that ʹincludes or

introduces an advertisement or constitutes telemarketing.ʹʺ (citation omitted)).

Finally, Zani relies on the FCCʹs decision in Kohllʹs Pharmacy and Homecare,

Inc., 31 FCC Rcd. 13289, 13292‐93 ¶ 8‐10 (Dec. 21, 2016), which held that there was no

health care exemption for faxes alerting corporations to the availability of flu shots.

7 While there is no health care exemption for faxes in the FCC regulations, there is such

an exemption for cell phone calls in the regulations. Hence, Zaniʹs reliance on Kohllʹs is

misplaced.

***

We have considered Zaniʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

8