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Latner v. Mount Sinai Health System, Inc.

United States Court of Appeals, Second Circuit

January 3, 2018

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.

          Argued: December 7, 2017

         Appeal from the United States District Court for the Southern District of New York. No. 1:16-cv-00683 ― Alvin K. Hellerstein, 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

          Stuart M. Gerson, Patricia M. Wagner, Tanya v. Cramer, Epstein Becker & Green, P.C., Washington, DC, for Defendants-Appellees.

          Before: Cabranes and Livingston, Circuit Judges, and Goldberg, Judge. [*]

          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), Plaintiff- Appellant 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, Prompt ALERT, 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.

         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 ...

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