161747P.pdf   05/26/2017  Samuel Zean  v.  Fairview Health Services
   U.S. Court of Appeals Case No:  16-1747
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Loken, Author, with Murphy and Kelly, Circuit Judges] 
   Civil Case - Telephone Consumer Protection Act. After purchasing a medical 
   device from Fairview Health Services, Zean received automated 
   telemarketing calls from Fairview referring to the device and asking if he 
   wanted replacement supplies. Zean brought a class action under the 
   Telephone Consumer Protection Act, claiming unauthorized telemarketing 
   calls. Fairview moved to dismiss and presented redacted documents showing 
   Zean's prior express consent. The district court's dismissal of the 
   complaint is affirmed. Whether lack of consent is an element of a prima 
   facie case or an affirmative defense is not relevant here. The documents 
   attached are embraced by the pleadings, as they reflect the contractual 
   relationship that refute the conclusory allegation that no consent was 
   give, and thus can be considered in a motion to dismiss; the district 
   court did not commit plain error in concluding the redacted documents were 
   properly authenticated and did not err in considering the documents. The 
   telemarketing calls were within the scope of the consent given. Judge 
   Kelly dissents.