TCPA Plaintiff Alleged Concrete Injury Under Spokeo, but Did Not Adequately Revoke Prior Consent to Text Communications Under TCPA: Ninth Circuit | Practical Law

TCPA Plaintiff Alleged Concrete Injury Under Spokeo, but Did Not Adequately Revoke Prior Consent to Text Communications Under TCPA: Ninth Circuit | Practical Law

In Van Patten v. Vertical Fitness Group, the US Court of Appeals for the Ninth Circuit held that a TCPA plaintiff alleged a concrete and particularized injury sufficient to confer standing under Spokeo v. Robins. Additionally, the Ninth Circuit held that, under the TCPA, a plaintiff may revoke consent to receive telephone or text communications by clearly expressing the plaintiff's desire to not be called or texted.

TCPA Plaintiff Alleged Concrete Injury Under Spokeo, but Did Not Adequately Revoke Prior Consent to Text Communications Under TCPA: Ninth Circuit

by Practical Law Litigation
Published on 31 Jan 2017 • USA (National/Federal)
In Van Patten v. Vertical Fitness Group, the US Court of Appeals for the Ninth Circuit held that a TCPA plaintiff alleged a concrete and particularized injury sufficient to confer standing under Spokeo v. Robins. Additionally, the Ninth Circuit held that, under the TCPA, a plaintiff may revoke consent to receive telephone or text communications by clearly expressing the plaintiff's desire to not be called or texted.
On January 30, 2017, in Van Patten v. Vertical Fitness Group, the US Court of Appeals for the Ninth Circuit held that a TCPA plaintiff alleged a concrete and particularized injury sufficient to confer standing under Spokeo v. Robins. Additionally, the Ninth Circuit held that, under the TCPA, a plaintiff may revoke consent to receive telephone or text communications by clearly expressing the plaintiff's desire to not be called or texted. ( (9th Cir. Jan. 30, 2017)).
In March 2009, the plaintiff, Bradley Van Patten, visited a Gold's Gym to inquire about membership. During this visit, the plaintiff:
  • Filled out a desk courtesy card, in which he provided his financial, demographic, and contact information.
  • Met with the gym's manager (an employee of defendant Vertical Fitness Group), who filled out a membership agreement on the plaintiff's behalf. The plaintiff provided his cell phone number, and the manager included it in the membership agreement.
The plaintiff cancelled his membership after three days, and he moved to California in summer 2009.
In 2012, the Gold's Gym at which the plaintiff was a member ended its franchise with Gold's Gym and affiliated with Xperience Fitness, a brand owned by defendant Vertical Fitness. Vertical Fitness asked its marketing partner, defendant Advecor, to contact current and former members about the brand change and invite them to return. Vertical Fitness gave Advecor the plaintiff's phone number, and Advecor sent the plaintiff two texts in 2012, inviting him to rejoin the gym.
On June 28, 2012, the plaintiff filed a putative class action in the US District Court for the Southern District of California in which he asserted claims under the Telephone Consumer Protection Act of 1991 (TCPA) and California state law. The plaintiff alleged that the texts caused consumers actual harm through:
  • The aggravation of receiving spam texts.
  • The fees the texts that consumers would have to pay their cell phone providers for receiving the spam texts.
In May 2014, the district court granted the defendants' motion for summary judgment on all claims, and the plaintiff appealed.

Article III Standing Under Spokeo

The Ninth Circuit examined whether the plaintiff had standing to bring a TCPA claim in light of the recent Spokeo decision, in which the US Supreme Court held that a plaintiff must allege an injury that is both concrete and particularized to establish Article III standing (Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). In this case, the Ninth Circuit held that the plaintiff alleged a sufficiently concrete injury to confer Article III standing, because receiving telemarking texts was the very harm the TCPA was designed to address, whereas the violation alleged in Spokeo related to a procedural requirement of the subject law.

Consent Under the TCPA

The Ninth Circuit next examined whether the plaintiff gave prior express consent to receive the texts, which would constitute an affirmative defense to his TCPA claim. After analyzing relevant FCC orders, the Ninth Circuit held that:
  • A finding of consent depends on the context in which the purported consent is given.
  • Under the TCPA, consent is only effective if it relates to the subject matter of the challenged communications.
Applying these principles in this case, the Ninth Circuit held that the plaintiff expressly consented to the text messages at issue (communications about reapplying for membership). Specifically:
  • By filling out the membership application and courtesy card, the plaintiff consented to being contacted by the defendants about issues related to gym membership.
  • The nature of the defendants' later, contested communications (asking him to reapply for membership) was related to the subject of the plaintiff's consent.

Revoking Consent Under the TCPA

The plaintiff contended that he revoked his consent when he cancelled his gym membership. After considering common law principles, the general purpose of the TCPA, and FCC guidance, the Ninth Circuit held that:
  • Consumers may revoke their prior express consent under the TCPA (joining the US Courts of Appeals for the Third and Eleventh Circuits).
  • To revoke consent, a consumer must clearly express a desire to not be called or texted.
In this case, the Ninth Circuit held that the plaintiff did not revoke his consent, because cancelling his gym membership did not clearly express a desire to not receive further text messages.
Based on these findings (and others related to the plaintiff's lack of standing to bring his state law claims), the Ninth Circuit affirmed the district court's grant of summary judgment to the defendants on all claims.