Van Patten v. Vertical Fitness Group, No. 14-55980 (9th Cir. 2017)
Annotate this CasePlaintiff filed a putative class action alleging that defendants sent unauthorized text messages in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227; California Business and Professions Code 17538.41; and California Business and Professions Code 17200. The district court granted summary judgment to defendants. As a preliminary matter, the court concluded that plaintiff has Article III standing under Spokeo, Inc. v. Robins because plaintiff established a concrete injury-in-fact. On the merits, the court concluded that the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason. Instead, FCC orders and rulings show that the transactional context matters in determining the scope of a consumer’s consent to contact. In this case, the court held that as a matter of law plaintiff gave prior express consent to receive defendants’ text messages where he gave his cell phone number for the purpose of a gym membership contract. Revocation of consent must be clearly made and express a desire not to be called or texted. The court joined its sister circuits and agreed that the TCPA permits consumers to revoke their prior express consent to be contacted by telephone autodialing systems. Here, the court held that, although consumers may revoke their prior express consent, plaintiff's gym cancellation was not effective in doing so here. Finally, the court concluded that plaintiff lacked standing to bring his claim under the California Business and Professions Code. Accordingly, the court affirmed the judgment.
Court Description: Telephone Consumer Protection Act. The panel affirmed the district court’s grant of summary judgment in favor of the defendants in an action under the Telephone Consumer Protection Act regarding text messages about a gym membership. The panel held that under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the plaintiff alleged a concrete injury sufficient to confer Article III standing to pursue his TCPA claim. The panel held that, for purposes of the TCPA, the scope of a consumer’s consent to being contacted depends on the transactional context in which it is given. Citing FCC orders, the panel held that an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages. Agreeing with other circuits, the panel held that a consumer may revoke his or her consent but in that case must clearly express that he or she does not want to receive the messages or calls. The panel concluded that, in this case, the plaintiff gave prior express consent to receive the text messages at issue and did not effectively revoke his consent. Affirming the district court’s summary judgment on claims asserting violations of California Business and Professional Code §§ 17583.41 and 17200, the panel held that the plaintiff did not establish economic standing. VAN PATTEN V. VERTICAL FITNESS GROUP 3
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