Gold’s Gym Prevails On Summary Judgment In TCPA Class Action Because Plaintiff Failed To Effectively Revoke His Prior Express Consent to Receive Text Messages

Feb 28, 2017 | Topic: Class Actions

The Ninth Circuit Court of Appeal recently affirmed a lower court’s decision to grant the defendant’s motion for summary judgment in a TCPA class action involving text messages on the basis of consent.  See Van Patten v. Vertical Fitness Grp., LLC, No. 14-55980, 2017 U.S. App. LEXIS 1591 (9th Cir. Jan. 30, 2017)

In Van Patten, a Gold’s Gym Franchise sent text messages, as part of a marketing campaign, to former and current gym members inviting them to return to the gym.  One such message read:

Golds [sic] Gym is now Xperience Fitness.  Come back for $9.99/mo, no commitment.  Enter for a chance to win a Nissan Xterra! Visit Myxperiencefitness.com/giveaway.

Plaintiff Bradley Van Patten (“Plaintiff”) filed a punitive class action alleging, in part, that the gym violated the Telephone Consumer Protection Act (TCPA).  The District Court granted Plaintiff’s motion for class certification, but granted the gym’s motion for summary judgment as to all of the Plaintiff’s claims.  It is from that Judgment the Plaintiff appeals.  The Ninth Circuit Court of Appeal affirmed the lower court’s ruling. 

At issue for the Court of Appeal was whether Plaintiff gave the gym prior written consent to send him text messages, and if he had, whether he revoked that consent.  The Court of Appeal concluded that Plaintiff, based on the context within which he gave his phone number, consented to receiving text messages, and he did not expressly revoke such consent when he canceled his membership. 

The Court reasoned that prior express consent is one that relates to the same subject matter as is covered by the challenged calls or texts.  The consent must be considered to relate to the type of transaction that evoked it.  In this case, the Court held as a matter of law that Plaintiff gave prior express consent to receive the gym’s text messages, because Plaintiff gave his cellular telephone number for the purpose of a gym membership.  Plaintiff gave his consent to being contacted about questions related to his gym membership.  The scope of that consent includes text messages that invite Plaintiff to return to the gym.

The Court further reasoned that the TCPA permits consumers to revoke their prior express consent to be contacted.  Plaintiff argues that canceling his membership was an effective communication to the gym that he no longer desired to be contacted.  The Court disagreed, reasoning that because Plaintiff did not clearly express his desire to not receive text messages, he did not revoke his consent.  The Court held revocation of consent must be clearly made and express a desire not to be called or texted.  For example, Plaintiff could have communicated his revocation by plainly telling the gym not to contact him on his cell phone or messaging "STOP" after receiving the first text message.  The Court affirmed the District Court’s grant of summary judgment. 

This case further solidifies and explains the context in which defendants can rely on the consent from their customers or consumers to avoid liability under the TCPA.