847 F.3d 1037 (9th Cir. 2017), 14-55980, Van Patten v. Vertical Fitness Group, LLC

Docket Nº:14-55980
Citation:847 F.3d 1037
Opinion Judge:Ronald M. Gould, Circuit Judge:
Party Name:BRADLEY VAN PATTEN, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. VERTICAL FITNESS GROUP, LLC, a limited liability company; ADVECOR, INC., a California corporation, Defendants-Appellees
Attorney:George Rikos (argued), Law Offices of George Rikos, San Diego, California; Craig M. Nicholas and Alex M. Tomasevic, Nicholas & Tomasevic LLP, San Diego, California; for Plaintiff-Appellant. Alexander Papaefthimiou (argued), Law Office of Alexander E. Papaefthimiou, Camarillo, California; Gregory ...
Judge Panel:Before: William A. Fletcher and Ronald M. Gould, Circuit Judges, and Ivan L.R. Lemelle,[*] District Judge.
Case Date:January 30, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Plaintiff 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... (see full summary)

 
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Page 1037

847 F.3d 1037 (9th Cir. 2017)

BRADLEY VAN PATTEN, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellant,

v.

VERTICAL FITNESS GROUP, LLC, a limited liability company; ADVECOR, INC., a California corporation, Defendants-Appellees

No. 14-55980

United States Court of Appeals, Ninth Circuit

January 30, 2017

Argued and Submitted May 4, 2016, Pasadena, California

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cv-01614-LAB-MDD. Larry A. Burns, District Judge, Presiding

AFFIRMED.

SUMMARY[**]

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, 194 L.Ed.2d 635 (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 § § 17538.41 and 17200, the panel held that the plaintiff did not establish economic standing.

George Rikos (argued), Law Offices of George Rikos, San Diego, California; Craig M. Nicholas and Alex M. Tomasevic, Nicholas & Tomasevic LLP, San Diego, California; for Plaintiff-Appellant.

Alexander Papaefthimiou (argued), Law Office of Alexander E. Papaefthimiou, Camarillo, California; Gregory M. Harrison, Gregory M. Harrison APC, San Diego, California; for Defendant-Appellee Advecor, Inc.

Mark E. Ellis (argued), Ellis Law Group LLP, Sacramento, California, for Defendant-Appellee Vertical Fitness Group LLC.

Brian Melendez, Dykema Gossett PLLC, Minneapolis, Minnesota, for Amicus Curiae ACA International.

Before: William A. Fletcher and Ronald M. Gould, Circuit Judges, and Ivan L.R. Lemelle,[*] District Judge. Opinion by Judge Gould

OPINION

Ronald M. Gould, Circuit Judge:

This is a consumer protection case arising from text messages about a gym membership. The parties dispute the scope of the consumer's consent to being contacted after he gave his cell phone number while signing up for a gym membership, and whether he revoked his consent when he cancelled the membership. For purposes of the Telephone Consumer Protection Act of 1991 (TCPA), we hold that the scope of a consumer's consent depends on the transactional context in which it is given. The call or text message must be based on the circumstance in which the consumer gave his or her number. The 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.

For the reasons that follow, we conclude that Plaintiff-Appellant Bradley Van Patten gave prior express consent to receive the text messages at issue, and did not effectively revoke his consent, hence dooming his TCPA claim. Also, as for his claims under California law asserting violations of California Business and Professions Code § § 17538.41 and 17200, Van Patten did not establish economic standing. We affirm the district court's grant of summary judgment in favor of Defendant-Appellees Vertical Fitness Group, LLC and Advecor, Inc.

I

On March 21, 2009, Plaintiff-Appellant Bradley Van Patten visited a Gold's Gym franchise in Green Bay, Wisconsin to obtain information about a gym membership. During the visit, Van Patten submitted a desk courtesy card to the gym, wherein he wrote his demographic, financial, and contact information to determine whether he was pre-qualified to become a member. In this data Van Patten listed his cell phone number as his contact number.

Van Patten then met with the gym's manager, an employee of Defendant-Appellee Vertical Fitness Group, LLC, to discuss the possibility of a membership. During this conversation, the manager filled out a Gold's Gym Membership Agreement on behalf of Van Patten, which Van Patten signed. The manager wrote Van Patten's cell phone number in the phone number field. Within three days of opening his gym membership, Van Patten called Gold's Gym to cancel his membership. Van Patten moved to California in the summer of 2009, but he kept his Wisconsin cell phone number.

Vertical Fitness owned or managed several of the Gold's Gym franchises. Although Vertical Fitness did not own the gym Van Patten joined, it operated and managed the gym. In the spring of 2012, many of the Gold's Gym franchises in Wisconsin and Minnesota, including the gym that Van Patten had joined, ended their franchise relationships with Gold's Gym and became " Xperience Fitness" gyms. Vertical Fitness owned the " Xperience Fitness" brand and trademark.

After the brand change, Vertical Fitness turned to its marketing partner, Defendant-Appellee Advecor, Inc., to help announce the gym's brand change to current and former gym members and invite members to return. One such announcement was made via text messages. Vertical Fitness gave the phone numbers of former or inactive gym members to Advecor, and Advecor sent the text messages. Van Patten received his first text message on May 14, 2012. The 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

He received a similar text on June 25, 2012.

Van Patten filed a putative class action lawsuit arising out of the text messages on June 28, 2012. He alleged that the unauthorized text messages Defendants sent " caused consumers actual harm," including " the aggravation that necessarily accompanies wireless spam" and that consumers " pay their cell phone service providers for the receipt of such wireless spam." Van Patten asserted three causes of action: (1) violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227; (2) violation of California Business and Professions Code § 17538.41; and (3) violation of California Business and Professions Code § 17200. The district court granted Van Patten leave to file a first amended complaint, in which he added Advecor as a defendant and added the allegation that he received two text messages. The district court granted Van Patten's motion for class certification,[1] but on May 20, 2014, the court granted summary judgment in favor of Defendants on all of Van Patten's claims.

II

On appeal, Van Patten argues that the district court erred by granting Defendants' motions for summary judgment on all three of his claims. We have jurisdiction under 28 U.S.C. § 1291. We review a district court's grant of summary judgment de novo. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 950 (9th Cir. 2009). Summary judgment is appropriate only when " there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

We address each of Van Patten's claims in turn.

A. The Telephone Consumer Protection Act of 1991

The TCPA makes it " unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . ." 47 U.S.C. § 227(b)(1)(C). The TCPA generally prohibits making nonemergency, unsolicited calls advertising " property, goods, or services" using automatic dialing systems and prerecorded messages to telephones and cellular phones. Id. § 227(a)(5); id. § 227 (b)(1)(A)(iii). Although the TCPA does not define a " call," the Federal Communications Commission (FCC), the agency implementing the TCPA, has interpreted the TCPA to " encompass[] both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls," which are generally referred to as text messages. In re Rules & Regulations Implementing the Telephone Consumer...

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