Bradley Van Patten, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellant,
Vertical Fitness Group, LLC, a limited liability company; Advecor, Inc., a California corporation, Defendants-Appellees.
and Submitted May 4, 2016 Pasadena, California
from the United States District Court No.
3:12-cv-01614-LAB-MDD for the Southern District of California
Larry A. Burns, District Judge, Presiding
Rikos (argued), Law Offices of George Rikos, San Diego,
California; Craig M. Nicholas and Alex M. Tomasevic, Nicholas
& Tomasevic LLP, San Diego, California; for
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.
E. Ellis (argued), Ellis Law Group LLP, Sacramento,
California, for Defendant-Appellee Vertical Fitness Group
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.
Consumer Protection Act
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.
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
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.
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.
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.
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 §§
17583.41 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.
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
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.
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.
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