Van Patten v. Vertical Fitness Group, LLC

Plaintiff had standing to sue under the Telephone Consumer Protection Act, but not the UCL for unwanted text messages soliciting him to renew a gym membership, but the claims were properly dismissed because plaintiff expressly consented to receive the messages by giving his phone number to the gym, and merely allowing his gym membership to lapse did not revoke that consent.  A plaintiff who alleges he received nonconsensual text messages or telephone calls has standing to bring a TCPA claim against the sender.  Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection, elevating them to the status of concrete injury.  However, plaintiff lacked standing to sue under the UCL because he could not show any economic injury from the unwanted text messages, as he had an unlimited usage telephone plan.  Plaintiff gave defendant express consent to send messages to his cell phone by giving his cell phone number to defendant in connection with its gym membership contract.  The consent extended to text messages inviting plaintiff to return and renew his gym membership because those messages related to the reason he gave defendant the phone number to begin with.  Though the brand affiliation of the gym changed, ownership and operation did not, so the consent remained effective.  A consumer may revoke prior express consent to be called but must do so clearly and express a desire not to be called or texted at that number.  Here, plaintiff did not effectively revoke consent simply by allowing his gym membership to lapse.

Ninth Circuit Court of Appeals (Gould, J.); January 30, 2017; 2017 WL 460663


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