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MoFo Reenforcement The Enforcement Blog

The Latest Word (or Text) on TCPA Standing Post-Spokeo and Consent

Posted in Credit Reports

On January 30, 2017, in Van Patten v. Vertical Fitness Group, No. 14-55980, the Ninth Circuit Court of Appeals found that a Telephone Consumer Protection Act (TCPA) plaintiff had sufficiently alleged an Article III injury-in-fact, under the United States Supreme Court’s Spokeo, Inc. v. Robins decision.  The Ninth Circuit ultimately affirmed summary judgment in favor of the defendants, holding that the plaintiff had consented to receiving text messages from a gym by providing his phone number with his membership application and had not revoked that consent simply by cancelling the gym membership.

In 2009, the plaintiff Van Patten had provided his cell phone number when signing up for gym membership, but cancelled the membership three days later.  In 2012, he was sent text messages informing him of the new gym brand and offering a discount to renew his membership.  He filed suit claiming violations of the TCPA and California state law.

Standing to Assert Claims for Unsolicited Text Messages

With respect to standing, the Ninth Circuit reviewed Congressional history and common law principles to conclude that the plaintiff’s allegations regarding the unsolicited telemarketing text messages he received from Vertical Fitness were sufficient to establish Article III standing.  The Court distinguished Spokeo, “where a violation of a procedural requirement minimizing reporting inaccuracy may not cause actual harm or present any material risk of harm,” from the telemarketing text messages at issue in Van Patten.  Recognizing that a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm” to satisfy the injury-in-fact requirement, the Ninth Circuit nevertheless found that the plaintiff had alleged an injury sufficient to confer Article III standing.

For plaintiff’s claims under California Business and Professions Codes § 17538.41 and § 17200, however, the Ninth Circuit found the plaintiff lacked standing.  Both the California Unfair Competition Law and False Advertising Law provisions require “economic injury,” but the plaintiff could not “prove that the text messages caused him to suffer an economic injury.”  The Court reasoned that the plaintiff had an “unlimited text messaging plan” and “regardless of how many text messages Van Patten received during a month, he still paid the same monthly fee.”  The Ninth Circuit rejected Plaintiff’s “hypothetical and conjectural” argument that an additional text “ultimately affects his cellular telephone provider’s bundled pricing” because “cellular companies raise the prices of their bundled plans when text message traffic increases.”

Providing One’s Phone Number Is Consent To Be Contacted

When the plaintiff provided his cell phone number to the gym, he consented to be contacted on that number regarding issues “relate[d] to the type of transaction that evoked it.”  Van Patten had consented to communications inviting him to reactivate his gym membership where the texts were “related to the reason Van Patten gave his number in the first place, to apply for a gym membership.”

Although the Ninth Circuit held that a consumer may revoke consent previously given, that revocation “must be clearly made and express a desire not to be called or texted.”  The mere cancelling of Van Patten’s gym membership did not effectively revoke his consent to receive the text messages from Vertical Fitness.  Van Patten never told defendants to stop contacting him on his cell phone.

The Ninth Circuit, accordingly, affirmed summary judgment for defendants because the plaintiff had consented to receiving the texts.

Consent and revocation of consent continue to be the focus of many TCPA actions.  Companies communicating with customers and consumers, including via text message, should continue to carefully analyze the types of communications being sent and the procedures for responding to “opt-out” requests or requests to stop calling.