The Ninth Circuit recently 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.

In Van Patten v. Vertical Fitness Group, LLC, Plaintiff-Appellant Bradley Van Patten visited a Gold’s Gym franchise to obtain information about a gym membership.  During the visit, he filled out a membership agreement and provided his cell phone number.  Within three days of opening his gym membership, Van Patten called to cancel his membership.

Defendant-Appellee Vertical Fitness Group, LLC , which operated and managed the gym franchise, subsequently employed 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.  Van Patten received several of these advertising text messages from Advecor on behalf of Vertical Fitness.

Van Patten then filed a class action lawsuit pursuant to the TCPA.  The district court granted the defendants’ motion for summary judgment, and Van Patten appealed.  The three issues on appeal included whether Van Patten: (1) had standing to sustain his lawsuit; (2) provided his prior express consent to receive the text messages; and (3) revoked his consent.  ACA International also filed an amicus brief in the appeal to provide insight to the court with respect to how the TCPA is interpreted and applied by the collection industry and the importance of a consistent application of the statute.


The Ninth Circuit first held that Van Patten had Article III standing.  “[T]he telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA.”


The parties did not dispute that Advecor used an automatic telephone dialing system (ATDS) to place the text messages.  Rather, the parties only disputed whether the defendants had prior express consent.  The Ninth Circuit held that the context of the consent must be considered.  Specifically, the Court “conclude[d] that the FCC has established no rules that a consumer who gives a phone number to a company has consented to be contacted for any reason.  Instead, FCC orders and rulings show that the transactional context matters in determining the scope of a consumer’s consent to contact.”

The Ninth Circuit held as a matter of law that Van Patten gave prior express consent to receive the defendants’ text messages.  “The text messages at issue here were part of a campaign to get former and inactive gym members to return, and thus related to the reason Van Patten gave his number in the first place, to apply for a gym membership.”


Van Patten argued that even if he gave his consent, he revoked that consent by cancelling his gym membership.  The Ninth Circuit disagreed, finding “that although consumers may revoke their prior express consent, Van Patten’s gym cancellation was not effective in doing so here.”  Specifically, “Van Patten did not clearly express his desire not to receive further text messages.”  The Court went on to state, “Revocation of consent must be clearly made and express a desire not to be called or texted.”  There was no evidence that Van Patten told the defendants to cease contacting him on his cell phone.

The Court ultimately affirmed the district court’s grant of summary judgment for the defendants on their affirmative defense that Van Patten consented to receive the text messages at issue.