The consumer provides his cell phone number in connection with joining a gym. He is not asked whether he has any reservations about being contacted at the number. He is not told (orally or in writing) that the number might be used for marketing purposes. And there certainly is no discussion or disclosure specific to use of the number for text message marketing.
More than three years later, long after the consumer cancels his gym membership, the successor owner of the gym texts the consumer related to its acquisition of the gym, saying: “Gold’s is now Xperience Fitness. Come back today for $9.99/month, no commitment. Enter for a chance to win a Nissan Exterra.”
If you are a plaintiff’s class action lawyer, you take this consumer on as a client in a heartbeat, right? You sue for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and you start shopping for your next Beamer! Or maybe not….
In a decision issued on May 20, 2014, a California federal judge found that by providing his number in conjunction with the gym membership application, the consumer consented to text message marketing. Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. May 20, 2014). Moreover, the consumer did not revoke that consent simply by canceling his gym membership. Id. at *8.
In reaching its holding, the court relied on the consent-related orders from the Federal Communications Commission (“FCC”) in 1992 and 2008, id. at *4 (citing In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 (Oct. 16, 1992), and In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 564 (Jan. 4, 2008)). And the court found that the 2012 FCC order requiring “express written consent” did not apply because it did not go into effect until Oct. 16, 2013, long after the texts at issue in the case were sent. Id. at *4 (citing In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830, 1856-67 (Feb. 15, 2012)).
The court relied on a host of decisions supporting the defendant’s consent argument. Id. at *4-7 (citing Pinkard v. Wal-Mart, 2012 WL 5511039 (N.D. Al. Nov. 9, 2012); Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D. Cal. Apr. 18, 2013);Roberts v. PayPal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013); Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013); Baird v. Sabre, Inc., 2014 WL 320205 (C.D. Cal. Jan. 28, 2014); Kolinek v. Walgreen Co., 2014 WL 518174 (N.D. Ill. Feb. 10, 2014); Steinhoff v. Star Media Co., LLC, 2014 WL 1207804 (D. Minn. Mar. 24, 2014);Andersen v. Harris & Harris, 2014 WL 1600575 (E.D. Wisc. Apr. 21, 2014)). According to the court, “Collectively, all of these cases amount to a flurry of punches that has Van Patten on the ropes, and his attempt to right himself is unpersuasive.” Id. at *6.
The court also granted summary judgment against the two California-based counts, finding that the claim under Cal. Bus. and Prof. Code § 17538.41 failed because there was no basis to conclude the defendant did business in California (a prerequisite to such a claim) and that the claim under Cal. Bus. and Prof. Code § 17200 failed because the only injury claimed was economic injury, and, in light of the plaintiff’s unlimited texting plan, any economic injury was nothing more than trivial. Van Patten, 2014 WL 2116602 at *9-11.
Given the breadth of this holding and the others upon which the holding relies, plaintiff’s class action lawyers have an increasingly difficult uphill slog in defeating the consent argument in cases involving text messages sent before Oct. 16, 2013. Additionally, the holding reaffirms two other impediments to plaintiff’s class action lawyers: bars on extraterritorial application of state statutes in nationwide class actions and the quagmire of actual harm. Plaintiff’s class action lawyers eager to take on these cases, therefore, might want to postpone placing orders for those new Beamers.