Van Patten v. Vertical Fitness Group: Consent Follows the Reason You Gave Your Number

The texts

In March 2009, Bradley Van Patten visited a Gold's Gym in Green Bay, Wisconsin, filled out a courtesy card with his cell number and signed a membership agreement. Within three days, he called to cancel. He later moved to California but kept his Wisconsin number.

In 2012, the gym, operated by Vertical Fitness Group, rebranded as Xperience Fitness. Its marketing partner, Advecor, texted former members: "Golds Gym is now Xperience Fitness. Come back for $9.99/mo, no commitment." Van Patten got two such texts and filed a class action under the Telephone Consumer Protection Act (TCPA) and California law. While the Southern District of California certified a national class, it also granted summary judgment to defendants.

What the Ninth Circuit held

Judge Gould wrote for the panel, joined by Judge William Fletcher and District Judge Lemelle, sitting by designation.

Standing. Applying Spokeo, the court held that unsolicited telemarketing texts "present the precise harm and infringe the same privacy interests Congress sought to protect." Invasion of privacy, intrusion upon seclusion and nuisance have long been actionable, and Congress made specific findings about telemarketing. No additional harm needed.

Consent depends on context. Consent is an affirmative defense the caller must prove. The defendants relied on the Federal Communications Commission's (FCC's) 1992 statement that people who knowingly release their numbers have given permission to be called. The court refused to read that as consent "for any purpose whatsoever." Looking at the FCC's 2008, 2012 and 2014 rulings, it held that effective consent must relate to the same subject matter as the calls or texts.

Applied here, giving his number for a gym membership didn't cover everything. But it did cover texts inviting him to "come back" and rejoin. That related to why he gave the number. And because the same entities owned and operated the gym, the brand change didn't matter.

Revocation must be clear. Agreeing with the Third and Eleventh Circuits and the FCC's 2015 ruling, the court held consumers can revoke consent. But revocation must clearly express a desire not to be contacted. Canceling the membership didn't do that. He could have told the gym not to contact him when he canceled, or replied "STOP."

State claims. His California claims failed for lack of economic injury, since he had an unlimited texting plan.

One note: the texts here predated the FCC's rule requiring prior express written consent for telemarketing, which took effect October 16, 2013.

Why this matters

Van Patten is one of the most cited cases on the scope of consent.

Practical points:

1. Tie your messages to the purpose for which the customer gave the number.
2. Remember that marketing texts now generally require prior express written consent.
3. Honor clear opt-outs like "STOP" immediately.
4. Don't assume a canceled account means revoked consent, but don't push your luck either.

Read the Ninth Circuit's opinion in Van Patten v. Vertical Fitness Group.