Ninth Circuit Finds Article III Standing, Dismisses TCPA Action for Failure to Effectively Revoke Consent

By Joseph C. Wylie II, Molly K. McGinley, and Nicole C. Mueller

The Ninth Circuit ruled this week that a customer alleging that his former gym sent him texts in violation of the Telephone Consumer Protection Act (“TCPA”) suffered a concrete injury under the standard set forth in 2016 by the Supreme Court in Spokeo, Inc. v. Robins (previously discussed here) but that cancellation of his gym membership was insufficient to establish revocation of consent as required in order for the gym to incur liability under the statute.

In Van Patten v. Vertical Fitness Group et al., Plaintiff Bradley Van Patten alleged that Vertical Fitness had violated the TCPA and other laws by sending texts to his cell phone after he had cancelled his gym membership and moved to another state.  The District Court initially certified a class of 80,000 persons who had received the texts but granted summary judgment to Vertical Fitness after it found that Van Patten had provided his number to the gym, thus consented to receive the texts, and failed to adequately revoke that consent.  Van Patten appealed the decision to the Ninth Circuit; Defendants argued on appeal that Van Patten did not establish his standing to bring the claim.

The Ninth Circuit held that under Spokeo, Van Patten had alleged a concrete injury sufficient to confer Article III standing to pursue his TCPA claim, finding that sending the telemarketing text messages at issue without consent present “the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA.”  In doing so, it joins other courts that have analyzed standing in the wake of Spokeo by analyzing the statute at issue and deciding whether it creates a right that, if violated, effectively constitutes a per se Article III injury.  (See further discussion on the range of approaches taken by courts here.)  The Ninth Circuit determined that a plaintiff alleging a violation under the TCPA “need not allege any additional harm beyond the one Congress has identified.”

The Ninth Circuit also determined that Van Patten gave prior express consent to receive the text messages at issue and that the act of cancelling his membership, standing alone, did not operate to revoke his consent. It determined that, for purposes of the TCPA, the scope of a consumer’s consent to being contacted depends on the transactional context in which it is given, and citing Federal Communications Commission orders, the panel held that an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages.  Agreeing with the Third and Eleventh Circuits, the panel held that a consumer may revoke his or her consent but in doing so, said that a consumer must clearly express that he or she does not want to receive the messages or calls.  The Ninth Circuit concluded that Van Patten could have revoked his consent by “plainly telling Defendants not to contact him on his cell hone when he called to cancel his gym membership or messaging ‘STOP’ after receiving the first text message.”  Because Van Patten had not done so, the Ninth Circuit held that he had not revoked consent for TCPA purposes.

In effect, the Ninth Circuit’s ruling stands for the proposition that consent that is given in the context of a consumer relationship survives the termination of that relationship unless the consent itself is separately and clearly revoked.