Bradley Van Patten v. Vertical Fitness Group, 847 F.3d 1037

Van Patten gave his cell number on a Gold’s Gym membership application in Wisconsin (March 2009) and canceled the membership within days; he kept the same number after moving to California.
In 2012 defendant Vertical Fitness (operator of the gym) rebranded several franchises to “Xperience Fitness” and provided former/inactive members’ numbers to marketing vendor Advecor, which sent promotional SMS messages inviting members to rejoin.
Van Patten received at least two marketing texts in May and June 2012 and filed a putative nationwide TCPA class action and California state-law claims in June 2012; the district court granted summary judgment for defendants in 2014.
On appeal the Ninth Circuit examined (1) Article III standing after Spokeo, (2) whether Van Patten gave prior express consent to receive the texts (and the proper scope of such consent), (3) whether he effectively revoked consent by canceling his membership, and (4) whether he had economic standing for his California Business & Professions Act claims.
The Ninth Circuit held Van Patten had Article III standing, that giving his number in the transactional context of a gym membership constituted prior express consent to membership-related messages (including reactivation offers), that he did not clearly revoke consent by merely canceling, and that he lacked economic injury for his California claims. Summary judgment affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III standing under Spokeo for TCPA text claims	Van Patten lacked a concrete injury from receiving texts	Unsolicited automated texts are a concrete privacy/nuisance injury Congress recognized	Held: Van Patten has Article III standing; unsolicited telemarketing texts are concrete injuries Congress intended to remedy (Spokeo distinguished)
Scope of "prior express consent" under the TCPA	Providing a phone number did not mean consent to marketing texts unrelated to the transaction	Providing the number for membership amounted to consent to business-related contacts, citing FCC guidance	Held: Consent depends on transactional context; giving number for membership covered communications seeking reactivation, so defendants proved prior express consent
Revocation of consent by canceling membership	Canceling the membership revoked permission to contact him	Defendants: no clear opt-out was communicated; consent not effectively revoked	Held: Consent is revocable but revocation must be clearly expressed; mere cancellation did not clearly revoke consent here
Standing for California Business & Professions Code claims (Proposition 64)	Van Patten alleged being charged for texts (economic injury)	He had an unlimited texting plan so no concrete economic loss tied to defendants	Held: No economic injury proved; Van Patten lacks standing under California law; state-law claims fail

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III requires a concrete, particularized injury even for statutory violations)
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (texts qualify as "calls" under the TCPA)
Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (federal jurisdiction for TCPA claims)
Meyer v. Portfolio Recovery Associates, 707 F.3d 1036 (9th Cir. 2012) (TCPA prima facie framework including prior express consent discussion)
Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (consent under TCPA may be revoked)
Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013) (consent revocable; common-law grounding and statutory purpose)
Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011) (Proposition 64 requires actual economic injury for state UCL/false advertising standing)
Gomez v. Campbell-Ewald Co., 136 S. Ct. 663 (2016) (TCPA jurisdictional/damages context affirmed)
Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014) (interpretation of FCC orders in TCPA context)
U.S. West Communications, Inc. v. Jennings, 304 F.3d 950 (9th Cir. 2002) (deference to FCC interpretations)