Van Patten v. Vertical Fitness Group, LLC
22 F. Supp. 3d 1069
S.D. Cal.2014Background
- Plaintiff Van Patten joined a Gold’s Gym in Wisconsin in March 2009, provided his cell number on a membership/application card, and cancelled within the three-day cancellation window.
- Years later (May–June 2012), Vertical Fitness (which rebranded the same gym as Xperience Fitness) hired Advecor to run a marketing campaign that sent promotional texts to ~30,000 former members, including two texts received by Van Patten.
- The texts offered membership incentives and announced the rebranding; Van Patten never expressly discussed or agreed to receiving marketing texts when he gave his number.
- Defendants argue that providing a phone number constitutes prior express consent under FCC guidance and precedent; Vertical Fitness authorized and paid for the campaign but contends the texts were part of its marketing outreach.
- Procedural posture: Court had earlier certified a TCPA class; now decided cross-motions for summary judgment on whether Van Patten consented and on related California statutory and UCL claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Van Patten gave prior express consent under the TCPA | Van Patten argues passive provision of number on application card is not express consent to marketing texts and he never affirmatively authorized texts | Defendants contend providing the phone number for membership transactions constitutes prior express consent under FCC interpretations and controlling caselaw | Court held Van Patten consented by providing his number; granted summary judgment for defendants on TCPA claim |
| Whether consent (if any) to Gold’s Gym transfers to Vertical Fitness | Van Patten contends consent was to Gold’s Gym, not the later-branded Xperience/Vertical Fitness | Defendants point out Vertical Fitness is the brand/operator of the same gym and authorized the campaign | Court found consent applied to the rebranded gym/Vertical Fitness |
| Whether California statute Cal. Bus. & Prof. Code § 17538.41 applies (doing business in California) | Van Patten says texts to Calif. numbers, defendant’s online presence, and Advecor’s San Diego base establish California business contacts | Defendants argue Vertical Fitness operates regionally (WI/MN) and does not conduct business in California | Court held Vertical Fitness does not conduct business in California for §17538.41 purposes; granted summary judgment for defendants |
| Whether Van Patten has standing/injury under California UCL (§ 17200) | Van Patten claims economic injury from receiving texts (e.g., unlimited texting plan allocation) and unfair practice | Defendants argue no cognizable economic loss because Van Patten was not charged additional fees for texts | Court held no nontrivial economic injury sufficient for §17200 standing; granted summary judgment for defendants |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden and standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment and credibility evidence standard)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir.) (elements of TCPA claim)
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir.) (definition and limits of express consent in affiliate/third-party text context)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (Cal. 2011) (UCL standing requires injury in fact and loss of money or property)