ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Vаn Patten accuses Vertical Fitness and Advecor of sending two unsolicited’ text messages to his cell phone in violation of the federal Telephone Consumer Protection Act and California’s Unfair Competition Law. The Court previously certified a class for the TCPA claim. Now pending are cross-motions for summary judgment.
I. Factual Allegations
Van Patten entered a Gold’s Gym in Green Bay, Wisconsin on or around March 21, 2009, interested in joining. He filled
Aime Berggren was the gym manager who met Van Patten. She filled out a membership agreement for him to sign, which he did. (Van Patten Dep. at 125:13— 126:19; Berggren Dep. at 54:4-18; 61:6-7.) That agreement contained his phone number. Berggren didn’t ask Van Patten for his phone number at that time, though; she simply copied it from the application card he had previously filled out. (Berg-gren Dep. at 86:11-23.)
Berggren didn’t ask Van Patten if he had any reservations about being contacted at the telephone number. (Berggren Dep. at 95:5-8.) It wasn’t her practice or the gym’s to ask that question, or to offer a new member the option of not being contacted. (Berggren Dep. at 95:9-19; 95:25-96:7.) Nor did she explain that the number might be used for marketing purposes. (Berggren Dep. at 69:16-20.) It was her practice to let the member ask not to be contacted, or to place limitations on the use of his phone number, in which case his preference would be noted on the membership agreement. (Berggren Dep. at 95:23-24; 85:14-86:4; 96:14-20; Barton Dep. at 177:3-9.)
It’s absolutely clear that Van Patten’s phone number apрears on the membership agreement without any restrictions. It’s also clear enough that just as Berggren didn’t ask Van Patten about the use of his phone number, he didn’t raise the issue either. (Van Patten Dep. at 107:23-108:10.) It simply never came up, in particular with respect to marketing text messages. (Berggren Dep. at 69:12-15; 70:7-9.)
All of this should be familiar to anyone who has every joined a gym. The potential member walks in, the gym gets some basic information from him, and following a sales pitch he either chooses to join or doesn’t. Whether the gym will use the information he provides is not much on his mind. Indeed, by their own admission neither Van Patten nor Berggren have a great memory of thе day he joined Gold’s. Van Patten remembers “speaking with some representative” and “getting a tour,” but he doesn’t remember what was said to him or what he said. (Van Patten Dep. at 104:1-105:11; 107:10-14.) Berggren, for her part, doesn’t even remember Van Patten personally and doesn’t remember her discussions with him. (Berggren Dep. at 42:16-44:23.)
Van Patten wasn’t a member of Gold’s for very long. He cancelled his membership within a three-day no-cost cancellation window. (Barton Dep. at 129:9-12.) Now, fast forward several years.'
The Gold’s Gym that Van Patten had joined in Green Bay was a franchise, owned by an LLC. (Barton Dep. at 225:21-226:1; 36:10-37:18.) It is still owned by that LLC today, although in May 2012 the LLC severed the gym’s affiliation with Gold’s and re-branded it Xperience Fitness. (Barton Dep. at 46:2-13; 48:5-15; 226:6-11; 225:7-11.) Xperience Fitness is a brand owned by the Defendant in this case, Vertical Fitness. Vertical Fitness, to be clear, doesn’t have an ownership stake itself in the Green Bay gym; it is just the owner of the brand. (Barton Dep. at 37:13-21.) All that matters here is that the gym Van Patten joined is still in busi
Vertical Fitness engaged Defendant Ad-vecor, a marketing company, to develop a campaign to announce that the gym — as well as other area Gold’s Gyms — was becoming an Xperience Fitness gym. (Barton Dep. at 8:7-11.) The goal was mainly to get former members to come back. (Barton Dep. at 17:16-18:6; Advecor Dep. at 25:12-26:16.) The text messages at issue in this case were part of that campaign. (Barton Dep. at 6:16-7:19; 8:13-23; 40:18-21; Advecor Dep. at 31:7-18; 82:9-12.) Now that it’s under fire, Vertical Fitness tries to downplay its responsibility for the texts: (1) they were “[o]ne small part of the campaign”; (2) Advecor, not Vertical Fitness, conceived, developed and sent them; and (3) Vertical Fitness didn’t even know how many texts were sent. (Doc. No. 43 at 5-6.) Be that as it may, there is no denying that Vertical Fitness authorized and paid for the texts. (Barton Dep. at 8:16-23.)
Van Patten received two text messages sent to former members of the gym. There’s no dispute about that. One was sent on May 14, 2012, and another on June 25, 2012. (Van Patten Dep. at 94:16-19; Advecor Dep. at 31:16-34:2;) (A third text was sent to current members, also on June 25.) The texts said essentially the same thing: “Gold’s Gym is now Xperience Fitness. Come back today for $9.99/month, no commitment. Enter for a chance to win a Nissan Xterra.” (Ellis Deck, Ex. 7.) It went to approximately 30,000 former members. (Doc. No. 47-1 at 5.)
II. Legal Standard
Summary judgment is appropriate where “there is nо genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). It is the burden of the movant — every party in this case, considering there are cross-motions — to show there isn’t a genuine issue as to any material fact. Celotex Corp. v. Catrett,
The Court considers the record as a whole and draws all reasonable inferences in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson,
III. Discussion
The front-and-center question in this case is whether Van Patten consented to receiving the texts at issue. Consent is the first issue raised by Vertical Fitness and Advecor in their respective motions for summary judgment, and it is the only issue raised in Van Patten’s motion for partial summary judgment — an attempt on
A. Consent
There are three elements to a TCPA claim: “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC,
There is no dispute here that Van Patten never actually said to Vertical Fitness, ‘Tes, you may text me at the numbеr I have given you,” or anything like that. He never signed his name or initialed next to a disclaimer that by providing his phone number to Vertical Fitness he was welcoming text messages. As the Court said above, when Van Patten joined the Gold’s Gym, the subject of text messages never came up. (Berggren Dep. at 69:12-15; 70:7-9.) Van Patten simply provided his phone number on an application card with no discussion of why Gold’s Gym needed it or what they would do with it. (Van Patten Dep. at 124:13-22.) But according to Vertical Fitness, no discussion was required. The mere act of Van Patten writing down his phone number on an application card was all the consent it needed.
Vertical Fitness relies, first, on various FCC interpretations of the TCPA, beginning with one in 1992 that said “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 (Oct. 16, 1992). Subsequently in 2008, in the context of debt collection calls, the FCC concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 564 (Jan. 4, 2008). The FCC did change course in 2012, concluding that “requiring prior express written consent for telemarketing calls utilizing autodialed or prerecorded technologies will further reduce the opportunities for telemarketers to place unwanted or unexpected calls to consumers,” but this interpretation of the TCPA was prospective, commencing twelve months after “publication of OMB approval of our written consent rules in the Federal Register.” In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830, 1839, 1856-67 (Feb. 15 2012). It took effect on October 16, 2013, well after the texts at issue in this case were second. (Ellis Deck, Ex. 13.) These FCC Orders clearly cut against Van Patten.
Vertical Fitness relies, second, on various cases that cite these FCC interpretations in dismissing сlaims brought under the TCPA. And there are a lot of those
In Pinkard v. Wal-Mart, the first case, the plaintiff alleged a TCPA violation when she filled a prescription at Wal-Mart’s pharmacy, provided her phone number, and subsequently received texts from the store.
Emanuel v. Los Angeles Lakers, Inc. also cuts against Van Patten.
The same reasoning appears in Roberts v. PayPal, Inc., in which a plaintiff added his phone number to his PayPal account, immediately received a confirmation text, and then filed a TCPA action.
The first of those cases, Murphy v. DCI Biologicals Orlando, LLC, is right on point here.
Another court considered itself bound by the 1992 FCC Order in Baird v. Sabre Inc., a casе involving a plaintiff who booked a flight on the Hawaiian Airlines website, provided her phone number, and then received a text from a contractor company asking if she wished to receive flight notifications by text.
The next case, Kolinek v. Walgreen Co., involved a time lapse between the provision of a phone number and the allegedly infringing texts that was almost a decade — longer than the lapse in Murphy and the lapse in this case.
In Steinhoff v. Star Media Co., LLC, the court applied the 1992 FCC Order and the 2008 FCC Order to conclude that a plaintiff who provided her phone number when-she signed up for a one-year newspaper subscription had no TCPA claim arising out of attempts the newspaper made about a past-due balanсe and renewal when the subscription ended.
The last case the Court will mention— though far from the last case available — is Andersen v. Harris & Harris.
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. In no particular order, Van Patten counters: they aren’t binding precedent if they’re not from within the Ninth Circuit; they’re factually distinguishable; the Court needn’t defer to the FCC, which is wrong anyway; the only true “prior express consent” is consent that is affirmatively stated and recorded, as opposed to passively providing a phone number; other cases are on its side; and even if Van Patten did give consent, he gave it to Gold’s not to Vertical Fitness and he withdrew it when he cancelled his membership.
Second, two cases from within this district that Van Patten cites, In re Jiffy Lube Int'l, Inc. Text Spam Litig. and Connelly v. Hilton, aren’t as helpful as he needs them to be. Connelly, which predates all of the cases discussed above, ruled on a motion to dismiss with little evidentiary record.
Third, Van Patten relies too heavily on Satterfield v. Simon & Schuster. It’s true that the Ninth Circuit held in Satterfield that express consent is “consent that is clearly and unmistakably stated.”
But Satterfield has less traction where, as in this case, the party being sued is essentially the very party to whom the phone number was given — Van Patten’s argument that Vertical Fitness and Gold’s Gym are separate companies notwithstanding. See Pinkard,
Fourth, Van Patten exaggerates the significance of the factual details of this case that he believes distinguish it from the above cases and cut in his' favor. The argument that any consent given to Gold’s Gym didn’t transfer to Vertical Fitness is a non-starter. The very deposition testimony Van Patten cites confirms that Vertical Fitness is simply a different brand name on the very same gym with the very same ownership. (Barton Dep. at 46:7-13.) There is no evidence to support Van Patten’s characterizatiоn of it as a “third-party promoter.” (Doc. No. 47-1 at 14.) The time lapse of four years is also insignificant because “consent under the TCPA does not expire on its own; it must be revoked.” Kolinek,
Here, however, it doesn’t follow from Van Patten’s mere cancellation of his gym membership that he no longer wished to be contacted by the gym, or that Vertical Fitness should have understood this. The court in Steinhojf found that the expiration
Fifth, the text Vertical Fitness sent related to the original reason Van Patten provided his number: gym membership. And it is this very characteristic of a text that insulates it from a claim under the TCPA. As the court put it in Emanuel, “the fact that the confirmatory text included information relevant to Plaintiffs request demonstrates — in part — why the message chаllenged here is not the kind of intrusive, nuisance telemarketing call that Congress sought to prohibit in enacting the TCPA.”
For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he provided his phone number upon joining the gym. The Court is bound by the 1992 FCC Order interpreting “prior express consent,” and the caselaw from this and other districts is unquestionably on the side of Vertical Fitness. See, e.g., Murphy,
B. State Claims
In addition to a TCPA claim, Van Patten asserts a claim under California’s equivalent, Cal. Bus. and Prof.Code § 17538.41. He also asserts a claim under § 17200 of the Business and Professions Code.
When the Court certified the class in this case, it noted that a TCPA claim differs subtly from a § 17538.41 claim, at least as far as their respective statutes read, and that Van Patten’s complaint isn’t sensitive to their differences. (Doc. No. 54 at 4.) In asserting his § 17538.41 claim, for example, he calls the texts “unsolicited” and made “without prior consent,” characterizations that really only implicate the TCPA. (FAC ¶ 45.) Under § 17538.41 there is no “prior express consent” requirement, only an exception to liability if a company gives consumers an option to not receive the texts. The Court even, declined to certify a sub-class of California residents for this reason, among others. It said, “Frankly, and with all due respect to Van Patten, the Court believes the California claims were thrown into the complaint and first amended complaint as filler, and if Van Patten isn’t going to pursue and take them seriously, neither is the Court.” (Doc. NO. 54 at 7.) Still, the Court finds the California claims to be under-developed and under-argued, but they remain on the table (for Van Patten only) and the Court must address them.
Seсtion 17538.41 applies only to entities conducting business in California. Vertical Fitness argues that it doesn’t conduct business in California, and that’s that. It doesn’t even rely on the exceptions to § 17538.41 that the Court addressed in its class certification order, for example the exception that arises when the consumer is given an option not to receive text messages. It simply argues, “Here, there are absolutely no facts that show Vertical Fitness conducts any business, intentionally
Van Patten offers five facts to support a finding that Vertical Fitness does business in California: (1) Van Patten lives here, and Vertical Fitness texted him; (2) Vertical Fitness texted others with California phone numbers; (3) Vertical Fitness offers online and mobile health applications that are available to anyone, anywhere; (4) Ad-vecor is based in San Diego, CA; and (5) Vertical Fitness aims to expand the “Xperience Fitness” brand nationally. (Doc. No. 50 at 21-22.) The Court finds these alleged connections to California lacking, individually and collectively. The fact is that Vertical Fitness operates regional gyms in Wiscоnsin and Minnesota; that’s where its business is. The texts were targeted at people in those states, and to the extent some weren’t it was simply because, like Van Patten, they moved — most likely without Vertical Fitness knowing. (Barton Dep. at 16:16-19; 215:9-216:15; Advecor Dep. at 249:7-251:3.) Many of those with California phone numbers may well be Wisconsin or Minnesota residents, anyway. Its website is accessible anywhere, sure, but if that’s no basis for personal jurisdiction, which it isn’t, the Court has a very hard time accepting that it’s a basis for a § 17538.41 claim. See Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
The last question is whether Van Patten has a § 17200 claim. The statute prohibits “unlawful, unfair, or fraudulent” acts, and each “prong” provides a “separate and distinct theory of liability.” Rubio v. Capital One Bank,
As the Court noted when it certified the class in this case, the meaning of “unfair” under § 17200 isn’t exactly settled: “On the one hand, a business practice is unfair if it violates public policy or is immoral, unethical, oppressive, or unscrupulous and causes injuries to customers that outweigh its benefits. On the other, the unfair practice must be tethered to some actual or
Assuming that the “unfair” practices claim doesn’t fail for the same reason that the “unlawful” practices claim does— Dun & Bradstreet suggests that where a 17200 claim hinges on a rejected federal claim the § 17200 claim fails on all prongs — Vertical Fitness argues that Van Patten can’t allege an injury, anyway, because he wasn’t charged individually for the texts at issue under his unlimitеd text-ing plan. (Van Patten Dep. at 70:4-25.) Standing to bring a claim under § 17200, for the purposes of this case, is limited to a person “who has suffered injury in fact and has lost money or property as a result of the unfair competition.” Cal. Bus. & Prof.Code. § 17204. The California Supreme Court has recognized that these two prongs — “injury in fact” and “lost property or money” — will often overlap, as they seem to in this ease. Kwikset Corp. v. Superior Court,
Against this background, the Court finds no injury here that is cognizable under § 17200. The fact is that Van Patten wasn’t charged for the texts except in the formal sense that he pays for unlimited texting, and the Court can’t reconcile liability for that nominal amount with the holding of Kwikset. This shouldn’t come as a surprise to Van Patten. To support the argument that “by paying for an unlimited texting service [he] still suffers an economic injury as a result of Defendants’ conduct,” Van Patten cites three TCPA cases, two of which deal with the injury-in-fact requirement for Article III standing. Those cases are no help at all to his assertion that he has suffered a cognizable injury under California’s Unfair Competition Law. Defendants’ summary motion as to Van Patten’s § 17200 claim is therefore GRANTED.
IV. Conclusion
To summarize, the Cоurt finds, first, that because Van Patten willingly gave his phone number to Gold’s Gym when he became a member he consented to being texted by a re-branded gym about a membership offer. The binding FTC interpre
IT IS SO ORDERED.