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Ninth Circuit Rules That Receiving Allegedly Unsolicited Text Is Sufficient By Itself To Establish Concrete Harm

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Ninth Circuit Rules That Receiving Allegedly Unsolicited Text Is Sufficient By Itself To Establish Concrete Harm

On January 30, 2017, the Ninth Circuit Court of Appeals upheld the dismissal of a Telephone Consumer Protection Act (TCPA) class action on the ground that the plaintiff did not clearly revoke his prior express consent to receive text messages from his former gym. But in coming to this conclusion, the court first found that a TCPA plaintiff does not have to allege any additional harm beyond receiving an unsolicited text message to satisfy the concrete-injury requirement that was recently at the center of the Supreme Court’s Spokeo decision. 
 
The facts of this case were that the Plaintiff, Bradley Van Patten, voluntarily provided his cellphone number to his former gym when he applied for a membership in 2009. After sticking with it for three whole days, Van Patten called his gym to cancel his membership. Three years later, his former gym, now operating as Vertical Fitness, hired a marketing agency, Advecor, Inc., to send former members promotional offers via text message to rejoin Vertical Fitness. On June 25, 2012, Van Patten filed suit, alleging that he never consented to receive Vertical Fitness’ autodialed telemarketing messages, and the text message he received “caused consumer’s actual harm,” including “the aggravation that necessarily accompanies wireless spam” and that consumers “pay their cell phone providers for the receipt of such wireless spam.” Although the District Court certified a class against Vertical Fitness and Advecor, it ultimately granted summary judgment in favor of the defendants because Van Patten voluntarily released his telephone to his gym.
 
On appeal, the Ninth Circuit first addressed whether Van Patten had standing under Article III of the Constitution in light of the Supreme Court’s Spokeo decision. In Spokeo, the high court reiterated that “Article III standing requires a concrete injury even in the context of a statutory violation,” and that a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Related to the TCPA, the Ninth Circuit noted that claims to remedy invasions of privacy, intrusions upon seclusion, and nuisance “have long been heard by American courts, and the right to privacy is recognized by most states.”  According to the court then, the TCPA simply establishes the substantive right to be free from such claims when they arise from certain types of phone calls and texts absent consumer consent.  According to the Ninth Circuit, unsolicited calls or texts, “by their nature, invade the privacy and disturb the solitude of their recipients.  A plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the one Congress has identified.”  Thus, Van Patten’s generic allegations about consumers paying their wireless carriers for “wireless spam” were essentially unnecessary.  All that mattered to the Ninth Circuit was that Van Patten alleged that he received an unsolicited, autodialed text message, without more. 
 
Ultimately, however, the Ninth Circuit affirmed the District Court’s decision that Van Patten provided his prior express consent (under the FCC’s pre-2013 standard) because he voluntarily provided his telephone number to his gym during the enrollment process 3 years before he received the marketing text message in question. Although the Ninth Circuit held that a consumer’s release of his telephone number should not be interpreted as consent to receive calls or texts for all purposes, the court found that “Van Patten gave his consent to being contacted about some things, such as follow-up questions about his gym membership.” And because the text message at issue was part of a campaign to get former gym members to return, the campaign “related to the reason Van Patten gave his number in the first place,” i.e., to apply for a gym membership.
 
Finally, the Ninth Circuit did not credit Van Patten’s argument that he effectively revoked his consent by canceling his gym membership. The Court ruled that revocation of “consent must be clearly made and express a desire not to be called or texted,” such as by texting “STOP” after receiving the first text message or plainly telling Vertical Fitness that he did not want to be contacted in the future when he called to cancel his membership.  
 
A copy of the Ninth Circuit’s decision can be found here. For more information on the impact of this decision or if you have questions about your company’s TCPA compliance obligations and best practices, please contact Adam Bowser or the Arent Fox professional who handles your matters.

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