APPELLATE COURT UPDATE
January 31, 2017
SAN FRANCISCO – The U.S. Ninth Circuit Court of Appeals upheld a district court summary judgment in favor of the defendant in Van Patten v. Vertical Fitness Group, LLC, a class action arising from the Telephone Consumer Protection Act.
At issue was whether a fitness gym could solicit former members using telephone numbers given on membership application forms. The class action, defended at trial by Mark E. Ellis and Amanda Griffith and in appellate court by Mr. Ellis, sought damages on behalf 30,000 former gym members who received automatically-dialed phone calls and texts from Vertical Fitness.
Plaintiff’s counsel argued on appeal that a signature and telephone number on a membership form did not constitute express consent to receive solicitations. And even if it did, express consent was revoked when the plaintiff terminated his membership three years prior to the solicitations.
The Ninth Circuitagreed with the defense that 1) solicitations were within the scope of consent expressed by a signed membership application and 2) revocation of that consent needed to be expressed verbally or in writing by Van Patten to Vertical Fitness.
TRIAL COURT ANNOUNCEMENT
May 31, 2014
SAN DIEGO – A federal court in California has ruled in favor of a defendant fitness gym in a class action lawsuit seeking damages on behalf 30,000 former gym members who claimed the defendant violated the Telephone Consumer Protection Act by texting them two marketing solicitations.
Central to the dispute in Van Patten v. Vertical Fitness Group, LLC was whether inclusion of a cell phone number on an application form constitutes express consent by the applicant to receive automatically-dialed phone calls and texts. The court held that, barring no stipulated restrictions by the applicant, express consent is conferred by a signed application.
The District Court for the Southern District of California also held that this consent continues even if membership is discontinued. The named plaintiff in the case, Bradley Van Patten of San Diego, had discontinued his membership with the health club after only three days. He received the two marketing texts more than three years later.
The court found inconsequential the facts that the gym had changed its name to Xperience Fitness, a brand owned by the Milwaukee-based Vertical Fitness Group, LLC, and that the texts were sent on behalf of the gym by co-defendant Advecor, a San Diego marketing company. It also ruled against the plaintiff on claims brought under California’s Business and Professions Code § 17538.41 and § 17200, noting at the outset that the claims were “under-developed and under-argued, but they remain on the table (for Van Patten only) and the Court must address them.”
Ellis Law Group, LLP attorneys who represented the defendant included Andrew M. Steinheimer, Mark E. Ellis and Ephraim Egan. For a copy of the decision, click here.
—End of Press Release—
Articles on areas of law that were involved in this case include:
THE ABC'S OF THE TCPA: PART 1
By Mark E. Ellis
This is the first of a two-part article that discusses the salient points of the TCPA and key legal issues commonly being litigated in 2009. In Part 1, Mr. Ellis reviews the legislative history of the TCPA.
THE ABC'S OF THE TCPA: PART 2
By Mark E. Ellis
In this article, Mr. Ellis discusses what is necessary for an individual to obtain damages under the TCPA, as well as the defenses that exist to such claims, including the defense of consent.
A BRIEF OVERVIEW OF CALL RECORDING IN CALIFORNIA
By Mark E. Ellis
This article addresses some salient features of the California Invasion of Privacy Act (CIPA), some of the major defenses to putative liability, and common-sense ways creditors can manage the risks associated with call recording.
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