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Vertical Fitness Escapes Liability in Junk Text Class Action

With the invention of cell phones and prepaid plans, people suddenly found themselves getting charged for promotional calls and texts made by various companies. Cold calling was a standard sales technique for most companies for decades, and while some consumers may have found them obnoxious, they were never actively harmful.

That remained true so long as the companies were the ones paying for the calls that they made. When the phone bills were switched to the consumers, people started to complain. Legislators responded by creating the Telephone Consumer Protection Act (TCPA) which prohibits companies from calling or texting consumers, without the prior consent of those consumers, except in emergency situations. Since there are very few, if any, emergency situations which would warrant a company contacting its customers immediately, this effectively forbids companies from contacting their customers via phone, without the proper authorization.

With various laws like the TCPA, it can be hard for the average citizen to keep up with them all. Companies have gotten pretty good at keeping track of them, though, as well as avoiding them. Permission for the company to contact the customer, or a waiver of certain rights on the part of the customer, have become standard in all sorts of contracts. It is for this reason that consumers are often warned to read the fine print before they sign anything, though few of them actually do.In one such scenario, Vertical Fitness Group, LLC (formerly Gold’s Gym) faced a class action lawsuit for allegedly violating the TCPA. Bradley Van Patten filed the lawsuit seeking $65 million in damages in San Diego, California. He filed the lawsuit on behalf of about 30,000 current and former gym members who received promotional text messages from the fitness center.

When applying for a gym membership, customers were required to provide their cell phone numbers. Larry Burns, the district court judge presiding over the case, ruled that, by giving the gym their cell phone numbers, the consumers had also given permission for the gym to send calls and text messages to those numbers. According to Burns, had the consumers requested restrictions on the type of communications the gym could send them, then the text messages would have been actionable violations. Since that was not the case, Burns granted the defendants’ motion for summary judgment.

Under the contract, the fitness center still had permission to contact a customer who had provided a cell phone number, even if that customer had cancelled his gym membership. As a result, Van Patten received two marketing texts from his former gym more than three years after he had discontinued his membership. Burns said 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 rebranded gym about a membership offer.”  The Plaintiffs disagree with the Court’ s ruling.

The attorneys representing the class of plaintiffs in the lawsuit have not commented, but Mark Ellis, who is representing the defendants, has said that the plaintiffs have filed an appeal of the district court’s decision.

Our Chicago class action lawyers near Arlington Hts. and Park Ridge bring class action, privacy law and individual consumer rights lawsuits. We bring suit for many types of class action lawsuits for consumer fraud issues and for unpaid overtime, junk fax, junk text messages, privacy rights violations, property damages due to pollution, false advertising and other claims. Super Lawyers has selected our Kane, DuPage and Cook County class action lawyers as among the top 5% in Illinois. Our Chicago class action attorneys only collect our fees if we win or settle your case. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.