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Patten v. Vertical Fitness Group, LLC

United States District Court, S.D. California

May 20, 2014

BRADLEY VAN PATTEN, an individual, on behalf of himself and all others similarly situated, Plaintiff,

For Bradley Van Patten, an individual, on behalf of himself and all others similarly situated, Plaintiff: Alex M Tomasevic, Craig McKenzie Nicholas, LEAD ATTORNEYS, Nicholas and Tomasevic LLP, San Diego, CA; George Rikos, LEAD ATTORNEY, Law Offices of George Rikos, San Diego, CA.

For Vertical Fitness Group, LLC, a limited liability company, Defendant: Andrew M Steinheimer, Grant Anderson Winter, Mark E Ellis, LEAD ATTORNEYS, Ephraim Egan, Brandon L. Reeves, Ellis Law Group, LLP, Sacramento, CA.

For Advecor, Inc., a California Corporation, Defendant: Gregory M Garrison, LEAD ATTORNEY, Teeple Hall, LLP, San Diego, CA.


HONORABLE LARRY ALAN BURNS, United States District Judge.

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Van 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

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out an application card, also called a " pre-qualification" or " desk courtesy" card, in which he provided his address and phone number and indicated his reasons for being interested in the gym. This application card was a prelude to a tour of the gym and a sit-down with a gym manager, who would then learn more about Van Patten's interest in the gym and explain the various membership options to him. (Van Patten Dep. at 124:11-125:18; Berggren Dep at 47: 21-51:15.) Van Patten decided to join.

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. (Berggren 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 appears 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 the 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 business

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and still owned by the same people; it just has a different brand affiliation. (Barton Dep. at 46:7-13.) Van Patten says this happened " 4 years and 6 months . . . since Mr. Van Patten canceled his Gold's Gym contract," but as the Court does the math the time lapse was approximately 3 years and 1 month (March 21, 2009 to May 2012).

Vertical Fitness engaged Defendant Advecor, 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 ...

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