Ninth Circuit rules that gym's unwanted texts are a concrete injury, but dismisses TCPA class action because plaintiff consented.
By: Dan Deane, Leah Threatte Bojnowski
On January 30, 2017, the U.S. Court of Appeals for the Ninth Circuit held that promotional text messages sent by a gym franchise to a former member constituted a concrete injury, under the Telephone Consumer Protection Act (TCPA), for standing purposes. The ruling provides important guidance on Article III standing following the Supreme Court's ruling last year in Spokeo, Inc. v. Robbins. While post-Spokeo rulings continue to differ from one case to the next, the Ninth Circuit takes a clear position that the invasion of privacy concerns, underlying the TCPA, mean that nearly any unwanted call, or text, sent in violation of the TCPA can constitute a "concrete" injury conferring standing to sue, even when the plaintiff does not suffer any actual financial harm. But the Ninth Circuit went on to affirm the dismissal of the certified class action because the lead plaintiff had consented to receive the texts, and he had never revoked that consent, even when he cancelled his gym membership.