Gym Wins Dismissal After Court Finds Texts Informational

TCPA Connect

A gym muscled its way out of a Telephone Consumer Protection Act (TCPA) class action after a Louisiana federal court determined that the text messages it sent to a member were informational in nature and dismissed the suit.

On October 25, 2017, Miguel Suriano signed a six-month contract to join the French Riviera Health Spa gym. He also purchased a six-month membership in the gym’s personal training program. In both applications, he provided his cellphone number in multiple places. Suriano renewed the gym membership contract twice and the personal training program contract once.

Between October 26, 2017, and February 22, 2018, Suriano received five text messages from the gym. The first message, received the day after he joined the gym, read: “Dear member, Welcome to Riviera Fitness! Where your fitness is our strength. We’re excited to have you as a member. Have a great workout!” The second message stated: “Dear member, We offer a variety of classes and small group training. Click here [link] for class schedules.”

The third message read: “Dear member, Become your best self with our Personal Trainers. Ask us for info on our PT program [link].” In the fourth message, the gym wrote; “Follow us on social media! Facebook [link], Instagram [link].” The final message stated: “Dear member, Did you know that we have a blog? Each month we post workout tips, testimonials and much more!”

In his putative class action complaint, Suriano alleged that each of the messages violated the TCPA. The defendant moved to dismiss the action, arguing that the messages were not telemarketing or advertising as defined by the statute and its regulations.

There was no question that Suriano gave his cellphone number to the gym, providing prior express consent, but not prior express written consent, which would be required if the texts constituted telemarketing or advertising.

Reviewing each of the five text messages, U.S. District Judge Mary Ann Vial Lemmon sided with the defendant, determining each text was informational, and not telemarketing or advertising.

“At the outset, messages one, two and five are plainly informational in nature,” the court said. “The first (sent the day after plaintiff joined) welcomes him to the gym; the second provides a link to classes and group training schedules and the fifth informs him of a blog containing workout tips and testimonials. Accordingly, by providing his cellphone number upon joining the gym, plaintiff gave express consent to receive these informational messages which relate to gym amenities or activities.”

The third message, encouraging the recipient to consider the use of a personal trainer, could—in some contexts—constitute advertising, Judge Lemmon noted. However, “at the time plaintiff received this message, he had already joined the gym and signed up for six months of personal training services,” the court said. “The message merely encouraged plaintiff to take advantage of the personal training services for which he already paid, and thus, it too, may fairly be classified as informational.”

As for the fourth message, suggesting that the recipient follow the gym on social media, the court concluded that it too was informational.

“While defendant’s Facebook and Instagram sites in all likelihood do have a promotional aspect, the message in question falls outside of the regulatory definition of advertising and telemarketing,” Judge Lemmon wrote. “An invitation to visit a social media site is not material which specifically advertises ‘the commercial availability or quality of any property, goods, or services,’ nor does it constitute ‘the initiation of a … message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.’ Accordingly, this final message also did not require express written consent.”

Finding that none of the text messages violated the TCPA, the court granted the defendant’s motion to dismiss the putative class action.

The court explained that even when consumers provide their phone numbers, they may not be contacted for just any reason. Instead, “the transactional context matters in determining the scope of a consumer’s consent to contact,” the court said, citing the U.S. Court of Appeals, Ninth Circuit’s opinion in Van Patten v. Vertical Fitness Group. “In other words, there must be some relationship between the reason the number was provided and the content of subsequent TCPA-governed communications.” As the court found such a relationship with regard to each of the five challenged texts, it granted the defendant’s motion to dismiss the putative class action.

To read the order in Suriano v. French Riviera Health Spa, Inc., click here.

Why it matters: The Louisiana federal court provided a commonsense approach to text messages 1–3 and 5—namely, text messages sent to a phone number the recipient voluntarily provided and which directly relate to the product or services for which the recipient has signed up when he provided that phone number do not run afoul of the TCPA. As to the fourth text message, the court classified a request to follow the gym on social media as informational, even though the social media site will likely contain posts advertising the company’s products or services. The court explained that such text messages fall outside the regulatory definitions of “advertising” or “marketing.” While other courts may not all agree, this case is a helpful benchmark for companies who wish to engage with their customers through blogs or social media.



pursuant to New York DR 2-101(f)

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