Consent Limited by ‘Transactional Context’

TCPA Connect

Consent is defined by the “transactional context,” a California federal court explained when recently denying summary judgment in favor of a Telephone Consumer Protection Act (TCPA) defendant after it sent texts unrelated to the reason the plaintiff provided his phone number.

Deric Walintukan purchased online tickets to a June 8, 2013, event at Create Nightclub in Los Angeles. As part of the checkout process, he provided his telephone number. The website contained no limiting language as to how Walintukan’s phone number or other contact information could be used.

On Sept. 1, 2013, Walintukan received—at the phone number he provided—a text message promoting an unrelated event at Create. Five days later, he received a second text promoting another unrelated event at Create. He successfully opted out of receiving any further text messages but filed suit, asserting the nightclub owner ran afoul of the TCPA by sending the two texts.

At issue in the defendant’s motion for summary judgment: whether Walintukan’s provision of his phone number when he purchased tickets to one event constituted consent to receive text messages promoting different events at the same venue.

U.S. District Judge Jon S. Tigar answered in the negative, relying on the U.S. Court of Appeals, Ninth Circuit’s 2017 opinion in Van Patten v. Vertical Fitness Group.

In that case, the federal appellate panel considered whether the plaintiff—who gave his phone number in 2009 to a Gold’s Gym franchise in Wisconsin when he joined the gym, only to quit three days later—provided prior express consent to receive two text messages three years later about re-joining a different franchise.

The Ninth Circuit held that Van Patten had given his prior express consent to receive the texts and explained that “consent must be considered to relate to the type of transaction that evoked it,” so that “the scope of a consumer’s consent depends on the transactional context in which it is given. The call or text message must be based on the circumstance in which the consumer gave his or her number.”

Applying this “transactional context” analysis to Walintukan, the court found his purchase of tickets for one event did not provide consent to receive promotions about other events at the nightclub.

“Here, Defendants’ text messages concerned different events by different artists at the Create Nightclub,” the court wrote. “The only connection to the transaction in which Walintukan provided his phone number was that the events were occurring at the same venue. Defendants’ statement that ‘there is simply no difference between a gym asking a customer to come back to the gym and a club asking a customer to come back to the club’ is incorrect. ‘[U]nlike the gym membership in Van Patten, which contemplates an ongoing relationship by the very nature of a monthly membership system,’ the purchase of an event ticket is ‘much more discrete in nature.’”

“[T]he transactional context in which Walintukan provided his contact information was limited to the particular event for which he was purchasing a ticket,” Judge Tigar concluded, denying the defendants’ motion for summary judgment. “It does not include any and all future events at the same venue. Defendants have failed to meet their burden of demonstrating that Walintukan provided prior express consent to receive the two text messages at issue in this case.”

To read the order in Walintukan v. SBE Entertainment Group, click here.

Why it matters: What is the scope of consent provided by a consumer who releases her phone number? The answer to this question has yielded plenty of case law, and the California federal court added to it with its analysis of the Van Patten opinion in the context of purchasing event tickets at a nightclub. The court disagreed with the defendants that the purchase established consent for future events held at the nightclub, instead holding that the “transactional context” in which the plaintiff provided his phone number was limited to the particular event for which he purchased his tickets.



pursuant to New York DR 2-101(f)

© 2024 Manatt, Phelps & Phillips, LLP.

All rights reserved