In Ramos v. PF Homestead LLC, a Florida federal court refused to send a Telephone Consumer Protection Act (TCPA) case to arbitration, rejecting the defendant’s attempt to rely on the arbitration provision in a canceled gym membership agreement.
Plaintiff Jonnathan Ramos joined Planet Fitness in December 2015 and signed a membership agreement that contained an arbitration provision. The agreement also contained a communication provision that stated the gym “may” contact its members with prerecorded messages and/or text messages, but Ramos did not check the box next to the provision, nor sign or mark the agreement with any form of acknowledgment.
In 2018, Ramos canceled his membership with Planet Fitness. On August 10, 2018, he received a text message from the gym: “JONNATHAN! We’re making it easier than ever to come back to PF. For a limited time you can rejoin for $1 Down and get ONE MONTH FREE. Use promo code BACK2PF10 for our classic membership or BACK2PFBC for the PF Black Card! Text STOP to opt-out or HELP for help. Rejoin Now [link].”
Ramos filed a putative TCPA class action, estimating that “thousands of consumers” were eligible members.
Planet Fitness countered with a motion to compel arbitration and a motion to dismiss the lawsuit. The gym asserted that the arbitration provision was binding and enforceable and that Ramos’ claims fell within the scope of the agreement. Alternatively, the defendant argued that the plaintiff failed to allege facts sufficient to establish he suffered an injury and that he provided consent to receive the message.
The court began with the defendant’s motion to compel, highlighting applicable authority from the U.S. Court of Appeals, Eleventh Circuit in Gamble v. New England Auto Finance, Inc. In that case, the federal appellate panel ruled that a similar text consent provision in a consumer contract did not provide a basis for compelling arbitration of a post-contract TCPA claim.
Relying on the Eleventh Circuit opinion, U.S. Magistrate Judge Alicia M. Otazo-Reyes denied the defendant’s motion to compel arbitration.
“Here, neither the Agreement nor the Arbitration Provision contemplates future TCPA claims; thus, as in Gamble, the Text Consent Provision constitutes a ‘separate stand-alone provision,’” the court said. “Therefore, Plaintiff’s claim arises not from the [Agreement] or any breach of it, but ‘from post-agreement conduct that allegedly violates a separate, distinct federal law.’ Here, the ‘post-agreement conduct’ was the sending of the Text Message, an action that occurred after the Agreement had been terminated by Plaintiff. Because the Text Consent Provision was not part of the Agreement, and the Text Message constituted post-agreement conduct, Plaintiff’s TCPA claim is not arbitrable pursuant to the Arbitration Provision.”
The gym’s motion to dismiss met a similar fate. Ramos alleged that Planet Fitness made an automated call to his personal phone number that invaded his privacy and caused aggravation and annoyance, sufficiently pleading a concrete, particular injury-in-fact, the court said.
As for the argument that the plaintiff consented to receive communication from the defendant, Ramos “did not check the box next to the Text Consent Provision, nor did he sign, or physically mark in any way, acknowledgment of the Text Consent Provision,” Judge Otazo-Reyes wrote. “Thus, Plaintiff did not give ‘prior express consent’ as required by 47 U.S.C. § 227(b)(1)(A).”
Finally, the court rejected Planet Fitness’ contention that sufficient human intervention existed to disqualify the device that sent the text message as an automated telephone dialing system.
For purposes of the motion to dismiss, “Plaintiff has sufficiently alleged that the Text Message was sent by autodialing, based on the presence of marketing promo codes and a website in the Text Message, and the ‘impersonal and generic nature’ of the wording, all suggesting that the Text Message was sent to a mass audience by an autodial function,” the court said, allowing the gym to renew its argument at the summary judgment stage after discovery has been conducted by the parties.
To read the order in Ramos v. PF Homestead LLC, click here.
Why it matters: As in Gamble and a subsequent Eleventh Circuit case, the court refused to compel arbitration where the agreement contained a separate, unacknowledged communications consent provision and the text message at issue was sent after the contract ended. This case also shows the continued malleability of consent, and how important it is for a potential text sender to make sure that the recipient has consented before they hit send.