24 Hour Fitness, San Ramon, California, is being sued for violating the Telephone Consumer Protection Act (TCPA).
Jasen Silver and Robert Burke filed a class-action lawsuit in the U.S. District Court for the Northern District of California on Dec. 10 alleging that 24 Hour Fitness' telemarketing practices violate the TCPA. The suit alleges autodialing violations and National Do Not Call Registry violations.
The lawsuit states: "Defendant violated the Telephone Consumer Protection Act (47 U.S.C. §227 et seq.) (TCPA) with its marketing and advertising campaigns by making, or causing to be made, and benefiting/profiting from dialing cellular telephone numbers (telephone calls or text messages) using an automatic telephone dialing system (ATDS) and using an artificial or prerecorded voice to deliver a message after October 16, 2013, without the prior written unambiguous express consent of the called party."
The lawsuit also states: "By effectuating this telephonic spam, Defendants have caused consumers actual harm, not only because the consumers were subjected to a violation of their right to privacy, but also because of the annoyance and aggravation that necessarily accompanies unsolicited telemarketing calls of this nature."
Silver signed up for a three-year membership with 24 Hour Fitness in August 2008, and he alleges that thereafter he began to receive text messages and automated phone calls from 24 Hour Fitness even though he had registered his number on the National Do Not Call Registry in 2007. He alleges the calls occurred after Oct. 16, 2013.
Under the TCPA for calls made after Oct. 16, 2013, the burden is on defendants to demonstrate that the recipient provided unambiguous written express consent within the meaning of the statute.
Under the TCPA, a person may recover either actual damages or $500 in statutory damages for each such violation, whichever is greater. At its discretion, the court may increase the award to up to three times that amount.
24 Hour Fitness declined to comment on the case.
The case has been assigned to Judge Laurel Beeler, and it has been assigned to the Alternative Dispute Resolution (ADR) Multi-Option Program, which requires the parties to participate in one of three non-binding ADR processes offered: early neutral evaluation, mediation and settlement conferences with a magistrate judge. An initial case management conference is set for March 10, 2016.
Life Time Fitness and Equinox are two other large club companies that have faced lawsuits related to alleged TCPA violations. In February, Life Time agreed to a settlement of its suit. The Equinox suit was filed in October 2014 in the United States District Court Central District of California by Damon Byrd.