Have you ever received unsolicited advertising in the form of a text message? These forms of solicitations may be illegal under the Telephone Consumer Protection Act (“TCPA”) which restricts telephone solicitations and the use of automated telephone equipment. The TCPA also limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines.

In a recent decision in Agne v. Papa John’s International, Inc., et al., No. C10-1139-JCC, 2012 WL 5473719, at *1 (W.D. Wash. Nov. 9, 2012), the court certified a national class of all persons in the United States and a sub-class of all persons in Washington State who were sent text messages advertising Papa John’s pizza by Defendant OnTime4U who were sent such messages by Defendant OnTime4U. The Court found that because Plaintiff’s allegation was not merely that all class members suffered a violation of the TCPA, but rather that all class members were sent substantially similar unsolicited text messages by the same defendants using the same automatic technology, commonality is satisfied. 2012 WL 5473719, at *8.

Defendant OnTime4U, a marketing company, offered to increase the profits of Papa John’s restaurants by sending text message advertisements to their customers. Certain Papa John’s franchisees provided OnTime4U with lists of telephone numbers of customers obtained from Papa John’s proprietary database, the PROFIT system. The text messages that were sent solicited consumers to purchase Papa John’s products and provided the customer with a telephone number corresponding to a particular Papa John’s restaurant along with a promotional code. The Plaintiff, who never gave any Papa John’s entity express consent to send her text messages, received three message sent by OnTime4U. 2012 WL 5473719, at *9.

Papa John’s, relying on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), argued that determining whether Papa John’s was sufficiently involved in the market decisions of its different franchises in order to establish liability would require individual inquiries that undermine commonality. The court rejected Papa John’s comparison of Plaintiff’s claim to the allegation in Dukes that Wal-Mart “national” caused or encouraged the local store managers to make discriminatory employment decisions. The Papa John’s court cited to the Supreme Court’s finding in Dukes that “the only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy’ of allowing discretion by local supervisors over employment matters.” To the contrary, in Papa John’s, the Plaintiff came forward with affirmative evidence that Papa John’s had at least a hand in franchisees’ decisions to enlist OnTime4U to send text messages to their customers. For example, Plaintiff submitted email messages from Papa John’s franchise business directors to multiple franchisees encouraging those franchisees to commission text messages from OnTime4U.  Thus, the Court found that the Plaintiff alleged “far more” than an amorphous corporate culture. 2012 WL 5473719, at *8-9.

The Court also rejected Papa John’s challenges that there were three areas where individualized inquiries would overwhelm common issues: (1) consent; (2) questions regarding who actually received messages; and (3) inquiries into Papa John’s liability for various franchisees’ text campaigns. 2012 WL 5473719, at *11. The court found that Defendants’ consent defense could be resolved in one stroke because resolving the legal question of whether a customer’s prior purchase of pizza can be construed as express consent to receive text message advertisements is a common question that will predominate over any individual inquiries. 2012 WL 5473719, at *8. Moreover, since Papa John’s is in the best position to come forward with evidence of individual consent, it will not be precluded from presenting admissible evidence of individual consent if and when individual class members are permitted to present claims. 2012 WL 5473719, at *11. Further, the court concluded that Papa John’s assertion that resolving the common questions regarding its involvement in the campaign will require individual examination of “many interactions” between Papa John’s employees and its franchisees belies its position that it played little or no role in franchisees’ marketing decisions. Finally, the court rejected the legal foundation for Papa John’s argument that individualized issues regarding whether recipients were charged for the text message advertisements will overwhelm common questions because the TCPA does not require plaintiffs to show that they were charged for text message advertisement sent to their cellular phones. Therefore, the Court found that the Plaintiffs had satisfied the predominance inquiry. The Court also found that the Plaintiffs had satisfied the remaining requirements of Rule 23 of the Federal Rules of Civil Procedure.

Have you received unsolicited advertisements via text message? If so, please tell us your story.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.