Written by Artin Betpera
One of the biggest problems with the TCPA is how quickly a single call or text message can become the catalyst of a massive, and expensive nationwide class action creating significant exposure to any business caught in its crosshairs. It almost seems like a cruel game of roulette when a solitary call or text should just so happen to cross paths with a person with a hair trigger for litigation, and a connection to the right lawyer. The recent ruling denying class certification in San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., No. 5:17-cv-03504-EJD, 2019 WL 6493978 (N.D. Cal. Dec. 3, 2019) highlights that very problem with TCPA lawsuits.
The story here starts with ice cream. Plaintiff was at the mall and went to a Haagen-Dazs Shoppe (presumably to pick up some ice cream, maybe mint chip, but the ruling doesn’t say). While there, she signed up for the store’s rewards program and in that process voluntarily provided her telephone number to the cashier. Per store policy the cashier was supposed to advise Plaintiff that she’d receive a single text with a link to the Haagen-Dazs app, but the cashier didn’t. Plaintiff received the text message while still at the mall, immediately called her husband about it (not really something I’d call my spouse about, but ok), who “recommended that she contact his close friend—a lawyer—to discuss the text message.” Plaintiff contacted this lawyer friend the same day.
Next thing you know, things go from mint chip to class action. Fast forward a couple of years and probably many hundreds of thousands of dollars in attorney fees later, Plaintiff tried to certify consisting of half a million other Haagen-Dazs customers. But her certification bid fell apart at two key points: adequacy and typicality.
In order to certify a class, Plaintiff had to persuade the court that her claims were typical of the other half-million-plus Haagen-Dazs customers she sought to represent. Interestingly, Haagen-Dazs’s reliance on the FCC’s call to action rule in developing its text message program drove the court’s finding that Plaintiff’s claims were not typical of the class.
The FCC’s call to action rule provides that “a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA and [the FCC’s] rules.” Leveraging this rule, Haagen-Dazs had employed a policy under which cashiers were trained to request customer phone numbers by stating: “all I need is your phone number and then you will receive a text message to download our mobile application and start earning rewards today.” If the customer provided their phone number, it was input by the cashier into Haagen-Dazs’s system, and the on-demand text was sent.
The evidence provided by Haagen-Dazs showed that most customers consented to receive this one-time text message through the scripted flow, but Plaintiff’s experience differed due to what boiled down to human error: the cashier Plaintiff interacted with didn’t follow the policy. And Plaintiff did not offer any evidence that this experience was typical of the class she sought to represent, because presumably most if not all cashiers followed the policy. Thus, Haagen-Dazs would have defenses to a vast majority of the claims of the putative class members based upon the FCC’s call to action rule, making Plaintiff’s claims atypical from the rest of the class.
Adequacy of Representation
In order to achieve certification, Plaintiff also had to prove to the court that she and her counsel would adequately represent the interests of the class. The court found this element of Plaintiff’s certification bid to be lacking for two key reasons.
The first was that Plaintiff lacked a “minimal, basic familiarity with her allegations and claims.”
During her deposition, Plaintiff exhibited a “distressing lack of understanding of or familiarity with her claim.” She testified she sued Haagen Dazs because it had “entered her phone number into a database that led her to receive twelve unsolicited phone calls,” not because it sent her the single text message on which her claim was based. In addition, she testified that she did not know whether Haagen-Dazs used an ATDS. Plaintiff’s “erroneous testimony as to the basic factual allegations of her claim and her belief that Haagen-Dazs’s conduct did not meet an essential element of her claim show[ed] that she [could not] adequately supervise the litigation nor represent the class’s interests.”
The second reason Plaintiff failed to meet the adequacy prerequisite was “[t]he personal friendship,” between her attorney, herself, and her husband. Her husband and Plaintiff’s attorney were childhood friends, and Plaintiff had known her attorney for 13 years. And this chummy relationship, which cast obvious doubt over Plaintiff’s ability to put the interests of the class ahead of her lawyer, was another reason why Plaintiff was not an adequate representative.
As put by the court, these two reasons raised “substantial concerns as to [Plaintiff’s] credibility in representing the interests of the putative class,” and thus precluded class certification in the case.
Let’s take a step back and absorb exactly what happened here: almost right after receiving a text message from Haagen-Dazs (at a phone number which Plaintiff voluntarily provided to the store), Plaintiff contacted a lawyer friend and a month later filed a nationwide class action against the ice cream purveyor. The ruling reflects that Plaintiff was essentially clueless about her claims, old pals with her lawyer, and yet sought to represent over half a million absent class members to pursue TCPA claims on their behalf with a theoretic value of between $250,000,000 and $750,000,000.
While the court clearly saw through the whole thing, and rightfully denied certification, it’s a wonder the class action was filed in the first place. Unfortunately, the facts of this case aren’t exactly unique, and exemplify one of the problems with the deluge of TCPA class action filings that occur year after year.
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