A class action alleging national pizza chain Papa John's sent thousands of
text messages to consumers without their consent in violation of federal and
state law may proceed, a federal district court ruled Nov. 9 in
certifying two classes (Agne v. Papa John's
International Inc., W.D. Wash., No. 2:10-cv-01139, classes
The U.S. District Court for the Western District of Washington certified a
national class of individuals in the United States “who were sent, to their
cellular telephone numbers, at least one unsolicited text message that marketed
a Papa John's branded product, good, or service through OnTime4U.” As part of
the same lawsuit, the court certified a subclass of individuals in Washington
According to the court, marketing vendor On Time 4 U LLC (OnTime4U) allegedly
told the pizza chain's franchisees that it could send text message
advertisements to Papa John's customers, saying it was legal to send the
messages without customers' consent because the restaurants and the customers
had an existing business relationship.
OnTime4U subsequently sent text messages to customers' cellphones on behalf
of certain Papa John's franchisees, including several in Washington state.
A Papa John's customer, Maria Agne, filed this lawsuit against Papa John's
International Inc., Papa John's USA Inc., several Papa John's franchisees, and
OnTime4U. She asserted claims under the federal Telephone Consumer Protection
Act, 47 U.S.C. § 227; the Washington Consumer Protection Act, Wash. Rev. Code §§
19.86.010-19.86.920; and the common law negligence doctrine.
Prior to filing a fifth
amended complaint that added two plaintiffs, Agne moved to certify a
national class and a Washington state subclass. The court granted the motion,
noting that it considered the motion only with respect to Agne.
The court initially concluded that Agne met Article III standing and
statutory standing requirements.
The court rejected Papa John's arguments that Agne's alleged injury was not
fairly traceable to other Papa John's franchisees or Papa John's itself.
“Plaintiff's lack of standing to sue non-named franchisees does not defeat her
standing to sue on behalf of either of her proposed classes[,]” the court
concluded. Moreover, Papa John's produced documents suggesting that it was
involved in the franchisees' decisions to contract with OnTime4U, the court
The court found that Agne also had statutory standing to sue under the TCPA.
Even if her ex-husband was the primary cellphone account holder, the messages
were sent to Agne's cellphone and her privacy interests are the ones the TCPA is
intended to protect, the court explained.
The Federal Rule of Civil Procedure 23(a) class certification requirements of
numerosity, commonality, typicality, and adequacy of representation, as well as
the requirement that a class definition be ascertainable, were satisfied, the
Agne asserted that one franchisee defendant provided OnTime4U with over
68,000 phone numbers, many of which received text messages from OnTime4U, the
court said. “There are hundreds or thousands of potential class members in this
action[,]” it added.
The lawsuit also will require the resolution of “numerous common questions of
law and fact,” such as “whether a customer's prior purchase of pizza can be
construed as express consent to receive text message advertisements under the
TCPA … .” The court disagreed with Papa John's that this was not a common
question, saying Agne's evidence that franchisees did not obtain express consent
Agne also established the predominance and superiority prerequisites of Rule
23(b)(3). Rejecting Papa John's argument that individualized issues of whether
recipients were charged for the text messages would overwhelm common issues, the
court said that class members would not have to demonstrate that they were
charged. A class action is also the superior method for resolving these issues,
the court concluded.
Albert H. Kirby of Kirby Law Group, and Donald W. Heyrich, Dan Kalish, and
Lisa A. Burke of Heyrich Kalish McGuigan PLLC, all of Seattle, represented the
named plaintiff. James E. Howard and Jessica M. Andrade of Dorsey & Whitney,
in Seattle, represented Papa John's International Inc. and Papa John's USA Inc.
Joseph P. Lawrence, Jr. and Joan L. Roth of Lawrence & Versnel, in Seattle,
represented the franchisees. Robert Wisnovsky and John S. George, individually
and doing business as On Time 4 U LLC, appeared pro se.
Full text of the court's opinion is available at http://op.bna.com/pl.nsf/r?Open=kjon-922pgx.
Full text of the fifth amended complaint is available at http://op.bna.com/pl.nsf/r?Open=kjon-922pmr.