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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 certified 11/9/12).
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 state.
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 pointed out.
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 court concluded.
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 was persuasive.
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.
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