On October 26, 2016, the U.S. District Court for the Eastern District of California denied defendants Harman Management Corporation’s (HMC) and 3Seventy, Inc.’s motion to dismiss for failure to state a claim and motion to strike class claims, allowing a putative TCPA class action to proceed despite the plaintiff’s admission that he opted in to the text message program at issue. Larson v. Harman Mgmt. Corp. & 3Seventy, Inc., No. 1:16-cv-219, 2016 U.S. Dist. LEXIS 149267 (Oct. 26, 2016).

In February, the plaintiff had filed a putative first amended class action complaint, claiming that HMC and 3Seventy violated the TCPA with a 2012 automated text message campaign that offered coupons for HMC restaurant food items (such as A&W burgers). Specifically, plaintiff alleges that, although he affirmatively opted in to receive the first text message coupon, subsequent messages were sent without his prior express written consent (and not in direct response to his opt in).

In July, HMC and 3Seventy filed the motion to dismiss for failure to state a claim and motion to strike class claims, arguing that by opting-in to the initial call-to-action (texting “BURGER” to 70626), the plaintiff provided prior express written consent to the initial and subsequent text messages. The court disagreed, concluding that the plaintiff’s “BURGER” message failed to constitute sufficient consent. Although the message was “in writing,” the court explained, it neither included the plaintiff’s signature nor authorized HMC and 3Seventy to send subsequent automated marketing text messages.

Additionally, the court rejected defendants’ arguments that the court take a “common sense” approach to the TCPA claims, in line with the Ninth Circuit decision in Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012). In Chesbro, the Ninth Circuit concluded that prerecorded messages regarding the expiration of Reward Zone certificates were unsolicited advertisements, despite the absence of an explicit mention of Best Buy products or services. Here, the defendants contended that, because the campaign provided an opt out and opt-out instructions (“TextSTOPtoEnd”), it “is not the type of situation the TCPA was intended to address because it did not ‘mislead, harm, or harass consumers.’” The court explained, however, that it was unpersuaded by this “common sense” argument.

Furthermore, with respect to the motion to strike class claims, the court rejected the defendants’ argument that the proposed class is not ascertainable and constitutes a “fail-safe” class, determining that it is more appropriate to address the issue at the class certification stage of the litigation, rather than at the pleading stage.