According to class action counsel, Papa John’s could be civilly liable for more than $250 million in damages, as a result of a recent decision by a Washington federal court judge to certify a class of consumers in a Telephone Consumer Protection Act suit.
Maria Agne alleged that she received unsolicited advertising texts from Papa John’s in early 2010 that were sent by OnTime4U, also a defendant in the suit, as part of a marketing campaign. Agne claimed that Papa John’s provided the marketing company with a list of telephone numbers of consumers who had purchased pizzas from the stores and that, after removing landline numbers, OnTime4U sent text messages to the numbers associated with cell phones.
Agne argued that the texts were unsolicited and sent without prior express consent in violation of the TCPA. She asked the court to certify a nationwide class of text recipients and a state class alleging violations of Washington’s Consumer Protection Act.
Over the objections of the defendants, U.S. District Court Judge John C. Coughenour agreed. The court rejected the defendants’ argument that the plaintiff lacked standing because she was not the primary account holder on her shared cellular plan and did not pay the bill. The court, however, concluded that she was the intended recipient of the text messages (having previously used her cell phone to order pizza from Papa John’s) and therefore, her privacy interests “are the very ones that Congress intended to protect when it enacted the TCPA.”
Although OnTime4U informed the court it destroyed the call list, the court said it could be reconstructed to define the class. And the defendants’ challenge that the class lacked commonality among potential members was also dismissed.
“Because plaintiff’s allegation is 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 dialing technology, commonality is satisfied,” he ruled.
Finally, the court shot down the defendants’ due process concerns over the potential for large statutory damages. “The size of a potential award of statutory damages is not a valid basis for refusing to certify a class action,” Judge Coughenour wrote.
To read the court’s order in Agne v. Papa John’s, click here.
Why it matters: The defendants contested every possible element of class certification and the court rejected each argument. The potential damages now at issue – up to $1,500 per text message for a class of tens of thousands who received multiple text messages – were estimated by class counsel in a press release at more than $250 million, which, if granted, would be one of the largest awards ever under the TCPA. With possible liability that high, the defendants will likely push for a settlement, although Caroline Oyler, Papa John’s head of legal affairs, told CNNMoney that the company plans to appeal the class certification order. “We’ll continue to litigate the case and defend the lawsuit and move to have it dismissed.”