A putative class action alleging violations of the Telephone Consumer Protection Act by Bebe Stores will move forward after a California federal court judge denied defendant’s motion to dismiss.

Plaintiff Melita Meyer exchanged a dress at a Bebe Store in December 2013. In connection with the transaction—and allegedly believing it was required to complete the exchange—Meyer provided her cell phone number to the store. Soon after, she received a text message from Bebe, which read:

“Bebe: Get on the list! Reply YES to confirm opt-in. 10% OFF reg-price in-store/online. Restrictions apply. 2 mgs/mo, w/latest offers. Msg&data rates may apply.”

Meyer replied with a federal class action lawsuit, alleging both negligent and willful violations of the TCPA. She claimed she was never advised that the store would send her promotional text messages through an automatic telephone dialing system (ATDS) and that the message violated her privacy.

Bebe moved to dismiss the suit, arguing that Meyer lacked standing because she failed to state an injury-in-fact; she consented to receive the text message at issue, which was simply an informational, administrative message; she failed to adequately allege the defendant used an ATDS; and she failed to adequately show that Bebe acted in a knowing or willful manner.

U.S. District Court Judge Yvonne Gonzalez Rogers sided with the plaintiff on each point.

The court noted that only one case accepted the proposition that an unlimited text messaging plan prevented a plaintiff from bringing suit. That case was based on California Unfair Competition Law, which has different standing requirements than Article III, she explained.

The defendant argued that Meyer lacked standing because her only claimed injury was economic and she failed to allege that she incurred any carrier charges for the text at issue. Judge Rogers noted that with one exception decided under different standing requirements, the majority of courts have found an injury-in-fact for a purported TCPA violation even where the plaintiff did not receive an additional charge for the messages received. The court also analogized to a reference in the TCPA at Section 227(b)(2)(C) that allows claims where “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party.” Such language “would be superfluous if defendant’s interpretation of the statute were adopted,” Judge Rogers wrote.

Addressing the issue of consent, the court disagreed with Bebe that the text was merely an informational or administrative message confirming Meyer’s opt-in and not sent for advertising or telemarketing purposes. The judge rejected the defendant’s attempts to compare the message to cases where plaintiffs received an opt-out message after initially consenting to receive communications.

“[T]he pleadings here establish a plausible lack of any prior express written consent by plaintiff to receive such messages,” Judge Rogers wrote. “Moreover, the Court finds that the message at issue plausibly constitutes an ‘advertisement’ and that it was plausibly sent for ‘telemarketing’ purposes as the regulation defines those terms.”

“Even if it also served a dual, administrative function of facilitating plaintiff’s possible opt-in, ‘[t]he FCC has determined that so-called “ dual purpose” calls, those with both a customer service or informational component as well as a marketing component, are prohibited,’ ” the court added. “Here, the message offered ‘10% OFF reg-price in-store/online’ on Bebe’s goods, presumably to encourage future purchases. Defendant argues the fact that the message asked plaintiff to ‘confirm [her] opt-in’ conclusively demonstrates she previously consented to receive it. However, it is plausible that a marketing message might be sent with such language even in the absence of actual prior express consent.”

The court also considered whether Meyer sufficiently pled Bebe made use of an ATDS without her consent. Meyer alleged the text message at issue was sent “en mass,” and the text of the message “appears to be a form message,” requesting the recipient to send a “YES” response to opt-in. “These facts render plausible the general allegation that the message was sent using an automated system capable of storing or producing and dialing numbers randomly or sequentially,” Judge Rogers wrote. The court found that those allegations are sufficient at the pleading stage.

Finally, the court refused to dismiss plaintiff’s “knowing and willful” allegations for purposes of seeking treble damages. She found the pleadings sufficient at this early stage to allege that defendant plausibly acted knowingly or willfully.

To read the order in Meyer v. Bebe Stores, Inc., click here.

Why it matters: This case serves as a reminder that retailers should obtain express written consent before sending text messages through an ATDS. It is becoming increasingly difficult to show that a message is not a “marketing message,” and plaintiffs do not necessarily need to show actual economic harm for a TCPA suit to move forward.