A federal court in California has certified a nationwide class and Washington subclass of individuals who received purportedly unsolicited text messages sent by OnTime4U to advertise Papa John’s pizza products. Agne v. Papa John’s Int’l, Inc., No. C10-1139-JCC (U.S. Dist. Ct., W.D. Wash., Seattle, decided November 9, 2012). An appeal was filed before the Ninth Circuit on November 26.

According to the court, “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John’s restaurants. Certain Papa John’s franchisees, including at least some of the Rain City Defendants, provided OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. Those lists were generated out of the PROFIT system, a proprietary database that Papa John’s describes as a ‘point of sale data entry system.’ . . . OnTime4U removed landline numbers from the lists and sent text messages to the numbers associated with cell phones. The text messages OnTime4U sent on behalf of Papa John’s franchisees solicited consumers to purchase Papa John’s products. Each message provided the customer with the telephone number corresponding to a particular Papa John’s restaurant along with a promotional code.”

The named plaintiff allegedly received three such text messages and claimed that she never gave any Papa John’s restaurant her express consent to do so. Preliminary discovery apparently supports her claim that while Papa John’s International did not directly contract with OnTime4U, the parent company “directed, encouraged, and authorized its franchisees to use OnTime4U’s services.” The court determined that the plaintiff has Article III and statutory standing to bring the claims and that the class met the Rule 23 prerequisites to certification. Although the plaintiff cannot prosecute all of the national class members’ potential state law claims, the court found that her adequacy to represent them was not undermined, stating, “[T]he court will not entertain any proposed settlement that purports to release on behalf of absent class member claims that Plaintiff does not share.”