Agne v. Papa John’s: Nationwide Class Certified in Spam Text Case

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A federal judge has certified a nationwide class of consumers who allege that pizza giant Papa John’s sent unsolicited text messages to them. See Agne v. Papa John’s International, Inc., No. 10-1139 (W.D. Wash. Nov. 9, 2012) (order granting class certification). The plaintiffs named several defendants in the suit, including Papa John’s, its franchisees, and the marketing company hired to send the text messages. U.S. District Judge John C. Coughenour found the case for certification so clear that he granted the class certification motion without oral argument. Order at 1.

Because the content of the at-issue text messages was identical across the class, Papa John’s did not have a viable challenge as to the predominance of common legal or factual issues, a frequent battleground in class certification disputes. Moreover, in that the claims of the nationwide class arose under the federal Telephone Consumer Protection Act (TCPA), there was no choice of law dispute burdening the plaintiffs’ argument for certification. Id. at 2. A subclass of Washington State residents, who alleged that they received text messages on their cell phones in violation of the Washington Consumer Protection Act, was also certified. Id.

Rather than focusing on predominance, therefore, the defendants chiefly attacked the plaintiffs’ Article III standing. Judge Coughenour made quick work of these arguments, however. See id. at 7-8. Notably, the opinion declined to adopt the defendants’ contention, relying on Mazza v. Amer. Honda Motor Co. (666 F.3d 581), that where even one prospective class member lacks standing, a class cannot be certified. Id. at 8.

In an attempt to challenge the commonality requirement, Papa John’s argued that individual questions existed as to whether particular class members consented to receive the text messages and as to whether individual text messages were actually received. Id. at 19. In response, the court concluded that “consent appears to the Court to be a non-issue,” and situated the resolution of any issues of consent squarely with Papa John’s, stating: “Papa John’s is in the best position to come forward with evidence of individual consent and will not be precluded from presenting admissible evidence of individual consent if and when individual class members are permitted to present claims.” Id.

The defendants also argued that the superiority requirement had not been met, because determining the actual recipients of the text messages in such a large class would be too burdensome, thus rendering the class unmanageable. Id. at 21. However, the court countered that the identity of the text message recipients could easily be determined by examining the business records of the marketing company and the cell phone providers, and noted that if defendants present persuasive evidence that certain class members did not receive the text messages, those individuals could be stricken from the class list. Id.