Spam Text Class Action Certified Against Papa John’s

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. 10-1139 (W.D. Wash., 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.”