Court Watch

The Federal District Court in the Southern District of California denied class certification in a case in which an individual claimed violations of state and federal laws prohibiting text messages to consumers without their consent. Ryan v. Jersey Mike's Franchise Systems, 2014 U.S. Dist. LEXIS 42677 (S.D. Cal. March 28, 2014). Jersey Mike's, a sandwich shop franchisor, has a loyalty program through which customers can collect points and redeem them for free products. Jersey Mike's and its franchisees use an automatic dialing service to send text messages to loyalty program members who have provided their cell phone numbers.

The named plaintiff in this case was issued a loyalty card on May 16, 2013, at a franchised Jersey Mike's store. On May 28, 2013, he received a promotional text message from the store. The plaintiff followed instructions on the text message to opt out of further messages, and he received no further messages from Jersey Mike's or its franchisees. He then filed a class action lawsuit claiming violations of state and federal laws prohibiting text messages delivered by automatic dialing services without the consent of the recipient, alleging that the messages are aggravating and require consumers to pay their cell phone providers for the unwanted messages. At his deposition, the plaintiff testified unequivocally that he did not provide his cell phone number when he received his loyalty card. In his declaration accompanying his opposition to the motion to deny class certification, however, he stated that he did not remember giving his cell phone number, but was not 100% sure.