Member Article

On November 9, 2012, a federal District Court in Washington certified a national class and a Washington state sub-class in an action alleging that Papa John’s International, Inc. (“Papa John’s”) violated the Telephone Consumer Protection Act (“TCPA”) by sending unsolicited text messages advertising its pizza products. The court determined that plaintiffs had standing and satisfied all other requirements for class certification.

The TCPA is a federal privacy law that imposes restrictions on telephone solicitations, including telemarketing calls and text messages. Plaintiffs alleged that Papa John’s and its franchisees sent customers unsolicited text messages with promotional codes for future purchases of Papa John’s products. Furthermore, plaintiffs claimed that Papa John’s did not obtain customers’ consent before sending the text messages.

According to the complaint, certain Papa John’s franchisees provided the marketing company OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. OnTime4U then sent text messages advertising Papa John’s products and services to the cell phone numbers on those lists. Although there was no evidence that Papa John’s directly contracted with OnTime4U, the court observed that preliminary discovery supported plaintiffs’ claim that Papa John’s directed, encouraged and authorized its franchisees to use OnTime4U’s services. The class certification was based in part on the court’s determination that assessing liability will involve common questions of law and fact, including whether an “established business relationship” between Papa John’s and the customers would be a defense to sending unsolicited texts without express consent under the TCPA.