Class Certification Sought in TCPA Case

February 21, 2019


In a case pending before the United States District Court for the Northern District of California, the putative class representative has asked the Court to certify a class of people claiming violations of the Telephone Consumer Protection Act (“TCPA”).   The class certification motion brings the TCPA case to a seminal inflection point for The Haagen-Dazs Shoppe Company, Inc. (“Haagen-Dazs”), one of the defendants in the suit.

What are the facts of this TCPA case which led to the class certification motion?

Haagen-Dazs found itself on the wrong end of this TCPA case as a result of its check out procedures for customers at its ice cream parlors and its subsequent telemarketing practices directed to those customers.  Specifically, Haagen-Dazs is alleged to have asked customers at check out whether they would like to enroll in a rewards program, obtained only oral consent to program enrollment and then sent text messages to the customers containing an advertisement for the Haagen-Dazs mobile app.   The plaintiff alleges that this conduct was uniform among rewards program members and that each text message that Haagen-Dazs sent to promote its app was a separate TCPA violation.  As a result, the plaintiff requested that the court allow for the TCPA case to continue as a class action.  Haagen-Dazs will be presented with the opportunity to convince the court that a class action is inappropriate in these circumstances and that the TCPA case should proceed on an individual basis only.  The ultimate determination by the court on class certification will mean the difference between nominal liability and exposure to monumentally significant liability for Haagen-Dazs.

Protect Your Business from Becoming a Defendant in a TCPA Case

As text messaging has become one of the most common forms of communication today, we have written extensively about the increased interest (from class action attorneys and regulators alike) in telemarketing regulatory compliance.  While Haagen-Dazs may have believed that its check out procedures complied with TCPA regulations, this class action case reinforces the reality that is it critical to obtain prior express written consent before sending text messages to consumers.  In today’s regulatory environment, telemarketing practices and procedures should be examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff files a text message TCPA case.

If you are interested in learning more about this topic, need to review your text message marketing practices and procedures or if you are the subject of a TCPA lawsuit, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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