Guess? Who is Headed Toward Discovery in a TCPA Class Action

March 27, 2015

tcpaOn March 24, 2015, the United States District Court for the Southern District of California denied Guess?, Inc.’s (“Guess”) motion to dismiss a telephone consumer protection act (“TCPA”) class action pending against it.  Guess argued that the plaintiff’s complaint failed to demonstrate that Guess had used an automatic telephone dialing system (“ATDS”) to send unsolicited text messages in violation of the TCPA.  The Court, however, rejected Guess’ arguments and the case will now proceed to discovery.

Guess Motion to Dismiss TCPA Class Action Denied

Guess moved to dismiss the TCPA class action complaint because, it argued, the complaint merely recited the legal standard set forth in the TCPA without including any facts to demonstrate that an ATDS was used in sending the subject text messages.  The Court rejected this argument.  The Court began by noting that there are two pleading standards courts typically follow in TCPA actions: the first permits a plaintiff to do nothing more than recite the legal standard set forth in the TCPA, assuming that it is impossible for the plaintiff to definitively know that an ATDS was used until discovery; the second requires the plaintiff to “include factual allegations about the call within the complaint allowing for a reasonable inference that an ATDS was used.”  The Court, therefore, held that the plaintiff had set forth sufficient allegations to “infer use of an ATDS.”

Express Consent is an Affirmative Defense in TCPA Class Actions           

Guess also attempted to dismiss the complaint by claiming that the named plaintiff expressly consented to the receipt of text messages.  The Court declined to dismiss the complaint at this early stage of the proceedings, however, because the plaintiff had expressly alleged that she “did not provide Defendant or its agents prior express consent to receive unsolicited text messages.”  The Court stated that although express consent is a defense to a TCPA claim, if the plaintiff claims that he or she did not provide consent, the parties must go through discovery before the Court will decide the issue.

Protect Yourself

We first reported on this TCPA Class Action filed against Guess last January.  Now that the Court has denied Guess’ motion to dismiss, Guess will have to file an answer and begin discovery.

If you are interested in learning more about this topic or if you have been served with process concerning the TCPA or your telemarketing practices, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational 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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