San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc.

Background

Melanie G. San Pedro-Salcedo alleged one claim under the federal Telephone Consumer Protection Act (TCPA). While she was visiting a Häagen-Dazs store, a cashier asked whether she wanted to join the Reward Program and requested her telephone number. She provided it and, within no more than 15 minutes, received a one-time text message thanking her for joining Häagen-Dazs Rewards and providing a link to download the company’s mobile application.

San Pedro-Salcedo alleged that the text was an advertisement or telemarketing, that it was sent using an automatic telephone dialing system, and that she had not given the written consent required for advertising or telemarketing messages. She sought to certify a nationwide class of people who received at least one text message from Häagen-Dazs or people working on its behalf. The record identified 517,391 nearly identical messages sent to customers through Häagen-Dazs’s program administrator, iMobile3. Häagen-Dazs had stopped sending the messages, and the company had received no other complaint about them.

Häagen-Dazs’s companywide training materials instructed cashiers to tell customers that they would receive a text message containing a link to the application. San Pedro-Salcedo testified that the cashier did not give her that information. She also testified that she would not have brought the lawsuit if she had been warned about the text message.

Class Certification

The court applied Federal Rule of Civil Procedure 23. Rule 23(a) requires a proposed class representative to show numerosity, commonality, typicality, and adequacy of representation. Because San Pedro-Salcedo sought certification under Rule 23(b)(3), she also had to show that common issues predominated over individual ones and that a class action was the superior way to resolve the dispute.

The court denied class certification because San Pedro-Salcedo could not satisfy, at minimum, the requirements of typicality and adequacy. It did not decide the other Rule 23 requirements.

Typicality

Typicality asks whether the representative’s claim involves a similar injury, conduct that is not unique to the representative, and the same course of conduct that allegedly injured the other class members.

The court found San Pedro-Salcedo’s claim was not typical because her testimony described a critical difference between her experience and the experience reflected in Häagen-Dazs’s training evidence. She said she was not told that she would receive a text message, while Häagen-Dazs presented evidence that cashiers were trained to give that warning. The court stated that the evidence indicated most customers consented to the one-time text message.

The court also relied on Federal Communications Commission rules and related authority stating that a one-time text message sent immediately after a consumer’s request does not violate the TCPA and related rules. Because Häagen-Dazs could raise that defense against proposed class members who were warned about the text message, but not against San Pedro-Salcedo based on her testimony, the court concluded that differing defenses would become a central focus of the case. San Pedro-Salcedo therefore failed to show that her claim was based on conduct that was not unique to her, and she did not satisfy Rule 23(a)(3).

Adequacy of Representation

Adequacy requires the named plaintiff to fairly and adequately protect the class’s interests. The court found San Pedro-Salcedo inadequate because her deposition testimony showed insufficient familiarity with the allegations and legal requirements of her own claim.

When asked why she filed the lawsuit, San Pedro-Salcedo described twelve unsolicited phone calls resulting from Häagen-Dazs entering her number into a database. The court noted that the lawsuit involved only one text message about the application, not those phone calls. She also testified that she did not believe Häagen-Dazs had used an automatic telephone dialing system and did not know that this issue was important to her claim, even though proving use of such a system was an essential part of the TCPA claim.

Although she later corrected her testimony after a recess and questioning by her attorney, the court found that her earlier misunderstanding showed she could not adequately supervise the litigation or protect the absent class members’ interests. The court also expressed concerns arising from her close personal relationship with her attorney, Michael Jaurigue, and her husband’s long-standing friendship with him. The court concluded that this relationship, together with her lack of familiarity with the case, raised substantial concerns about her credibility and ability to put the class’s interests ahead of her attorney’s interests. It held that she was not an adequate class representative.

Motion to Strike

Häagen-Dazs moved to strike two expert reports that San Pedro-Salcedo submitted with her reply in support of class certification. The court denied the motion to strike as moot because the reports were not material to its decision on class certification.

Disposition

The court denied San Pedro-Salcedo’s motion for class certification and denied Häagen-Dazs’s motion to strike as moot. The court directed the parties to address whether San Pedro-Salcedo would continue the lawsuit in her individual capacity and whether the schedule should be adjusted. It stated that it would not rule on Häagen-Dazs’s pending summary-judgment motion until it heard from the parties.