United States District Court, N.D. California, San Jose Division
MELANIE G. SAN PEDRO-SALCEDO, Plaintiff,
THE HÄAGEN-DAZS SHOPPE COMPANY, INC., Defendant.
ORDER DENYING MOTION FOR CLASS CERTIFICATION; DENYING
MOTION TO STRIKE RE: DKT. NOS. 57, 85
J. DAVILA United States District Judge
patronizing one of Defendant Häagen-Dazs Shoppe Company,
Inc.'s locations, the cashier asked Plaintiff Melanie San
Pedro-Salcedo if she would like to join its Reward Program,
and then asked for her phone number. San Pedro-Salcedo
provided her phone number, and Häagen-Dazs, through a
third-party, then sent her a text message that provided a
link to down load its mobile application (the
“App”). The cashier apparently violated
Häagen-Dazs's policy and deviated from its official
script by not advising San Pedro-Salcedo that she would
receive the text message with the link to the App. San
Pedro-Salcedo does not allege that Häagen-Dazs has used
her phone number for any other communications. She now moves
to certify a class of over half a million customers who
received this text message (or a nearly identical one) on the
grounds that the text message violated the Telephone Consumer
Protection Act (“TCPA”). She is the only person
to have complained of the text message.
class she seeks to certify is “All persons in the
United States who, since October 16, 2013 (or such date when
the texting aspect of the customer Reward Program commenced),
received at least one text message from Defendants, or
persons working on their behalf, on their cellular
telephones.” Dkt. No. 57-1. Häagen-Dazs has moved
to strike San Pedro-Salcedo's expert reports and the
portions of her reply that rely on those expert reports. The
court has considered the parties' papers, and found that,
pursuant to Local Rule 7-1(b), both motions are suitable for
decision without oral argument. The court denies both
April 2017, San Pedro-Salcedo visited a Häagen-Dazs
store in a San Jose mall. Compl. ¶ 13. The cashier asked
if she wanted to join the Häagen-Dazs Reward Program.
Id. The cashier then verbally asked for her
telephone number, which she provided. Id. No more
than 15 minutes later, she received a text message that read:
“Thank you for joining Häagen-Dazs Rewards!
Download our App here” and provided a link to download
the App. Id. ¶ 14; Boykins Ex. A at 68:4-6. The
App allowed consumers to track points they acquire, to find
Haggen-Dazs locations, and to see coupons and offers.
Jaurigue Ex. 3 at 51:25-52:7. Shortly after receiving the
text message-while still at the mall where the
Häagen-Dazs was located-she called her husband and
discussed the text message. Boykins Ex. A at 68:16-69:17. Her
husband recommended that she contact his close friend Michael
Jaurigue-a lawyer-to discuss the text message. Id.
She reached out to Jaurigue that same day. Id. at
76:25-77:4. Jaurigue represents San Pedro-Salcedo in this
had a companywide policy for enrolling customers in the
Reward Program. Id. at 109:15-110:12. Cashiers were
trained to say the following to customers: “Would you
like to enroll in our Reward Program and receive points
towards a free reward on your next visit? All I need is your
phone number and then you will receive a text message to
download our mobile application and start earning rewards
today.” McLean Decl. ¶ 14. If the customer
provided their phone number, the cashier would say,
“You will receive a text message in just a second to
download our Häagen-Dazs App so you can keep track of
your points and get special offers including a free frozen
treat. Thanks and have a great day!” Id.
Cashiers did not ask for the customers' written consent.
Jaurigue Ex. 3 at 112:11-113:25. Importantly for this motion,
San Pedro-Salcedo testified that the cashier did not notify
her that she would receive any text message. Boykins Ex. A at
27:9-10. She testified that had she been notified about the
text message, she would not have brought this suit.
Id. at 27:9-19.
worked with a company called iMobile3 to design and
administer the Reward Program. Id. ¶¶ 4-6,
9. When a customer gave their phone number to a cashier, the
cashier entered the number into iMobile3's PassMarket
platform. Id. ¶ 17. The platform used the
telephony company Twilio, Inc. to send a single, on-demand
text message to the customer. Bishop Decl. ¶¶
13-14. All of the text messages sent were materially
identical to the one San Pedro-Salcedo received. Jaurigue Ex.
3 at 43:5-2.
also sent text messages on behalf of Häagen-Dazs to
people who (a) forget their password to the App, so they
receive a password reset or (b) download the App in an App
store and then receive a verification code via text message.
Bishop Decl. ¶ 17. In response to a subpoena from San
Pedro-Salcedo, iMobile3 produced a list of all the telephone
numbers to which it has sent text messages and the content of
those text messages. Jaurigue Decl. ¶¶ 4-5;
see Jaurigue Ex. 2. Because Häagen-Dazs sent
the nearly same text message to customers who gave their
phone numbers to cashiers, San Pedro-Salcedo's counsel
was able to filter out text messages sent by cashiers from
the two other sorts of text messages and from text messages
associated with other iMobile3 clients. Jaurigue Decl. ¶
5. The result was 517, 391 text messages with nearly the same
content as the message that San Pedro-Salcedo received.
lawsuit is the only complaint about the text messages that
Häagen-Dazs has received. McLean Decl. ¶ 27.
Häagen-Dazs has stopped sending the text messages.
Jaurigue Ex. 3 at 23:20-24:1.
Pedro-Salcedo filed this lawsuit against Häagen-Dazs and
two other defendants in the Superior Court for Santa Clara
County on May 18, 2017. Dkt. No. 1. Häagen-Dazs timely
removed the case to this court. Id. The parties
later stipulated to dismiss the other two defendants. Dkt.
Nos. 105, 106. On October 24, 2017, the court issued a case
management schedule setting June 29, 2018 as the deadline for
the designation of experts in support of or opposed to class
certification, August 31, 2019 as the deadline to designate
rebuttal expert witnesses for class certification, and
September 13, 2019 as the deadline for Plaintiff's class
certification motion. Dkt. No. 32. The deadline for expert
reports for trial was May 31, 2019, with rebuttal reports due
on June 28, 2019. Id. On August 7, 2018, the parties
stipulated to extend the deadline to file the class
certification motion and set a briefing schedule. Dkt. No.
48. The stipulation said nothing about expert witnesses on
class certification issues. Id. On October 17, 2018,
the parties again stipulated to extend the briefing deadlines
for class certification. Dkt. No. 55. This stipulation
provided that Häagen-Dazs could disclose an expert
report concurrently with its opposition brief; it did not
provide for San Pedro-Salcedo to disclose an expert report or
designate any expert witnesses for class certification.
Id. at 3.
Pedro-Salcedo filed her motion for class certification
without any expert reports on February 8, 2019.
Häagen-Dazs filed its opposition with an attached expert
report on April 5, 2019. On May 31, 2019-one week before her
reply was due-San Pedro-Salcedo informed Häagen-Dazs
that she intended to rely on expert reports in support of
class certification. That day, she served Jeffrey
Hansen's report. On June 10, 2019 she filed her reply in
support of class certification and attached a second expert
report from Lisa Mullins. On June 20, 2019, Häagen-Dazs
filed the instant motion to strike. On August 20, 2019, the
court granted leave for both parties to file supplemental
briefing regarding a recently decided case. Dkt. No 103.
San Pedro-Salcedo's Motion for Class
Pedro-Salcedo has brought one claim under the TCPA based on
the text message. Compl. ¶¶ 29-34. The TCPA
prohibits “mak[ing] any call (other than a call made
for emergency purposes or made with the prior express consent
of the called party) using any automatic telephone dialing
system [“ATDS”] or an artificial or prerecorded
voice . . . to any telephone number assigned to a . . .
cellular telephone service . . . .” 47 U.S.C. §
227(b)(1)(A)(iii). A call that “includes or introduces
an advertisement or constitutes telemarketing” may be
sent only with the recipient's “prior express
written consent.” 47 C.F.R. § 64.1200(a)(2). A
call that does not include an advertisement or constitute
telemarketing requires only “prior express
consent.” Id. § 64.1200(a)(1). She
contends that the text message she received was an