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

          ORDER DENYING MOTION FOR CLASS CERTIFICATION; DENYING MOTION TO STRIKE RE: DKT. NOS. 57, 85

          EDWARD J. DAVILA United States District Judge

         While 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.

         The 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 motions.

         I. Factual Background

         In 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 action.

         Häagen-Dazs 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.

         Häagen-Dazs 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.

         iMobile3 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. Id.

         This 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.

         II. Procedural History

         San 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.

         San 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.

         III. San Pedro-Salcedo's Motion for Class Certification

         San 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 ...