On February 10, the United States District Court for the Northern District of California denied defendant Bebe Stores, Inc.’s motion to decertify the plaintiffs’ proposed classes in a Telephone Consumer Protection Act class action. 

In Meyer v. Bebe Stores, Inc., the named plaintiffs alleged that they provided their cell phone numbers to Bebe in connection with an in-store purchase.  Bebe then allegedly sent unsolicited promotional text messages to the plaintiffs.  Plaintiffs filed a class action alleging negligent and willful violations of the TCPA. 

The District Court subsequently certified two classes of persons who provided their cell phone numbers to Bebe in one of Bebe’s stores at the point-of-sale and were sent a text message from Bebe since October 16, 2013, separated by whether the customers were part of Bebe’s “club” or customer loyalty program. 

In November 2016, Bebe filed a motion to decertify the classes, arguing that: (1) neither class is ascertainable because the consumers cannot show who received an opt-in text or that an automatic telephone dialing system (ATDS) was used, (2) plaintiffs lack common proof as to whether the equipment used was an ATDS, and (3) plaintiff Barrett is an improper representative. 

As to the issue of ascertainability, the Court held that Bebe’s “management concerns are alone insufficient to decertify the classes here.”  Relying on previous Ninth Circuit precedent, the Court noted that it was not clear why “requiring an administratively feasible way to identify all class members at the certification stage is necessary to protect [defendant’s] due process rights.” 

The Court also held that the plaintiffs’ expert testimony was “sufficient to demonstrate that plaintiffs intend to offer proof common to the entire class that [B]ebe utilized an ATDS.”  Plaintiffs’ expert opined that the text messages sent to the plaintiffs contained a short code number, which he explained can only be sent by computer equipment. 

Finally, Bebe argued that because plaintiff Barrett gave her number to Bebe outside of the class period, she is not a proper class representative.  The Court held that Bebe’s argument “boils down to asking the Court to decide on the merits of their defense,” and therefore is an issue better reserved for summary judgment or trial. 

A jury trial is scheduled to begin on August 28, 2017.