Recent attempts by The Häagen-Dazs Shoppe Company, Inc., Nestlé Dreyer’s Ice Cream Company, and Nestlé USA, Inc. to have a Telephone Consumer Protection Act putative class action dismissed proved unsuccessful after the United States District Court for the Northern District of California found that the “thank you” text messages at issue could arguably constitute telemarketing.

As pled in the Complaint, consumer Melanie San Pedro-Salcedo visited a Häagen-Dazs store where the cashier asked her if she would like to enroll in a rewards program for discounts on future purchases.  The cashier asked for San Pedro-Salcedo’s telephone number, which she provided orally.  That same day, San Pedro-Salcedo received the text message at issue: “Thank you for joining Häagen-Dazs Rewards! Download our app here.”  San Pedro-Salcedo alleges that the text message constitutes telemarketing and that she did not provide prior express written consent to receive such communications, in violation of the TCPA.  San Pedro-Salcedo subsequently filed a putative class action seeking to represent a class comprised of “all persons throughout the United States who, since October 16, 2013, received at least one text message from Defendants on their cellular telephones.”

The defendants moved to dismiss the Complaint.  Per the district court, “[t]he central issue in this case is whether the text ‘includes or introduces an advertisement or constitutes telemarketing.’”  The defendants argued that because the text did not encourage San Pedro-Salcedo to purchase property, goods, or services, it was not advertising or telemarketing.  By contrast, San Pedro-Salcedo argued that the text advertises the commercial availability of a service (i.e., the defendants’ app), and therefore the text falls within TCPA regulation.

Construing the allegations in the light most favorable to San Pedro-Salcedo, the Court found that the defendants’ message to “Download our app here” arguably constitutes an advertisement and thus was sufficient to state a claim for relief under the TCPA.

We will continue to monitor the developments in this case.

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Photo of Julie D. Hoffmeister Julie D. Hoffmeister

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection…

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection Act (TCPA). Julie also applies her litigation knowledge in assisting businesses in developing compliance processes and procedures for the myriad federal consumer protection laws.

Photo of Stephen C. Piepgrass Stephen C. Piepgrass

Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies,

Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries. He also has experience advising clients on data and privacy issues, including handling complex investigations into data incidents by state attorneys general other state and federal regulators. Additionally, Stephen provides strategic counsel to Troutman Pepper’s Strategies clients who need assistance with public policy, advocacy, and government relations strategies.