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.