Whether evidence of a general corporate policy inconsistent with a plaintiff's individual experience is sufficient to show that the plaintiff's experience was atypical for Rule 23 purposes.36
Plaintiff Melanie San Pedro-Salcedo was invited to join Häagen-Dazs's rewards program while patronizing one of the company's stores. The cashier asked for San Pedro-Salcedo's phone number, after which Häagen-Dazs sent her a text message thanking her for joining the program and inviting her to download the rewards program's mobile app. The plaintiff alleged that she had not been notified about nor consented to receive the text message and that it thus violated the Telephone Consumer Protection Act ("TCPA"). She subsequently moved in the Northern District of California to certify a class of individuals who received text messages from Häagen-Dazs or its agents in connection with the rewards program.
The court denied class certification, holding that the plaintiff failed to establish typicality or adequacy. In opposition to the motion, Häagen-Dazs had submitted evidence of its corporate policy governing invitations to join the rewards program. The policy instructed cashiers asking for customers' phone numbers to inform them that they would receive a text message inviting them to download the Häagen-Dazs mobile app.
The plaintiff argued that the cashier had not notified her that she would receive a text message. However, she had not presented evidence that her experience was typical of other participants in the rewards program. In the absence of this evidence, the court was satisfied that Häagen-Dazs's evidence about its corporate policy and the training it gave to its cashiers was sufficient to suggest that most customers were verbally notified about text messages when they signed up for the rewards program.
The plaintiff also argued that under the TCPA, Häagen-Dazs was permitted only to send text messages with the customer's written consent. She argued that, as a result, her experience was typical of all text message recipients in that, even if interactions with cashiers followed official policy, no customer gave her written consent to receive the messages. The court responded that there were regulations and case law suggesting that one-off messages sent with a consumer's verbal consent were not inconsistent with the TCPA. The fact that Häagen-Dazs could raise that defense against many class members, but not the named plaintiff, made her claims atypical of the class.
Thoughts & Takeaways
This case suggests that official corporate policies can serve as an effective shield against attempts to turn isolated incidents into class litigation. The court rejected the plaintiff's argument that Häagen-Dazs should have provided affidavits from class members showing that they had actually been notified that they would receive text messages. In the absence of evidence of systemic failures to adhere to official policy, the court was willing to accept evidence of that policy as sufficient proof that plaintiff's experiences were not typical of the class.
Read the decision here.
36 Order Denying Motion for Class Certification; Denying Motion to Strike at 1, San Pedro-Salcedo v. Häagen-Dazs Shoppe Co., No. 5:17-cv-03504-EJD (N.D. Cal. Dec. 3, 2019), ECF No. 141.
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