Pizza chain needs to do more than speculate on relationships to kill this class
Friends Like These?
Brian Keim claims he began receiving text messages from Pizza Hut back in 2011 as part of the company's "Friend Forwarded" program. The program was a feature of a Pizza Hut "texting club" that consumers joined to receive text offers for Pizza Hut products. Once consumers joined, they were encouraged to provide the Pizza Hut texting club with the phone numbers of friends who in turn began to receive messages.
Keim sued Pizza Hut for violations of the Telephone Consumer Protection Act (TCPA), arguing that because his number had been provided to Pizza Hut by a third party, he had not consented to the texts.
After several years of various pleadings being filed in the Southern District of Florida ‒ the original case was filed in 2012, with a second amended complaint reaching the court in 2015 ‒ the defendants, which included Pizza Hut and related businesses, opposed Keim's class certification in 2017. Their argument was the class as defined by Keim contained serious flaws related to consent.
Consent and a Slice
Pizza Hut started off by arguing that some of the putative class members had forwarded the text messages to numbers for which they were the subscribers (the main subscriber to a family plan, for instance, who forwarded the number of a family member included in their plan).
Other class members, the defendants argued, had given consent to the person who had forwarded their phone number to Pizza Hut.
Finally, the company argued that the issue of consent couldn't be nailed down with certainty because, in the court's words, "the class includes individuals whose telephone numbers were forwarded by family members and others with whom the class members shared a personal relationship," establishing an agency relationship with the forwarder.
The Takeaway
The court favored Keim in its ruling, maintaining that "subscriber-forwarded numbers, once excluded, would not defeat satisfaction of the commonality requirement," and arguing that a simple change to the class definition would exclude those putative members who fell into this category, allowing the case to move forward (the court calculated that less than 8 percent of the putative class fell into this group).
As to the second group, the court relied on an earlier FCC ruling that stated that "for consent through an intermediary to be valid, the intermediary must convey the consent to the caller." Although Pizza Hut provided declarations from more than 20 individuals that they had received consent to provide phone numbers to the company, there was no evidence that the individuals had conveyed the consent to Pizza Hut. "Defendants did not even ask the forwarders whether they had obtained consent from the consumer," the court wrote. "Defendants asked only for the telephone number."
Finally, the court dismissed the argument that "agency relationships" might exist between forwarders and class members as pure speculation on Pizza Hut's part. Moreover, unlike in cases involving important financial or medical matters where individuals may routinely give others the authority to act on their behalf when they cannot do so, "there is no evidence that pizza deals garner the same careful planning and attention" to form this type of agency relationship.
The court granted certification for a slightly trimmed version of the original class and allowed the case to proceed. The TCPA has complex consent and revocation of consent requirements and severe penalties for noncompliance, particularly for marketing communications. Companies considering telemarketing or text marketing should seek professional legal advice prior to initiating campaigns. While there are many competent vendors helping companies engage in these types of campaigns, not all are as well-versed on the law as they should be, and ultimately it will be the brand that is sued.
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