In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation.
Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of defendant’s California retail locations. (Id.¶ 15.) She returned one dress and purchased an-other. (Id.) In connection with the transaction, and “believing that it was necessary to complete an in-store return/purchase transaction and for no other purpose,” plaintiff provided her cell phone number to the store. (Id.¶ 16.) She was never advised that defendant would send her promotional text messages through an automatic telephone dialing system (“ATDS”). (Id.¶ 17.) Soon thereafter, on December 10, 2013, she received an unsolicited text message from defendant. (Id.¶ 18.)
The District Court rejected Plaintiff’s Article III standing argument:
Furthermore, plaintiff provides a number of cases where, under similar circumstances, courts have found an injury in fact for a purported TCPA violation even where the plaintiff did not receive an additional charge for the messages received. See, e.g., Smith v. Microsoft Corp., No. 11–CV–1958, 2012 WL 2975712, at *6 (S.D.Cal. July 20, 2012) (finding “that by alleging he received a text message in violation of the TCPA, [plaintiff] has established a particularized injury in satisfaction of Article III premised on the invasion of his privacy, even absent any economic harm”). Here, plaintiff alleged an invasion of privacy. (FAC ¶ 26.) Defendant fails to distinguish plaintiff’s authority, simply reiterating its basic argument. (Dkt. No. 46 (“Reply”) at 13.) The Court finds persuasive the reasoning in Smith, which cites the TCPA’s reference in section 227(b)(2)(C) to possible FCC exemptions in the case of “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party,” language which would be superfluous if defendant’s interpretation of the statute were adopted. See Smith, 2012 WL 2975712, at *4.
The District Court rejected the Defendant’s argument that the text message was merely a confirmation text because instead of being a permitted confirmation of “opting-out”, Defendant’s text was an unpermitted confirmation of “opting-in”
The text message now at issue was received after October 16, 2013 and therefore required written consent if related to advertising or telemarketing. De-fendant argues the text at issue was merely an informational or administrative message “confirming” plaintiff’s opt-in (not one sent for advertising or telemarketing purposes). Defendant’s legal authorities do not persuade. Those cases arise from “opt-out” situations, rather than “opt-ins.” Unlike the cases cited–where plaintiffs had previously consented to receive the communications and the confirmatory opt-out message itself contained no advertisement or telemarketing con-tent–the pleadings here establish a plausible lack of any prior express written consent by plaintiff to receive such messages. Moreover, the Court finds that the message at issue plausibly constitutes an “advertisement” and that it was plausibly sent for “telemarketing” purposes as the regulation defines those terms. Even if it also served a dual, administrative function of facilitating plaintiff’s possible opt-in, “[t]he FCC has determined that so-called ‘dual purpose’ calls, those with both a customer service or informational component as well as a marketing component, are prohibited.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 917 (9th Cir.2012) (citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14095 ¶¶ 140–142, 2003 WL 21517853 (F.C.C. July 3, 2003)). Here, the message offered “10% OFF reg-price in-store/online” on Bebe’s goods, presumably to encourage future purchases. Defendant argues the fact that the message asked plaintiff to “confirm [her] opt-in” conclusively demonstrates she previously consented to receive it. However, it is plausible that a marketing message might be sent with such language even in the absence of actual prior express consent.
The District Court also found that the Plaintiff had properly pleaded the use of an ATDS, and found that “… a TCPA violation does not require multiple messages be sent. Sherman v. Yahoo! Inc., 997 F.Supp.2d 1129, 1135 (S.D.Cal.2014) (“[A]bsent prior express consent, a single call or text with the use of an ATDS may be actionable under the TCPA.”).”