1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4

MELANIE G. SAN PEDRO-SALCEDO,

5 Case No. 5:17-cv-03504-EJD Plaintiff, 6 ORDER DENYING MOTION FOR v. CLASS CERTIFICATION; DENYING 7 MOTION TO STRIKE

THE HÄAGEN-DAZS SHOPPE

8 COMPANY, INC., Re: Dkt. Nos. 57, 85 9 Defendant.

10 While patronizing one of Defendant Häagen-Dazs Shoppe Company, Inc.’s locations, the 11 cashier asked Plaintiff Melanie San Pedro-Salcedo if she would like to join its Reward Program, 12 and then asked for her phone number. San Pedro-Salcedo provided her phone number, and 13 Häagen-Dazs, through a third-party, then sent her a text message that provided a link to down load 14 its mobile application (the “App”). The cashier apparently violated Häagen-Dazs’s policy and 15 deviated from its official script by not advising San Pedro-Salcedo that she would receive the text 16 message with the link to the App. San Pedro-Salcedo does not allege that Häagen-Dazs has used 17 her phone number for any other communications. She now moves to certify a class of over half a 18 million customers who received this text message (or a nearly identical one) on the grounds that 19 the text message violated the Telephone Consumer Protection Act (“TCPA”). She is the only 20 person to have complained of the text message. 21 The class she seeks to certify is “All persons in the United States who, since October 16, 22 2013 (or such date when the texting aspect of the customer Reward Program commenced), 23 received at least one text message from Defendants, or persons working on their behalf, on their 24 cellular telephones.” Dkt. No. 57-1. Häagen-Dazs has moved to strike San Pedro-Salcedo’s 25 expert reports and the portions of her reply that rely on those expert reports. The court has 26 considered the parties’ papers, and found that, pursuant to Local Rule 7-1(b), both motions are 27 Case No.: 5:17-cv-03504-EJD 1 suitable for decision without oral argument. The court denies both motions. 2 I. Factual Background 3 In April 2017, San Pedro-Salcedo visited a Häagen-Dazs store in a San Jose mall. Compl. 4 ¶ 13. The cashier asked if she wanted to join the Häagen-Dazs Reward Program. Id. The cashier 5 then verbally asked for her telephone number, which she provided. Id. No more than 15 minutes 6 later, she received a text message that read: “Thank you for joining Häagen-Dazs Rewards! 7 Download our App here” and provided a link to download the App. Id. ¶ 14; Boykins Ex. A at 8 68:4-6. The App allowed consumers to track points they acquire, to find Haggen-Dazs locations, 9 and to see coupons and offers. Jaurigue Ex. 3 at 51:25-52:7. Shortly after receiving the text 10 message—while still at the mall where the Häagen-Dazs was located—she called her husband and 11 discussed the text message. Boykins Ex. A at 68:16-69:17. Her husband recommended that she 12 contact his close friend Michael Jaurigue—a lawyer—to discuss the text message. Id. She 13 reached out to Jaurigue that same day. Id. at 76:25-77:4. Jaurigue represents San Pedro-Salcedo 14 in this action. 15 Häagen-Dazs had a companywide policy for enrolling customers in the Reward Program. 16 Id. at 109:15-110:12. Cashiers were trained to say the following to customers: “Would you like 17 to enroll in our Reward Program and receive points towards a free reward on your next visit? All I 18 need is your phone number and then you will receive a text message to download our mobile 19 application and start earning rewards today.” McLean Decl. ¶ 14. If the customer provided their 20 phone number, the cashier would say, “You will receive a text message in just a second to 21 download our Häagen-Dazs App so you can keep track of your points and get special offers 22 including a free frozen treat. Thanks and have a great day!” Id. Cashiers did not ask for the 23 customers’ written consent. Jaurigue Ex. 3 at 112:11-113:25. Importantly for this motion, San 24 Pedro-Salcedo testified that the cashier did not notify her that she would receive any text message. 25 Boykins Ex. A at 27:9-10. She testified that had she been notified about the text message, she 26 would not have brought this suit. Id. at 27:9-19. 27 Case No.: 5:17-cv-03504-EJD 1 Häagen-Dazs worked with a company called iMobile3 to design and administer the 2 Reward Program. Id. ¶¶ 4-6, 9. When a customer gave their phone number to a cashier, the 3 cashier entered the number into iMobile3’s PassMarket platform. Id. ¶ 17. The platform used the 4 telephony company Twilio, Inc. to send a single, on-demand text message to the customer. 5 Bishop Decl. ¶¶ 13-14. All of the text messages sent were materially identical to the one San 6 Pedro-Salcedo received. Jaurigue Ex. 3 at 43:5-2. 7 iMobile3 also sent text messages on behalf of Häagen-Dazs to people who (a) forget their 8 password to the App, so they receive a password reset or (b) download the App in an App store 9 and then receive a verification code via text message. Bishop Decl. ¶ 17. In response to a 10 subpoena from San Pedro-Salcedo, iMobile3 produced a list of all the telephone numbers to which 11 it has sent text messages and the content of those text messages. Jaurigue Decl. ¶¶ 4-5; see 12 Jaurigue Ex. 2. Because Häagen-Dazs sent the nearly same text message to customers who gave 13 their phone numbers to cashiers, San Pedro-Salcedo’s counsel was able to filter out text messages 14 sent by cashiers from the two other sorts of text messages and from text messages associated with 15 other iMobile3 clients. Jaurigue Decl. ¶ 5. The result was 517,391 text messages with nearly the 16 same content as the message that San Pedro-Salcedo received. Id. 17 This lawsuit is the only complaint about the text messages that Häagen-Dazs has received. 18 McLean Decl. ¶ 27. Häagen-Dazs has stopped sending the text messages. Jaurigue Ex. 3 at 19 23:20-24:1. 20 II. Procedural History 21 San Pedro-Salcedo filed this lawsuit against Häagen-Dazs and two other defendants in the 22 Superior Court for Santa Clara County on May 18, 2017. Dkt. No. 1. Häagen-Dazs timely 23 removed the case to this court. Id. The parties later stipulated to dismiss the other two defendants. 24 Dkt. Nos. 105, 106. On October 24, 2017, the court issued a case management schedule setting 25 June 29, 2018 as the deadline for the designation of experts in support of or opposed to class 26 certification, August 31, 2019 as the deadline to designate rebuttal expert witnesses for class 27 Case No.: 5:17-cv-03504-EJD 1 certification, and September 13, 2019 as the deadline for Plaintiff’s class certification motion. 2 Dkt. No. 32. The deadline for expert reports for trial was May 31, 2019, with rebuttal reports due 3 on June 28, 2019. Id. On August 7, 2018, the parties stipulated to extend the deadline to file the 4 class certification motion and set a briefing schedule. Dkt. No. 48. The stipulation said nothing 5 about expert witnesses on class certification issues. Id. On October 17, 2018, the parties again 6 stipulated to extend the briefing deadlines for class certification. Dkt. No. 55. This stipulation 7 provided that Häagen-Dazs could disclose an expert report concurrently with its opposition brief; 8 it did not provide for San Pedro-Salcedo to disclose an expert report or designate any expert 9 witnesses for class certification. Id. at 3. 10 San Pedro-Salcedo filed her motion for class certification without any expert reports on 11 February 8, 2019. Häagen-Dazs filed its opposition with an attached expert report on April 5, 12 2019. On May 31, 2019—one week before her reply was due—San Pedro-Salcedo informed 13 Häagen-Dazs that she intended to rely on expert reports in support of class certification. That day, 14 she served Jeffrey Hansen’s report. On June 10, 2019 she filed her reply in support of class 15 certification and attached a second expert report from Lisa Mullins. On June 20, 2019, Häagen- 16 Dazs filed the instant motion to strike. On August 20, 2019, the court granted leave for both 17 parties to file supplemental briefing regarding a recently decided case. Dkt. No 103. 18 III. San Pedro-Salcedo’s Motion for Class Certification 19 San Pedro-Salcedo has brought one claim under the TCPA based on the text message. 20 Compl. ¶¶ 29-34. The TCPA prohibits “mak[ing] any call (other than a call made for emergency 21 purposes or made with the prior express consent of the called party) using any automatic telephone 22 dialing system [“ATDS”] or an artificial or prerecorded voice . . . to any telephone number 23 assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii). A call that 24 “includes or introduces an advertisement or constitutes telemarketing” may be sent only with the 25 recipient’s “prior express written consent.” 47 C.F.R. § 64.1200(a)(2). A call that does not 26 include an advertisement or constitute telemarketing requires only “prior express consent.” Id. § 27 Case No.: 5:17-cv-03504-EJD 1 64.1200(a)(1). She contends that the text message she received was an advertisement or 2 constituted telemarketing under TCPA, that it was sent by an ATDS, and that the cashier did not 3 obtain her written consent before sending the text message. She now seeks to certify a class of 4 similarly situated individuals. 5 “A representative plaintiff may sue on behalf of a class when the plaintiff affirmatively 6 demonstrates the proposed class meets the four threshold requirements of Federal Rule of Civil 7 Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation.” Sali v. 8 Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018), cert. dismissed, 139 S. Ct. 1651, 203 9 L. Ed. 2d 921 (2019) (citations omitted). And where, as here, the suit is brought under Rule 10 23(b)(3), the plaintiff must also demonstrate that “questions of law or fact common to class 11 members predominate over any questions affecting only individual members, and that a class 12 action is superior to other available methods for fairly and efficiently adjudicating the 13 controversy.” Id. (citation omitted). “Rule 23 does not set forth a mere pleading standard.” Wal- 14 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Indeed, the plaintiff “must affirmatively 15 demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in 16 fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (original emphasis). 17 “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the 18 prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (citations and quotations omitted). 19 “[T]he class determination generally involves considerations that are enmeshed in the factual and 20 legal issues comprising the plaintiff's cause of action.” Id. at 351 (citations and quotations 21 omitted). Because the court finds that San Pedro-Salcedo individually cannot meet the 22 requirements for—at minimum—typicality and adequacy of representation, the court denies the 23 Motion for Class Certification. The court does not consider the other requirements of Rule 23. 24 a. Typicality 25 Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical 26 of the claims or defenses of the class.” “The test of typicality is whether other members have the 27 Case No.: 5:17-cv-03504-EJD 1 same or similar injury, whether the action is based on conduct which is not unique to the named 2 plaintiff[], and whether other class members have been injured by the same course of conduct.” 3 Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quotations 4 omitted). San Pedro-Salcedo contends that her claims are typical of the claims of the class 5 because both she and the class members received the alleged advertisement as a text message and, 6 like San Pedro Salcedo, none of the class members, per Häagen-Dazs’s policy, were asked to 7 provide written consent. Häagen-Dazs argues that San Pedro-Salcedo’s experience is not typical 8 of the class members because the cashier did not inform her that she would receive a text message 9 while asking for her phone number in violation of the policy to verbally inform customers of the 10 text message. See Boykin Ex. A at 27:8-19; McLean Decl. ¶ 14. The court agrees with Häagen- 11 Dazs. 12 The FCC has stated that “a one-time text message sent immediately after a consumer’s 13 request for the text does not violate the TCPA and [the Commission’s] rules.” In the Matter of 14 Rules & Regulations Implementing the TCPA, 30 FCC Rcd. 7961, 8015 (2015) (set aside in part 15 on other grounds by ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018)); see 16 also Reese v. Marketron Broad. Sols., Inc., 2018 WL 2117241 at *4 (E.D. La. 2018). Häagen- 17 Dazs has introduced specific evidence that its cashiers were trained to request customers’ phone 18 numbers by saying, “[a]ll I need is your phone number and then you will receive a text message to 19 download our mobile application and start earning rewards today.” McLean Decl. ¶ 14. That 20 evidence indicates that most customers consented to the one-time text message with the link to 21 download the App. San Pedro-Salcedo testified that her experience differed in a critical way: she 22 was not advised that she would receive the text message. But, she has offered no evidence that her 23 experience was typical for the class. That difference is key. Häagen-Dazs would be able raise the 24 FCC rules as a defense against the class members with the FCC regulations and the cases cited 25 above, but that defense would not apply to San Pedro-Salcedo. San Pedro-Salcedo and the absent 26 class members are subject to differing “defenses which threaten to become the focus of the 27 Case No.: 5:17-cv-03504-EJD 1 litigation,” making class certification inappropriate. See Hanon v. Dataproducts Corp., 976 F.2d 2 497, 508 (9th Cir. 1992). She has failed to show that “the action is based on conduct which is not 3 unique to” her. Wolin, 617 F.3d at 1175. 4 The parties also discuss this issue in connection with the Rule 23(b)(3) predominance 5 analysis. The court does not address that question now, but the court notes that San Pedro- 6 Salcedo’s argument that Häagen-Dazs should be required to submit affidavits from class members 7 is not persuasive. Notwithstanding San Pedro-Salcedo’s testimony regarding her individual 8 experience, Häagen-Dazs has submitted sufficient evidence that its cashiers were trained to advise 9 customers of the text message. McLean Decl. ¶ 14. “[T]here is nothing vague” about Häagen- 10 Dazs’s argument or evidence. See Legg v. PTZ Insurance Agency, Ltd., 321 F.R.D. 572 (N.D. Ill. 11 2017). San Pedro-Salcedo’s citation to Reward Program promotional material in which Häagen- 12 Dazs represents that it “only use[s] your phone number to track purchases, it will not be shared 13 with third parties or used for telemarketing purposes” does not conflict Häagen-Dazs’s argument 14 that its cashiers were trained to advise customers that they would receive a text message. 15 Greenstone Ex. 5. Sending customers a one-time, warned-of text message is consistent with not 16 using their phones numbers “for telemarketing purchases.” San Pedro-Salcedo bears the burden 17 on this motion, and she has not shown that her experience and claim is typical of that of the class. 18 The court finds that San Pedro-Salcedo cannot satisfy the requirements of Rule 23(a)(3). 19 b. Adequacy of Representation 20 Rule 23(a)(4) states that the named plaintiff must “fairly and adequately protect the 21 interests of the class.” “[A] representative meets this standard if he (1) has no conflicts of interest 22 with other class members, and (2) will prosecute the action vigorously on behalf of the class.” 23 Backus v. ConAgra Foods, Inc., 2016 WL 7406505, at *5 (N.D. Cal. Dec. 22, 2016) (citation 24 omitted). “[C]lass representatives serve as a guardian of the interests of the class.” In re 25 Tableware Antitrust Litig., 241 F.R.D. 644, 649 (N.D. Cal. 2007). “This adequacy requirement 26 satisfies due process concerns in that absent class members must be afforded adequate 27 Case No.: 5:17-cv-03504-EJD 1 representation before entry of a judgment which binds them.” Galas v. Lending Co., 2014 WL 2 4053406, at *7 (D. Ariz. Aug. 15, 2014) (quotation and citation omitted). “Class certification is 3 properly denied for inadequacy of representation when the class representatives have so little 4 knowledge of and involvement in the class action that they would be unable or unwilling to 5 protect the interests of the class against the possibly competing interests of the attorneys.” 6 Williams Corp. v. Kaiser Sand & Gravel Co., 146 F.R.D. 185, 187 (N.D. Cal. 1992) (quotation 7 and citation omitted). The court finds that San Pedro-Salcedo is not an adequate representative of 8 the class because her testimony indicates that she lacks a minimal, basic familiarity with her 9 allegations and claims that is necessary to protect the interests of the absent class members. And 10 when that lack of familiarity is coupled with her close personal relationship with her attorney, 11 those issue raises serious concerns about her credibility and her ability to place the interests of the 12 absent class members ahead of her attorney. 13 During her deposition, defense counsel asked her why she had filed this lawsuit. She 14 answered that Häagen-Dazs had entered her phone number into a database that led to her receiving 15 twelve unsolicited phones calls. Boykins Ex. A at 58:22-62:14. This lawsuit, she testified, is 16 based on those twelve phone calls. Id. at 59:8-11; 62:11-14. Her testimony simply has no 17 connection with her single cause of action, which is based only on the one text message 18 concerning the App. She also testified that from her professional experience she understands what 19 an ATDS is, and that she did not believe that Häagen-Dazs had used an ATDS to send her the text 20 message. Boykins Ex. A at 65:13-67:21. She testified that she did not know that whether 21 Häagen-Dazs used an ATDS to send the text message was significant to her case. Id. at 67:7-11. 22 Whether Häagen-Dazs used an ATDS is an essential element of her claim, and, as the plaintiff, she 23 carries the ultimate burden of affirmatively proving that Häagen-Dazs used an ATDS. Of course, 24 whether Häagen-Dazs used an ATDS is a disputed question of law and fact in this matter, and 25 while Rule 23 does not require named plaintiffs to possess a lawyer’s understanding of their 26 claims or to be an expert on the technical factual issues, San Pedro-Salcedo’s testimony indicates 27 Case No.: 5:17-cv-03504-EJD 1 an distressing lack of understanding of or familiarity with her claim. Adequately representing the 2 class requires a stronger understanding of the basics of this lawsuit. See, e.g., McPhail v. First 3 Command Fin. Planning, Inc., 247 F.R.D. 598, 612 (S.D. Cal. 2007) (finding class representative 4 inadequate where representative had “little to no supervisory role in the litigation and little 5 knowledge of the underlying facts of the lawsuit.” (citation and quotation omitted)); In re 6 Quarterdeck Office Sys., Inc. Sec. Litig., 1993 WL 623310, at *5 (C.D. Cal. Sept. 30, 1993) (“A 7 plaintiff subject to unique defenses, especially as to his credibility and his demonstrated lack of 8 familiarity with the suit, is an inadequate class representative.” (citations omitted)); Burkhalter 9 Travel Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991) (“a party who is not 10 familiar with the basic elements of its claim is not. . . an adequate representative.”). Granted, after 11 a recess and under questioning from her attorney, she changed her testimony to accurately 12 describe the allegations supporting her case. Boykins Ex. A at 83:15-84:12. But the court finds 13 that her erroneous testimony as to the basic factual allegations of her claim and her belief that 14 Häagen-Dazs’s conduct did not meet an essential element of her claim show that she cannot 15 adequately supervise the litigation or represent the class’s interests. Her lack of knowledge of her 16 factual allegations and legal claims disqualifies San Pedro-Salcedo from serving as class 17 representative. 18 The personal friendship between her attorney, Jaurigue, and San Pedro-Salcedo and her 19 husband further complicates her service as class representative. She testified that she and Jaurigue 20 have known each other for at least 13 years, and that her husband has been friends with her lawyer 21 since they were childhood friends and that her husband was groomsman at Jaurigue’s wedding. 22 Id. at 19:10-20:8. Shortly after receiving the text message, she spoke on the phone with her 23 husband, who recommended that she contact Jaurigue. Id. at 68:16-69:17. She spoke with 24 Jaurigue that day, and a month later filed this lawsuit. Id. at 76:25-77:4. The court finds that 25 their personal relationship and her lack of familiarity with the lawsuit raise substantial concerns as 26 to her credibility in representing the interests of the putative class. Courts have denied class 27 Case No.: 5:17-cv-03504-EJD 1 certification under similar facts. For example, in Bohn v. Pharmavite, LLC, the court found that 2 || the named plaintiffs inconsistent testimony combined with her friendship with her attorney raised 3 sufficient concerns to deny certification. 2013 WL 4517895, at *4 (C.D. Cal. Aug. 7, 2013). San 4 || Pedro-Salcedo relies on Kesler v. Ikea U.S., Inc. to argue that her relationship with Jaurigue 5 should not sway the court. 2008 WL 413268 (C.D. Cal. Feb. 4, 2008). There, unlike the facts 6 || here, the named plaintiff had a personal friendship with an attorney who worked at her counsel’s 7 || law firm—her friend was not her counsel of record. Jd. at *5. 8 The court finds that San Pedro-Salcedo is not an adequate representative of the absent class 9 || members. 10 TV. Haagen-Dazs’s Motion to Strike 11 Haagen-Dazs moves to strike two expert reports that San Pedro-Salcedo filed as 12 || attachments to her reply in support of class certification. Because those expert reports were in no 13 || way material to the court’s decision on the Motion for Class Certification, the court denies the 14 || Motion to Strike as moot 3 15 V. Conclusion 16 For the reasons discussed above, both motions are denied. In the parties’ joint pretrial 17 || conference statement, which is due on January 2, 2020 (Dkt. No. 72), the parties shall address Z 18 || whether San Pedro-Salcedo will seek to continue this lawsuit in her individual capacity, whether 19 || any adjustments should be made to the case schedule, and whether the court should rule on 20 || Haéagen-Dazs’s summary judgment motion that is currently under submission. The court will not 21 issue an order on that motion until hearing from parties. 22 IT ISSO ORDERED. 23 Dated: December 3, 2019 24

EDWARD J. DAVILA

25 United States District Judge 26 a Case No.: 5:17-cv-03504-EJD 28 oho DENYING MOTION FOR CLASS CERTIFICATION; DENYING MOTION TO