On October 11, 2017 the U.S. District Court for the Northern District of California, San Jose District, denied a motion to dismiss a putative Telephone Consumer Protection Act (the “TCPA”) class action based on a text message confirming plaintiff’s registration for defendant’s rewards program.  At issue was the effect of having included a link to defendant Häagen-Dazs’ mobile app.  Subject to limited exceptions, 47 C.F.R. §64.1200(a)(2) (2013) requires “prior express written consent” whenever a text or call to a cellular phone using an automatic telephone dialing system introduces an advertisement or constitutes telemarketing.

The TCPA regulations define “advertisement” as “any material advertising the commercial availability or quality of any product, goods, or services” and “telemarketing” as “the initiation of a . . . message for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services . . . .”

San Pedro-Salcedo v. Haagen-Dazs Shoppe Co., 2017 U.S. Dist. LEXIS 168532, *5 (quoting 47 C.F.R. §64.1200(f)(1) and (12)).  Distinguishing cases in which further action was required to complete registration, the court held:

If the registration for Häagen-Dazs Rewards was completed before the receipt of the text and without the need to download Defendants’ app, then Defendants’ message to “Download our app here,” arguably constitutes an advertisement for the commercial availability of Defendants’ app. Construing the alleged facts in the light most favorable to Plaintiff, the Court finds Plaintiff’s allegations sufficient at the pleading stage.

Id. at *6-7.  A link to the opinion may be found here.