In Agne v. Papa John’s Intern., Inc., — F.R.D. —-, 2012 WL 5473719 (W.D.Wash. 2012), Judge Coughenour certified a TCPA class action against PapaJohn’s pizza for advertising text messages send to thousands of consumers. Plaintiff alleges that Defendants violated state and federal law when they sent her and thousands of others unsolicited text messages advertising Papa John’s pizza products. Papa Johns argued that class certification could be defeated, and Plaintiff in particular lacked statutory standing under the TCPA, because she was not the ‘intended recipient’ of the text messages. The court disagreed:
Papa John’s argues that Plaintiff does not have statutory standing to sue under the TCPA because she was not the primary account owner on her shared cellular plan and did not pay the bill. (Dkt. No. 247 at 20.) Plaintiff was an authorized user of her shared cellular plan when the text messages were sent, but her ex-husband was the primary account holder. (Dkt. No. 299, Ex. 4 at 1; Dkt. No. 355 at 2.) ¶ Plaintiff correctly argues that the case law does not unambiguously require that a plaintiff own the relevant phone or account in order to have standing to sue under the TCPA. Moreover, she argues, she has standing to sue under the TCPA because her privacy interests are the very ones that Congress intended to protect when it enacted the TCPA. Plaintiff avers that: (1) she has been the exclusive user of her cell number since 2002, years before sharing a cellular service plan with her ex-husband; (2) she owned the cell phone which received the message; and (3) she was the in-tended recipient of the texts. (Dkt. No. 319 at 4.) ¶ The parties do not appear to dispute that Plaintiff was the intended recipient of the text messages. On that basis alone, there is authority for finding that she has standing. See, e.g., Cellco P’ship v. Wilcrest Health Care Mgmt. Inc., No. C09–3534–MLC, 2012 WL 1638056, at *7 (D.N.J. May 8, 2012) (noting that “a burgeoning body of case law” establishes that the “intended recipient” of a call has statutory standing to bring suit under the TCPA). Moreover, the Court agrees with other district courts that have concluded that a person who is the authorized and sole user of a cellular telephone number and receives unsolicited calls (or text messages) at that number has standing to pursue a TCPA claim. See, e.g., D.G. ex rel. Tang v. William W. Siegel & Assocs., Attorneys at Law, 791 F.Supp.2d 622, 625 (N.D.Ill.2011) (finding that plaintiff had statutory standing to sue under the TCPA because defendant intended to call plaintiff’s cell number, plaintiff actually received the calls, and plaintiff was the “regular user and carrier of the phone”). There is no dispute that the messages were sent to Plaintiff’s cellular telephone number and that she received them. Her privacy is the interest that the TCPA was intended to protect. She therefore has statutory standing.
The Court certified a class action:
Papa John’s and the Rain City Defendants both argue that determining whether putative class members actually received messages sent by OnTime4U will require individual determinations, making the class unmanageable. . . Defendants point out that even if the OnTime4U distribution lists can be reconstructed, OnTime4U often had technical difficulties actually delivering messages and therefore determining whether a person received a text message requires an individualized determination. For example, Defendants have presented evidence that Sprint did not deliver the messages to any of its cellular customers. (Dkt. No. 253 at 5.) The Court does not agree that determining whether individuals received messages will be as difficult as Defendants argue. If the Defendants provide persuasive evidence that a specific phone carrier never delivered OnTime4U’s text messages, potential class members whose numbers are associated with that carrier will be purged from the class lists. Whether other consumers received the messages can be determined using claim forms and phone records, as well as any records Plaintiff may be able to obtain from OnTime4U. The Court also notes that should this issue prove unmanageable—something the Court does not anticipate—the Court “retains the flexibility to address problems with a certified class as they arise, including the ability to decertify.” United Steel Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir.2010).