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United States District Court for the Southern District of California
March 27, 2014, Decided; March 28, 2014, Filed
CASE NO. 13-CV-1427-BEN (WVG)
ORDER GRANTING MOTION TO DENY CLASS CERTIFICATION
[Docket No. 45]
Before this Court is a Motion to Deny Class Certification filed by Defendants Jersey Mike's [*2] Franchise Systems (Jersey Mike's) and Kenny Brothers, Inc. (Kenny Brothers) (collectively, "Movants"). (Docket No. 45). For the reasons stated below, the Motion is GRANTED.
I. Facts Giving Rise to the Lawsuit
Jersey Mike's Franchise Systems (Jersey Mike's) is a franchisor of sandwich shops throughout the United States. Kenny Brothers, Inc. is a Jersey Mike's franchisee which operates a sub sandwich shop in Solana Beach, California.
Jersey Mike's has a customer loyalty program known as the "Jersey Mike's Shore Points" in which it issues customers loyalty cards that they can use to earn and redeem "loyalty points" for free products. Each card has a unique bar code number and is linked in a database to a telephone number provided by the customer when the card is issued. (Mot. at 2; Scherer Decl. ¶ 4). Movants state that they do not buy telephone numbers or lists, and that the only numbers in their records are numbers provided by their customers. (Id.; Scherer Decl. ¶¶ 4, 5, 6; Miller Decl. ¶ 7).
Jersey Mike's and Kenny Brothers state that they send text messages, via Defendant SkyPop Partners, LLC, to customer cellular telephones to advertise promotions. (Mot. at 2). They state [*3] that messages are only sent to members of the loyalty program who gave their cell phone numbers to Jersey Mike's and its franchisees. (Id.; Scherer Decl. ¶ 9, Miller Decl. ¶ 7).
Movants assert that Plaintiff was issued a loyalty card on May 16, 2013 by a server on duty at the Solana Beach store. (Id.) The bar code was linked to Plaintiff's cell phone number. (Id.). Plaintiff admits that he was given a loyalty card on one of his visits to the store. (Ryan Dep., Dawson Decl., Ex. A).
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2014 U.S. Dist. LEXIS 42677 *
SEAN RYAN, an individual, on behalf of himself and all others similarly-situated, Plaintiff, vs. JERSEY MIKE'S FRANCHISE SYSTEMS, a New Jersey corporation; KENNY BROTHERS, INC. dba JERSEY MIKE'S SUBS, a California corporation; CLUB TEXTING, INC. dba EZ TEXTING, INC., a New York corporation; SKYPOP PARTNERS, LLC, a Delaware limited liability company; and DOES 1 though 50, Defendants.
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