Kyla Asbury Jul. 24, 2014, 7:56pm

SAN DIEGO (Legal Newsline) - Guess? Inc. has filed a motion to dismiss in a class action lawsuit against it for allegedly violating the Telephone Consumer Protection Act.

"Plaintiff's non-conclusory factual allegations, however, are contained in a mere two paragraphs in the First Amended Complaint," the July 16 motion states. "The remaining allegations in the FAC are just recitals of the elements of a TCPA cause of action or immaterial discussions of irrelevant matter."

Thus, the plaintiff's FAC is woefully short on specific factual allegations that would raise her right to relief beyond mere speculation, according to the motion.

Because Plaintiff's FAC contains nothing more than barebones assertions that Guess? sent the plaintiff unsolicited text messages, unsupported by any allegations of fact, the FAC should be dismissed under Rule 12(b)(6) for failure to state a claim, according to the motion.

"Plaintiff's FAC also fails to state a claim in light of allegations in the complaint and judicially noticeable facts," the motion states. "It is well-established that if an individual provides her phone number to a company, the act of disclosing the phone number demonstrates that the person is consenting to be called (or in this case be sent text messages) at that number."

Here, Guess? has a customer loyalty program which customers can voluntarily enroll-in so that they can, among other things, earn discounts on future purchases, according to the motion.

"As part of the Guess? loyalty program, plaintiff disclosed her phone number to Guess? and thus expressly consented to receive text messages from Guess? in order to receive updates regarding her membership benefits," the motion states. "As such, she cannot state a claim under the TCPA."

In addition to dismissing the FAC, the court should strike the plaintiff's class definition from the FAC, according to the motion.

In recent years, marketers "stymied by federal laws limiting solicitation by telephone, facsimile machine and e-mail have increasingly looked to alternative technologies through which to send bulk solicitations to consumers easily and cheaply," according to a complaint filed Jan. 3 in the U.S. District Court for the Southern District of California at San Diego.

Farideh Haghayeghi claims text messaging is one of the newest bulk marketing methods in advertising and, while the instantaneous nature of text messaging makes it very appealing to telemarketers, it is very annoying to consumers subjected to spam text messages.

Unlike other forms of advertisement, text messages actually cost its recipients money, because cellular phone users must frequently pay their wireless service providers either for each text message or call they receive, or incur a usage allocation deduction to their text plan, regardless of whether or not the message is authorized, according to the suit.

Haghayeghi claims over the course of an extended period beginning no later than 2009, the defendant and/or its agents directed the mass transmission of text messages to cellular phones nationwide in an attempt to reach customers or potential customers of the defendant's products.

In 2013, Haghayeghi received several unsolicited text messages on her cell phone from Guess?, which she claims constituted as "calls" under the TCPA that were not for emergency purposes, according to the suit.

Haghayeghi claims she did not provide Guess ? or its agents prior express consent to receive unsolicited text messages and the defendant never told her that it would use her cell phone number to send her promotional text messages.

Haghayeghi is seeking $500 for herself and each class member in statutory damages. She is represented by Karen E. Nakon of Strategic Legal Practices.

Guess? is represented by Michelle C. Doolin, Darcie A. Tilly and Timothy D. Hance of Cooley LLP.

The case has been assigned to District Judge John A. Houston.

U.S. District Court for the Southern District of California at San Diego case number: 3:14-cv-00020

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