Unreported / Non-Citable
Background
Plaintiff Charles Bathersfield filed a putative class action on February 23, 2026, alleging that Heart & Soil Supplements, LLC violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(c), and its implementing regulation, 47 C.F.R. § 64.1200(c)(1), by sending marketing text messages to his cellphone at 6:11 a.m. on November 28, 2025, and 5:14 a.m. on January 15, 2026—times falling within the TCPA’s prohibited ‘quiet hours’ before 8 a.m. and after 9 p.m. local time.
Bathersfield alleged he never authorized such messages during those hours.
Defendant answered on April 17, 2026, asserting eleven affirmative defenses and two counterclaims, including a declaratory judgment action regarding the interplay between prior express consent and the quiet-hours rule and a breach of contract claim.
On May 26, 2026, Defendant moved for judgment on the pleadings under Rule 12(c) and for an early determination that class certification be denied.
Plaintiff opposed, and the Court heard the motion without oral argument.
The Court’s Holding
The Court denied Defendant’s motion for judgment on the pleadings on two grounds.
First, the Court held that text messages constitute ‘telephone calls’ under 47 U.S.C. § 227(c)(5), following binding Ninth Circuit precedent in Satterfield v.
Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), and Howard v.
Republican Nat’l Comm., 164 F.4th 1119 (9th Cir. 2026), which interpreted ‘call’ under the TCPA to include text messages based on the statute’s text, purpose, and the ordinary meaning of ‘call’ as communication by telephone.
The Court rejected Defendant’s reliance on the Seventh Circuit’s contrary decision in Steidinger v.
Blackstone Med.
Servs., 182 F.4th 532 (7th Cir. 2026), and found the major questions doctrine inapplicable because the holding rests on statutory construction, not agency deference.
Second, the Court held that consent is an affirmative defense on which Defendant bears the burden of proof, not an element of Plaintiff’s claim, and that Defendant’s proffered opt-in records and the Carter Declaration could not be considered on a Rule 12(c) motion because they are outside the pleadings and their allegations are deemed denied.
The Court also denied Defendant’s motion for an early determination that class certification be denied, finding that all four grounds—arbitration agreements, predominance of individual issues, adequacy of representation, and adequacy of counsel—depend on factual disputes outside the pleadings that require class discovery.
The Court emphasized that it is rare to strike class allegations at the pleading stage and that Defendant may renew these arguments at the certification stage.
Key Takeaways
- Text messages are ‘telephone calls’ under 47 U.S.C. § 227(c)(5) in the Ninth Circuit, extending the TCPA’s quiet-hours protections to SMS marketing.
- Consent is an affirmative defense under the TCPA’s quiet-hours rule; the defendant bears the burden of proving prior express invitation or permission, and the plaintiff need not plead lack of consent.
- On a Rule 12(c) motion, courts may not consider extrinsic evidence such as opt-in logs or declarations to contradict the plaintiff’s factual allegations; such evidence converts the motion to one for summary judgment.
- Early denial of class certification is disfavored; defendants must show the complaint itself demonstrates a class action cannot be maintained, which requires facts not in the pleadings.
- Arguments based on arbitration agreements, individualized consent and time-zone inquiries, and adequacy of counsel are premature before class discovery and may be renewed at the certification stage.
Why It Matters
This decision reinforces Ninth Circuit precedent that the TCPA’s privacy protections apply to text messages across all provisions of the statute, including the quiet-hours rule in § 227(c).
It clarifies that consent is an affirmative defense in quiet-hours cases, aligning with the Supreme Court’s directive in Meacham v.
Knolls Atomic Power Lab’y that exceptions to statutory coverage must be proven by the party asserting them.
The ruling also underscores the procedural rigor of Rule 12(c): courts must accept the non-movant’s allegations as true and may not resolve factual disputes using evidence outside the pleadings.
By denying early class certification challenges, the Court preserves the plaintiff’s opportunity to conduct discovery on classwide issues such as consent records and time-zone data held by the defendant, consistent with Ninth Circuit guidance that preemptive denial is rare and usually requires a developed record.