Signing up for a company’s texts is one thing. Hearing from it at 5:14 a.m. is another. Whether the first covers the second is one of the biggest open questions in TCPA quiet hours litigation. In Bathersfield v. Heart & Soil Supplements, LLC, No. 3:26-cv-01124-GPC-SBC, 2026 U.S. Dist. LEXIS 248494 (S.D. Cal. Oct. 29, 2026), the defendant tried to skip ahead to the answer.
The plaintiff alleged that a supplement company sent him marketing texts at 6:11 a.m. and 5:14 a.m. The quiet-hours rule bars “telephone solicitation[s]” before 8 a.m. and after 9 p.m. The TCPA defines that term to exclude messages sent with the recipient’s “prior express invitation or permission.”
The defendant built its argument on that definition. If consented messages aren’t solicitations at all, it said, then lack of consent is an element of the claim, and the plaintiff has to plead it.
The Court didn’t buy it. Under Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), TCPA consent is an affirmative defense, and putting it inside a definition doesn’t change that. “An exclusion from a statutory definition is still an exception to the statute’s coverage,” the Court explained. Under Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), “those who set up such exception must prove it.” It didn’t help that the defendant’s own answer listed consent as its first affirmative defense.
The defendant’s alleged proof didn’t make it in either. The complaint never mentioned the opt-in records from the texting vendor, so they couldn’t be incorporated by reference. Attaching them to the answer didn’t help, because without a court-ordered reply, the answer’s allegations are deemed denied. The supporting declaration was outside the pleadings, and the Court declined to convert the motion into one for summary judgment. That left the plaintiff’s allegation that he “never signed any type of authorization” for quiet-hours texts. The Court called it a factual allegation that it had to accept as true.
So the big question stayed unanswered. The Court did not reach “whether consent to receive marketing messages extends to messages sent during quiet hours.” The defendant had also tried to get that answer through a declaratory judgment counterclaim. The Court struck that counterclaim in a separate order.
Consent came up again at the class stage. The defendant argued that individual consent and time-zone questions would overwhelm the class, and that its opt-in records made the plaintiff’s allegations “materially false.” The Court said both arguments depend on enrollment and location data in the defendant’s own records, and both belong at class certification.
The rest of the defendant's motion fared no better. The Court held that texts are calls under § 227(c)(5), relying on Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), and Howard v. Republican National Committee, 164 F.4th 1119 (9th Cir. 2026). It declined to follow Steidinger v. Blackstone Medical Services, 182 F.4th 532 (7th Cir. 2026). And an effort to strike the class over arbitration terms went nowhere, because the defendant never filed the terms.
Whether opting in means opting in at 5 a.m. is still an open question. This Court wasn’t going to decide it on the defendant’s paperwork at the pleading stage.
