Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 1 of 13 Page ID #:1
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`Todd M. Friedman (SBN 216752)
`Adrian R. Bacon (SBN 280332)
`Meghan E. George (SBN 274525)
`Thomas E. Wheeler (SBN 308789)
`LAW OFFICES OF
`TODD M. FRIEDMAN, P.C.
`21550 Oxnard St., Suite 780
`Woodland Hills, CA 91367
`Phone: 323-306-4234
`Fax: 866-633-0228
`tfriedman@toddflaw.com
`abacon@toddflaw.com
`mgeorge@toddflaw.com
`twheeler@toddflaw.com
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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` Case No.: 2:21-cv-05809
`DAVE VACCARO, individually,
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`and on behalf of all others
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`similarly situated
`COMPLAINT FOR DAMAGES
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`AND INJUNCTIVE RELIEF
`Plaintiff,
`PURSUANT TO THE TELEPHONE
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`
`CONSUMER PROTECTION ACT,
` v.
`47 U.S.C. § 227, ET SEQ.
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`OPENTABLE, INC., and DOES 1
`JURY TRIAL DEMANDED
`through 10, inclusive
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` Defendants.
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`INTRODUCTION
`DAVE VACCARO (“Plaintiff”) bring this Class Action Complaint
`1.
`for damages, injunctive relief, and any other available legal or equitable remedies,
`resulting from the illegal actions of OPENTABLE, INC. (“Defendant”), in
`negligently contacting Plaintiff on Plaintiff’s cellular telephone, in violation of the
`Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby
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`CLASS ACTION COMPLAINT
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 2 of 13 Page ID #:2
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`invading Plaintiff’s privacy. Plaintiff alleges as follows upon personal knowledge
`as to himself and his own acts and experiences, and, as to all other matters, upon
`information and belief, including investigation conducted by their attorneys.
`The TCPA was designed to prevent calls and messages like the ones
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`described within this complaint, and to protect the privacy of citizens like Plaintiff.
`“Voluminous consumer complaints about abuses of telephone technology – for
`example, computerized calls dispatched to private homes – prompted Congress to
`pass the TCPA.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012).
`In enacting the TCPA, Congress intended to give consumers a choice
`3.
`as to how creditors and telemarketers may call them, and made specific findings
`that “[t]echnologies that might allow consumers to avoid receiving such calls are
`not universally available, are costly, are unlikely to be enforced, or place an
`inordinate burden on the consumer. TCPA, Pub.L. No. 102–243, § 11. Toward this
`end, Congress found that
`[b]anning such automated or prerecorded telephone calls
`to the home, except when the receiving party consents to
`receiving the call or when such calls are necessary in an
`emergency situation affecting the health and safety of the
`consumer, is the only effective means of protecting
`telephone consumers from this nuisance and privacy
`invasion.
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`Id. at § 12; see also Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL
`3292838, at* 4 (N.D.Ill. Aug. 10, 2012) (citing Congressional findings on TCPA’s
`purpose).
`Congress also specifically found that “the evidence presented to the
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`Congress indicates that automated or prerecorded calls are a nuisance and an
`invasion of privacy, regardless of the type of call….” Id. at §§ 12-13. See also,
`Mims, 132 S. Ct. at 744.
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 3 of 13 Page ID #:3
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`In a recent decision, the Supreme Court interpreted the term
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`“automatic telephone dialing system” and held that “[t]o qualify as an ‘automatic
`telephone dialing system,’ a device must have the capacity either to store a
`telephone number using a random or sequential generator or to produce a telephone
`number using a random or sequential number generator.” Facebook, Inc. v. Duguid,
`141 S.Ct. 1163 (2021) (emphasis added).
`In Duguid, the Supreme Court provided an example of such systems,
`6.
`stating: “For instance, an autodialer might use a random number generator to
`determine the order in which to pick phone numbers from a preproduced list. It
`would then store those numbers to be dialed at a later time.” Id. at 1171-72 fn. 7.
`Further, both Duguid and the legislative history of the TCPA are clear
`7.
`that the original focus on prerecorded voice technology prohibition was the fact
`that such communications involved agentless calls, not on the question of whether
`a literal voice was used during those agentless calls. See Hearing Before the
`Subcommittee on Communications of the Committee on Commerce, Science and
`Transportation, United States Senate One Hundred Second Congress First Session
`July 24, 1992, Testimony of Robert Bulmash and Steve Hamm at pg 11; 7 FCC
`Rcd. 8752 (F.C.C. September 17, 1992).
`The Sixth Circuit has also recognized this distinction: “Congress drew
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`an explicit distinction between ‘automated telephone calls that deliver an artificial
`or prerecorded voice message’ on the one hand and ‘calls place by ‘live’ persons’
`on the other.” Ashland Hosp. Corp. v. Serv. Employees Int’l Union, Dist. 1199
`WV/KY/OH, 708 F.3d 737,743 (6th Cir. 2013).
`Similarly, the FTC has observed that “prerecorded calls are by their
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`very nature one-sided conversations, and if there is no opportunity for consumers
`to ask questions, offers may not be sufficiently clear for consumers to make
`informed choices before pressing a button or saying yes to make a purchase.” 73
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 4 of 13 Page ID #:4
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`FR 51164-01, 51167 (Aug. 29, 2008).
`JURISDICTION AND VENUE
`Jurisdiction is proper under 28 U.S.C. § 1332(d)(2) because Plaintiff,
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`a resident of California, seeks relief on behalf of a Class, which will result in at
`least one class member belonging to a different state than that of Defendant, a
`corporation incorporated in the state of Delaware. Plaintiff also seeks $1,500.00 in
`damages for each call in violation of the TCPA, which, when aggregated among a
`proposed class in the thousands, exceeds the $5,000,000.00 threshold for federal
`court jurisdiction. Therefore, both diversity jurisdiction and the damages threshold
`under the Class Action Fairness Act of 2005 (“CAFA”) are present, and this Court
`has jurisdiction.
`11. Venue is proper in the United States District Court for the Central
`District of California pursuant to 28 U.S.C. § 1391(b)(1) because Defendant is
`subject to personal jurisdiction in the County of Los Angeles, State of California.
`PARTIES
`12. Plaintiff is, and at all times mentioned herein was, a natural person
`and citizen and resident of the State of California. Plaintiff is, and at all times
`mentioned herein was, a “person” as defined by 47 U.S.C. § 153(39).
`13. Defendant is, and at all times mentioned herein was, an online
`restaurant-reservation service company, and is therefore a “person” as defined by
`47 U.S.C. § 153(39).
`14. The above named Defendant, and its subsidiaries and agents, are
`collectively referred to as “Defendants.” The true names and capacities of the
`Defendants sued herein as DOE DEFENDANTS 1 through 10, inclusive, are
`currently unknown to Plaintiff, who therefore sues such Defendants by fictitious
`names. Each of the Defendants designated herein as a DOE is legally responsible
`for the unlawful acts alleged herein. Plaintiff will seek leave of Court to amend the
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 5 of 13 Page ID #:5
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`Complaint to reflect the true names and capacities of the DOE Defendants when
`such identities become known.
`15. Plaintiff is informed and believes that at all relevant times, each and
`every Defendant was acting as an agent and/or employee of each of the other
`Defendants and was acting within the course and scope of said agency and/or
`employment with the full knowledge and consent of each of the other Defendants.
`Plaintiff is informed and believes that each of the acts and/or omissions complained
`of herein was made known to, and ratified by, each of the other Defendants.
`FACTUAL ALLEGATIONS
`16. At all times relevant, Plaintiff was a citizen of the County of Los
`Angeles, State of California. Plaintiff is, and at all times mentioned herein was, a
`“person” as defined by 47 U.S.C. § 153(39).
`17. Defendant is, and at all times mentioned herein was, an online
`restaurant-reservation service company, and a “person,” as defined by 47 U.S.C. §
`153(39).
`18. At all times relevant Defendant conducted business in the State of
`California and in the County of Los Angeles, within this judicial district.
`19. On or about May 30, 2021, Plaintiff received an unsolicited text
`message from Defendant on his cellular telephone, number ending in -3928.
`20. Defendant sent Plaintiff the unsolicited text message from a short code
`phone number owned or controlled by Defendant, 36246.
`21. The three text messages sent by Defendant on May 30, 2021 read:
`for
`1) Welcome! Thanks
`joining
`OpenTable
`messaging.
`Standard
`message & data rates may
`apply. Text “STOP” to stop
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 6 of 13 Page ID #:6
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`receiving all text messages
`from OpenTable.
`2) You’ve been added to the
`waitlist for 4 at Maui
`Brewing
`Company
`–
`Waikiki. Reply 9 to cancel.
`Text
`STOP
`to
`stop
`messages.
`3) Please check in with the
`host at Maui Brewing
`Company – Waikiki now
`Your table is ready. Text 1
`if you’re on your way, 9 to
`cancel, or STOP to end
`messages.
`22. Upon receipt of this message, Plaintiff replied “stop,” and Defendant
`replied, “You will no longer receive any text messages from OpenTable. Text
`anything back to re-enroll. This is not a subscription service. Std msg&data rates
`may apply.”
`23. As evidenced by Defendant’s messages, Plaintiff was not interacting
`with a live agent but rather an agentless text blast generated by a computer.
`24. Moreover, the messages sent to Plaintiff was drafted in advance and
`sent out automatically based on pre-programmed parameters.
`25. The text messages sent to Plaintiff’s cellular telephone were placed
`via Defendant’s SMS Blasting Platform, i.e., an “automatic telephone dialing
`system,” (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) as prohibited by 47 U.S.C.
`§ 227(b)(1)(A).
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 7 of 13 Page ID #:7
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`26. The text messages sent to Plaintiff’s cellular telephone were not sent
`by a live agent and thus created a one-sided conversation in which Plaintiff could
`not receive a response to his questions and/or concerns. The text messages also
`were sent in an automated fashion as a result of computerized campaigns that were
`pre-programmed in advance to send messages out to large groups of consumers all
`at once, either sequentially or via algorithmic dialing, i.e. in an automated fashion
`by a computer.
`In Mirriam Webster’s Dictionary “voice” is defined as “an instrument
`27.
`or medium of expression.” It defines “artificial” as “humanly contrived…often on
`a natural model : MAN-MADE” and “lacking in natural or spontaneous quality.”
`28. The messages sent to Plaintiff by Defendant using the SMS blasting
`platform employed a text message as an instrument or medium of expression to
`deliver an automatic message drafted in advance of being sent, i.e. that of an SMS
`message, to convey a telemarketing communication to Plaintiff. The SMS blasting
`platform is a man made humanly contrived program which allows companies to
`blast out such messages via non-spontaneous methods, i.e. automated methods
`similar to that of an assembly line in a factory. Such SMS blasting devices are
`incapable of spontaneity, as they must be programmed by the operator to
`automatically send messages out, en masse, pursuant to preprogrammed
`parameters.
`29. Accordingly, Defendant’s messages utilized an “artificial voice” as
`prohibited by 47 U.S.C. § 227(b)(1)(A).
`30. Mirriam Webster’s Dictionary, “prerecorded” is defined as “recorded
`in advance.” “Recorded” is defined as “to set down in writing.” The text messages
`sent to Plaintiff’s cellular telephone via the SMS blasting platform were set down
`in writing in advance by Defendant, whose employees wrote out the standard
`automated messages that were to be sent to Plaintiff and other class members, and
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 8 of 13 Page ID #:8
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`by way of preprogrammed SMS blasting, entered the prerecorded message into the
`SMS Blasting platform, and thereafter sent these messages pursuant to scheduled
`blasts that were programmed by Defendant. Thus, Defendant employed a text
`message as an instrument or medium of expression to deliver a prerecorded
`message drafted in advance of being sent.
`31. Thus, Defendant’s messages utilized a “prerecorded voice” as
`prohibited by 47 U.S.C. § 227(b)(1)(A).
`32. The telephone number that Defendant, or their agent, messaged was
`assigned to a cellular telephone service for which Plaintiff incurs a charge for
`incoming calls and messages pursuant to 47 U.S.C. § 227(b)(1).
`33. These messages constituted “calls” that were not for emergency
`purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i).
`34. Plaintiff was never a customer of Defendant’s and never provided his
`cellular telephone number Defendant for any reason whatsoever. Accordingly,
`Defendant and their agent never received Plaintiff’s prior express consent to
`receive unsolicited text messages, pursuant to 47 U.S.C. § 227(b)(1)(A).
`35. These messages by Defendant, or its agents, violated 47 U.S.C. §
`227(b)(1).
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`CLASS ACTION ALLEGATIONS
`36. Plaintiff brings this action on behalf of himself and on behalf of and
`all others similarly situated (“the Class”).
`37. Plaintiff represents, and is a member of, the Class, consisting of all
`persons within the United States who received any unsolicited text messages placed
`using an automatic telephone dialing system and/or an artificial or prerecorded
`voice from Defendant and which text message was not made for emergency
`purposes or with the recipient’s prior express consent within the four years prior to
`the filing of this Complaint through the date of class certification.
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`38. Defendant and their employees or agents are excluded from the Class.
`Plaintiff does not know the number of members in the Class but believes the Class
`members number in the hundreds of thousands, if not more. Thus, this matter
`should be certified as a Class action to assist in the expeditious litigation of this
`matter.
`39. Plaintiff and members of the Class were harmed by the acts of
`Defendant in at least the following ways: Defendant, either directly or through their
`agents, illegally contacted Plaintiff and the Class members via their cellular
`telephones by using marketing and text messages, thereby causing Plaintiff and the
`Class members to incur certain cellular telephone charges or reduce cellular
`telephone time for which Plaintiff and the Class members previously paid, and
`invading the privacy of said Plaintiff and the Class members. Plaintiff and the Class
`members were damaged thereby.
`40. This suit seeks only damages and injunctive relief for recovery of
`economic injury on behalf of the Class, and it expressly is not intended to request
`any recovery for personal injury and claims related thereto. Plaintiff reserves the
`right to expand the Class definition to seek recovery on behalf of additional persons
`as warranted as facts are learned in further investigation and discovery.
`41. The joinder of the Class members is impractical and the disposition of
`their claims in the Class action will provide substantial benefits both to the parties
`and to the court. The Class can be identified through Defendant’s records or
`Defendant’s agent’s records.
`42. There is a well-defined community of interest in the questions of law
`and fact involved affecting the parties to be represented. The questions of law and
`fact to the Class predominate over questions which may affect individual Class
`members, including the following:
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`Case 2:21-cv-05809 Document 1 Filed 07/19/21 Page 10 of 13 Page ID #:10
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`a) Whether, within the four years prior to the filing of this Complaint
`through the date of class certification, Defendant or their agents sent
`any text messages (other than a message made for emergency
`purposes or made with the prior express consent of the called party)
`to a Class member using any automatic telephone dialing system or an
`artificial or prerecorded voice to any telephone number assigned to a
`cellular phone service;
`b) Whether Plaintiff and the Class members were damaged thereby, and
`the extent of damages for such violation; and
`c) Whether Defendant and their agents should be enjoined from
`engaging in such conduct in the future.
`43. As a person that received at least one marketing and text message
`without Plaintiff’s prior express consent, Plaintiff is asserting claims that are
`typical of the Class. Plaintiff will fairly and adequately represent and protect the
`interests of the Class in that Plaintiff has no interests antagonistic to any member
`of the Class.
`44. Plaintiff and the members of the Class have all suffered irreparable
`harm as a result of the Defendant’s unlawful and wrongful conduct. Absent a class
`action, the Class will continue to face the potential for irreparable harm. In
`addition, these violations of law will be allowed to proceed without remedy and
`Defendant will likely continue such illegal conduct. Because of the size of the
`individual Class member’s claims, few, if any, Class members could afford to seek
`legal redress for the wrongs complained of herein.
`45. Plaintiff has retained counsel experienced in handling class action
`claims and claims involving violations of the Telephone Consumer Protection Act.
`46. A class action is a superior method for the fair and efficient
`adjudication of this controversy. Class-wide damages are essential to induce
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`Defendant to comply with federal and California law. The interest of Class
`members in individually controlling the prosecution of separate claims against
`Defendant are small because the maximum statutory damages in an individual
`action for violation of privacy are minimal. Management of these claims is likely
`to present significantly fewer difficulties than those presented in many class claims.
`47. Defendant has acted on grounds generally applicable to the Class,
`thereby making appropriate final injunctive relief and corresponding declaratory
`relief with respect to the Class as a whole.
`FIRST CAUSE OF ACTION
`NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT
`47 U.S.C. § 227 ET SEQ.
`48. Plaintiff incorporates by reference all of the above paragraphs of this
`Complaint as though fully stated herein.
`49. The foregoing acts and omissions of Defendant constitute numerous
`and multiple negligent violations of the TCPA, including but not limited to each
`and every one of the above-cited provisions of 47 U.S.C. § 227 et seq.
`50. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et
`seq, Plaintiff and The Class are entitled to an award of $500.00 in statutory
`damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).
`51. Plaintiff and the Class are also entitled to and seek injunctive relief
`prohibiting such conduct in the future.
`SECOND CAUSE OF ACTION
`KNOWING AND/OR WILLFUL VIOLATIONS OF THE
`TELEPHONE CONSUMER PROTECTION ACT
`47 U.S.C. § 227 ET SEQ.
`52. Plaintiff incorporates by reference all of the above paragraphs of this
`Complaint as though fully stated herein.
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`53. The foregoing acts and omissions of Defendant constitute numerous
`and multiple knowing and/or willful violations of the TCPA, including but not
`limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et
`seq.
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`54. As a result of Defendant’s knowing and/or willful violations of 47
`U.S.C. § 227 et seq, Plaintiff and The Class are entitled to an award of $1,500.00
`in statutory damages, for each and every violation, pursuant to 47 U.S.C. §
`227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).
`55. Plaintiff and the Class are also entitled to and seek injunctive relief
`prohibiting such conduct in the future.
`PRAYER FOR RELIEF
`Wherefore, Plaintiff respectfully requests the Court grant Plaintiff, and The
`Class members the following relief against Defendant:
`FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATIONS OF
`THE TCPA, 47 U.S.C. § 227 ET SEQ.
`• As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1),
`Plaintiff seeks for himself and each Class member $500.00 in statutory
`damages, for each and every violation, pursuant to 47 U.S.C. §
`227(b)(3)(B).
`• Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such
`conduct in the future.
`• Any other relief the Court may deem just and proper.
`SECOND CAUSE OF ACTION FOR KNOWING AND/OR WILLFUL VIOLATIONS OF
`THE TCPA, 47 U.S.C. § 227 ET SEQ.
`• As a result of Defendant’s knowing and/or willful violations of 47 U.S.C.
`§ 227(b)(1), Plaintiff seeks for himself and each Class member $1500.00
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`in statutory damages, for each and every violation, pursuant to 47 U.S.C.
`§ 227(b)(3)(B).
`• Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such
`conduct in the future.
`• Any other relief the Court may deem just and proper.
`TRIAL BY JURY
`56. Pursuant to the seventh amendment to the Constitution of the United
`States of America, Plaintiff is entitled to, and demands, a trial by jury.
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`Dated: July 19, 2021
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` THE LAW OFFICES OF TODD M. FRIEDMAN, P.C.
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`Respectfully submitted,
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` By: /s/ Todd M. Friedman
`TODD M. FRIEDMAN, ESQ.
`ATTORNEY FOR PLAINTIFF
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`CLASS ACTION COMPLAINT
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