Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.1 Page 1 of 14
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`NICHOLAS & TOMASEVIC, LLP
`Craig M. Nicholas (SBN 178444)
`Alex Tomasevic (SBN 245598)
`225 Broadway, 19th Floor
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`San Diego, California 92101
`Tel: (619) 325-0492
`Fax: (619) 325-0496
`Email: craig@nicholaslaw.org
`Email: alex@nicholaslaw.org
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`HIRALDO P.A.
`Manuel S. Hiraldo, Esq.
`(pro hac vice to be filed)
`401 E. Las Olas Boulevard, Suite 1400
`Ft. Lauderdale, Florida 3330
`Tel: (954) 400-4713
`Email: mhiraldo@hiraldolaw.com
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`KIRKLAND LAW LLC
`Jonathan M. Kirkland, Esq.
`(pro hac vice to be filed)
`One Galleria Blvd Suite 1900,
`Metairie, Louisiana 70001
`Tel: (504) 370-9077
`Email: jmk@kirkland.lw.com
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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` Plaintiff,
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`NAZRIN MASSARO, on behalf of
`herself and all others similarly
`situated,
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`
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`vs.
`
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`BEYOND MEAT, INC., and
`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.,
`
` Defendants.
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`CASE NO.:
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`CLASS ACTION
`
`COMPLAINT FOR
`COMPENSATORY, STATUTORY
`AND OTHER DAMAGES, AND
`INJUNCTIVE RELIEF
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`
`
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`Plaintiff Nazrin Massaro brings this action on behalf of herself and all others
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`similarly situated against Defendants Beyond Meat, Inc., (“Beyond Meat”), and
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`People for the Ethical Treatment of Animals, Inc., (“PETA”). Plaintiff alleges, on
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`information and belief, except for information based on personal knowledge, as
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`follows:
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`CLASS ACTION COMPLAINT
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`
`
`'20
`
`CV0510
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`MSB
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`AJB
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`

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`INTRODUCTION
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`1.
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`This is a putative class action under the Telephone Consumer Protection
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`Act, 47 U.S.C. § 227 et seq., (“TCPA”), arising from Defendants’ violations of the
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`TCPA
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`2.
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`Defendant Beyond Meat is a publicly traded company that develops and
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`sells alternative animal food products made from protein isolate, rice and bean
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`proteins, and various plant extracts.
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`3.
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`4.
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`Defendant PETA is a non-profit animal rights organization.
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`To promote Defendant Beyond Meat’s products, Defendants engage in
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`unsolicited text message advertising with no regard for consumers’ privacy rights.
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`5.
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`Upon information and belief, Defendants caused thousands of text
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`messages to be placed to the cellular telephones of Plaintiff and Class Members,
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`causing them injuries.
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`6.
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`Through this action, Plaintiff seeks injunctive relief to halt Defendants’
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`unlawful conduct. Plaintiff also seeks statutory damages on behalf of herself and the
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`Class Members, as defined below, and any other available legal or equitable remedies
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.2 Page 2 of 14
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`resulting from the illegal actions of Defendants.
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`PARTIES
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`7.
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`Plaintiff is, and at all times relevant hereto was, an individual and a
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`“person” as defined by 47 U.S.C. § 153(39), a citizen and resident of San Diego
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`County, California, and the subscriber and/or sole user of the cellular telephone
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`number (858) ***-9991 (the “9991 Number”).
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`8.
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`Defendant Beyond Meat is a corporation organized and existing under
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`the laws of the State of Delaware with its principal place of business at 119 Standard
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`Street, El Segundo, CA 90245.
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`9.
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`Defendant PETA is a non-profit corporation organized and existing
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`under the laws of the State of Virginia with its principal place of business at 501 Front
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`Street, Norfolk, VA 23510.
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`2
`CLASS ACTION COMPLAINT
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`

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`JURISDICTION AND VENUE
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`10. This Court has original jurisdiction over this case pursuant to 28 U.S.C.
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`§ 1331 because it arises under the laws of the United States.
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`11. This Court has subject matter jurisdiction over this action pursuant to 47
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`U.S.C. § 227(b)(3).
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`12. Defendant Beyond Meat is subject to general personal jurisdiction in
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`California because Defendant’s principal place of business is in California.
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`13. Defendants are subject to specific personal jurisdiction in California
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`because this suit arises out of and relates to Defendants significant contacts with this
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`State. Defendants initiated and directed, or caused to be initiated and directed,
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`telemarketing and/or advertisement text messages into California in violation of the
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`TCPA.
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`14. Specifically, Defendants initiated and directed, or caused to be initiated
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`and directed, the transmission of unsolicited advertisement or telemarketing text
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`messages to the 9991 Number to sell products in California. The 9991 Number has
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`an area code that specifically coincides with locations in California, and Plaintiff
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`received such messages on the 9991 Number while residing in and physically present
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.3 Page 3 of 14
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`in California.
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`15. Plaintiff’s claims for violation of the TCPA against Defendants, and the
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`resulting injuries caused to Plaintiff by Defendants’ advertisement and telemarketing
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`messages, which includes the invasion of Plaintiff’s privacy, arose in substantial part
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`from Defendants’ direction of those messages into California.
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`16. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(1)
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`because a substantial part of Defendants’ actions and omissions which gave rise to
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`the claims asserted in this action occurred, in part, in this District.
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`THE TCPA
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`17. The TCPA prohibits: (1) any person from calling a cellular telephone
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`number; (2) using an automatic telephone dialing system or an artificial or
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`3
`CLASS ACTION COMPLAINT
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`

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`prerecorded voice; (3) without the recipient’s prior express consent. 47 U.S.C. §
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`227(b)(1)(A).
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.4 Page 4 of 14
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`18. The TCPA further prohibits: (1) any person from initiating a call to any
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`residential telephone line; (2) using an artificial or prerecorded voice; (3) without the
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`recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(B).
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`19. The TCPA defines an “automatic telephone dialing system” (“ATDS”)
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`as “equipment that has the capacity - (A) to store or produce telephone numbers to
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`be called, using a random or sequential number generator; and (B) to dial such
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`numbers.” 47 U.S.C. § 227(a)(1).
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`20. The TCPA exists to prevent communications like the ones described
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`within this Complaint. See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744
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`(2012).
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`21.
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`In an action under the TCPA, a plaintiff must show only that the
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`defendant “called a number assigned to a cellular telephone service using an
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`automatic dialing system or prerecorded voice.” Breslow v. Wells Fargo Bank, N.A.,
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`857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012), aff'd, 755 F.3d 1265 (11th Cir. 2014).
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`22. The Federal Communications Commission (“FCC”) is empowered to
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`issue rules and regulations implementing the TCPA. According to the FCC’s
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`findings, calls in violation of the TCPA are prohibited because, as Congress found,
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`automated or prerecorded telephone calls are a greater nuisance and invasion of
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`privacy than live solicitation calls, and such calls can be costly and inconvenient. The
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`FCC also recognized that wireless customers are charged for incoming calls whether
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`they pay in advance or after the minutes are used.
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`23.
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`In 2012, the FCC issued an order further restricting automated
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`telemarketing calls, requiring “prior express written consent” for such calls. See In
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`the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
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`27 F.C.C.R. 1830, 1838 ¶ 20 (Feb. 15, 2012) (emphasis supplied).
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`4
`CLASS ACTION COMPLAINT
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`24. To obtain express written consent for telemarketing calls, a defendant
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`must establish that it secured the plaintiff’s signature in a form that gives the plaintiff
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`a “‘clear and conspicuous disclosure’ of the consequences of providing the requested
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`consent….and [the plaintiff] having received this information, agrees unambiguously
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`to receive such calls at a telephone number the [plaintiff] designates.” In re Rules &
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`Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830,
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`1837 ¶ 18, 1838 ¶ 20, 1844 ¶ 33, 1857 ¶ 66, 1858 ¶ 71 (F.C.C. Feb. 15, 2012).
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`25. The TCPA regulations promulgated by the FCC define “telemarketing”
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`as “the initiation of a telephone call or message for the purpose of encouraging the
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`purchase or rental of, or investment in, property, goods, or services.” 47 C.F.R. §
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`64.1200(f)(12). In determining whether a communication constitutes telemarketing,
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`a court must evaluate the ultimate purpose of the communication. See Golan v.
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`Veritas Entm't, LLC, 788 F.3d 814, 820 (8th Cir. 2015).
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`26.
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`“Neither the TCPA nor its implementing regulations ‘require an explicit
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`mention of a good, product, or service’ where the implication of an improper purpose
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`is ‘clear from the context.’” Id. (citing Chesbro v. Best Buy Stores, L.P., 705 F.3d
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`913, 918 (9th Cir. 2012)).
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`27.
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`“‘Telemarketing’ occurs when the context of a call indicates that it was
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`initiated and transmitted to a person for the purpose of promoting property, goods, or
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`services.” Golan, 788 F.3d at 820 (citing 47 C.F.R. § 64.1200(a)(2)(iii) & 47 C.F.R.
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`§ 64.1200(f)(12)); In re Rules and Regulations Implementing the Telephone
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`Consumer Protection Act of 1991, 18 F.C.C. Rcd at 14098 ¶ 141, 2003 WL
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.5 Page 5 of 14
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`21517853, at *49).
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`28. The FCC has explained that calls motivated in part by the intent to sell
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`property, goods, or services are considered telemarketing under the TCPA. See In re
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`Rules and Regulations Implementing the Telephone Consumer Protection Act of
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`1991, 18 FCC Rcd. 14014, ¶¶ 139-142 (2003). This is true whether call recipients
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`5
`CLASS ACTION COMPLAINT
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`are encouraged to purchase, rent, or invest in property, goods, or services during the
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`call or in the future. Id.
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`29.
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`In other words, offers “that are part of an overall marketing campaign to
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`sell property, goods, or services constitute” telemarketing under the TCPA. See In
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`re Rules and Regulations Implementing the Telephone Consumer Protection Act of
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`1991, 18 FCC Rcd. 14014, ¶ 136 (2003).
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`30.
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`If a call is not deemed telemarketing, a defendant must nevertheless
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`demonstrate that it obtained the plaintiff’s prior express consent. See In the Matter
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`of Rules and Regulaions Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC
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`Rcd. 7961, 7991-92 (2015) (requiring express consent “for non-telemarketing and
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`non-advertising calls”).
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`31. Further, the FCC has issued rulings and clarified that consumers are
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`entitled to the same consent-based protections for text messages as they are for calls
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`to wireless numbers. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952
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`(9th Cir. 2009) (“The FCC has determined that a text message falls within the
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`meaning of ‘to make any call’ in 47 U.S.C. § 227(b)(1)(A)”).
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`FACTS
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`32. On or about January 17, 2020, Defendant PETA sent the following
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`marketing text messages to Plaintiff’s cellular telephone number ending in 9991
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`(“9991 Number”):
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.6 Page 6 of 14
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`6
`CLASS ACTION COMPLAINT
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`33. Upon information and belief, the subject text messages were sent by
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`PETA at the direction and/or under the control of Defendant Beyond Meat.
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`34. The subject text messages were sent for the benefit of Defendant Beyond
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`Meat.
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.7 Page 7 of 14
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`35. Upon information and belief, prior to transmitting the subject text
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`messages, Defendant PETA consulted with Defendant Beyond Meat as to the content
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`of the messages, and always received final approval to transmit the text messages
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`from Defendant Beyond Meat.
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`36. Upon information and belief, while Defendant PETA was responsible
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`for ultimately transmitting the text messages, Defendant Beyond Meat always
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`retained the right to change or add something to the content of the messages.
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`37. Upon information and belief, at all times relevant, Defendant Beyond
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`Meat had the right to control Defendant PETA’s telemarketing activities, which right
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`it exercised.
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`38. Upon information and belief, at all times relevant, Defendant Beyond
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`Meat authorized Defendant PETA to promote its products in the subject unsolicited
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`text messages.
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`39. Upon information and belief, Defendant Beyond Meat was, at all times
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`relevant, aware of Defendant PETA marketing activities and violations of the TCPA.
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`40. Upon information and belief, Defendant PETA’s acts complained of
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`herein were known, consented to, and/or ratified by Defendant Beyond Meat. Further,
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`Defendant Beyond Meat knowingly received and retained monetary benefit from
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`Defendant PETA’s unlawful telemarketing practices alleged herein.
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`41. Plaintiff is the subscriber and/or sole used of the 9991 number.
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`42. The text messages received by Plaintiff originated from a telephone
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`number which is owned and/or operated by or on behalf of Defendants.
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`43. The purpose of Defendants’ text messages was to market Defendant
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`Beyond Meats’s goods, as is plainly evident from the content of the messages.
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`7
`CLASS ACTION COMPLAINT
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.8 Page 8 of 14
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`44. Upon information and belief, Defendants caused similar calls to be
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`placed to individuals residing within this judicial district and nationally.
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`45. At no point in time did Plaintiff provide Defendants with express written
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`consent to be contacted by Defendants with automated text messages.
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`46. While Defendant PETA, as a non-profit organization, would typically
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`not be subject to the FCC’s express written consent rule, it is in this case because it
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`was acting as a conduit for Defendant Beyond Meat, a for profit corporation, and
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`because it was engaged in marketing.
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`47. The generic nature of Defendants’ text messages demonstrates that
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`Defendants utilized an ATDS in transmitting the messages.
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`48. The number used by or on behalf of Defendants (738-22) to transmit the
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`above text messages to Plaintiff is known as a “short-code.” Short-codes are short
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`digit sequences, significantly shorter than telephone numbers, that are used to address
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`messages in the Multimedia Messaging System and short message service systems of
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`mobile network operators.
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`49. Short codes cannot be used to transmit text messages from a traditional
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`telephone. Only computer systems can transmit text messages using a short-code.
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`50. To send the text message, Defendants used a messaging platform (the
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`“Platform”) that permitted Defendants to transmit thousands of automated text
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`messages without any human involvement.
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`51. Upon information and belief, the Platform has the capacity to store
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`telephone numbers.
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`52. Upon information and belief, the Platform has the capacity to generate
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`sequential numbers.
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`53. Upon information and belief, the Platform has the capacity to dial
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`numbers in sequential order.
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`54. Upon information and belief, the Platform has the capacity to dial
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`numbers from a list of numbers.
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`8
`CLASS ACTION COMPLAINT
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`55. Upon information and belief, the Platform has the capacity to dial
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`numbers without human intervention.
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`56. Upon information and belief, the Platform has the capacity to schedule
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`the time and date for future transmission of text messages, which occurs without any
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`human involvement.
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`57. Upon information and belief, transmit the messages at issue, the
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`Platform automatically executed the following steps:
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`i. The Platform retrieved each telephone number from a list
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`of numbers in the sequential order the numbers were listed;
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`ii. The Platform then generated each number in the sequential
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`order listed and combined each number with the content of
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`Defendant’s message to create “packets” consisting of one
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`telephone number and the message content;
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`iii. Each packet was then transmitted in the sequential order
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`listed to an SMS aggregator, which acts an intermediary
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`between the Platform, mobile carriers (e.g. AT&T), and
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`consumers.
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`iv. Upon receipt of each packet, the SMS aggregator
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`transmitted each packet – automatically and with no human
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`intervention – to the respective mobile carrier for the
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`telephone number, again in the sequential order listed by
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`Defendant. Each mobile carrier then sent the message to
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`its customer’s mobile telephone.
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`58. The above execution these instructions occurred seamlessly, with no
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`human intervention, and almost instantaneously. Indeed, upon information and
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`belief, the Platform is capable of transmitting thousands of text messages following
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`the above steps in minutes, if not less.
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`9
`CLASS ACTION COMPLAINT
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.10 Page 10 of 14
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`60. Defendants’ unsolicited text messages caused Plaintiff actual harm,
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`including invasion of her privacy, aggravation, annoyance, intrusion on seclusion,
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`trespass, and conversion. Defendants’ text messages also inconvenienced Plaintiff
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`and caused disruption to her daily life.
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`CLASS ALLEGATIONS
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`PROPOSED CLASS
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`61. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23,
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`on behalf of herself and all others similarly situated.
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`62. Plaintiff brings this case on behalf of the below defined Class:
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`59. The following graphic summarizes the above steps and demonstrates
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`that the dialing of the text messages at issue was done by the Platform automatically
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`and without any human intervention:
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`All persons within the United States who, within the
`four years prior to the filing of this Complaint, were
`sent a text message using the same type of equipment
`used to text message Plaintiff, promoting Defendant
`Beyond Meat’s goods, from Defendants or anyone on
`Defendants’ behalf, to said person’s cellular telephone
`number.
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`63.
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` Defendants and their employees or agents are excluded from the Class.
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`Plaintiff does not know the number of members in the Class but believes the Class
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`members number in the several thousands, if not more.
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`10
`CLASS ACTION COMPLAINT
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`NUMEROSITY
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`64. Upon information and belief, Defendants have placed calls to telephone
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`numbers belonging to thousands of consumers throughout the United States without
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`their prior express consent. The members of the Class, therefore, are believed to be
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`so numerous that joinder of all members is impracticable.
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`65. The exact number and identities of the Class members are unknown at
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`this time and can be ascertained only through discovery. Identification of the Class
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`members is a matter capable of ministerial determination from Defendants’ call
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`records.
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`COMMON QUESTIONS OF LAW AND FACT
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`66. There are numerous questions of law and fact common to the Class
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`which predominate over any questions affecting only individual members of the
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`Class. Among the questions of law and fact common to the Class are:
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.11 Page 11 of 14
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`(1) Whether Defendants made non-emergency calls to Plaintiff and
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`the class members’ cellular telephones using an ATDS;
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`(2) Whether Defendants can meet their burden of showing that they
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`obtained prior express written consent to make such calls;
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`(3) Whether Defendants’ conduct was knowing and willful;
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`(4) Whether Defendants are liable for damages, and the amount of
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`such damages; and
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`(5) Whether Defendants should be enjoined from such conduct in the
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`future.
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`67. The common questions in this case are capable of having common
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`answers. If Plaintiff’s claims that Defendants routinely transmit text messages to
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`telephone numbers assigned to cellular telephone services are accurate, Plaintiff and
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`the Class members will have identical claims capable of being efficiently adjudicated
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`and administered in this case.
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`11
`CLASS ACTION COMPLAINT
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`TYPICALITY
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`68. Plaintiff’s claims are typical of the claims of the Class members, as
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`they are all based on the same factual and legal theories.
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`PROTECTING THE INTERESTS OF THE CLASS MEMBERS
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`69. Plaintiff is a representative who will fully and adequately assert and
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`protect the interests of the Class and has retained competent counsel. Accordingly,
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`Plaintiff is an adequate representative and will fairly and adequately protect the
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.12 Page 12 of 14
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`interests of the Class.
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`SUPERIORITY
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`70. A class action is superior to all other available methods for the fair and
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`efficient adjudication of this lawsuit, because individual litigation of the claims of all
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`members of the Class is economically unfeasible and procedurally impracticable.
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`While the aggregate damages sustained by the Class are in the millions of dollars, the
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`individual damages incurred by each member of the Class resulting from Defendant’s
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`wrongful conduct are too small to warrant the expense of individual lawsuits. The
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`likelihood of individual Class members prosecuting their own separate claims is
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`remote, and, even if every member of the Class could afford individual litigation, the
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`court system would be unduly burdened by individual litigation of such cases.
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`71. The prosecution of separate actions by members of the Class would
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`create a risk of establishing inconsistent rulings and/or incompatible standards of
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`conduct for Defendant. For example, one court might enjoin Defendant from
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`performing the challenged acts, whereas another may not. Additionally, individual
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`actions may be dispositive of the interests of the Class, although certain class
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`members are not parties to such actions.
`COUNT NO. 1
`Violation of the TCPA, 47 U.S.C. § 227
`(On behalf of Plaintiff and the Class)
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`72. Plaintiff repeats and realleges the allegations in paragraphs 1 through 71
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`of this Complaint and incorporates them by reference herein.
`12
`CLASS ACTION COMPLAINT
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`73.
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`It is a violation of the TCPA to make “any call (other than a call made
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`for emergency purposes or made with the prior express consent of the called party)
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`using any automatic telephone dialing system … to any telephone number assigned
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`to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii).
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`74. The TCPA defines an “automatic telephone dialing system” (hereinafter
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`“ATDS”) as “equipment which has the capacity – (A) to store or produce telephone
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`numbers to be called, using a random or sequential number generator; and (B) to dial
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`such numbers.” Id. at § 227(a)(1).
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`75. Defendants – or third parties directed by Defendants – used equipment
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`having the capacity to store telephone numbers, using a random or sequential
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`generator, and to dial such numbers and/or to dial numbers from a list automatically,
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`without human intervention, to make non-emergency telephone calls to the cellular
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`telephones of Plaintiff and the other members of the Class.
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`76. These calls were made without regard to whether Defendants had first
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`obtained express written consent from the called party to make such calls. In fact,
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`Defendants did not have prior express written consent to call the cell phones of
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`Plaintiff and the other members of the putative Class when its calls were made.
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`77. Defendants violated § 227(b)(1)(A)(iii) of the TCPA by using an
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`automatic telephone dialing system to make non-emergency telephone calls to the
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`cell phones of Plaintiff and the other members of the putative Class without their
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.13 Page 13 of 14
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`prior express consent.
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`78. As a result of Defendants’ conduct and pursuant to § 227(b)(3) of the
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`TCPA, Plaintiff and the other members of the putative Class were harmed and are
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`each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and
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`the class are also entitled to an injunction against future calls.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Nazrin Massaro, on behalf of herself and the Class,
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`prays for the following relief:
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`13
`CLASS ACTION COMPLAINT
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`1. An order certifying the Class as defined above;
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`2. An award of actual and statutory damages, where appropriate;
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`3.
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`Punitive or treble damages according to statute or where otherwise
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`appropriate;
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`4. An injunction requiring Defendants to cease all wireless spam
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`activities;
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`5. An award of reasonable attorneys’ fees and costs; and
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`6.
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`Such further and other relief the Court deems reasonable and just.
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`JURY DEMAND
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`Plaintiff hereby requests trial by jury of all claims that can be so tried.
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`Respectfully submitted:
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`DATED: March 18, 2020
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`Case 3:20-cv-00510-AJB-MSB Document 1 Filed 03/18/20 PageID.14 Page 14 of 14
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`By:
`
`NICHOLAS & TOMASEVIC, LLP
`
` /s/ Craig M. Nicholas
`
`
`Craig M. Nicholas (SBN 178444)
`Alex Tomasevic (SBN 245598)
`225 Broadway, 19th Floor
`San Diego, California 92101
`Telephone: (619) 325-0492
`Facsimile: (619) 325-0496
`Email: cnicholas@nicholaslaw.org
`Email: atomasevic@nicholaslaw.org
`
`HIRALDO P.A.
`Manuel S. Hiraldo, Esq.
`Florida Bar No. 030380
`401 E. Las Olas Boulevard, Suite 1400
`Ft. Lauderdale, Florida 33301
`Tel: (954) 400-4713
`Email: mhiraldo@hiraldolaw.com
`
`KIRKLAND LAW LLC
`Jonathan M. Kirkland, Esq.
`(pro hac vice to be filed)
`
`One Galleria Blvd Suite 1900,
`Metairie, Louisiana 70001
`Tel: (504) 370-9077
`Email: jmk@kirkland.lw.com
`
`Attorneys for Plaintiff
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`14
`CLASS ACTION COMPLAINT
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