Case 8:20-cv-02572-JSM-TGW Document 1 Filed 11/03/20 Page 1 of 9 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
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`GRAHAM HOOPER, individually and on behalf of
`all others similarly situated,
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` Plaintiff,
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`vs.
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`DIGITAL MEDIA SOLUTIONS, LLC.,
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`a Delaware limited liability company,
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` Defendant.
`______________________________________/
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`CLASS ACTION
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` JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT
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`1.
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`Plaintiff, Graham Hooper (“Plaintiff”), brings this action against Defendant, Digital
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`Media Solutions, LLC. (“Defendant”), to secure redress for violations of the Telephone Consumer
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`Protection Act (“TCPA”), 47 U.S.C. § 227.
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`NATURE OF THE ACTION
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`2.
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`This is a putative class action pursuant to the Telephone Consumer Protection Act, 47
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`U.S.C. § 227 et seq., (the “TCPA”).
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`3.
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`Defendant is a leading global marketing-tech company. Defendant connected
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`consumers and advertisers with digital marketing campaigns. To promote its services, Defendant
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`engages in unsolicited marketing, harming thousands of consumers in the process.
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`4.
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`Through this action, Plaintiff seeks injunctive relief to halt Defendant’s illegal conduct,
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`which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life
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`of thousands of individuals. Plaintiff also seeks statutory damages on behalf of himself and members
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`of the class, and any other available legal or equitable remedies.
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`JURISDICTION AND VENUE
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`Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges violations of a federal
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`5.
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`statute. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff alleges a national class,
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`which will result in at least one class member belonging to a different state than that of Defendant.
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`Plaintiff seeks up to $1,500.00 (one-thousand-five-hundred dollars) in damages for each call, in
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`violation of the TCPA, which, when aggregated among a proposed class numbering in the tens of
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`thousands, or more, exceeds the $5,000,000.00 (five-million dollars) threshold for federal court
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`jurisdiction under the Class Action Fairness Act (“CAFA”). Therefore, both the elements of diversity
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`jurisdiction and CAFA jurisdiction are present.
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`6.
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`Venue is proper in the United States District Court for the Middle District of Florida
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`pursuant to 28 U.S.C. § 1391(b) and (c) because Defendant resides within this judicial district,
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`Defendant is deemed to reside in any judicial district in which it is subject to the court’s personal
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`jurisdiction, and because Defendant provides and markets its services within this district thereby
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`establishing sufficient contacts to subject it to personal jurisdiction. Further, Defendant’s tortious
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`conduct against Plaintiff occurred within the State of Florida and, on information and belief, Defendant
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`has sent the same text messages complained of by Plaintiff to other individuals within this judicial
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`district, such that some of Defendant’s acts in making such calls have occurred within this district,
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`subjecting Defendant to jurisdiction in the State of Florida.
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`PARTIES
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`7.
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`Plaintiff is a natural person who, at all times relevant to this action, was a resident of
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`Philadelphia County, PA.
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`8.
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`Defendant is a Delaware limited liability company whose principal office is located at
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`4800 140th Avenue N, Suite 101, Clearwater, Florida 33762. Defendant directs, markets, and provides
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`its business activities throughout the State of Florida.
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`Case 8:20-cv-02572-JSM-TGW Document 1 Filed 11/03/20 Page 3 of 9 PageID 3
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`FACTS
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`9.
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`On or about June 11, 2020, Defendant began sending numerous telemarketing text
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`messages to Plaintiff’s cellular telephone number ending in 5783 (the “5783 Number”):
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`10.
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`Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within
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`the time frame relevant to this action.
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`11.
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`Defendant’s text messages constitute telemarketing because they encouraged the future
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`purchase or investment in property, goods, or services, i.e., selling products and services offered by
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`Defendant’s marketing clients.
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`12.
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`The information contained in the text messages advertises Defendant’s client’s various
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`specials and deals, which Defendant sends to promote its business.
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`13.
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`Defendant sent subject texts within this judicial district and, therefore, Defendant’s
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`violation of the TCPA occurred within this district. Upon information and belief, Defendant caused
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`other text messages to be sent to individuals residing within this judicial district.
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`14.
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`At no point in time did Plaintiff provide Defendant with his express written consent to
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`be contacted.
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`15.
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`Plaintiff is the subscriber and sole user of the 5783 Number and is financially
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`responsible for phone service to the 5783 Number.
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`16.
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`Plaintiff has been registered with the national do-not-call registry since September 22,
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`2018 and at all times relevant to this action.
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`17.
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`The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o
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`person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has
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`registered his or her telephone number on the national do-not-call registry of persons who do not wish
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`to receive telephone solicitations that is maintained by the federal government.”
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`18.
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`The text messages originated from telephone number 476-58, a number which upon
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`information and belief is owned and operated by Defendant.
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`19.
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`Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion
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`of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s
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`text messages also inconvenienced Plaintiff and caused disruption to his daily life.
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`CLASS ALLEGATIONS
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`PROPOSED CLASS
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`20.
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`Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of
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`himself and all others similarly situated.
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`Plaintiff brings this case on behalf of a Class defined as follows:
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`21.
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`Do Not Call Registry Class: All persons in the United
`States who from four years prior to the filing of this action
`(1) were sent a text message by or on behalf of Defendant;
`(2) more than one time within any 12-month period; (3)
`where the person’s telephone number had been listed on
`the National Do Not Call Registry for at least thirty days;
`(4) for the purpose of selling Defendant’s client’s products
`and services; and (5) for whom Defendant claims (a) it did
`not obtain prior express written consent, or (b) it obtained
`prior express written consent in the same manner as
`Defendant claims it supposedly obtained prior express
`written consent to call the Plaintiff.
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`22.
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`Defendant and its employees or agents are excluded from the Class. Plaintiff does not
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`know the number of members in the Class but believes the Class members number in the several
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`thousands, if not more.
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` NUMEROSITY
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`23.
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`Upon information and belief, Defendant has placed violative calls to cellular telephone
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`numbers belonging to thousands of consumers throughout the United States who are registered on the
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`Do Not Call registry. The members of the Class, therefore, are believed to be so numerous that joinder
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`of all members is impracticable.
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`24.
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`The exact number and identities of the Class members are unknown at this time and can
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`only be ascertained through discovery. Identification of the Class members is a matter capable of
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`ministerial determination from Defendant’s call records.
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` COMMON QUESTIONS OF LAW AND FACT
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`25.
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`There are numerous questions of law and fact common to the Class which predominate
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`over any questions affecting only individual members of the Class. Among the questions of law and
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`fact common to the Class are:
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`(1) Whether Defendant violated 47 C.F.R. § 64.1200(c);
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`(2) Whether Defendant is liable for damages, and the amount of such damages; and
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`(3) Whether Defendant should be enjoined from such conduct in the future.
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`26.
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`The common questions in this case are capable of having common answers. If Plaintiff’s
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`claim that Defendant routinely transmits text messages to telephone numbers on the Do Not Call
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`registry, Plaintiff and the Class members will have identical claims capable of being efficiently
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`adjudicated and administered in this case.
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`TYPICALITY
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`27.
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`Plaintiff’s claims are typical of the claims of the Class members, as they are all based
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`on the same factual and legal theories.
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` PROTECTING THE INTERESTS OF THE CLASS MEMBERS
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`28.
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`Plaintiff is a representative who will fully and adequately assert and protect the interests
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`of the Class and has retained competent counsel. Accordingly, Plaintiff is an adequate representative
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`and will fairly and adequately protect the interests of the Class.
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` PROCEEDING VIA CLASS ACTION IS SUPERIOR AND ADVISABLE
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`29.
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`A class action is superior to all other available methods for the fair and efficient
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`adjudication of this lawsuit, because individual litigation of the claims of all members of the Class is
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`economically unfeasible and procedurally impracticable. While the aggregate damages sustained by the
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`Class are in the millions of dollars, the individual damages incurred by each member of the Class
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`resulting from Defendant’s wrongful conduct are too small to warrant the expense of individual
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`lawsuits. The likelihood of individual Class members prosecuting their own separate claims is remote,
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`and, even if every member of the Class could afford individual litigation, the court system would be
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`unduly burdened by individual litigation of such cases.
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`30.
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`The prosecution of separate actions by members of the Class would create a risk of
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`establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For example,
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`one court might enjoin Defendant from performing the challenged acts, whereas another may not.
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`Additionally, individual actions may be dispositive of the interests of the Class, although certain class
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`members are not parties to such actions.
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`COUNT I
`Violation of the TCPA, 47 U.S.C. § 227
`(On Behalf of Plaintiff and the Do Not Call Registry Class)
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`31.
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`Plaintiff repeats and realleges the paragraphs 1 through 30 of this Complaint and
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`incorporates them by reference herein.
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`32.
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`The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o
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`person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has
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`registered his or her telephone number on the national do-not-call registry of persons who do not wish
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`to receive telephone solicitations that is maintained by the federal government.”
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`33.
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`47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person
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`or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”1
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`34.
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`47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call
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`for telemarketing purposes to a residential telephone subscriber unless such person or entity has
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`instituted procedures for maintaining a list of persons who request not to receive telemarketing calls
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`made by or on behalf of that person or entity.”
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`35.
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`Any “person who has received more than one telephone call within any 12-month
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`period by or on behalf of the same entity in violation of the regulations prescribed under this subsection
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`may” may bring a private action based on a violation of said regulations, which were promulgated to
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`protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they
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`object. 47 U.S.C. § 227(c).
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`1 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG
`Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003) Available at
`https://apps.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf
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`36.
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`Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated,
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`telephone solicitations to telephone subscribers such as Plaintiff and the Do Not Call Registry Class
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`members who registered their respective telephone numbers on the National Do Not Call Registry, a
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`listing of persons who do not wish to receive telephone solicitations that is maintained by the federal
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`government.
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`37.
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`Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry
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`Class received more than one telephone call in a 12-month period made by or on behalf of Defendant
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`in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged
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`herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47
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`U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R.
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`§ 64.1200.
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`38.
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`To the extent Defendant’s misconduct is determined to be willful and knowing, the
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`Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by
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`the members of the Do Not Call Registry Class.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for the following
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`relief:
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`a)
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`An order certifying this case as a class action on behalf of the Class as defined above, and
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`appointing Plaintiff as the representative of the Class and her counsel as Class Counsel;
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`b)
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`c)
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`d)
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`An award of actual and/or statutory damages and costs;
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`An order declaring that Defendant’s actions, as set out above, violate the TCPA;
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`An injunction requiring Defendant to cease all unsolicited text messaging activity, and to
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`otherwise protect the interests of the Classes; and
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`e)
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`Such further and other relief as the Court deems necessary.
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`JURY DEMAND
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`Plaintiff and Class Members hereby demand a trial by jury.
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`Dated: November 3, 2020
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`SHAMIS & GENTILE, P.A.
`/s/ Andrew J. Shamis
`Andrew J. Shamis, Esq.
`Florida Bar No. 101754
`ashamis@shamisgentile.com
`/s/ Garrett O. Berg
`Garrett O. Berg, Esq.
`Florida Bar No. 1000427
`gberg@shamisgentile.com
`14 NE 1st Avenue, Suite 705
`Miami, FL 33132
`Telephone: 305-479-2299
`Counsel for Plaintiff and the Class
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`Edelsberg Law, P.A.
`/s/ Scott Edelsberg
`Scott Edelsberg, Esq.
`Florida Bar No. 0100537
`/s/ Aaron Ahlzadeh
`Aaron Ahlzadeh, Esq.
`Florida Bar No. 0111329
`20900 NE 30th Ave., Suite 417
`Aventura, FL 33180
`Telephone: 305-975-3320
`Email: scott@edelsberglaw.com
`Email: aaron@edelsberglaw.com
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`Counsel for Plaintiff and the Class
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