Case 1:22-cv-22672-BB Document 1 Entered on FLSD Docket 08/23/2022 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO.
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`
`EDWARD SANABRIA, individually and on
`behalf of all others similarly situated,
`
` Plaintiff,
`
`
`vs.
`
`
`HEALTHMARKETS, INC.,
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` Defendant.
`____________________________________/
`
`
`
`
`
` CLASS ACTION
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`JURY TRIAL DEMANDED
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`
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`CLASS ACTION COMPLAINT
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`Plaintiff, Edward Sanabria (“Plaintiff”), brings this class action against Defendant,
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`HealthMarkets, Inc. (“Defendant”), and alleges as follows upon personal knowledge as to Plaintiff
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`and Plaintiff’s own acts and experiences, and, as to all other matters, upon information and belief,
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`including investigation conducted by Plaintiff’s attorneys.
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`
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`NATURE OF THE ACTION
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`1.
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`This is a class action under the Florida Telephone Solicitation Act (“FTSA”), Fla.
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`Stat. § 501.059 and the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”).
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`2.
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`Defendant is an online health insurance market place that acts as a middleman to
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`connect consumers to insurance coverage.
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`3.
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`To promote its goods and services, Defendant engages in aggressive telephonic
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`sales calls to consumers without having secured prior express written consent as required under
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`the FTSA and with no regard to consumer rights under the TCPA.
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`4.
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`Defendant’s telephonic sales calls have caused Plaintiff and the Class members
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`harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and
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`invasion of their privacy.
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`5.
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`Through this action, Plaintiff seeks an injunction and statutory damages on behalf
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`of himself and the Class members, as defined below, and any other available legal or equitable
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`remedies resulting from the unlawful actions of Defendant.
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`PARTIES
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`6.
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`Plaintiff is a natural person who, at all times relevant to this action, was a resident
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`of Miami-Dade County, Florida.
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`7.
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`Plaintiff is, and at all times relevant hereto was, an individual and a “called party”
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`as defined by Fla. Stat. § 501.059(1)(a) in that he was the regular user of telephone number 305-
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`***-8251 (the “8251 Number”) that received Defendant’s telephonic sales calls.
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`8.
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`Defendant is, and at all times relevant hereto was, a Delaware corporation and a
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`“telephone solicitor” as defined by Fla. Stat. § 501.059(f). Defendant maintains its primary place
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`of business and headquarters in Minnetonka, Minnesota. Defendant directs, markets, and provides
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`business activities throughout the State of Florida and the United States.
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`JURISDICTION AND VENUE
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`9.
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`Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges violations of a
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`federal statute. Jurisdiction is also proper under 28 U.S.C. § 1332 as the amount in controversy
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`exceeds the sum of $75,000. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because
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`Plaintiff alleges a class, which will result in at least one class member belonging to a different state
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`than that of Defendant. Plaintiff seeks up to $1,500.00 (one-thousand-five-hundred dollars) in
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`damages for each call in violation of the FTSA, which, when aggregated among a proposed class
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`numbering in the tens of thousands, or more, exceeds the $5,000,000.00 (five-million dollars)
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`threshold for federal court jurisdiction under the Class Action Fairness Act (“CAFA”). Therefore,
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`both the elements of diversity jurisdiction and CAFA jurisdiction are present.
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`10.
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` Defendant is subject to specific personal jurisdiction in Florida because this suit
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`arises out of and relates to Defendant’s significant contacts with this State. Defendant initiated and
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`directed, or caused to be initiated and directed, calls into Florida in violation of the FTSA and the
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`TCPA. Specifically, Defendant initiated and directed, or caused to be initiated and directed, the
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`transmission of calls into Florida. Plaintiff’s claims for violation of the FTSA and TCPA against
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`Defendant, and the resulting injuries caused to Plaintiff by Defendant’s calls, which includes the
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`invasion of Plaintiff’s privacy, arose in substantial part from Defendant’s direction of those
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`messages into Florida.
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`11.
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`Venue is proper in the United States District Court for the Southern District of
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`Florida pursuant to 28 U.S.C. § 1391(b) and (c) because Defendant is deemed to reside in any
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`judicial district in which it is subject to the court’s personal jurisdiction, and because Defendant
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`provides and markets its services within this district thereby establishing sufficient contacts to
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`subject it to personal jurisdiction. Further, Defendant’s tortious conduct against Plaintiff occurred
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`within the State of Florida and, on information and belief, Defendant has sent the same messages
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`complained of by Plaintiff to other individuals within this judicial district, such that some of
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`Defendant’s acts in making such calls have occurred within this district, subjecting Defendant to
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`jurisdiction in the State of Florida.
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`FACTS
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`12.
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`On about May 27, 2022 through May 31, 2022, Defendant sent Plaintiff multiple
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`telephonic sales calls to Plaintiff’s cellular telephone number:
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`3
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`13.
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`As demonstrated by the above screenshot, the purpose of Defendant’s telephonic
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`sales calls was to solicit the sale of consumer goods and/or services. The messages contained
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`language such as “If you did not get enrolled for 2021 there is still time.”
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`14.
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`Defendant’s calls were transmitted to Plaintiff’s cellular telephone, and within the
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`time frame relevant to this action.
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`4
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`15.
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`Plaintiff registered his 8251 Number with the National do-not-call registry on
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`November 30, 2021 and has been registered at all times relevant to this action.
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`16.
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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
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`who has registered his or her telephone number on the national do-not-call registry of persons who
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`do not wish to receive telephone solicitations that is maintained by the federal government.
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`17.
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`Defendant’s calls constitute telemarketing because they encouraged the future
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`purchase or investment in property, goods, or services, i.e., selling Plaintiff insurance coverage.
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`18.
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`At no point in time did Plaintiff provide Defendant with his express written consent
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`to be contacted.
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`19.
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`To constitute valid consent under Florida law, the called party must, inter alia,
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`“[c]learly authorize[] the person making or allowing the placement of a telephonic sales call” to
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`place such call “using an automated system for the selection or dialing of telephone numbers[.]”
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`Fla. Stat. § 501.059(1)(g).
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`20.
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`Upon information and belief, Defendant caused similar telephonic sales calls to be
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`sent to individuals residing in Florida and throughout the United States.
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`21.
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`Upon information and belief, Defendant maintains and/or has access to outbound
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`transmission reports for all text messages sent advertising/promoting its services and goods. These
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`reports show the dates, times, target telephone numbers, and content of each message sent to
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`Plaintiff and the Class members.
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`22.
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`Plaintiff is the regular user of the telephone number that received the above
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`telephonic sales calls.
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`5
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`23.
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`To send the text messages, Defendant used a messaging platform (the “Platform”),
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`which permitted Defendant to transmit blasts of text messages automatically and without any
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`human involvement. The Platform automatically made a series of calls to Plaintiff’s and the Class
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`members’ stored telephone numbers with no human involvement after the series of calls were
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`initiated utilizing the Platform.
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`24.
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`Defendant was not required to and did not need to utilize the Platform to send
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`messages to Plaintiff and the Class members. Instead, Defendant opted to use the Platform to
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`maximize the reach of its text message advertisements at a nominal cost to Defendant.
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`25.
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`Defendant would be able to conduct its business operations without sending
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`automated text messages to consumers.
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`26.
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`Defendant would be able to send automated text messages to consumers, and in
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`compliance with the FTSA, by securing the proper consent from consumers prior to sending text
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`messages.
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`27.
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`Defendant would be able to send text messages to consumers without consent by
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`utilizing a non-automated text messaging system.
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`28.
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`Accordingly, it is not impossible for Defendant to comply with the FTSA in the
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`context of transmitting text messages.
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`29.
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`The burden and cost to Defendant of securing consent from consumers that
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`complies with the FTSA is nominal.
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`30.
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`Compliance with the FTSA will not result in Defendant having to cease its business
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`operations.
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`31.
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`Compliance with the FTSA will not result in Defendant having the alter the prices
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`of any goods or services it provides in the marketplace.
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`32.
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`Compliance with the FTSA will not force Defendant to seek regulatory approval
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`from the State of Florida before undertaking any type of commercial transaction.
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`33.
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`The Platform has the capacity to select and dial numbers automatically from a list
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`of numbers, which was in fact utilized by Defendant.
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`34.
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`The Platform has the capacity to schedule the time and date for future transmission
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`of text messages, which was in fact utilized by Defendant.
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`35.
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`The Platform also has an auto-reply function that results in the automatic
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`transmission of text messages.
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`36.
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`Plaintiff never provided Defendant with express written consent authorizing
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`Defendant to transmit telephonic sales calls to Plaintiff’s cellular telephone number utilizing an
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`automated system for the selection or dialing of telephone numbers.
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`37. More specifically, Plaintiffs never signed any type of authorization permitting or
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`allowing the placement of telephonic sales calls by text message using an automated system for
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`the selection and dialing of telephone numbers.
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`38.
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`Plaintiff never provided Defendant with express written consent authorizing
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`Defendant to transmit telephonic sales calls to Plaintiff’s cellular telephone number utilizing an
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`automated system for the selection or dialing of telephone numbers.
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`39.
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`The text messages originated from telephone number 754-704-5121, a number
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`which upon information and belief is owned and operated by Defendant or on behalf of Defendant.
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`40.
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`Defendant’s telephonic sales calls caused Plaintiff and the Class members harm,
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`including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance, and
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`wasted time.
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`CLASS ALLEGATIONS
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`7
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`PROPOSED CLASS
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`41.
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`Plaintiff brings this lawsuit as a class action on behalf of himself individually and
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`on behalf of all other similarly situated persons as a class action pursuant to Fed. R. Civ. P. 23.
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`The “Class” that Plaintiff seeks to represent is defined as:
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`No Consent Class: All persons in Florida who (1) were sent a
`telephonic sales call regarding Defendant’s goods and/or services,
`(2) using the same equipment or type of equipment utilized to call
`Plaintiff, within the time period of four years prior to the filing of
`the original Complaint through the date on which an Order
`granting class certification is entered.
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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 call
`or 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 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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`42.
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`Defendant and its employees or agents are excluded from the Class. Plaintiff does
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`
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`not know the exact number of members in the Class but believes the Class members number in the
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`several thousands, if not more.
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`NUMEROSITY
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`43.
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`Upon information and belief, Defendant has placed telephonic sales calls to
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`telephone numbers belonging to thousands of consumers via an automated dialer without their
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`prior express written consent and while their numbers were listed on the national do not call
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`registry. The members of the Class, therefore, are believed to be so numerous that joinder of all
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`members is impracticable.
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`44.
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`The exact number and identities of the Class members are unknown at this time and
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`can be ascertained only through discovery. Identification of the Class members is a matter capable
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`of ministerial determination from Defendant’s call records.
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`COMMON QUESTIONS OF LAW AND FACT
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`45.
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`There are numerous questions of law and fact common to the Class which
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`predominate over any questions affecting only individual members of the Class. Among the
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`questions of law and fact common to the Class are:
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`[i] Whether Defendant initiated telephonic sales calls to Plaintiff and the Class members;
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`[ii] Whether Defendant can meet its burden of showing that it had prior express written
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`consent to make such calls;
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`[iii] Whether Defendant utilized an automated system for the dialing or selection of
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`numbers to be called;
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`[iv] Whether Defendant violated 47 C.F.R. § 64.1200(c);
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`[v] Whether Defendant’s conduct was knowing and willful; and
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`[vi] Whether Defendant is liable for damages, and the amount of such damages.
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`46.
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`The common questions in this case are capable of common answers. If Plaintiff’s
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`claim that Defendant routinely transmits telephonic sales calls without prior express written
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`consent is accurate, Plaintiff and the Class members will have identical claims capable of being
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`efficiently adjudicated and administered in this case.
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`TYPICALITY
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`47.
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`Plaintiff’s claims are typical of the claims of the Class members, as they are all
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`based on the same factual and legal theories and Plaintiff is not subject to unique affirmative
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`defenses that threaten to dominate the litigation.
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`PROTECTING THE INTERESTS OF THE CLASS MEMBERS
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`48.
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`Plaintiff is a representative who will fully and adequately assert and protect the
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`interests of the Class and has retained competent counsel. Accordingly, Plaintiff is an adequate
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`representative and will fairly and adequately protect the interests of the Class. The undersigned are
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`experienced class action litigators, including in the specific context of the FTSA, and neither
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`Plaintiff nor the undersigned have any interests in conflict with those of the putative Class.
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`SUPERIORITY AND PREDOMINANCE
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`49.
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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
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`is economically unfeasible and procedurally impracticable. While the aggregate damages sustained
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`by the Class are in the millions of dollars, the individual damages incurred by each member of the
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`Class resulting from Defendant’s wrongful conduct are too small (at most $1,500.00) to warrant
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`the expense of individual lawsuits. The likelihood of individual Class members prosecuting their
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`own separate claims is remote, and, even if every member of the Class could afford individual
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`litigation, the court system would be unduly burdened by individual litigation of such cases.
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`50.
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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
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`example, one court might enjoin Defendant from performing the challenged acts, whereas another
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`may not. Additionally, individual actions may be dispositive of the interests of the Class, although
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`certain class members are not parties to such actions.
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`51. Moreover, the previously articulated common questions predominate over
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`individual questions. Defendant used the same automated system to send materially identical
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`telemarketing messages to all members of the putative Class. Whether the fact that Class members
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`provided information into a generic data harvesting lead generator constitutes valid consent within
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`the meaning of the FTSA is a question the answer to which is equally applicable to all members
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`of the Class. As such, there are no material individual questions at all—but even if there were, they
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`certainly do not predominate over the common questions.
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`COUNT I
`VIOLATION OF FLA. STAT. § 501.059
`(On Behalf of Plaintiff and the No Consent Class)
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`Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth
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`52.
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`herein.
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`53.
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`It is a violation of the FTSA to “make or knowingly allow a telephonic sales call to
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`be made if such call involves an automated system for the selection or dialing of telephone numbers
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`or the playing of a recorded message when a connection is completed to a number called without
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`the prior express written consent of the called party.” Fla. Stat. § 501.059(8)(a).
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`54.
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`A “telephonic sales call” is defined as a “telephone call, text message, or voicemail
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`transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services,
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`soliciting an extension of credit for consumer goods or services, or obtaining information that will
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`or may be used for the direct solicitation of a sale of consumer goods or services or an extension
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`of credit for such purposes.” Fla. Stat. § 501.059(1)(g).
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`55.
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`“Prior express written consent” means an agreement in writing that:
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`1. Bears the signature of the called party;
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`2. Clearly authorizes the person making or allowing the placement of a telephonic
`sales call by telephone call, text message, or voicemail transmission to deliver
`or cause to be delivered to the called party a telephonic sales call using an
`automated system for the selection or dialing of telephone numbers, the playing
`of a recorded message when a connection is completed to a number called, or
`the transmission of a prerecorded voicemail;
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`3. Includes the telephone number to which the signatory authorizes a telephonic
`sales call to be delivered; and
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`4. Includes a clear and conspicuous disclosure informing the called party that:
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`
`
`
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`a. By executing the agreement, the called party authorizes the person
`making or allowing the placement of a telephonic sales call to deliver or
`cause to be delivered a telephonic sales call to the called party using an
`automated system for the selection or dialing of telephone numbers or
`the playing of a recorded message when a connection is completed to a
`number called; and
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`b. He or she is not required to directly or indirectly sign the written
`agreement or to agree to enter into such an agreement as a condition of
`purchasing any property, goods, or services.
`
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`Fla. Stat. § 501.059(1)(g).
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`56.
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`Defendant failed to secure prior express written consent within the meaning of the
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`FTSA from Plaintiff and the Class members.
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`57.
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`In violation of the FTSA, Defendant made and/or knowingly allowed telephonic
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`sales calls to be made to Plaintiff and the Class members without their prior express written
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`consent.
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`58.
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`Defendant made and/or knowingly allowed the telephonic sales calls to Plaintiff
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`and the Class members to be made utilizing an automated system for the selection or dialing of
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`telephone numbers.
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`59.
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`As a result of Defendant’s conduct, and pursuant to § 501.059(10)(a) of the FTSA,
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`Plaintiff and Class members were harmed and are each entitled to a minimum of $500.00 in
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`damages for each violation. Plaintiff and the Class members are also entitled to an injunction
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`against future calls. Id.
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`COUNT II
`VIOLATION OF 47 U.S.C. § 227
`(Individually and on behalf of the Do Not Call Registry Class)
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`60.
`
`61.
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`Plaintiff re-alleges and incorporates paragraphs 1-51 as is fully set forth herein.
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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
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`who has registered his or her telephone number on the national do-not-call registry of persons who
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`do not wish to receive telephone solicitations that is maintained by the federal government.”
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`62.
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`47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any
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`person or entity making telephone solicitations or telemarketing calls to wireless telephone
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`numbers.”1
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`63.
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`47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any
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`call for telemarketing purposes to a residential telephone subscriber unless such person or entity
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`has instituted procedures for maintaining a list of persons who request not to receive telemarketing
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`calls made by or on behalf of that person or entity.”
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`64.
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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
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`subsection may” may bring a private action based on a violation of said regulations, which were
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`promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone
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`solicitations to which they object. 47 U.S.C. § 227(c).
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`65.
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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
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`Class members who registered their respective telephone numbers on the National Do Not Call
`
`
`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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`Registry, a listing of persons who do not wish to receive telephone solicitations that is maintained
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`by the federal government.
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`66.
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`Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call
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`Registry Class received more than one telephone call in a 12-month period made by or on behalf
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`of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s
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`conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages
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`and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for
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`such violations of 47 C.F.R. § 64.1200.
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`67.
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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
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`recoverable by 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) An order certifying this case as a class action on behalf of the Class as defined above,
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`and appointing Plaintiff as the representative of the Class and Plaintiff’s counsel as Class
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`Counsel;
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`b) An award of statutory damages for Plaintiff and each member of the Class, including
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`treble damages;
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`c) An order declaring that Defendant’s actions, as set out above, violate the FTSA;
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`d) An order declaring that Defendant’s actions, as set out above, violate the TCPA.
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`e) An injunction requiring Defendant to cease all telephonic sales calls made without valid
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`consent under the FTSA, and to otherwise protect the interests of the Class;
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`f) Such further and other relief as the Court deems necessary.
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`JURY DEMAND
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`Plaintiff, individually and on behalf of the Class, hereby demand a trial by jury.
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`DOCUMENT PRESERVATION DEMAND
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`Plaintiff demands that Defendant take affirmative steps to preserve all records, lists, electronic
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`databases, or other itemization of telephone numbers associated with the communications or transmittal
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`of the calls as alleged herein.
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`Dated: August 23, 2022
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`Respectfully submitted,
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`15
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`SHAMIS & GENTILE P.A.
`/s/ Andrew Shamis
`Andrew J. Shamis, Esq.
`Florida Bar No. 101754
`ashamis@shamisgentile.com
`/s/ Garrett Berg
`Garrett O. Berg, Esq.
`Florida Bar No. 1000427
`gberg@shamisgentile.com
`14 NE 1st Ave., Suite 705
`Miami, Florida 33132
`Tel: (305) 479-2299
`
`EDELSBERG LAW, P.A.
`Scott Edelsberg
`Florida Bar No. 0100537
`scott@edelsberglaw.com
`Christopher Gold
`chris@edelsberglaw.com
`Florida Bar No. 088733
`20900 NE 30th Ave., Suite 417
`Aventura, FL 33180
`Office: (786) 289-9471
`Direct: (305) 975-3320
`Fax: (786) 623-0915
`
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`