Case 1:20-cv-04805-MKB-RML Document 1 Filed 10/07/20 Page 1 of 11 PageID #: 1
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`LEE LITIGATION GROUP, PLLC
`C.K. Lee (CL 4086)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: 212-465-1188
`Fax: 212-465-1181
`Attorneys for Plaintiff and the Class
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`JAMIE SMITH,
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`on behalf of herself and all others similarly
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`situated,
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`Plaintiff,
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`- against -
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`Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`LYFT, INC.,
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`Defendant.
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`Plaintiff JAMIE SMITH (hereinafter “Plaintiff” or “Plaintiff SMITH”), on behalf of herself
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`and all others similarly situated, by her undersigned attorneys, as for her Complaint against the
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`Defendant, LYFT, INC. (“Defendant LYFT” or “LYFT”), alleges the following:
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`NATURE OF ACTION
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`1.
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`This action is brought by Plaintiff SMITH on behalf of herself and all consumers
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`in the United States who have received unsolicited and unconsented-to commercial text messages
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`to their mobile phones from Defendant in violation of the Telephone Consumer Protection Act 47
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`U.S.C. § 227 et seq.
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`JURISDICTION AND VENUE
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`2.
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`The Court has federal question jurisdiction over this action under 28 U.S.C. § 1331
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`because this action arises out of a violation of federal law - 7 U.S.C. § 227(b). See Mims v. Arrow
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`Fin. Servs., LLC, 565 U.S. 368, 132 S. Ct. 740 (2012).
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`3.
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`Venue is proper in this District under 28 U.S.C § 1391 because Defendant’s
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`violation of the Telephone Consumer Protection Act (TCPA) took place in this District, where
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`Plaintiff SMITH received an automated text message to his phone.
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`PARTIES
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`Plaintiff
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`4.
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`Plaintiff SMITH resides in Kings County.
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`Defendants
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`5.
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`Defendant LYFT is a company that develops and markets a mobile app offering
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`ridesharing and other transportation services. It is a Delaware limited liability company with a
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`principal place of business at 185 Berry Street, San Francisco, CA 94107 and an address for service
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`of process at c/o CT Corporation System, 28 Liberty Street, New York, NY 10005.
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`The Telephone Consumer Protection Act
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`FACTUAL ALLEGATIONS
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`6.
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`The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., was
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`enacted by Congress in 1991 and is implemented by the Federal Communications Commission
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`(“FCC”). The TCPA makes it “unlawful for any person… 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) using any
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`automatic telephone dialing system or an artificial or prerecorded voice… to any telephone number
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`assigned to a paging service, cellular telephone service… or any service for which the called party
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`is charged for the call…” 47 U.S.C. § 227(b)(1)(A)(iii).
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`7.
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`“Prior express content” requires:
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`an agreement, in writing, bearing the signature of the person called that clearly
`authorizes the seller to deliver or cause to be delivered to the person called
`advertisements or telemarketing messages using an automatic telephone dialing
`system or an artificial or prerecorded voice, and the telephone number to which the
`signatory authorizes such advertisements or telemarketing messages to be
`delivered.
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`47 C.F.R. § 64.1200(f)(8)
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`8.
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`In addition, the written agreement must include a clear and conspicuous disclosure
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`informing the signer that:
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`By executing the agreement, such person authorizes the seller to deliver or cause to
`be delivered to the signatory telemarketing calls using an automatic telephone
`dialing system or an artificial or prerecorded voice;
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` §
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` 64.1200(f)(8)(i)(A)
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`and
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`The person is not required to sign the agreement (directly or indirectly), or agree to
`enter into such an agreement as a condition of purchasing any property, goods, or
`services.
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` §
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` 64.1200(f)(8)(i)(B)
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`9.
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`In its June 18, 2015 Declaratory Ruling and Order (“2015 TCPA Order”), the FCC
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`reaffirmed its longstanding position that text messages qualify as “calls” under the TCPA: “… the
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`Commission in 2003 determined that the TCPA applies to SMS texts. Thus, we find no uncertainty
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`on this use…” ¶107.
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`Defendants Violated the TCPA
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`10.
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`Plaintiff has had no association at all with Defendant. Plaintiff did not give
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`Defendant her contact information or her consent to be sent automated text messages.
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`Nevertheless, on October 1, 2020, Plaintiff received the following text from Defendant promoting
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`its products and services:
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`11.
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`Defendant sent similar unsolicited marketing texts using an automated telephone
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`dialing system to other similarly situated persons, who likewise never consented to receiving them.
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`12.
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`The text messages sent to Plaintiff SMITH were unwanted, annoying, and a
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`nuisance. Plaintiff SMITH was expecting important messages but had to open and unlock her
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`phone to view Defendant’s invasive message. The message was disruptive and diminished
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`Plaintiff’s enjoyment of her phone. Such non-financial injuries suffice to support standing under
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`Article III of the Constitution. See Melito v. Experian Mktg. Solutions, Inc., 923 F.3d 85, 88 (2nd
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`Cir. 2019) (“The principal question we are tasked with deciding is whether Plaintiffs’ receipt of
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`the unsolicited text messages, sans any other injury, is sufficient to demonstrate injury-in-fact. We
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`hold that it is.”); Van Patten v Vertical Fitness Group, LLC, 847 F3d 1037(9th Cir. 2017)
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`(“Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and
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`disturb the solitude of their recipients. A plaintiff alleging a violation under the TCPA need not
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`allege any additional harm beyond the one Congress has identified.”) (internal quotes and citation
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`omitted).
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`13.
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`Courts have recognized and the general and impersonal nature of the text Defendant
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`sent Plaintiff are telltale signs that an autodialer has been used. See Kazemi v. Payless Shoesource,
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`Inc., 09-cv-5142, 2010 U.S. Dist. LEXIS 27666, at *6-7 (N.D. Cal. Mar. 12, 2010) (“plaintiff's
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`description of the received messages as being … scripted in an impersonal manner and sent en
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`masse supports a reasonable inference that the text messages were sent using an ATDS”); Abbas
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`v. Selling Source, LLC, 09-cv-3413, 2009 U.S. Dist. LEXIS 116697, at *12 (N.D. Ill. Dec. 14,
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`2009) (“the text of the SMS message Abbas allegedly received clearly suggests that it is from an
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`institutional sender without any personalization”); Kramer v. Autobytel, Inc., 759 F. Supp. 2d
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`1165, 1171 (N.D. Cal. 2010) (“The messages were advertisements written in an impersonal
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`manner.”); Soular v. N. Tier Energy LP, 15-cv-556, 2015 U.S. Dist. LEXIS 112294, at *8 (D.
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`Minn. Aug. 25, 2015) (“there are additional facts alleged in the Complaint which indicate the use
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`of an ATDS, such as the generic content of the message”).
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`CLASS ACTION ALLEGATIONS
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`14.
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`Plaintiff SMITH seeks to represent a class consisting of:
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`All persons in the United States who, beginning four years prior to
`the filing of this action, received unsolicited text messages to their
`cellular phones from Defendant (“the Nationwide Class”)1
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`In the alternative, Plaintiff SMITH seeks to represent a class consisting of
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`All persons in New York who, beginning four years prior to the
`filing of this action, received unsolicited text messages to their
`cellular phones from Defendant (the “New York Class”)
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`The proposed Classes exclude current and former officers and directors of
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`15.
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`16.
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`Defendant, members of the immediate families of the officers and directors of Defendant,
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`Defendant’s legal representatives, heirs, successors, assigns, and any entity in which it has or has
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`had a controlling interest, and the judicial officer to whom this lawsuit is assigned.
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`17.
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`Plaintiff reserves the right to revise the class definitions based on facts learned in
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`the course of litigating this matter.
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`1 See Fitzhenry-Russell v. Dr. Pepper Snapple Grp., No. 17-cv-00564 NC, 2017 U.S. Dist. LEXIS 155654, at *15
`(N.D. Cal. Sep. 22, 2017) (“Yet the Supreme Court did not extend its reasoning to bar the nonresident plaintiffs' claims
`here, and Bristol-Myers is meaningfully distinguishable based on that case concerning a mass tort action, in which
`each plaintiff was a named plaintiff.”); In re Chinese-Manufactured Drywall Prods. Liab. Litig., No. 09-2047, 2017
`U.S. Dist. LEXIS 197612, at *52-53 (E.D. La. Nov. 28, 2017) (“it is clear and beyond dispute that Congress has
`constitutional authority to shape federal court's jurisdiction beyond state lines to encompass nonresident parties” and
`interpreting Bristol-Meyers as barring nationwide class actions where jurisdiction over defendant is specific “would
`require plaintiffs to file fifty separate class actions in fifty or more separate district courts across the United States —
`in clear violation of congressional efforts at efficiency in the federal courts.”); Horton v. USAA Cas. Ins. Co., 266
`F.R.D. 360, 364 (D. Ariz. 2009) (“Objectors argue that this Court lacks jurisdiction to certify a nationwide class. This
`argument is frivolous. A federal court applying Rule 23 of the Federal Rules of Civil Procedure may certify a
`nationwide class if the requirements for certification are satisfied.”).
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`18.
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`Class members are so numerous that joinder of all members is impracticable. While
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`the exact number of Class members is unknown to Plaintiff at this time and can only be ascertained
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`through the appropriate discovery, Plaintiff believes that there are thousands of Class members,
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`who may be identified from records maintained by Defendant or by their own record of text
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`messages. These members may be notified of the pendency of this action by mail, or by
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`advertisement, using the form of notice customarily used in class actions such as this.
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`19.
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`Plaintiff’s claims are typical of the claims of all Class members as all Class
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`members are similarly affected by Defendant’s wrongful conduct.
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`20.
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`Plaintiff will fairly and adequately protect the interests of Class members because
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`Plaintiff has no interests antagonistic to theirs. Plaintiff has retained experienced and competent
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`counsel.
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`21.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy. Since the damages sustained by individual Class members may
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`be relatively small, the expense and burden of individual litigation make it impracticable for Class
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`members to individually seek redress for the wrongful conduct alleged herein. If class treatment
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`of these claims were not available, Defendant would likely be able to persist in its unlawful conduct
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`with impunity.
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`22.
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`Common questions of law and fact exist as to all Class members and predominate
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`over any questions solely affecting individual Class members. Among the questions of law and
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`fact common to Class members are:
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`a. whether Defendant sent unsolicited marketing text messages to cellular phones
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`belonging to Plaintiff and the Class;
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`b. whether text recipients provided their prior express consent;
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`c. whether Defendant employed autodialing technology;
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`d. whether Defendant’s conduct was intentional or negligent; and
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`e. whether Plaintiff and Class members are entitled to damages for Defendant’s
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`conduct.
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`23.
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`24.
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`Class membership is readily ascertainable from electronic records.
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`The prosecution of this action as a class action will reduce the possibility of
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`repetitious litigation. Plaintiff knows of no difficulty which will be encountered in the management
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`of this litigation which would preclude its maintenance as a class action.
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`25.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy. The damages suffered by any individual Class member are too
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`small to make it economically feasible for an individual class member to prosecute a separate
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`action, and it is desirable for judicial efficiency to concentrate the litigation of the claims in this
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`forum. Furthermore, the adjudication of this controversy through a class action will avoid the
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`potentially inconsistent and conflicting adjudications of the claims asserted herein.
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`26.
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`The prerequisites to maintaining a class action for injunctive relief or equitable
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`relief pursuant to Rule 23(b)(2) are met, as Defendant acts or refuses to act on grounds generally
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`applicable to the Classes, thereby making appropriate final injunctive or equitable relief with
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`respect to the Classes as a whole.
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`27.
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`The prerequisites to maintaining a class action for injunctive relief or equitable
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`relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Class
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`predominate over any questions affecting only individual members and a class action is superior
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`to other available methods for fairly and efficiently adjudicating the controversy.
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`28.
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`The prosecution of separate actions by Class members would create a risk of
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`establishing inconsistent rulings and/or incompatible standards of conduct for Defendant.
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`29.
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`Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiff
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`seeks, inter alia, equitable remedies with respect to the Classes as a whole. Defendant’s systematic
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`policies and practices make declaratory relief with respect to the Classes as a whole appropriate.
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`CAUSES OF ACTION
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`COUNT I
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`VIOLATION OF THE TELEPHONE CONSUMER PROTECTION ACT
`47 U.S.C. § 227 et seq.
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`(Brought on behalf of Plaintiff and the Class)
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`Plaintiff SMITH realleges and incorporates herein by references the allegations
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`30.
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`contained in all preceding paragraphs and further alleges as follows:
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`31.
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`Plaintiff SMITH brings this claim individually and on behalf of other Class
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`members for Defendant’s violations of the TCPA.
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`32.
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`Defendant directly or vicariously violated the TCPA when it used an automated
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`telephone texting system to send unsolicited and unauthorized marketing texts to the cellular
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`phones of Plaintiff and Class members.
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`33.
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` The TCPA, 47 U.S.C. § 227(b)(3), provides:
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`(1) Private right of action. A person or entity may, if otherwise permitted by the
`laws or rules of court of a State, bring in an appropriate court of that State--
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`(A) an action based on a violation of this subsection or the regulations
`prescribed under this subsection to enjoin such violation,
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`(B) an action to recover for actual monetary loss from such a violation, or to
`receive $ 500 in damages for each such violation, whichever is greater, or
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`(C) both such actions.
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`34.
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`Additionally, the TCPA provides that the Court may, at its discretion, treble the
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`statutory damages if it finds that Defendant’s violations are willful or knowing. 47 U.S.C. §
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`227(b)(3)
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`35.
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`Defendant’s violations of the TCPA were willful and knowing. Defendant would
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`be liable to Plaintiff and Class members even if its actions were negligent.
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`36.
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`Accordingly, Plaintiff and Class members are entitled to all damages referenced
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`herein, attorney’s fees, costs, treble damages, injunctive relief, and any other remedies allowed by
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`the TCPA. Defendant should be enjoined from engaging in similar unlawful conduct in the future.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, on behalf of herself and all others similarly situated, prays for
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`relief and judgment against Defendant as follows:
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`(A)
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`For an Order certifying the Nationwide Class under Rule 23 of the Federal Rules
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`of Civil Procedure and naming Plaintiff as representative of the Nationwide Class
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`and Plaintiff’s attorneys as Class Counsel;
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`(B)
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`In the alternative, for an Order certifying the New York Class under Rule 23 of the
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`Federal Rules of Civil Procedure and naming Plaintiff as representative of the New
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`York Class and Plaintiff’s attorneys as Class Counsel;
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`(C)
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`For an Order declaring that Defendant’s conduct violates the TCPA;
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`(D)
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`For an Order finding in favor of Plaintiff and Class members;
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`(E)
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`For statutory or treble damages for each violation of the TCPA, as determined by
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`the evidence presented at trial;
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`(F)
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`For prejudgment interest on all amounts awarded;
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`(G) For an Order enjoining Defendant from further violations of the TCPA;
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`(H)
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`For an Order awarding Plaintiff and Class members their reasonable attorney’s fees
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`and expenses and costs of suit; and
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`(I)
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`For such other and further relief as the Court deems just and proper.
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`DEMAND FOR TRIAL BY JURY
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`Pursuant to Rule 38(b) of the Federal Rule of Civil Procedure, Plaintiff, on behalf of
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`himself and Class members, demands a trial by jury on all questions of fact raised by this
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`Complaint.
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`Dated: October 7, 2020
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`Respectfully submitted,
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`LEE LITIGATION GROUP, PLLC
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`By: /s/ C.K. Lee
` C.K. Lee, Esq.
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` C.K. Lee (CL 4086)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: 212-465-1188
`Fax: 212-465-1181
`Attorneys for Plaintiff and the Class
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`11
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