Case 1:20-cv-05680-VEC Document 1 Filed 07/22/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Civil Action No.
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`CLASS ACTION
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`GEORGE PAPPAS, individually and as the
`representative of a class of similarly-situated
`persons,
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`MYPIZZA TECHNOLOGIES, INC., a
`Delaware corporation,
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`Plaintiff,
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`v.
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` Defendant.
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`CLASS ACTION COMPLAINT
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`Plaintiff, GEORGE PAPPAS (“Plaintiff”), through his attorneys, brings this action on
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`behalf of himself and all others similarly situated, and alleges the following against Defendant,
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`MYPIZZA TECHNOLOGIES, INC. (“Defendant” or “Slice”):
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`PRELIMINARY STATEMENT
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`1.
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`This case challenges Defendant’s practice of sending unsolicited automated text
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`messages to the cellular telephones of Plaintiff and Class members, including text messages to
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`consumers registered on the National Do Not Call registry, in violation of the Telephone Consumer
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`Protection Act of 1991 (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C.
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`§ 227 (“JFPA”), and the regulations promulgated thereunder by the Federal Communications
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`Commission (“FCC”).
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`2.
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`Over a six-month period, Defendant sent at least three unauthorized text messages
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`(the “Texts”) to Plaintiff’s cellular telephone using an automatic telephone dialing system
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`(“ATDS” or “auto-dialers”) for the purpose of soliciting business from Plaintiff.
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`Case 1:20-cv-05680-VEC Document 1 Filed 07/22/20 Page 2 of 15
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`3.
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`The TCPA regulates, among other things, the use of auto-dialers. Specifically, the
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`TCPA prohibits the use of auto-dialers to make any call to a cellular telephone number in the
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`absence of an emergency or the prior express consent of the person being called. 47 U.S.C. §
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`227(b)(1)(A)(iii) (emphasis added).
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`4.
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`The TCPA defines ATDS as “equipment that has the capacity - (A) to store or
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`produce telephone numbers to be called, using a random or sequential number generator; and (B)
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`to dial such numbers.” 47 U.S.C§ 227 (a)(1).
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`5.
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`The FCC is empowered to issue rules and regulations implementing the TCPA.
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`The FCC has clarified that text messages qualify as “calls” under the TCPA, affirming that:
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`under the TCPA, it is unlawful to make any call using an automatic telephone dialing
`system or an artificial or prerecorded message to any wireless telephone number. Both the
`statute and our rules prohibit these calls, with limited exceptions, “to any telephone number
`assigned to a paging service, cellular service, or any service for which the party is charged.”
`This encompasses both voice calls and text calls to wireless numbers including, for
`example, short message service (SMS) calls, provided the call is made to a telephone
`number assigned to such service.
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`In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report
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`and Order (“2003 Order”), 18 FCC Rcd. 14014, 14115 (July 3, 2003) (emphasis added); see Gager
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`v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3rd Cir. 2013).
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`6.
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`The FCC has further clarified that, except for calls made by tax-exempt nonprofit
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`organizations or health care messages, any telephone call using an automatic telephone dialing
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`system that includes or introduces an advertisement or constitutes telemarketing must have prior
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`express written consent as provided at 47 C.F.R. § 64.1200(f)(8) to be compliant with the TCPA.
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`47 C.F.R. § 64.1200(a)(2). (emphasis added). The FCC defines “telemarketing” as “the initiation
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`of a telephone call or message for the purpose of encouraging the purchase or rental of, or
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`investment in, property, goods, or services.” 47 C.F.R. § 64.1200(f)(12).
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`7.
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`The FCC has found that automated or prerecorded calls are a greater nuisance and
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`invasion of privacy than live solicitation calls, and such calls can be costly and inconvenient. The
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`FCC also recognized that wireless customers are charged for incoming calls whether they can pay
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`in advance or after the minutes are used. 2003 Order, 18 FCC Rcd. 14014, 14115.
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`8.
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`The TCPA also prohibits telemarketers from making telephone solicitations to
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`persons who have listed their telephone numbers on the National Do Not Call Registry, a database
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`established by the FCC in 2003 to allow consumers to exclude themselves from telemarketing calls
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`unless they consent to receive the calls in a signed, written consent.
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`9.
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`Consumers who do not want to receive telemarketing calls may indicate their
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`preference by registering their telephone numbers on the National Do Not Call Registry. 47 C.F.R.
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`§ 64.1200(c)(2). TCPA regulation 47 C.F.R. § 64.1200(c) provides that “[n]o person or entity
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`shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered
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`his or her telephone number on the national do-not-call registry of persons who do not wish to
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`receive telephone solicitations that is maintained by the Federal Government.”
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`10.
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`These registrations must be honored indefinitely, or until the registration is
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`cancelled by the consumer or the telephone number is removed by the database administrator. Id.
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`11.
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`Because a telephone subscriber listed on the Registry must take an affirmative step
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`to register his or her number, a telemarketer who wishes to call a person listed on the Registry
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`must take a similarly affirmative step, and must obtain the registrant’s signed, written agreement
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`to be contacted by the telemarketer. Id. § 64.1200(c)(2)(ii). The written agreement must also
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`include the telephone number to which the calls may be placed. Id.
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`12.
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`A person whose number is on the Registry and has received more than one
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`telephone solicitation within any twelve-month period by or on behalf of the same entity in
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`Case 1:20-cv-05680-VEC Document 1 Filed 07/22/20 Page 4 of 15
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`violation of the TCPA, can sue the violator and seek the greater of actual damages or $500, a figure
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`that may be trebled for willful or knowing violations. 47 U.S.C. § 227(c)(5).
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`13.
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`Plaintiff, on behalf of himself and all others similarly situated, brings this case as a
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`class action asserting claims against Defendant under the TCPA.
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`14.
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`Plaintiff is informed and believes, and upon such information and belief avers, that
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`this action is based upon a common nucleus of operative facts because the unsolicited automated
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`text messages at issue were and are being sent in the same or similar manner. This action is based
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`on the same legal theory, namely liability under the TCPA.
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`15.
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`This action seeks relief expressly authorized by the TCPA: (a) injunctive relief
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`enjoining Defendant from sending unsolicited automated text messages without prior express
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`consent; (b) injunctive relief enjoining Defendant from sending unsolicited automated text
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`messages that includes or introduces an advertisement or constitutes telemarketing without prior
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`express written consent; and (c) an award of statutory damages in the minimum amount of $500
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`for each violation of the TCPA, and, in the event of finding a willful or knowing violation, to have
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`such damages trebled, as provided by § 227(b)(3) of the Act.
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`JURISDICTION AND VENUE
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`16.
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`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 47 U.S.C. §
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`227.
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`17.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Defendant
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`has its principal place of business in this district.
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`PARTIES
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`18.
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`Plaintiff is, and at all times mentioned herein was, a citizen and resident of Illinois.
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`Plaintiff is the owner of a sports bar and grill (Pap’s Café, Inc.), located in Mount Prospect, Illinois.
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`19.
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`Defendant, MyPizza Technologies, Inc., also known as Slice, is a company
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`headquartered in New York, New York.
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`20.
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`Defendant provides online and mobile pizza ordering software and is the creator
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`and owner of the app, Slice. Slice allows users to connect with local pizzerias and place orders for
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`pickup or delivery. On information and belief, Defendant solicits independent pizzerias to
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`participate in the app and sell their items and other items suggested by Defendant to users of the
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`app. Slice allows users of the app to save money through its exclusive deals and charges pizzerias
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`less for the services it provides.1
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`FACTS
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`21.
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`On or about February 12, 2020, Plaintiff received a text message on his personal
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`cellular telephone suggesting that he should add Valentine’s Day Specials, like heart shaped
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`pizzas, to his menu and requested Plaintiff to email Defendant. A screenshot of the February 12
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`text is attached hereto as Exhibit A at 1.
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`22.
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`On or about March 4, 2020, Plaintiff received a second text message from
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`Defendant on the same cellular telephone stating that it has a “March Madness” deal for his shop.
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`The text stated that Plaintiff could add this item to its menu by replying “yes” and further stated
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`that while Defendant would not be covering the costs of the deal, it would heavily promote it. A
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`screenshot of the March 4 text is attached hereto as Exhibit A at 1.
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`23.
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`On or about June 30, 2020, Plaintiff received a third text from Defendant on the
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`same cellular telephone regarding Defendant’s new “Camp Slice” summer promotion. In the text,
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`Defendant requested Plaintiff to add the “Camp Slice” deal to his menu by July 3 and to “check
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`1 Information obtained from Defendant’s website, www.slicelife.com, last visited July 7, 2020.
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`Case 1:20-cv-05680-VEC Document 1 Filed 07/22/20 Page 6 of 15
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`them out” at Defendant’s website. A screenshot of the June 30 text is attached hereto as Exhibit
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`A at 2.
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`24.
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`Each text message is similar in nature in that they provide promotional content for
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`Defendant’s products and were sent with the goal of enticing Plaintiff to participate in its Slice
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`app, and thereby increase Defendant’s profits.
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`25.
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`Each text is impersonal in nature and the message in each utilizes boilerplate
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`language. Thus, on information and belief, the Texts were sent to recipients en masse.
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`26.
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`Each text was sent from Defendant’s telephone number, (646) 542-1877. When
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`dialed, an automated messaging service answers instructing the caller to select among various
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`options. In order to speak to a live person, the dialer must enter a number on his phone.
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`27.
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`Based on the foregoing, no human directed the text messages to Plaintiff’s cellular
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`number; rather, Plaintiff’s number was called using a random or sequential number generator with
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`the capacity to store or produce those numbers. In other words, on information and belief,
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`Defendant sent or transmitted, or had sent or transmitted on its behalf, the Texts to Plaintiff’s
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`cellular telephone using an automatic telephone dialing system as defined by 47 U.S.C. §
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`227(b)(1)(A) and the FCC.
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`28.
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`29.
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`Plaintiff never provided his cellular telephone number to Defendant.
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`Plaintiff registered his cellular telephone number with the National Do Not Call
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`Registry on May 8, 2009 and never revoked his registration. Plaintiff’s cellular telephone is for
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`personal use.
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`30.
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`Plaintiff never requested, desired, permitted, or otherwise provided his prior
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`express consent to Defendant to send or transmit the Texts or any other texts to his cellular
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`telephone.
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`31.
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`Plaintiff never provided his prior express written consent to Defendant to send or
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`transmit the Texts or any other advertisement or telemarketing to his cellular telephone.
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`32.
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`As a result of receiving the Texts, Plaintiff incurred expenses to his wireless service,
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`wasted data storage capacity, suffered the nuisance, waste of time, and aggravation that
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`accompanies receipt of such unauthorized advertisements, and was subjected to an intrusion upon
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`his seclusion and invasion of privacy.
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`33.
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`On information and belief, Defendant sent the Texts, or substantially similar text
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`messages, en masse to a list of thousands of randomly generated cellular telephone numbers using
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`an ATDS.
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`34.
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`On information and belief, Defendant sent the Texts, or substantially similar text
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`messages, to Plaintiff and the Class members using equipment that had the capacity to store or
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`produce telephone numbers to be called using a random or sequential number generator, and to
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`dial such numbers without human intervention.
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`35.
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`On information and belief, Defendant sent the Texts, or substantially similar text
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`messages to Plaintiff and Class members that had their telephone numbers registered in the
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`National Do not Call Registry.
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`36.
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`On information and belief, Plaintiff and the Class members did not provide
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`Defendant with prior express written consent to receive such text messages and, as a result,
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`incurred expenses to their wireless services, wasted data storage capacity, suffered the aggravation
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`that accompanies receipt of such unauthorized advertisements, and were subjected to an intrusion
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`upon seclusion.
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`CLASS ACTION ALLEGATIONS
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`37.
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`Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), Plaintiff brings this class action on
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`behalf of the following Classes:
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`Autodialed Class
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`All individuals in the United States who, within the four years prior
`to the filing of the instant Complaint, received the same or a
`substantially similar text as detailed in Exhibits A-C to their cellular
`telephones from Defendant through the use of an automatic dialing
`system and who did not provide prior express consent and/or prior
`express written consent to receive such text messages.
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`Do Not Call Registry (“DNC”) Class
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`All persons whose telephone numbers were listed on the Do Not
`Call Registry, and to whom, during the four years prior to the filing
`of this Complaint, more than one call within any twelve-month
`period was placed by or at the direction of Defendant to promote the
`sale of Defendant’s services.
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`Excluded from the Classes are the Defendant and its officers, directors, employees, and agents and
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`members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion
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`of class certification discovery.
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`38.
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`Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon
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`such information and belief avers, that the number of persons and entities of the Classes is
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`numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon
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`such information and belief avers, that the number of Class members is at least forty (40) based on
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`Defendant’s use of automated and impersonal text message content sent via a telephone number
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`with an automated message center.
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`39.
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`Commonality (Fed. R. Civ. P. 23 (a)(2)): Common questions of law and fact apply
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`to the claims of all class members. Common material questions of fact and law include, but are not
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`limited to, the following:
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`a.
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`Whether Defendant sent non-emergency text messages to Plaintiff and the
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`Class members’ cellular telephones using an automatic telephone dialing system;
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`b.
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`Whether Defendant had prior express written consent to send its automated
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`text messages;
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`c.
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`Whether Defendant systematically sent multiple text messages to Plaintiff
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`and consumers whose phone numbers were registered in the National Do Not Call Registry;
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`and;
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`d.
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`e.
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`Whether Defendant’s conduct was knowing and/or willful;
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`Whether Defendant is liable for damages, and the amount of such damages;
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`f.
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`Whether Defendant should be enjoined from such conduct in the future.
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`40.
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`Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiff’s claims are typical of the claims of
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`all Class members. Plaintiff received the same or substantially similar unsolicited text messages
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`as the other Class members sent by or on behalf of Defendant advertising the availability or quality
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`of goods and services of the Defendant during the Class Period. Plaintiff is making the same claims
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`and seeking the same relief for himself and all Class members based upon the same federal statute.
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`Defendant has acted in the same or in a similar manner with respect to the Plaintiff and all the
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`Class members by sending Plaintiff and each member of the Class the same or substantially similar
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`text message.
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`41.
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`Fair and Adequate Representation (Fed. R. Civ. P. 23(a)(4)): Plaintiff will fairly
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`and adequately represent and protect the interests of the class. Plaintiff is interested in this matter,
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`has no conflicts, and has retained experienced class counsel to represent the class.
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`42.
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`Predominance and Superiority (Fed. R. Civ. P. 23(b)(3)): Common questions of
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`law and fact predominate over any questions affecting only individual members, and a class action
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`is superior to other methods for the fair and efficient adjudication of the controversy because:
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`a.
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`Proof of Plaintiff’s claims will also prove the claims of the Class without
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`the need for separate or individualized proceedings;
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`b.
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`Evidence regarding defenses or any exceptions to liability that Defendant
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`may assert and attempt to prove will come from Defendant’s records and will not require
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`individualized or separate inquiries or proceedings;
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`c.
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`Defendant has acted and is continuing to act pursuant to common policies
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`or practices in the same or similar manner with respect to Plaintiff and all Class members;
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`d.
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`The amount likely to be recovered by individual Class members does not
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`support individual litigation. A class action will permit a large number of relatively small claims
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`involving virtually identical facts and legal issues to be resolved efficiently in one proceeding
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`based upon common proofs; and
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`e.
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`This case is inherently manageable as a class action in that:
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`i.
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`Defendant identified persons or entities to receive the unauthorized
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`text messages and Defendant’s computer and business records will likely enable Plaintiff to readily
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`identify class members and establish liability and damages;
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`ii.
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`Liability and damages can be established for Plaintiff and the Class
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`with the same common proofs;
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`iii.
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`Statutory damages are provided for in the statute and are the same
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`for Plaintiff and all Class members and can be calculated in the same or a similar manner;
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`iv.
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`A class action will result
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`in an orderly and expeditious
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`administration of claims and it will foster economics of time, effort, and expense;
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`v.
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`A class action will contribute to uniformity of decisions concerning
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`Defendant’s practices; and
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`vi.
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`As a practical matter, the claims of the Class are likely to go
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`unaddressed absent class certification.
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`COUNT I
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`Violation of the TCPA, 47 U.S.C. § 227(b)(3)
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`43.
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`44.
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`Plaintiff incorporates by reference paragraphs 1-42 as if fully set forth herein.
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`The Texts Defendant sent Plaintiff and the Class members are advertisements as
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`defined by 47 C.F.R. § 64.1200(f)(1) because they promote Defendant’s property, goods, or
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`services.
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`45.
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`Defendant and/or its agent sent the Texts, or substantially similar unsolicited
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`automated text messages to the cellular telephone numbers of Plaintiff and the Class members en
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`masse without their prior express consent and prior express written consent.
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`46.
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`Defendant sent the Texts, or had them sent on its behalf, using an automatic
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`telephone dialing system or device which has the capacity to store or produce telephone numbers
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`to be called using a random or sequential number generator, and to dial such numbers.
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`47.
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`Defendant utilized equipment that sent the text messages, including the Texts, to
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`Plaintiff and other Class members simultaneously and without human intervention.
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`48.
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`By sending the unsolicited text messages to Plaintiff and the Class, Defendant
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`violated 47 U.S.C. § 227(b)(1)(A)(iii).
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`49.
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`As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,
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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 are also entitled to an injunction against future
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`calls by or on behalf of Defendant.
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`COUNT II
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`Willful and/or Knowing Violation of the TCPA, 47 U.S.C. § 227(b)(3)
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`50.
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`51.
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`Plaintiff incorporates by reference paragraphs 1-42 as if fully set forth herein.
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`The Texts Defendant sent Plaintiff and the Class members are advertisements as
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`defined by 47 C.F.R. § 64.1200(f)(1) because they promote Defendant’s property, goods, or
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`services.
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`52.
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`Defendant and/or its agent sent the Texts, or substantially similar unsolicited
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`automated text messages to the cellular telephone number of Plaintiff and the Class members en
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`masse without their prior express consent and prior express written consent.
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`53.
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`Defendant sent the Texts, or had them sent on its behalf, knowingly using an
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`automatic telephone dialing system or device which has the capacity to store or produce telephone
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`numbers to be called using a random or sequential number generator, and to dial such numbers.
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`54.
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`Defendant knowingly utilized equipment that sent the text messages, including the
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`Texts, to Plaintiff and the Class members simultaneously and without human intervention.
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`55.
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`Defendant knew that it did not have prior express consent or prior express written
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`consent to send the Texts to Plaintiff and the Class members.
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`56.
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`On information and belief, Defendant knew, or willfully ignored the fact, that its
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`conduct as alleged herein violated the TCPA.
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`57.
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`As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,
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`Plaintiff and the Class members were harmed and entitled to statutory relief.
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`58.
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`As a result of Defendant knowing that Plaintiff and the Class had not given prior
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`express consent to receive the text messages, the Court should treble the amount of statutory
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`damages available to Plaintiff and the Class.
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`COUNT III
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`Violation of the TCPA, 47 U.S.C. § 227(c)
`(Do Not Call Registry)
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`Plaintiff incorporates by reference paragraphs 1-42 as if fully set forth herein.
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`On information and belief, Defendant violated 47 C.F.R. § 64.1200(c) by initiating
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`59.
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`60.
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`calls for telemarketing purposes to residential and wireless telephone subscribers who had
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`registered their telephone numbers in the National Do Not Call Registry, such as Plaintiff and the
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`DNC Class, without instituting procedures that comply with the regulatory minimum standards as
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`described in 47 C.F.R. § 64.1200(c)(2)(i).
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`61.
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`On information and belief, Defendant never obtained prior express written
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`permission to send Plaintiff or the DNC class members the Texts, or substantially similar text
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`messages.
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`62.
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`Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the DNC Class
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`members received more than one telephone call in a 12-month period made by or on behalf of
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`Defendant. As a result of Defendants’ conduct as alleged herein, Plaintiff and the DNC Class
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`suffered actual damages and, under section 47 U.S.C. § 227(c), are each entitled, inter alia, to
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`receive up to $500 in damages for such violations.
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`63.
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`To the extent Defendants’ 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 Class.
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`WHEREFORE, Plaintiff, GEORGE PAPPAS, individually and on behalf of all others
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`similarly situated, demands judgment in his favor and against Defendant, MYPIZZA
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`TECHNOLOGIES, INC., as follows:
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`A.
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`That the Court adjudge and decree that the present case may be properly maintained
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`as a class action, appoint Plaintiff as the representative of the Class, and appoint the Plaintiff’s
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`counsel as counsel for the Class;
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`B.
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`That the Court award actual monetary loss from such violations or the sum of five
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`hundred dollars ($500.00) for each violation, whichever is greater, and award treble damages if
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`the violations were done willfully and/or knowingly;
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`C.
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`That the Court award prejudgment interest from the date the texts were sent to the
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`date the Court enters judgment;
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`D.
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`E.
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`That the Court enjoin the Defendant from additional violations; and
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`That the Court award pre-judgment interest, costs, and such further relief as the
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`Court may deem just and proper
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`Respectfully submitted,
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`the
`individually and as
`GEORGE PAPPAS,
`representative of a class of similarly-situated
`persons,
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`By: /s/ Aytan Y. Bellin
`Aytan Y. Bellin
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`14
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`Case 1:20-cv-05680-VEC Document 1 Filed 07/22/20 Page 15 of 15
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`BELLIN & ASSOCIATES LLC
`50 Main Street, Suite 1000
`White Plains, NY 10606
`Telephone: (914) 358-5345
`Facsimile: (212) 571-0284
`Aytan.Bellin@bellinlaw.com
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`And
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`Ryan M. Kelly (pro hac vice to be submitted)
`ANDERSON + WANCA
`3701 Algonquin Road, Suite 500
`Rolling Meadows, IL 60008
`Telephone: 847-368-1500
`Facsimile: 847-368-1501
`rkelly@andersonwanca.com
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`15
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