Northrup v. Itg Insurance Agency LLC et al

Middle District of Florida, flmd-8:2017-cv-01890

MOTION for summary judgment and incorporated Memorandum by CyberX Group, LLC, Independent Truckers Group, Inc., Innovative Health Insurance Partners, LLC, David E Lindsey.

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1 PageID 847 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN NORTHRUP, Individually and on behalf § of a Class of Similarly Situated Individuals § § Plaintiff, § § Civil Action No. 8:17-cv-01890-CEH-JSS v. § § DISPOSITIVE MOTION Innovative Health Insurance Partners, LLC, § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § § Defendants. § DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW BASED ON THE ABSENCE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM Pursuant to M.D. Fla. Local Rule 3.01, Federal Rule of Civil Procedure 56(c) and other applicable authority, Defendants move for summary judgment and respectfully show as follows: I. SUMMARY The text messages at issue in this case were sent via a system that required substantial human intervention, thereby falling outside the definition of an automatic telephone dialing system ("ATDS") and invalidating any liability under the TCPA. The Court denied Defendants' prior motion to allow for Plaintiff to conduct discovery, which has been done. The deposition testimony shows that under, whether the Court chooses Plaintiff or Defendants' post-ACA definition of an ATDS, Defendants prevail: (1) nine separate human actions were required to send the texts; (2) no predictive dialer or functions were used; and (3) the systems at issue do not have the present capacity to generate random or sequential numbers and dial them. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 1 1 PageID 848 II. STATEMENT OF MATERIAL UNDISPUTED FACTS 1. Plaintiff's claims are wholly based on text messages sent by Defendant CyberX Group, LLC ("CyberX") on June 30, 2017 described by paragraphs 32-33 of the Second Amended Complaint [Dkt. 38]. 2. Christopher Pearson is a co-founder of CyberX and was the President and only employee of CyberX on June 30, 2017. (Ex. A, ¶ 1.) 3. On June 30, 2017, Pearson manually uploaded a list of customer lead data contained in an Excel spreadsheet to 212CRM. (Id. at ¶ 3.) 4. The spreadsheet had been bought from FleetSeek and obtained via download from FleetSeek's servers. (Id. at ¶ 3.) A true and correct copy of a portion of the spreadsheet is attached hereto as Exhibit A-1. 5. Upon uploading the spreadsheet, Pearson manually reviewed the lead data for errors. 6. Pearson then "mapped" the columns of lead data to the 212CRM system, specifically including connecting 212CRM to the telephone number fields in the spreadsheet and enabling him to choose the order in which the numbers appeared, which would then be the order in which the numbers were dialed for the text messages. (Ex. A, ¶ 4.) 7. After mapping the lead data to 212CRM, Pearson then navigated to the SMS Broadcast Manager page of 212CRM, where Pearson manually entered in: (1) the lead data to be used to send a text message campaign; (2) the order in which the text messages should be sent to each number in the lead data; and (3) the content of each text message. (Id. at ¶ 5.) A true and correct copy of a screenshot of the 212CRM SMS Broadcaster is attached hereto as Exhibit A-2 (CyberX Depo Ex. 7). DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 2 1 PageID 849 8. Pearson then chose to set the system to start sending the text messages immediately (as opposed to a scheduled start time in the future) at an interval of one message per minute, an interval Pearson had manually set in the 212CRM. (Ex. A, ¶ 6.) See also Ex. A-2 (212CRM screenshot). 9. Pearson then initiated or "dialed" the lead data numbers by pointing and clicking on the "SEND" button in 212CRM. (Ex. A, ¶ 6.) See also Ex. A-2 (212CRM screenshot). 10. The 212CRM system then communicated the dialing/delivery instructions to Twilio, whereupon over the next few hours Twilio delivered the messages to the appropriate phone carriers exactly as instructed by Pearson's commands in 212CRM. Twilio sent only the requested message content, to the requested recipient numbers, in the requested order, at the requested time, and at the requested interval. (Ex. A, ¶ 7.) 11. This is clearly summed up in Pearson's deposition testimony as the corporate representative for CyberX: "Q. In this case, did CyberX navigate to a website, log into the CRM platform, determine the content of the text messages at issue, type the content of the message into the platform, determine whether to send the messages immediately or at a different time and then click 'send' to initiate the campaign? A. Yes." Exhibit A-3, CyberX Depo. Trans., 96:15-21. 12. Each and every text message sent by the Twilio requires a separate instruction from 212CRM comprising (1) the Twilio number from which the message should originate; (2) the body of the message; (3) the telephone number to which the user wants that text message sent; (4) when the text message should be sent. (Ex. A, ¶ 7.) The text messages were sent by 212CRM to Twilio with Pearson's instructions to be separated executed, one-by-one. (Id. ¶ 8.) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 3 1 PageID 850 13. Subsequently, Twilio completed the message delivery and generated a report setting out the messaging data and responses. (Id. ¶ 8.) A true and correct copy of a portion of the data report from Twilio is attached hereto as Exhibit A-4 (CyberX Depo. Ex. 14, CXG000032). 14. The 212CRM system did not generate the phone numbers for any of the text messages dispatched on June 30, 2017. (Ex. A, ¶ 10.) 15. Twilio did not generate the phone numbers for any of the text messages dispatched on June 30, 2017. (Id. ¶ 10.) 16. The numbers to which the messages were sent by CyberX on June 30, 2017 were solely from the FleetSeek list, as arranged and reviewed by Pearson. (Id. ¶ 10.) 17. The 212CRM system cannot generate telephone numbers, nor could its users modify it to generate telephone numbers. (Id. ¶ 10.) 18. Twilio cannot generate telephone numbers, nor could its users modify the Twilio to generate telephone numbers. (Id. ¶ 10.) 19. CyberX agreed to the Twilio's Terms of Service as a condition of using the Twilio Platform. (Id. ¶ 13.) Twilio's Terms of Service prohibit reverse engineering of the Twilio Platform. (Ex. B, Lin Decl., Ex. 1 § 6(e).) III. LEGAL STANDARD A summary judgment motion is intended "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting FED. R. CIV. P. 1). Federal Rule of Civil Procedure 56(a) provides that a court shall grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." However, not every factual dispute defeats summary judgment; the requirement is that "there be no genuine issue of material fact." DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 4 1 PageID 851 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A "material" fact is one that "might affect the outcome of the suit under the governing law." Id. at 248. IV. ARGUMENTS AND AUTHORITIES Plaintiff's TCPA causes of action require showing that the alleged texts were sent using an ATDS. Because the texts were not sent using an ATDS as that term is defined since ACA, Plaintiff's claims fail as a matter of law. A. ACA controls the definition of ATDS. That ACA controls the definition of ATDS is a well-settled question by federal courts in Florida and around the count. Simply put: ACA is a D.C. Circuit decision on consolidated challenges from multiple circuits, which makes it binding on all circuits. See, e.g., Ramos v. Hopele of Fort Lauderdale, LLC, 334 F.Supp.3d 1262, 1270-72 (S.D. Fla. 2018) (holding "the ACA decision is binding on this Court"); Reyes v. BCA Fin. Servs., 312 F. Supp. 3d 1308, 1314 (S.D. Fla. 2018) ("To be sure, the Court does not challenge the notion that ACA International is binding authority[….]"). ACA "set aside the Commission's explanation of which devices qualify as an ATDS" as arbitrary and capricious. ACA, 885 F.3d at 695. An action for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA") require that the defendant have sent a text message using an "automatic telephone dialing system" or "ATDS." An ATDS is defined as "equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). As explained in ACA: "That definition naturally raises two questions: (i) when does a device have the 'capacity' to perform the two enumerated functions [in § 227(a)(1)(A) and (B)]; and (ii) what precisely are those functions?" Id. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 5 1 PageID 852 For the first question, ACA instructs that a device has the "capacity" to do something only if it has the present ability without additional effort (beyond, e.g., flipping a switch), and that the Commission's broader definition was "utterly unreasonable." Id. at 699. The question of present capacity turns on "considerations such as how much is required to enable the device to function as an autodialer: does it require the simple flipping of a switch, or does it require essentially a top-to-bottom reconstruction of the equipment?" Id. at 696. ACA rejected the Commission's "expansive interpretation of capacity" because that would have "the apparent effect of embracing any and all smartphones." Id. at 696. "Since ACA, the courts have interpreted the statutory definition of an autodialer in accordance with the FCC's prior rules, that is, that a system is an autodialer if it has the present capacity to function as such." Ramos, 334 F. Supp.3d at 1272 ("Latent or potential capacity to function as an autodialer does not satisfy the statute."). 1 For the second question, a device must both generate random or sequential numbers and dial them, which excludes dialing from a pre-existing list. As ACA explains, "[a]nytime phone numbers are dialed from a set list, the database of numbers must be called in some order—either in a random or some other sequence." ACA, 885 F.3d at 702. Consequently, "'dialing random or sequential numbers' cannot simply mean dialing from a set list of numbers in random or other sequential order: if that were so, there would be no difference between 'dialing random or sequential numbers' and 'dialing a set list of numbers.'" Id. (emphasis added). This interpretation is reinforced by ACA's reasoning that "[t]he TCPA cannot reasonably be read to render every smartphone an ATDS subject to the Act's restrictions." ACA, 885 F.3d at 697. ACA even cites this exact hypothetical of sending group messages as one of the "anomalous outcomes … bottomed in an unreasonable, and impermissible, interpretation" of the TCPA: 1 See also Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) (holding that plaintiff must provide evidence "to show that the Email SMS Service had the present capacity to function as an autodialer."). DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 6 1 PageID 853 Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time… And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000. Id. (emphasis added). Under the plain meaning of the statutory language and ACA's guidance, a device with the capacity to text a list of numbers does not qualify as an ATDS without generating the numbers randomly or sequentially and also dialing them. This Court accurately summarized the conflicting interpretations of ACA, both in this District as well as throughout the country in its previous Order. [Dkt. 80 at 7-9.] The heart of this issue is whether an "ATDS is a device with the current capacity to generate and call random or sequential numbers" (as Defendants propose) or instead "the key factor in determining whether a device is an ATDS is the amount of human intervention required" (as Plaintiff proposes). [Id.] Defendants respectfully submit that their interpretation is the more well-reasoned one, supported by more courts throughout the country as all three Federal Circuit Courts to consider the issue have found that the "current capacity" question controls. See, e.g., King v. Time Warner Cable, Inc., 894 F.3d 473 (2d Cir. 2018) (concluding that the test is whether a device "current has features that enable it to perform the functions of an autodialer"); Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) (granting summary judgment to defendant where no evidence that the "Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers"); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1050 (9th Cir. 2018) (holding that after ACA "only the statutory definition of ATDS as set forth by Congress in 1991 remains."). However, as shown below Defendants prevail under either definition. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 7 1 PageID 854 B. The systems used by CyberX are not ATDS as a matter of law under either post- ACA definition of ATDS. Extensive human intervention by CyberX in sending the text messages makes the systems fall outside the definition of an ATDS under applicable Eleventh Circuit precedent. Additionally, Defendants unquestionably sent the messages to a list that was not generated by any software, and the systems used here do not have the capacity to generate random or sequential numbers. As discussed in more detail below, these undisputed record facts establish that Defendants are entitled to judgment as a matter of law. 1. The numerous human intervention steps by CyberX are dispositive Post-ACA, cases in both the Middle and Southern Districts of Florida agree that "the defining characteristic of an ATDS is 'the capacity to dial numbers without human intervention.'" Ramos, 334 F.Supp.3d at 1272; see also Gaza v. Auto Glass America, LLC, 2018 U.S. Dist. LEXIS 188207 (M.D. Fla. Nov. 2, 2018) ("The essential function of an ATDS is 'the capacity to dial numbers without human intervention.'"). Based on the key analysis of human intervention, four recent text message software cases show why Defendants are entitled to summary judgment: Gaza; Ramos; Jenkins; and Herrick. In Gaza v. Auto Glass America, LLC, 2018 U.S. Dist. LEXIS 188207 (M.D. Fla. Nov. 2, 2018), the plaintiff alleged he received text messages from a software texting platform called "Textedly" as utilized by Defendant Auto Glass. This Court held that "[t]he essential function of an ATDS is 'the capacity to dial numbers without human intervention.'" Id. at *4. 2 This Court then looked to the following key facts showing human intervention in the use of the systems at issue there: One characteristic of an ATDS is that the equipment itself "dial[s] ... numbers at random, in sequential order, or from a database of numbers." 47 U.S.C. § 227(a)(1) (emphasis added). The undisputed record evidence shows that 2 Quoting In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rec. 14014, 14091-93 ¶¶ 131-134 (2003 FCC Ruling) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 8 1 PageID 855 Defendant's representative creates and uploads a list to an online 'platform' from which customer names and phone numbers are selected, text messages drafted, a date and time of delivery is selected, and the 'send' button is pressed, all requiring human intervention. Id. at 2018 U.S. Dist. LEXIS 188207 *7-8 (emphasis supplied on the human steps). On those facts, this Court found that no material issues remained on the ATDS question and granted summary judgment for defendant. This Court's prior MSJ order also cited another text message ATDS case in which summary judgment was granted to the defendant. In Ramos v. Hopele of Fort Lauderdale, LLC, 334 F.Supp.3d 1262, 1267 (S.D. Fla. 2018), jewelry store Hopele collected customer numbers and stored them in their sale system, which then used a web-based software platform called "EZ- Texting" to deliver the text messages to the numbers. Hopele's managing member "designed and implemented Hopele's text marketing campaigns." Id. The software used could not send a text without a person physically inputting numbers, drafting a message, selecting recipients, choosing a date and time to send the message, and manually hitting a 'send' button." Id. at 1275 (emphasis supplied on the human steps). 3 On those facts, the court granted summary judgment because "the EZ-Texting system could not send the text messages at issue without a significant amount of human involvement." Id. at 1276. Ramos relied on the analysis of two other software texting cases in reaching its conclusion: Jenkins and Herrick. In Jenkins v. mGage, LLC, 2016 U.S. Dist. LEXIS 106769, at *2-5 (N.D. Ga. Aug. 12, 2016), a night club (Opera) utilized the software platform of a marketing company (mGage) to send text messages to customers. Jenkins' facts are nearly identical to that of Ramos (as well as the present matter) as to multiple human intervention steps justifying summary judgment—an employee had to: 3 Ramos specifically rejected any requirement that human intervention must occur "at the exact moment that a text is sent," instead taking a wholistic view of the entire process of creating and sending the message. See id. at 1273-75. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 9 1 PageID 856 (i) navigate to a website; (ii) log into the Platform; (iii) determine the content of the text message; (iv) type the content of the text message into the Platform; (v) determine whether to send the text message immediately or to schedule a later date to send the message; (v) either click 'send' to send the message immediately, or take an action to select a later date and time to send the message by using a drop-down calendar function. Opera also determine the telephone numbers to which text messages were sent by an employee choosing a particular list of numbers and uploading the list to mGage's Platform as a CSV file. Id. at *5-6 (emphasis on separate human steps added). The Jenkins court agreed this was sufficient direct human intervention to place the software system outside the definition of an ATDS, and it granted summary judgment for Defendant. Id. at *19-20. In Herrick v. GoDaddy.com LLC, 312 F.Supp.3d 792, 793-94 (D. Ariz. 2018), GoDaddy utilized 3Seventy's software platform to store numbers and send text messages to GoDaddy's customers. The Court found human intervention was involved in sending the texts: First, an employee of GoDaddy provided 3Seventy with a list of customer phone numbers via its FTP site, which 3Seventy then uploaded to the Platform. The employee then navigated to the website, logged onto 3Seventy's Platform, and selected the customer numbers it wished to send the text message. The employee then drafted the message and selected a time and date to send the message. Finally, the employee entered a "captcha" - a device designed to ensure that a human, not a robot, was authorizing the desired message. Only after the employee entered the captcha was the 3Seventy Platform able to send the message. Id. at 802 (record citations omitted; emphasis on separate human steps added). Based on those seven human acts, the GoDaddy court granted summary judgment to Defendant based on the finding that the "level of human agency involved in transmitting the text amounts to essential human intervention that precludes defining the 3Seventy Platform as an ATDS." Id. at 803 (quotations omitted). In this case, Gaza, Ramos, Jenkins and Herrick all support the grant of summary judgment for Defendants in this case. The extensive human intervention is undisputed, particularly after the deposition of CyberX's President, Christopher Pearson, who actually sent the messages at issue and testified based on his personal use of 212CRM and Twilio: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 10 1 PageID 857 CyberX's Human Steps in Sending Supporting Evidence in the Authority Confirming Steps the Text Messages at Issue Record Excludes CyberX's Systems From ATDS Definition (1) Pearson navigated to the CyberX Ex. A, ¶ 3 Jenkins 212CRM website and logged in; Ex. A-3, 96:4-21 Herrick (2) Pearson uploaded the raw data of Ex. A, ¶ 3 Gaza customer leads from the FleetSeek Ex. A-3: 22:2-15, 23:1-10, Ramos spreadsheet; 96:4-21 Jenkins Herrick (3) Pearson manually curated the Ex. A, ¶ 4 Gaza numbers on the original list in Ex. A-3: 22:2-15, 24:18- Jenkins 212CRM by aligning the data 25:22, 97:23-98:6 categories, checking for errors, and sorting them, thereby selecting the order for texting; (4) Pearson navigated to the SMS Ex. A, ¶ 5 Herrick Broadcast Manager page in 212CRM; Ex. A-2 (screenshot) Ex. A-3: 31:20-33:8, 43:10- 21, 96:4-21 (5) On the SMS Broadcast Manager, Ex. A, ¶ 5 Gaza Pearson selected the set of phone Ex. A-2 (screenshot) Ramos numbers to which the texts would be Ex. A-3: 31:20-33:8, 96:4-21 Herrick sent; (6) On the Manager, Pearson Ex. A, ¶ 5 Gaza determined the content of the text Ex. A-2 (screenshot) Ramos message and typed the content of the Ex. A-3: 26:13-27:9,31:20- Jenkins text message into 212CRM; 33:8, 96:4-21 Herrick (7) On the Manager, Pearson Ex. A, ¶ 5 Gaza determined whether to send the text Ex. A-2 (screenshot) Ramos message immediately or later; Ex. A-3: 62:4-63:11, 96:4-21 Jenkins Herrick (8) Pearson determined the interval of Ex. A, ¶ 6 Gaza sending each text message Ex. A-3: 51:1-21 (212CRM Ramos individually (one minute between sends instructions to Twilio, Jenkins each); and and Twilio goes through the Herrick records one by one to send texts), 96:4-21 (9) On the Manager, Pearson pointed Ex. A, ¶¶ 6-7 Gaza and clicked on the "Send" button to Ex. A-2 (screenshot) Ramos immediately begin the campaign Ex. A-3, 94:15-19 (clicking Jenkins utilizing the chosen content, send = dialing) Herrick recipients, timing, and interval by Ex. A-3, 95:6-10 (Twilio delivering those instructions to Twilio followed Pearson's as the delivery platform. 4 instructions) 4 Pearson went on to testify that, after clicking the "send" button, 212CRM sends the delivery instructions to Twilio, and Twilio individually executes those instructions for each separate recipient, line-by-line, at the instructed one- minute interval (as opposed to in a single, contemporaneous batch). See, e.g., Ex. A-3: 48:17-49:25 (212CRM instructs Twilio on how to send the messages per Pearson's instructions), 50:14-25 (instructions on timing), 51:1-21 (212CRM sends instructions to Twilio, and Twilio goes through the records one by one to send texts), 95:6-10 (Twilio followed Pearson's instructions) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 11 1 PageID 858 These various steps show more than enough human intervention to satisfy the analysis in Gaza, Ramos, Jenkins, and Herrick. And the undisputed record evidence confirms that the text messages could not have been sent without Mr. Pearson's extensive human intervention. Ex. A- 3, 97:23-98:2 ("Q. And without uploading the FleetSeek list into the CRM system, and then aligning the columns to map the data to the CRM system, could the text messages at issue have been sent? A. No."). Unequivocally, the systems used by CyberX are not an ATDS due to the extensive, required human intervention to cause the systems to send the text messages at issue. Gaza, Ramos, Jenkins, and Herrick all support a grant of summary judgment in Defendants' favor. 5 2. Defendants did not use a predictive dialer. The systems used by Defendants to send the texts at issue do not qualify as a predictive dialer, which would otherwise bring the systems under the definition of an ATDS. "[I]n 2003, the FCC issued an order finding, among other things, 'that a predictive dialer falls within the meaning and statutory definition of 'automatic telephone dialing equipment' and the intent of Congress.' In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14,014, 14,093 (2003). The 2003 FCC order defined a predictive dialer as 'an automated dialing system that uses a complex set of algorithms to automatically dial consumers' telephone numbers in a manner that 'predicts' the time when a consumer will answer the phone 5 Glasser v. Hilton Grand Vacations Co., 341 F. Supp. 3d 1305 (M.D. Fla. 2018) supports summary judgment despite being a "call dialing" case as opposed to a text message case. In that case, a sales agent used a "business software automation tool" that enabled him to point-and-click to make calls from numbers stored in the tool. The Court granted summary judgment on the basis of no ATDS. First, the Court held that human intervention of dialing by point-and-click is sufficient even without manual dialing of each number because, under ACA, "it matters not that the computer actually dial the number forwarded to it by the clicking agent…the focus is on the agent's human intervention in initiating the calling process." Id. at 1312 ("since it is undisputed that calls cannot be made unless an agent clicks on the screen and forwards a telephone number to the server to be called, Defendant's 'point-to-click' system does not constitute an autodialer system under the TCPA"). Like in Glasser, CyberX did not physically dial each number but rather engaged in the "point-and-click" manual action by Pearson to send the text messages from 212CRM through Twilio's system. And neither 212CRM or Twilio used any predictive algorithm or function in sending the texts—rather, each was sent in the exact order, method, and timing that Pearson manually instructed them to be done. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 12 1 PageID 859 and a telemarketer will be available to take the call.' Id. at 14143 n. 31." Reyes v. BCA Fin. Servs., 312 F. Supp. 3d 1308, 1314 (S.D. Fla. 2018). The lack of any predictive algorithm or function for predictive dialing supports a finding that an ATDS was not utilized. See, e.g., Glasser, 341 F. Supp. 3d at 1331; Ramos, 334 F.Supp.3d at 1275 (distinguishing texting software that decides itself when to dial or text, versus one in which the user decides; the latter is not a predictive dialer and not an ATDS). Unlike in Glassner and Ramos, the court in Reyes easily concluded the software used was an ATDS the parties agreed that software was an used was a "Noble predictive dialer" that "automatically dials telephone numbers without human intervention." Reyes, 312 F. Supp. 3d at 1320. In this case, Plaintiff's pleadings admit that Defendants texted a set list of numbers from a spreadsheet of lead data, not numbers produced by a random or sequential number generator. 6 See also Ex. A-3, 46:7-47:15 (Pearson testimony that the numbers texted came from the FleetSeek list). Furthermore, the undisputed testimony of CyberX is that Pearson decided all aspects of the message campaign—including what to send, when to send it, intervals for sending, and to whom it would be sent—while none of the decisions were made by 212CRM or Twilio. Ex. A-3, 97:7-22. 7 Given the utter lack of any facts to support predictive software or features, this Court should find that the systems used were not an ATDS predictive dialer. 3. The systems do not have the present capacity to generate and text random or sequential numbers. 6 Plaintiff's TCPA claim is premised on the allegation that "Defendants were able to effectively send thousands of text messages simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention." (Dkt. 38, 2d Am. Compl. ¶ 73 (emphasis supplied).) Likewise, Plaintiff's motion for class certification alleged that "Defendants obtained a database of truck drivers' mobile phone numbers and engaged in a text message advertising campaign trying to sell their services to the truck drivers in the database." (Dkt. 54 at 1 (emphasis supplied).) 7 "Q. Does the software itself make a determination, as opposed to the human user, as to what to send, when to send it, to whom it would be sent, or how to send a text message? A. No. Q. Did you yourself decide what message to send in these campaigns? A. The message was provided to me, and I entered it, yes. Q. Did the machine decide what message to send? A. No. Q. Did you or the machine decide when the messages should be sent? A. I did." DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 13 1 PageID 860 Under the Marks/Dominguez/King definition of ATDS espoused by Defendants, Defendants are entitled to summary judgment because the systems used by CyberX did not have the present capacity to do so and both substantive practical and legal barriers exist the systems having that capacity.As opposed to some hypothetical ability to act as an ATDS, ACA holds that a system has the "capacity" to generate and dial random or sequential numbers only if it can do so with only trivial actions ("touching a button" or "flipping of a switch") and excludes actions such as adding software or modifying code. See ACA, 885 F.3d at 898. In Herrick, the court held that the texting software was not an ATDS because it had two barriers to generating and dialing random or sequential numbers: (1) lack of present capacity without substantial modification; and (2) legal bar. Herrick, 2018 U.S. Dist. LEXIS 83744, at *20. First, the court noted that the "[n]umbers that were called could only be inputted into the 3Seventy Platform by a preprogrammed file or list provided by the user; the Platform could not randomly or sequentially generate these numbers by itself." Id. Second, the software agreement required third party permission to modify it to be engage in the prohibited acts. Id. ("As such, a user of the 3Seventy Platform, even if armed with the programming knowledge necessary to enable it to generate numbers randomly or sequentially, would not be able to do so without the permission of 3Seventy's CEO.") In this case, CyberX's systems had the same two barriers to being an ATDS as the software in Herrick. Both 212CRM and Twilio did not have the present capacity to generating random or sequential numbers and dial them. Twilio imposes an absolute requirement that each text message requires a separate instruction comprising (1) the Twilio number from which the message should originate; (2) the body of the message; and (3) the telephone number to which the user wants that text message sent, rendering it impossible for any user to modify it to DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 14 1 PageID 861 generate phone numbers. The facts here are undisputed and essentially identical to the ones in Herrick, which found that the "[n]umbers that were called could only be inputted into the 3Seventy Platform by a preprogrammed file or list provided by the user; the Platform could not randomly or sequentially generate these numbers by itself." Herrick, 2018 U.S. Dist. LEXIS 83744, at *20. Any change, even if hypothetically possible, would require additional programming of new functionalities to both systems, thus falling outside the "present capacity" requirement from ACA. Additionally, even if it was theoretically possible to modify Twilio and 212CRM, Twilio's terms of service, which all users including CyberX agree to, prohibit modification and reverse engineering of the Twilio software. (Ex. B, Lin Decl., Ex. 1 § 6(e).) Thus, like in Herrick, Defendants' legal barrier to modifying the software to have ATDS functionality supports that the systems are not an ATDS. The undisputed existence of these two barriers proves as a matter of law that Defendants' texting systems do not qualify as an ATDS. Accordingly, Defendants are entitled to summary judgment. WHEREFORE, Defendants respectfully request entry of an Order granting summary judgment in their favor because the undisputed record evidence confirms that no automated telephone dialing system was used with regard to the complained of text, as well as an award of all other relief at law and equity to which they are entitled. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 15 1 PageID 862 Date: March 22, 2019 Respectfully Submitted, s/ Bill S. Richmond WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, Texas 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com -and- /s/ David J. DePiano DAVID J. DePIANO, ESQ. Florida Bar No. 0055699 SHAPIRO BLASI WASSERMAN & HERMANN, P.A. 7777 Glades Road, Suite 400 Boca Raton, FL 33434 Telephone: 561.477.7800 Facsimile: 561.477.7722 ddepiano@sbwh.law COUNSEL FOR DEFENDANTS CERTIFICATE OF SERVICE AND SERVICE LIST The undersigned counsel for Defendants hereby certifies that on June 25, 2018, that the foregoing document is being sent via Electronic Mail to Plaintiff's counsel Cory S. Fein (cory@coryfeinlaw.com) and Seth Lehrman (seth@epllc.com) via CM/ECF. s/ Bill S. Richmond WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, Texas 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com COUNSEL FOR DEFENDANTS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS PAGE 16 1 PageID 863 EXHIBIT A DEFAPPX0001 1 PageID 864 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN NORTHRUP, Individually and on behalf § of a Class of Similarly Situated Individuals § § Plaintiff, § § v. Civil Action No. 8:17-cv-01890-CEH- § JSS § Innovative Health Insurance Partners, LLC, § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § Defendants. § § DECLARATION OF CHRISTOPHER PEARSON IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE ATDS I, Christopher Pearson, declare: 1. I am over twenty-one years of age and fully competent to make this declaration. I have personal knowledge of all the facts stated herein. I co-founded and am President of Defendant CyberX Group LLC ("CyberX"). I have held this position since December 2016. 2. CyberX caused the text message described by paragraphs 32-33 of the Second Amended Complaint (Dkt. 38) to be sent. I personally handled all aspects of the below actions related to those text messages. 3. On June 30, 2017, I manually uploaded a list of customer lead data contained in an Microsoft Excel spreadsheet to 212CRM. 212 CRM is online, proprietary software of PEARSON DECLARATION – PAGE !1 DEFAPPX0002 1 PageID 865 CyberX used for marketing and customer data that requires a user to navigate to the site and log in. The spreadsheet had been bought from FleetSeek and obtained via download from FleetSeek's servers. A true and correct copy of a portion of the spreadsheet is attached hereto as Exhibit A-1. 4. Upon uploading the spreadsheet to 212CRM, I manually reviewed the lead data for errors. I then "mapped" the columns of lead data to the 212CRM system, specifically including connecting 212CRM to the telephone number fields in the spreadsheet and checking for errors, enabling me to choose the order in which the numbers appeared, which would then be the order in which the numbers were dialed for the text messages. 5. After mapping the lead data to 212CRM, I then navigated to the SMS Broadcast Manager page of 212CRM, where I manually entered in: (1) the lead data to be used to send a text message campaign; (2) the order in which the text messages should be sent to each number in the lead data; and (3) the content of each text message. A true and correct copy of a screenshot of the 212CRM SMS Broadcast Manager is attached hereto as Exhibit A-2. A true and correct copy of excerpts of the deposition of CyberX Group, LLC, for which I was the corporate representative, is attached hereto as Exhibit A-3. 6. I then chose to set the system to start sending the text messages immediately (as opposed to a scheduled start time in the future) at an interval of one message per minute, an interval I had manually set in 212CRM, once I pushed the "SEND" button. I then initiated or "dialed" the lead data numbers by pointing and clicking on the "SEND" button in 212CRM. 7. Upon hitting the "SEND" button in 212CRM, 212CRM then communicated the dialing/delivery instructions to Twilio, whereupon over the next few hours Twilio PEARSON DECLARATION – PAGE !2 DEFAPPX0003 1 PageID 866 delivered the messages to the appropriate phone carriers exactly as instructed by my commands in 212CRM. Twilio sent only the requested message content; to the requested recipient numbers; in the requested order; at the requested time; in the requested interval. Each and every text message sent by the Twilio Platform requires a separate instruction comprising (1) the Twilio number from which the message should originate; (2) the body of the text message; (3) and the telephone number to which the user want that text message sent. The text messages were sent by 212CRM to Twilio with my instructions to be separated executed, one-by-one. 8. Subsequently, Twilio completed the message delivery and generated a report setting out the messaging data and responses. A true and correct copy of a portion of the data report from Twilio is attached hereto as Exhibit A-4. 9. The Twilio Platform is a web-based software platform that allows a user to direct the Twilio Platform to send text messages to specific phone numbers provided by the user. See https://www.twilio.com/. 10. I am intimately familiar with the capabilities and functions of 212CRM and Twilio based on my years of experience with both platforms. The 212CRM system cannot generate telephone numbers randomly or sequentially. The 212CRM system cannot be easily modified by its users to generate telephone numbers. The Twilio Platform cannot generate telephone numbers randomly or sequentially. The Twilio Platform cannot be easily modified by its users to generate telephone numbers. The numbers to which the messages were sent by CyberX on June 30, 2017 were solely from the FleetSeek list, as manually arranged and reviewed by me. The Twilio Platform did not PEARSON DECLARATION – PAGE !3 DEFAPPX0004 1 PageID 867 generate the phone numbers for any of the text messages dispatched on June 30, 2017. The 212CRM system did not generate the phone numbers for any of the text messages dispatched on June 30, 2017. 11. CyberX agreed to Twilio's Terms of Service as a condition of using the Twilio Platform. PURSUANT TO 28 U.S.C. § 1746, I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. EXECUTED ON: March 22, 2019 _____________________________ Christopher Pearson PEARSON DECLARATION – PAGE !4 DEFAPPX0005 1 PageID 868 EXHIBIT A-1 DEFAPPX0006 1 PageID 869 CONTACT CONTACT TOTAL TOTAL MIDDLE TOTAL TOTAL TOTAL FLEET NAME SALUTATION FIRST NAME LAST NAME JOB TITLE CONTACT PHONE CONTACT EMAIL CONTACT FAX WEBSITE CONTACT PHYSICAL ADDRESS1 CONTACT PHYSICAL CITY PHYSICAL STATE PHYSICAL ZIP NUMBER OF TRAILERS COMMODITIES SIC CODE SIC CLASSIFICATION YEAR EST NAME VEHICLES TRACTORS TRAILERS CODE CODE DRIVERS OWNED Blue Atlantic Transport, LLC Esteban E Cacerez Owner Operator 2012046164 15 Victory Plz South Amboy NJ 08879-1139 1 1 1 1 1 Motor Vehicles 4218 Owner-operator, individual Mesa Transport, Inc. Mr. Luis Mesa Principal 2012061476 mesatruck@gmail.com 2018830241 174 Holt St Hackensack NJ 07601-5244 1 1 1 General Freight 4218 Owner-operator, individual 2007 Randy Trucking LLC Mr. Edel Marante Owner Operator 2012061563 9086874426 209 49th St Union City NJ 07087-6407 1 1 1 General Freight 4218 Owner-operator, individual Caraballo Trucking LLC Ms. Sandra Caraballo Owner Operator 2012062574 3526860188 3115 Montague Ave Spring Hill FL 34608-4265 1 1 1 1 1 General Freight 4218 Owner-operator, individual Premier Cargo Transport LLC Mr. Julio Cabrera Owner Operator 2012067075 96 Linwood Plz Fort Lee NJ 07024-3701 1 1 1 General Freight 4218 Owner-operator, individual Net Transport, Inc. Mr. Abdullah Yasar Owner Operator 2012068310 njnettransport@gmail.com 31 Maple Ln Mount Arlington NJ 07856-1380 2 1 1 1 1 Motor Vehicles 4218 Owner-operator, individual Flaka Trucking Inc. Nathalie A Ramirez Owner Operator 2012073319 49 Church St Lodi NJ 07644-2420 1 1 1 General Freight 4218 Owner-operator, individual 4 Kings Express Mr. Gary Toussaint Owner Operator 2012088053 5706299043 46 Deerfield Way Scotrun PA 18355-9637 1 1 1 1 1 Fresh Produce,General Freight,Meat 4218 Owner-operator, individual 2003 Super Tino, LLC Mr. Agustin Ortiz Owner Operator 2012088793 tinoortiz1@hotmail.com 9734910052 2720 Linden St Bethlehem PA 18017-3957 1 1 1 1 1 General Freight,Refrigerated Food 4218 Owner-operator, individual Air Ocean Logistics Mr. Henry O Hernandez Owner Operator 2012091200 victoria@verizon.net 2012091200 418 Duncan Ave Jersey City NJ 07306-6724 1 1 1 General Freight 4218 Owner-operator, individual Mya Enterprises Corp. Ms. Fatima R Arias Owner Operator 2012091200 418 Duncan Ave Jersey City NJ 07306-6724 2 1 1 General Freight 4218 Owner-operator, individual JOA Express, Inc. Ms. April Uy Owner Operator 2012101801 183 Olive St Piscataway NJ 08854-1938 6 1 1 General Freight 4218 Owner-operator, individual Destiny 2 Express, LLC Oliver B Uy Owner Operator 2012101801 352 W Side Ave Jersey City NJ 07305-1135 1 1 1 General Freight 4218 Owner-operator, individual Magnum Express LLC Mr. Magno A Arana Owner Operator 2012121852 624 Jackson Ave Elizabeth NJ 07201-1617 2 1 1 General Freight 4218 Owner-operator, individual Marbrand Transport LLC Yoandry Venereo Owner Operator 2012122229 nycuban1982@gmail.com 63 John St Little Ferry NJ 07643-1816 1 1 1 General Freight 4218 Owner-operator, individual goodguystransport@gmail.co Good Guys Transport, LLC 2 Rance Corrales Owner Operator 2012122800 409 79th St North Bergen NJ 07047-5525 1 1 1 General Freight 4218 Owner-operator, individual m D & V Transportation, LLC Domingo Valdez Owner Operator 2012123640 314 Randolph Ave Jersey City NJ 07304-2828 1 1 1 General Freight 4218 Owner-operator, individual Building Nicky Express LLC Luis N Santisteban Owner Operator 2012144179 1 1 1 1 1 Materials,Construction,General 4218 Owner-operator, individual Freight,Logs, Poles, Beams, Lumber Buchephalus Mk, Inc. Vladimir Arsovski Owner Operator 2012144794 274 Harrison Ave Lodi NJ 07644-1014 1 1 1 1 1 General Freight 4218 Owner-operator, individual Rio & 3l, LLC Mr. Luciano Martino Owner Operator 2012146483 543 Westview Ave Ridgefield NJ 07657-2816 1 1 1 General Freight 4218 Owner-operator, individual Armando Escalante-Velasqu Armando Escalante-velasqu Owner Operator 2012183235 44 Cypress Dr Colonia NJ 07067-1505 1 1 1 General Freight 4218 Owner-operator, individual Devcon International LLC Irfan Yaksi Owner Operator 2012183624 8622377472 283 1st Ave W Newark NJ 07107-1889 1 1 1 General Freight,Refrigerated Food 4218 Owner-operator, individual Champion Car Carriers, Inc. Mr. Yoan Mederos Owner Operator 2012183753 5600 Collins Ave Miami Beach FL 33140-2455 1 1 1 1 1 Motor Vehicles 4218 Owner-operator, individual RSP Trucking Mr. Paul Treer Owner Operator 2012185788 11331 Red Finch Ln Charlotte NC 28214-7146 1 1 1 General Freight 4218 Owner-operator, individual K & J Logistics, LLC Washington Paucar Owner Operator 2012188982 lifeisgood0927@yahoo.com 107 Trumbull St Elizabeth NJ 07206-2165 1 1 1 General Freight 4218 Owner-operator, individual Mauricio Cruz Mr. Mauricio Cruz Owner Operator 2012201860 200 Division St Cliffside Park NJ 07010-2327 1 1 1 General Freight 4218 Owner-operator, individual Sweet Rose Logistics LLC Ms. Maria C Gonzalez Owner Operator 2012202939 435 79th St North Bergen NJ 07047-7504 1 1 1 1 1 General Freight 4218 Owner-operator, individual Machin Trucking, LLC Marcelo Machin Owner Operator 2012204871 7302 Tonnelle Ave North Bergen NJ 07047-4515 2 1 1 General Freight 4218 Owner-operator, individual P Delarosa Trucking Mr. Pablo D Rosa Owner Operator 2012229561 85 Hague St Jersey City NJ 07307-3103 1 1 1 Refrigerated Food 4218 Owner-operator, individual 2006 E-Z Cargo, Inc. Mr. Oybek Saidkhanov Owner Operator 2012232600 info@e-zcargo.com 2012232611 501 New County Rd Secaucus NJ 07094-1648 1 1 1 Intermodal Containers 4218 Owner-operator, individual General Freight,Intermodal Oscar Serrano Oscar Serrano Owner Operator 2012248134 racsose@verizon.net 2012240285 214 Warren Ave Fort Lee NJ 07024-4109 1 1 1 4218 Owner-operator, individual Containers Adagium Inc. Alla Nadein Owner Operator 2012270654 adagium@earthlink.net 2012270654 1A Dorchester Rd Englewood Cliffs NJ 07632-1931 1 1 1 1 1 General Freight 4218 Owner-operator, individual 2006 SRS Trucking LLC Mr. Sahil Sachdeva Owner Operator 2012320740 3 Bryant Ave Jersey City NJ 07306-6503 1 1 1 General Freight 4218 Owner-operator, individual Nieves Transport, Inc. Mr. Jerill Nieves Owner Operator 2012320749 nievestransport@aol.com 7324284558 703 Harrison St Rahway NJ 07065-3511 1 1 1 1 1 General Freight 4218 Owner-operator, individual WS Trans, LLC Walter Stubblefield Owner Operator 2012324919 brad@blueridgetmllc.com 1898 Bridle Rd Lawrenceville GA 30043-2886 1 1 1 General Freight 4218 Owner-operator, individual General Freight,Household A Cordero Trucking Mr. Anibal Cordero Owner Operator 2012325229 acordero413@aol.com 4600 Kennedy Blvd Union City NJ 07087-2713 1 1 1 4218 Owner-operator, individual Goods,Refrigerated Food Stis Transportation LLC Ms. Shannon Tisdale Owner Operator 2012328385 57 Sunset Ter Irvington NJ 07111-1729 1 1 1 General Freight 4218 Owner-operator, individual PGA Transport Corp. Luis Marinos Owner Operator 2012332735 rwaycorp@yahoo.com 5837 Cove Landing Rd Burke VA 22015-4710 1 1 1 1 1 4218 Owner-operator, individual Mendieta & Sons Enterprise, Inc. Mr. Edgun R Andrade Owner Operator 2012334752 mendietaandson@yahoo.com 88 W 47th St Bayonne NJ 07002-3202 1 1 1 1 1 Garbage, Refuse, Trash 4218 Owner-operator, individual Commodities Dry Bulk,Fresh Integritas Logistics, Inc. Oxana Rodriguez Owner Operator 2012336555 rodriguez.oxy@gmail.com 436 Rutherford Ave Lyndhurst NJ 07071-1109 1 1 1 4218 Owner-operator, individual Produce,General Freight,Meat Havana Dc Corp. Mr. Jorge Garcia Owner Operator 2012341501 havanadccorp@yahoo.com 9086621318 830 Westfield Ave Elizabeth NJ 07208-1270 1 1 1 1 1 General Freight 4218 Owner-operator, individual Mrp Trucking, Inc. Gerges A Shakhloul Owner Operator 2012342222 156 W 3rd St Bayonne NJ 07002-5232 1 1 1 General Freight 4218 Owner-operator, individual Mikfran Logistics, LLC Michael J Aviles Owner Operator 2012380186 662 Fairview Ave Fairview NJ 07022-1809 1 1 1 General Freight 4218 Owner-operator, individual Oneway Transport Inc. J Singh Owner Operator 2012380398 105 W Arthur Pl Iselin NJ 08830-1112 1 1 1 1 1 General Freight 4218 Owner-operator, individual AA and H Trucking Inc. Hugo A Gil-Rosado Owner Operator 2012383488 110 Jabez St Newark NJ 07105-3105 1 1 1 Garbage, Refuse, Trash 4218 Owner-operator, individual PGR Transportation LLC Mr. Manohar L Aheer Owner Operator 2012385640 manoharaheer@yahoo.com 32 Crocus St Woodbridge NJ 07095-1904 1 1 1 General Freight,Motor Vehicles 4218 Owner-operator, individual Serie 29 Transport, Inc. Jesus M Amparo Owner Operator 2012386054 djtali08@hotmail.com 72 W 56th St Bayonne NJ 07002-3316 1 1 1 1 1 General Freight 4218 Owner-operator, individual STB Transportation, LLC Mr. Esteban R. Rodriguez Owner Operator 2012386139 573 Central Ave Jersey City NJ 07307-2583 1 1 1 4218 Owner-operator, individual Commodities Dry JDD Rockway LLC Mr. Jan Devecka Owner Operator 2012388688 jandevecka@yahoo.com 15 Argyle Pl North Arlington NJ 07031-6445 1 1 1 Bulk,Construction,Food 4218 Owner-operator, individual Products,General Freight Eighteen Wheel Transport Corp. Mr. Dagoberto R Mendez Owner Operator 2012389409 300 Duncan Ave Jersey City NJ 07306-7039 1 1 1 General Freight 4218 Owner-operator, individual P B S Carriers Corp. Mr. Bakhshish Singh Owner Operator 2012391371 2019185425 185 Tonnele Ave Jersey City NJ 07306-5132 1 1 1 1 1 Fresh Produce 4218 Owner-operator, individual E & E Moredo Transport, Inc. Mr. Iosvant Moredo Owner Operator 2012401646 8135142806 4111 Hudson Way Carrollwood FL 33618-5362 10 1 1 1 1 General Freight 4218 Owner-operator, individual S&A Trucking, LLC Hernan Garcia Owner Operator 2012403095 95 3rd St Newark NJ 07107-3108 1 1 1 General Freight 4218 Owner-operator, individual Commodities Dry Bulk,General M&C Transportation Mr. Paul Corrao Owner Operator 2012405973 6072674748 2 Walnut St Oneonta NY 13820-1824 1 1 1 1 1 4218 Owner-operator, individual 2007 Freight Santiago Orellana Mr. Santiago Orellana Owner Operator 2012406099 orelltruckig@yahoo.com 130 3rd St Passaic NJ 07055-7617 1 1 1 Construction 4218 Owner-operator, individual General Freight,Intermodal MLA Transport, Inc. Ms. Lori A Clifford Owner Operator 2012406438 188 Jefferson St Newark NJ 07105-1622 4 1 1 4218 Owner-operator, individual Containers Edgecliff LLC Ms. Tonya Shenkin Owner Operator 2012408038 redsol@msn.com 2014084440 725 River Rd Edgewater NJ 07020-1171 2 1 1 1 1 General Freight 4218 Owner-operator, individual Collar Services, Inc. Mr. John Gouker Owner Operator 2012408546 2622 SW 47th Ter Cape Coral FL 33914-6186 1 1 1 1 1 General Freight 4218 Owner-operator, individual E G M Trucking Inc. Sergio Garrido Owner Operator 2012419264 40 Jones St Jersey City NJ 07306-3152 1 1 1 Garbage, Refuse, Trash 4218 Owner-operator, individual Thais Transport Corp. Mr. Thais V Vargas Owner Operator 2012450100 thaisv05@gmail.com 8622387094 44 S Main St Lodi NJ 07644-2220 1 1 1 Aggregate 4218 Owner-operator, individual Ilhan Demir Ilhan Demir Owner Operator 2012455234 254 Union Ave Clifton NJ 07011-3216 1 1 1 1 1 General Freight 4218 Owner-operator, individual Cesar A Coronado Mr. Cesar A Coronado Owner Operator 2012456031 60 Clarke Ave Jersey City NJ 07304-1011 1 1 1 General Freight 4218 Owner-operator, individual E & B Leasing John Hippler Owner Operator 2012461306 hippler0591@aol.com 22 Bergen Ave Haskell NJ 07420-1002 1 1 1 General Freight 4218 Owner-operator, individual Joaquim Matias Mr. Joaquim Matias Owner Operator 2012461621 laritaraz@yahoo.com 146 Tappan St Kearny NJ 07032-3317 2 1 1 4218 Owner-operator, individual B Tushe Express LLC Mr. Banush Tushe Owner Operator 2012502465 banusht@yahoo.com 406 Semel Ave Garfield NJ 07026-2143 1 1 1 1 1 General Freight,Refrigerated Food 4218 Owner-operator, individual General Freight,Intermodal All Direct Logistics, Inc. Ms. Antoinett Gonzalez Owner Operator 2012539928 542 W Side Ave Jersey City NJ 07304-1518 1 1 1 4218 Owner-operator, individual Containers Suramp Trucking Corp. Mr. Miguel F Aguilar Owner Operator 2012563437 376 Duncan Ave Jersey City NJ 07306-6724 1 1 1 General Freight 4218 Owner-operator, individual BG Prenku, LLC Mr. Genc Prenku Owner Operator 2012567701 genc169@gmai.com 41 Dulles Dr Dumont NJ 07628-3605 1 1 1 1 General Freight 4218 Owner-operator, individual Bilvons Autos & Transport Services Ms. Yvonne Lamptey Owner Operator 2012578347 92 Railroad Ave Hasbrouck Heights NJ 07604-2887 1 1 1 1 1 General Freight 4218 Owner-operator, individual LLC Woodnrose Trucking Limited Mr. Robert Mohr Owner Operator 2012613488 39 Century Rd Paramus NJ 7652 1 1 1 General Freight 4218 Owner-operator, individual Liability Co. KM2 Specialized Transport, Inc. Ms. Karen I Mattes Owner Operator 2012614464 km2spectransinc@gmail.com 33A 7th Ave Westwood NJ 07675-2034 1 1 1 General Freight 4218 Owner-operator, individual Juarez Enterprises LLC Mr. Victor Juarez Owner Operator 2012707476 2012549270 49 Grove St Elmwood Park NJ 07407-2104 1 1 1 1 1 General Freight 4218 Owner-operator, individual 2010 Straight Shot Transportation LLC Mr. Sam Myrtil Owner Operator 2012733378 1941 NW 12th Ave Fort Lauderdale FL 33311-3654 1 1 1 1 1 General Freight 4218 Owner-operator, individual Victor Linton Trucking Mr. Victor Linton Owner Operator 2012759693 291 Union St Jersey City NJ 07304-1513 1 1 1 Intermodal Containers 4218 Owner-operator, individual S Malatesta & Sons Mr. Paul Malatesta President 2012791500 malsons@yahoo.com 2012791500 61-65 Illinois Ave Paterson NJ 7503 1 1 1 1 Household Goods 4218 Owner-operator, individual 1957 Safe Freight Express LLC Mr. Daniel Diaz-Vargas Owner Operator 2012793295 rredimido@yahoo.com 231 Ripley Pl Elizabeth NJ 07206-2103 4 1 1 General Freight 4218 Owner-operator, individual GEL Xpress LLC Mr. Geosvany Esquijarosa Owner Operator 2012798651 48 Grant Ave Kearny NJ 07032-1118 2 1 1 General Freight 4218 Owner-operator, individual Soprano Trucking, LLC Luan Caka Owner Operator 2012810807 153 Wheaton Pl Rutherford NJ 07070-2723 1 1 1 General Freight 4218 Owner-operator, individual Hazel Transportation, Inc. Mr. Celal Kiziltan Owner Operator 2012816412 2500 Rachel Ter Pine Brook NJ 07058-9369 1 1 1 1 1 General Freight 4218 Owner-operator, individual General Freight,Intermodal Highlane Cargo LLC Randolph Smith Owner Operator 2012818827 8882488796 85 Morgan St Bergenfield NJ 07621-3517 1 1 1 4218 Owner-operator, individual Containers,Paper Products Orellana- Ramon Orellana-Maldonado Ramon Owner Operator 2012827689 556 56th St West New York NJ 07093-1235 1 1 1 General Freight 4218 Owner-operator, individual Maldonado susana@truckerspermitting.c Pichy Transport LLC Aliosha Pichel Owner Operator 2012827791 6009 Hudson Ave West New York NJ 07093-5853 1 1 1 General Freight 4218 Owner-operator, individual om JJDM Trucking Corp. Mr. Joery Martinez Owner Operator 2012828025 621 Summit Ave Union City NJ 07087-3422 1 1 General Freight 4218 Owner-operator, individual Maneli Trucking LLC Ms. Tatjana Bogdanovski Owner Operator 2012829456 lazebagdanovski@yahoo.com 256 Oakwood Dr Paramus NJ 07652-3315 2 1 1 General Freight 4218 Owner-operator, individual DEFAPPX0007 1 PageID 870 EXHIBIT A-2 DEFAPPX0008 1 PageID 871 DEFAPPX0009 1 PageID 872 EXHIBIT A-3 DEFAPPX0010 1 PageID 873 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 · ·1· · · · · · ·IN THE UNITED STATES DISTRICT COURT ·2· · · · · · ·FOR THE MIDDLE DISTRICT OF FLORIDA ·3· · · · · · · · · · · ·TAMPA DIVISION ·4· · · · · · · · · · · · · ·--o0o-- ·5 ·6· ·John Northrup, Individually and·) · · ·on behalf of a Class of Similarly) ·7· ·Situated Individuals,· · · · · ·) · · · · · · · · · · · · · · · · · · ·) ·8· · · · · · · · · Plaintiff,· · · ·) · · · · · · · · · · · · · · · · · · ·) ·9· · · · · · · vs.· · · · · · · · · ·) No. 8:17-cv-01890-CEH · · · · · · · · · · · · · · · · · · ·) 10· ·Innovative Health Insurance· · ·) · · ·Partners, LLC, CyberX Group, LLC,) 11· ·David E. Lindsey; and Independent) · · ·Truckers Group, Inc.,· · · · · ·) 12· · · · · · · · · · · · · · · · · ·) · · · · · · · · · · ·Defendants.· · ·) 13· ·________________________________) 14 15 16 17· · · · · · · · · · · · DEPOSITION OF 18· · · · · · · · · · · · CHRIS PEARSON 19· · · · · · · ________________________________ · · · · · · · · · · · · ·March 11, 2019 20 21 22 23 24· ·REPORTED BY BRANDON D. COMBS 25· ·RPR, TEXAS CSR 10927, CALIFORNIA CSR 12978 www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0011 1 PageID 874 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 2..5 Page 2 Page 4 ·1· · · · · · · · · · · · · INDEX ·1· ·Exhibit 11· ·Programmable SMS Logs· · · · · · · · 55 ·2· · · · · · · · · · · · · · · · · · · · · · · · · · Page ·2 ·3· ·Examination by MR. LEHRMAN· · · · · · · · · · · · · 7 ·3· ·Exhibit 12· ·Programmable SMS Logs· · · · · · · · 55 ·4· ·Examination by MR. RICHMOND· · · · · · · · · · · · 90 ·4 ·5· ·Further Examination by MR. LEHRMAN· · · · · · · · ·98 ·5· ·Exhibit 13· ·Spreadsheet· · · · · · · · · · · · · 65 ·6· ·Further Examination by MR. RICHMOND· · · · · · · ·102 ·6 ·7 ·7· ·Exhibit 14· ·Spreadsheet· · · · · · · · · · · · · 69 ·8· · · · · · · · · · · · --o0o-- ·8 ·9 ·9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 Page 3 Page 5 ·1· · · · · · · · · · · · · EXHIBITS ·1· · · · · · ·IN THE UNITED STATES DISTRICT COURT ·2 ·2· · · · · · ·FOR THE MIDDLE DISTRICT OF FLORIDA ·3· · · · · · · · · · · ·TAMPA DIVISION ·3· ·Number· · · · · · · · Description· · · · · · · · · ·Page ·4· · · · · · · · · · · · · ·--o0o-- ·4 ·5 ·5· ·Exhibit 1· · Notice of Deposition· · · · · · · · · 7 ·6· ·JOHN NORTHRUP, Individually and·) · · ·on behalf of a Class of Similarly) ·6 ·7· ·Situated Individuals,· · · · · ·) ·7· ·Exhibit 2· · Leads Details· · · · · · · · · · · · ·9 · · · · · · · · · · · · · · · · · · ·) ·8 ·8· · · · · · · · · Plaintiff,· · · ·) ·9· ·Exhibit 3· · Auto Dialer, Contact Name:· · · · · ·12 · · · · · · · · · · · · · · · · · · ·) ·9· · · · · · · vs.· · · · · · · · · ·) No. 8:17-cv-01890-CEH 10· · · · · · · · John Northrup · · · · · · · · · · · · · · · · · · ·) 11 10· ·Innovative Health Insurance· · ·) 12· ·Exhibit 4· · Welcome, MyHealthPass ADMIN· · · · · 13 · · ·Partners, LLC, CyberX Group, LLC,) 13 11· ·David E. Lindsey; and Independent) · · ·Truckers Group, Inc.,· · · · · ·) 14· ·Exhibit 5· · Twilio Acceptable Use Policy· · · · ·17 12· · · · · · · · · · · · · · · · · ·) 15 · · · · · · · · · · Defendants.· · · ·) 16· ·Exhibit 6· · Cyberxgroup.com, AWIS Admin,· · · · ·40 13· ·________________________________) 14 17· · · · · · · · Welcome, Elissa Still 15· · · · · · · · · · · · · --oOo-- 18 16· · · · · · ·BE IT REMEMBERED THAT on Monday, March 11, 19· ·Exhibit 7· · SMS Broadcaster· · · · · · · · · · · 40 17· ·2019, commencing at 1:04 P.M. thereof, at 20 18· ·1201 North Riverfront Boulevard, Suite 150, Dallas, 19· ·Texas, before me, BRANDON D. COMBS, a Certified 21· ·Exhibit 8· · Declaration of Christopher Pearson· ·43 20· ·Shorthand Reporter, personally appeared 22 21· · · · · · · · · · · ·CHRIS PEARSON, 23· ·Exhibit 9· · Programmable SMS Logs· · · · · · · · 52 22· ·called as a witness by the Plaintiff, being first duly 24 23· ·sworn, testified as follows: 24· · · · · · · · · · · · · ·--o0o-- 25· ·Exhibit 10· ·Programmable SMS Logs· · · · · · · · 52 25 www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0012 YVer1f 1 PageID 875 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 6..9 Page 6 Page 8 ·1· · · · · · ·EDWARDS POTTINGER, LLC, 425 North Andrews ·1· ·to testify as to the topics in this deposition notice; ·2· ·Avenue, Suite 2, Fort Lauderdale, FL 33301, represented ·2· ·is that right? ·3· ·by SETH M. LEHRMAN, Attorney at Law, appeared as counsel ·3· · · · A.· ·That's correct. ·4· ·on behalf of the Plaintiff. ·4· · · · Q.· ·And for purposes of today's deposition, if I ·5· · · · · · ·Phone: 954-524-2820 ·5· ·refer to CyberX Group, LLC as CyberX, will that be · · · · · · · ·Email: seth@epllc.com ·6· ·clear? ·6 ·7· · · · A.· ·It's fine, yes. ·7 ·8· · · · · · ·PLATT CHEEMA RICHMOND, PLLC, ·8· · · · Q.· ·And, sir, I see there are topics starting at ·9· ·1201 North Riverfront Boulevard, Suite 150, Dallas, ·9· ·the bottom of page 1, continuing to towards the bottom 10· ·TX 75207, represented by WILLIAM S. RICHMOND, Attorney 10· ·of page 2, eight topics.· You've been designated as to 11· ·at Law, appeared as counsel on behalf of the Defendants. 11· ·all of those topics; correct? 12· · · · · · ·Phone: 214-559-2700 12· · · · A.· ·Correct. · · · · · · · ·Email: brichmond@pcrfirm.com 13· · · · Q.· ·And Mr. Pearson, can you tell us, what's your 13 14· ·position, if any, with CyberX? 14 15· · · · A.· ·I am a cofounder of CyberX, and also 15· · · · · · ·ALSO PRESENT:· Elissa Still 16· ·president as well. 16 17· · · · Q.· ·When did you cofound CyberX? 17· · · · · · · · · · · · · ·--o0o-- 18· · · · A.· ·I believe it was 2016. 18 19· · · · Q.· ·And did CyberX begin operations in 2016? 19 20 20· · · · A.· ·Yes. 21 21· · · · Q.· ·And what is CyberX's business? 22 22· · · · A.· ·We create custom software solutions. 23 23· · · · Q.· ·You've produced, or CyberX has provided us 24 24· ·with some screen shots of software that appears to have 25 25· ·the CyberX name on that; is that right? Page 7 Page 9 ·1 ·1· · · · A.· ·Yes. ·2· · · · · · · · · · · · ·EXAMINATION ·2· · · · Q.· ·Is that one of the software solutions that ·3 ·3· ·CyberX has developed? ·4· ·BY MR. LEHRMAN: ·4· · · · A.· ·Yes. ·5· · · · Q.· ·Good afternoon, sir.· My name is Seth ·5· · · · Q.· ·And what is that software? ·6· ·Lehrman.· I'm an attorney, along with Cory Fein, who ·6· · · · A.· ·That's a CRM, at high level would be a CRM ·7· ·you heard briefly say hello.· We're here to take a ·7· ·system. ·8· ·deposition today of CyberX Group, LLC. ·8· · · · Q.· ·What is the specific CRM system that CyberX ·9· · · · · · ·Can you tell us your name, please. ·9· ·developed that's shown or depicted in those screen 10· · · · A.· ·Chris Pearson. 10· ·prints that have been produced in discovery? 11· · · · Q.· ·And Mr. Pearson, you've been designated by 11· · · · A.· ·That particular screen shot shows the 12· ·CyberX Group, LLC to testify on its behalf today? 12· ·tracking and -- of any activity that occurs with any 13· · · · A.· ·Yes. 13· ·communications that go on from within our system. 14· · · · · · ·(Whereupon, Exhibit 1 was marked for 14· · · · Q.· ·When you say our system, I want to identify, 15· · · · · · ·identification.) 15· ·what's the title of the software, the name of the CRM 16· ·BY MR. LEHRMAN: 16· ·that's identified in those screen prints? 17· · · · Q.· ·So, sir, I'm handing you, and a copy to your 17· · · · A.· ·Do you mind asking that a different way, see 18· ·counsel, what's been marked as Plaintiff Exhibit 1. 18· ·what you're looking for. 19· ·I'll read in the title, Revised Notice of Deposition of 19· · · · Q.· ·Sure.· And we'll -- we'll mark -- 20· ·Defendant CyberX Group, LLC under Rule 30(b)(6). 20· · · · · · ·You mind? 21· · · · · · ·Do you see this document? 21· · · · · · ·THE REPORTER:· Go ahead. 22· · · · A.· ·Yes, I do. 22· · · · · · ·(Whereupon, Exhibit 2 was marked for 23· · · · Q.· ·Have you seen this document before? 23· · · · · · ·identification.) 24· · · · A.· ·Yes, I have. 24· ·BY MR. LEHRMAN: 25· · · · Q.· ·You've been designated by CyberX Group, LLC 25· · · · Q.· ·I'm handing you what's been marked as www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0013 YVer1f 1 PageID 876 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 18..21 Page 18 Page 20 ·1· · · · · · ·Counsel, I'm sorry, I only have one copy of ·1· ·I'll assume that you've understood my question; is that ·2· ·this. ·2· ·fair? ·3· · · · · · ·Mr. Pearson, this is the document that says ·3· · · · A.· ·Yes. ·4· ·Twilio acceptable use policy; is that right? ·4· · · · Q.· ·Also, because today's deposition is a ·5· · · · A.· ·Yes. ·5· ·Rule 30(b)(6) deposition of CyberX, and you're ·6· · · · Q.· ·And that's one of the documents you ·6· ·testifying on behalf of CyberX, I may say during the ·7· ·identified earlier as being one that you reviewed in ·7· ·deposition, I probably will, "you."· And when I say ·8· ·preparing for today's deposition? ·8· ·"you" during today's deposition, I mean CyberX. ·9· · · · A.· ·Yes. ·9· · · · · · ·Is that clear? 10· · · · Q.· ·So you've indicated that the CyberX admin 10· · · · A.· ·Understood. 11· ·portal is used by executives and managers exclusively 11· · · · Q.· ·Now, at other times I may ask you, 12· ·and not customers; right? 12· ·Mr. Pearson, what you personally know, or what you 13· · · · A.· ·Yes. 13· ·personally did.· And if I mean to inquire of you in 14· · · · Q.· ·And that software was the only CyberX 14· ·your individual capacity, then I'll clarify that. 15· ·software that was used in sending the text messages 15· · · · · · ·Is that clear? 16· ·that are the subject of this lawsuit; right? 16· · · · A.· ·Yes. 17· · · · A.· ·Yes. 17· · · · Q.· ·By the way, the last thing is I'm, I 18· · · · Q.· ·And so was it -- were CyberX executives or 18· ·apologize in advance, I'm kind of excitable.· I don't 19· ·managers involved in sending the text messages? 19· ·mean to cut you off; certainly Mr. Richmond will not 20· · · · A.· ·Yes.· And if it's okay for me to expand on 20· ·allow me to cut you off. 21· ·that.· At the time when this occurred, I was the only 21· · · · · · ·But if you feel that I cut short your 22· ·one at that point in time, executive in management, 22· ·opportunity to fully answer a question, please let me 23· ·handling that. 23· ·know and I'll be happy to let you continue to answer. 24· · · · Q.· ·And that was when? 24· · · · · · ·All right? 25· · · · A.· ·That would have been back in June of -- 25· · · · A.· ·Understood. Page 19 Page 21 ·1· ·June 30, 2017. ·1· · · · Q.· ·So the time frame, you indicated, was back in ·2· · · · Q.· ·Mr. Pearson, have you testified before at any ·2· ·June 30, 2017.· At that time you were the only person ·3· ·type of deposition? ·3· ·at CyberX who had what responsibility that you were ·4· · · · A.· ·No. ·4· ·just describing? ·5· · · · Q.· ·Have you ever given testimony in court ·5· · · · A.· ·At that time the only -- yeah, I was the only ·6· ·before? ·6· ·person at that point in time that had responsibility to ·7· · · · A.· ·No. ·7· ·go in and execute anything that had to do with any ·8· · · · Q.· ·So let me, just to be clear, let me tell you ·8· ·marketing materials. ·9· ·what are kind of, I guess, the ground rules for today's ·9· · · · Q.· ·And that would include sending text messages? 10· ·deposition, if that's okay.· All right? 10· · · · A.· ·Yes. 11· · · · A.· ·Okay. 11· · · · Q.· ·And that included sending the text messages 12· · · · Q.· ·First off, you understand you've taken an 12· ·that are the subject of this lawsuit? 13· ·oath to tell the truth; right? 13· · · · · · ·MR. RICHMOND:· Lacks foundation, objection. 14· · · · A.· ·Yes. 14· ·Assumes facts not in evidence. 15· · · · Q.· ·And I'm here to ask you questions.· There's a 15· ·BY MR. LEHRMAN: 16· ·court reporter that's taking down everything that's 16· · · · Q.· ·That's correct? 17· ·said.· Once I ask the question and finish asking it, 17· · · · · · ·MR. RICHMOND:· You can answer, unless I 18· ·I'll ask you to think about it and give us an answer if 18· ·direct you not to answer.· Let me finish my objection, 19· ·you've understood the question; all right? 19· ·and then you can answer. 20· · · · A.· ·Okay. 20· · · · · · ·THE WITNESS:· Yes. 21· · · · Q.· ·If you don't understand my question, please 21· ·BY MR. LEHRMAN: 22· ·let me know, and I'm happy to rephrase it; is that all 22· · · · Q.· ·And the text messages that were -- are the 23· ·right? 23· ·subject of this lawsuit, were sent on what date? 24· · · · A.· ·Yes. 24· · · · A.· ·I believe, based on the reporting that's in, 25· · · · Q.· ·If I ask a question and you answer it, then 25· ·I'm looking at Exhibit 4 here, the initial text was www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0014 YVer1f 1 PageID 877 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 22..25 Page 22 Page 24 ·1· ·sent on 6/30/2017.· So June 30. ·1· ·these leads?· For example, was it a .CSV file, or some ·2· · · · Q.· ·Can you tell me, how is it that you ·2· ·other way produced? ·3· ·personally, Mr. Pearson, used the admin portal to send ·3· · · · A.· ·I don't remember specifically, but most ·4· ·the text messages that are the subject of this lawsuit? ·4· ·likely it would be a .CSV file, is the common file ·5· · · · A.· ·So it starts by me first uploading the leads ·5· ·standard for this. ·6· ·or data into our system.· It's a manual process of ·6· · · · Q.· ·Is CyberX's admin portal able to import or ·7· ·uploading the data, and then determining, based on the ·7· ·upload CSV files? ·8· ·data columns, the appropriate fields. ·8· · · · A.· ·Yes. ·9· · · · · · ·So, for example, basically I go through and I ·9· · · · Q.· ·Is it able to upload other formats of data? 10· ·look at, first name column is first name, phone number 10· · · · A.· ·I do not believe so. 11· ·is phone number. 11· · · · Q.· ·But in this instance CyberX was able to 12· · · · · · ·So once the data is uploaded into the system 12· ·upload a set of leads that were obtained from 13· ·and aligned, then the content of the message is added. 13· ·FleetSeek; is that right? 14· ·I manually click "send" to send to that list that I had 14· · · · A.· ·Correct. 15· ·just installed into the system. 15· · · · Q.· ·And you indicated earlier that that process 16· · · · Q.· ·After you clicked "send" to send the list 16· ·is done manually? 17· ·that was put into the system, then what? 17· · · · A.· ·Yes. 18· · · · A.· ·Then the system delivers the communications. 18· · · · Q.· ·What do you mean by that being a manual 19· ·We monitor the delivery of them.· You can imagine 19· ·process? 20· ·software sometimes has bugs, so we ensure that they're 20· · · · A.· ·I physically take the list, upload the list, 21· ·in fact gone through and sent out. 21· ·which allows the system to read the data, and at that 22· · · · Q.· ·Let me break that down step by step. 22· ·point in time I manually have to align the columns, the 23· · · · · · ·The first thing you indicated is that you 23· ·data columns. 24· ·upload leads or data into the system; right? 24· · · · Q.· ·When you say the system, are you referring to 25· · · · A.· ·Yes. 25· ·CyberX's admin portal or something else? Page 23 Page 25 ·1· · · · Q.· ·So what leads are you referring to?· Those ·1· · · · A.· ·Yes, CyberX's admin portal. ·2· ·leads I saw reference to, phone numbers that were ·2· · · · Q.· ·And when you refer to aligning the columns, ·3· ·obtained from FleetSeek, are those the leads you're ·3· ·do you mean that you have to map the columns in the ·4· ·referring to, or something else? ·4· ·FleetSeek data file to the columns that exist in the ·5· · · · A.· ·In this case, yes, the FleetSeek leads. ·5· ·admin portal? ·6· · · · Q.· ·So the text messages that were sent that are ·6· · · · A.· ·Yes, correct. ·7· ·the subject of this lawsuit, were those text messages ·7· · · · Q.· ·Meaning you want to match up the first name ·8· ·sent, all sent to phone numbers obtained from ·8· ·in the data file with the first name column in the ·9· ·FleetSeek? ·9· ·admin portal and so on? 10· · · · A.· ·Yes. 10· · · · A.· ·Yes, so our system can identify to know what 11· · · · Q.· ·And can you tell me, what is FleetSeek? 11· ·data is in that particular column. 12· · · · A.· ·I'm not familiar with FleetSeek, other than 12· · · · Q.· ·So that's what's manual in terms of the work 13· ·that they had supplied those leads.· So I believe that 13· ·that's done of bringing this data into the CyberX admin 14· ·they would be a lead vendor of some type, but I do not 14· ·portal; right? 15· ·know. 15· · · · A.· ·First step.· And then you click to upload the 16· · · · Q.· ·But CyberX purchased these leads from 16· ·data.· And then the next step is we do a review, or I 17· ·FleetSeek? 17· ·did a review of the data to determine the number that 18· · · · A.· ·No. 18· ·we had and if it had given any errors. 19· · · · Q.· ·How did CyberX acquire these leads? 19· · · · Q.· ·And CyberX did that, everything you just 20· · · · A.· ·They were provided to me. 20· ·described, with respect to obtaining these leads from 21· · · · Q.· ·When you say provided to you, to you 21· ·FleetSeek; right? 22· ·personally or to CyberX or -- 22· · · · A.· ·Yes, I did that. 23· · · · A.· ·To CyberX, but I was the recipient of them, 23· · · · Q.· ·You personally did that on behalf of CyberX? 24· ·yes. 24· · · · A.· ·Yes. 25· · · · Q.· ·What was the format in which CyberX received 25· · · · Q.· ·And once you did this, this lead data from www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0015 YVer1f 1 PageID 878 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 26..29 Page 26 Page 28 ·1· ·FleetSeek was saved in the CyberX admin portal; ·1· ·time. ·2· ·correct? ·2· · · · · · ·So once we upload the list, that's also part ·3· · · · A.· ·Yes. ·3· ·of that manual process before we save that data. ·4· · · · Q.· ·And that data that was saved in the admin ·4· ·Finalize it, and has to be given a name, which is in ·5· ·portal included telephone numbers for these various ·5· ·this case the tag. ·6· ·leads? ·6· · · · Q.· ·So this tag is a unique identifier for an ·7· · · · A.· ·Yes. ·7· ·entire list? ·8· · · · Q.· ·You identified the next step in the process ·8· · · · A.· ·Correct. ·9· ·is adding content of a message; right? ·9· · · · Q.· ·And in this instance, the tag 3KITG630, was 10· · · · A.· ·Yes. 10· ·that the tag that identified the list of FleetSeek 11· · · · Q.· ·And when you say message, you're referring to 11· ·leads? 12· ·text message or something else? 12· · · · A.· ·Yes, and this tag was created by myself. 13· · · · A.· ·Yes, the actual text content that will go out 13· · · · Q.· ·And when you, on behalf of CyberX, entered 14· ·in the text message itself. 14· ·the text message into the text box in the admin portal, 15· · · · Q.· ·And can you describe how that works, how 15· ·were you able to apply that text message to the entire 16· ·CyberX goes about adding content for a text message 16· ·group of leads with that same tag? 17· ·into its admin portal? 17· · · · A.· ·Yes. 18· · · · A.· ·We have a simple text box and we copy and 18· · · · Q.· ·In other words, you didn't have to manually 19· ·paste, or type the words in. 19· ·type the text message into a text box for each 20· · · · Q.· ·Did you personally enter the text for the 20· ·individual record? 21· ·text message into this text box in the admin portal? 21· · · · A.· ·That is correct. 22· · · · A.· ·Yes, I did. 22· · · · Q.· ·And now, you indicated the next step in the 23· · · · Q.· ·And do you have to manually enter that text 23· ·process is that CyberX clicks "send" to cause all the 24· ·into each one of the records, or is there some other 24· ·text messages to be sent to the -- everyone in the 25· ·process? 25· ·list; is that right? Page 27 Page 29 ·1· · · · A.· ·It's a different process for each one. ·1· · · · A.· ·Correct. ·2· · · · Q.· ·What's that process? ·2· · · · Q.· ·Is there a document that you've identified in ·3· · · · A.· ·So those contents that I was talking about, ·3· ·terms of the screen shot documents, that shows that ·4· ·that upload process, we then put a tag, if I refer to ·4· ·send button? ·5· ·Exhibit 3, you can see below there's a tag, which is a ·5· · · · A.· ·Not any of these screen shots, no. ·6· ·unique identifier. ·6· · · · Q.· ·Is that a button that exists in the admin ·7· · · · · · ·That unique identifier, we tag to the actual ·7· ·portal or somewhere else? ·8· ·content so that when we deliver the message, any lead ·8· · · · A.· ·In the admin portal. ·9· ·in that particular tag will be sent those contents. ·9· · · · Q.· ·Is there a document that you've identified, 10· · · · Q.· ·So I'm looking at Exhibit 3, the very bottom 10· ·one of these screen shot documents, that shows us how 11· ·of the page where it says Tag 3K -- can't read the 11· ·one would navigate to that part of the admin portal in 12· ·rest, 3KITG630? 12· ·order to click the send button? 13· · · · A.· ·Yes. 13· · · · A.· ·Not in these documents, no. 14· · · · Q.· ·That tag identifies a specific text message 14· · · · Q.· ·Can you describe, meaning can CyberX describe 15· ·template; is that fair to say? 15· ·for us, where in the admin portal one would access this 16· · · · A.· ·It identifies the particular list that 16· ·send button? 17· ·that -- this, in this case, that lead was in.· Maybe a 17· · · · A.· ·Yes.· We have a feature called global 18· ·better way to put it is it groups them together. 18· ·communications.· Under global communications is where 19· · · · Q.· ·You say groups them together, meaning a group 19· ·this is housed. 20· ·of these content records? 20· · · · Q.· ·So I refer you, bring your attention to 21· · · · A.· ·I'm not sure the best way to handle this.· If 21· ·Plaintiff Exhibit 4, which is another view of a lead 22· ·you go back to a previous thing that you stated. 22· ·detail page? 23· · · · · · ·The list that we talked about uploading, at 23· · · · A.· ·Yes. 24· ·the time that we upload, I create a name, which is the 24· · · · Q.· ·And in the left-hand side of the page, I 25· ·unique -- the tag or the unique identifier, at that 25· ·think you referred to that earlier as something related www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0016 YVer1f 1 PageID 879 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 30..33 Page 30 Page 32 ·1· ·to navigation? ·1· ·what we call SMS manager. ·2· · · · A.· ·Yes.· Call this our left-hand navigation, or ·2· · · · Q.· ·And this SMS manager screen, this existed ·3· ·left panel navigation is also commonly referred to. ·3· ·back in June 30, 2017? ·4· · · · Q.· ·Towards the bottom of the left-hand ·4· · · · A.· ·Yes. ·5· ·navigation, there's an option that says global ·5· · · · Q.· ·And is that what CyberX used in order to hit ·6· ·communications? ·6· ·"send" and send the text messages that are the subject ·7· · · · A.· ·Correct. ·7· ·of this lawsuit? ·8· · · · Q.· ·Is that the global communications option that ·8· · · · A.· ·Yes. ·9· ·you identified earlier? ·9· · · · Q.· ·And can you describe, then, the operation of 10· · · · A.· ·Yes.· And then there's what's called a 10· ·the SMS manager screen? 11· ·sublink under that in this particular screen shot 11· · · · A.· ·Yes.· So that's actually the same screen that 12· ·that's cut off.· But if it had not been cut off, there 12· ·contains the button for uploading the leads that we had 13· ·is -- below there is where it would read, SMS or 13· ·discussed earlier. 14· ·text message. 14· · · · · · ·So once the leads are there, that's where the 15· · · · Q.· ·So email is a sublink to global 15· ·text box you select -- so you check off and select to 16· ·communications? 16· ·manage that list, which contains the text box for 17· · · · A.· ·Yes. 17· ·adding the contents for the text communication itself. 18· · · · Q.· ·And below email is another sublink that's not 18· · · · Q.· ·So one function that's available in the SMS 19· ·visible on Exhibit 4, and that refers to SMS or 19· ·manager screen is to upload leads through that screen; 20· ·text messages; is that right? 20· ·right? 21· · · · A.· ·Yes.· There may also be a couple of other 21· · · · A.· ·Yes. 22· ·methods I'm not recalling right now, so I don't know 22· · · · Q.· ·Another option is to then manage that list 23· ·that SMS is the next direct one below there.· But it 23· ·that's been uploaded through that screen; correct? 24· ·will be underneath that global communications. 24· · · · A.· ·Yes. 25· · · · Q.· ·So there may be other sublinks -- 25· · · · Q.· ·Another available function is this is where, Page 31 Page 33 ·1· · · · A.· ·Yes. ·1· ·the SMS manager screen, is where the text box is ·2· · · · Q.· ·-- under global communications, but amongst ·2· ·located to enter the text message or body of the ·3· ·those is one for SMS or text messages? ·3· ·message; right? ·4· · · · A.· ·Correct. ·4· · · · A.· ·Correct. ·5· · · · Q.· ·And by the way, one other thing I'll say ·5· · · · Q.· ·And I think you've indicated the send text ·6· ·about ground rules, is that -- because you were ·6· ·message button is also located on this SMS manager ·7· ·"yesing" while I was asking a question, which I ·7· ·screen; right? ·8· ·understand. ·8· · · · A.· ·Yes. ·9· · · · · · ·But when we get the transcript back, we want ·9· · · · Q.· ·Are there any other functions available on 10· ·to make sure that we both understand what the 10· ·the SMS manager screen other than the ones that you've 11· ·transcript says.· So what I forgot to tell you earlier 11· ·described? 12· ·is that, please wait for me to complete my question 12· · · · A.· ·Yes. 13· ·before you give an answer. 13· · · · Q.· ·Are there any functions that are related to 14· · · · · · ·Likewise, I'll do the same.· I'll wait for 14· ·the sending of text messages? 15· ·your answer to be complete before I ask the next 15· · · · A.· ·Yes. 16· ·question.· That way we'll have a clear transcript; 16· · · · Q.· ·And what are those? 17· ·okay? 17· · · · A.· ·It would be what we call dynamic tags. 18· · · · A.· ·Understood. 18· · · · Q.· ·Any other functions on the SMS manager screen 19· · · · Q.· ·Okay.· Thank you, sir. 19· ·involved in sending text messages? 20· · · · · · ·So if CyberX executive or manager selects the 20· · · · A.· ·Not that I recall. 21· ·SMS or text message sublink under global 21· · · · Q.· ·So you just mentioned dynamic tags.· What are 22· ·communications, then where does that take one within 22· ·dynamic tags? 23· ·the admin portal? 23· · · · A.· ·So if I were to put a dynamic tag in there 24· · · · A.· ·To a new screen.· I should say different 24· ·that says first name, it will personalize that when the 25· ·screen.· It's a different screen where we have our, 25· ·text is sent. www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0017 YVer1f 1 PageID 880 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 34..37 Page 34 Page 36 ·1· · · · Q.· ·So in other words, it will, that dynamic tag ·1· ·contact.· Does that help clarify? ·2· ·first name, in the example you've given, will cause the ·2· · · · Q.· ·Yes, sir, thank you.· So looking at this ·3· ·admin portal to go grab the first name of a record from ·3· ·activity feed, the bottom record states, lead imported ·4· ·the list and insert that first name into the ·4· ·from admin, the date of June 30, 2017, at 11:20 A.M. ·5· ·text message; is that right? ·5· ·EST? ·6· · · · A.· ·Correct. ·6· · · · A.· ·Correct. ·7· · · · Q.· ·And were dynamic tags used in connection with ·7· · · · Q.· ·And below that it notes that you, Chris ·8· ·the text messages that were sent that are the subject ·8· ·Pearson, are the -- identified as admin name; right? ·9· ·of this lawsuit? ·9· · · · A.· ·Yes. 10· · · · A.· ·I don't recall.· In looking at Exhibit 4, in 10· · · · Q.· ·And this is consistent with CyberX's 11· ·the contents of the message, I do not believe that any 11· ·testimony that you were the person who was -- who had 12· ·dynamic tags would have been used in this message. 12· ·imported the FleetSeek leads into the admin portal; 13· · · · Q.· ·And so when you're looking at Exhibit 4, can 13· ·right? 14· ·you direct us to where you're looking for the content 14· · · · A.· ·Yes. 15· ·of the message? 15· · · · Q.· ·So am I correct in understanding that this 16· · · · A.· ·Yeah, I'm looking at this one right here, 16· ·record I just read from indicates that CyberX uploaded 17· ·second from the bottom.· That's the actual message 17· ·the FleetSeek leads on June 30, 2017, at approximately 18· ·there, that was sent. 18· ·11:20 A.M. EST? 19· · · · Q.· ·The one that starts, hate the price of 19· · · · A.· ·Yes. 20· ·Obamacare, question mark? 20· · · · Q.· ·And amongst those leads was the lead for the 21· · · · A.· ·Correct. 21· ·plaintiff in this case, John Northrup; is that right? 22· · · · Q.· ·So, this area of this lead detail page that 22· · · · A.· ·Yes. 23· ·you I are both reading from, there's one, two, three, 23· · · · Q.· ·And then the record above that in the 24· ·four records or notes or whatever that are listed 24· ·activity feed, also had the same date, June 30, 2017, 25· ·there.· What does CyberX refer to this area of the lead 25· ·at 2:36 P.M. EST; right? Page 35 Page 37 ·1· ·detail page as? ·1· · · · A.· ·Yes. ·2· · · · A.· ·This would be the activity feed. ·2· · · · Q.· ·That's the record that you identified ·3· · · · Q.· ·What kind of activity is displayed in this ·3· ·indicates the text message that was sent specifically ·4· ·activity feed? ·4· ·to this particular lead; right? ·5· · · · A.· ·Basically any action that occurs, related to ·5· · · · A.· ·Yes. ·6· ·this lead. ·6· · · · Q.· ·And this particular lead is John Northrup; ·7· · · · Q.· ·And so the activity would feed -- shown in ·7· ·right? ·8· ·the admin portal, or on the lead detail page of an ·8· · · · A.· ·Yes. ·9· ·admin portal, will show outbound text messages sent to ·9· · · · Q.· ·So when we refer to Exhibit 4 as a lead 10· ·that particular lead? 10· ·detail page, in this instance Exhibit 4 is a lead 11· · · · A.· ·Yes. 11· ·detail page for the John Northrup lead? 12· · · · Q.· ·Will it also reflect inbound text messages 12· · · · A.· ·Yes. 13· ·received from that same lead? 13· · · · Q.· ·And the second record from the bottom in the 14· · · · A.· ·Yes. 14· ·activity feed is indicating that the text message that 15· · · · Q.· ·What other types of actions related to the 15· ·CyberX caused to be sent to Mr. Northrup was sent on 16· ·leads would be displayed in the activity feed? 16· ·June 30, 2017 at 2:36 P.M. EST; right? 17· · · · A.· ·If there was the initial upload, so when the 17· · · · A.· ·Yes. 18· ·first upload had occurred, it's stored there, as well 18· · · · Q.· ·Now, before the date it says smartE, if I'm 19· ·as if there's any status change. 19· ·reading that correctly? 20· · · · Q.· ·Anything else? 20· · · · A.· ·Yes. 21· · · · A.· ·Not that I can recall right now. 21· · · · Q.· ·What does that refer to? 22· · · · Q.· ·When you say status, what are you referring 22· · · · A.· ·That's how we refer to our system itself.· So 23· ·to? 23· ·to clarify that further, so that was a brand-new piece 24· · · · A.· ·In this example, there was a reply with stop, 24· ·at that point in time that we were playing with, which 25· ·so they automatically move into our status of do not 25· ·would apportion.· That would be our smart system. www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0018 YVer1f 1 PageID 881 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 38..41 Page 38 Page 40 ·1· · · · Q.· ·Does that mean that CyberX was referring to ·1· · · · · · ·(Recess taken.) ·2· ·its admin portal as smartE, or something else as ·2· ·BY MR. LEHRMAN: ·3· ·smartE? ·3· · · · Q.· ·Mr. Pearson, handing you what's been marked ·4· · · · A.· ·No, something else. ·4· ·as Plaintiff Exhibit 6, and hand you what's been marked ·5· · · · Q.· ·And what is it specifically that CyberX was ·5· ·Plaintiff Exhibit 7. ·6· ·referring to as smartE? ·6· · · · · · ·(Whereupon, Exhibits 6 & 7 were marked for ·7· · · · A.· ·So that's part of our proprietary systems, ·7· · · · · · ·identification.) ·8· ·that we had built, that manages, and after sending the ·8· ·BY MR. LEHRMAN: ·9· ·actual text message itself. ·9· · · · Q.· ·Starting with Plaintiff Exhibit 6, do you 10· · · · Q.· ·Now, CyberX indicated that after it hits the 10· ·recognize this?· Can you tell us what it is? 11· ·send button in the SMS manager screen, then the system 11· · · · A.· ·Yes. 12· ·delivers the communications; right? 12· · · · Q.· ·What is it? 13· · · · A.· ·Yes. 13· · · · A.· ·This is what we alluded to, referred to 14· · · · Q.· ·I just want to back up for one question. 14· ·before as the SMS manager, where the selection or 15· · · · · · ·There is a send button in the SMS manager 15· ·identification of a list occurs, status and composing 16· ·screen; is that right? 16· ·of the text message itself.· The available tags below 17· · · · A.· ·Yes. 17· ·is that dynamic portion I referenced as well. 18· · · · Q.· ·And the purpose of that button, the purpose 18· · · · Q.· ·And there's that send button you had 19· ·of that button is that -- in other words, once CyberX 19· ·described earlier; right? 20· ·executive or manager hits that send button in the SMS 20· · · · A.· ·Yes. 21· ·manager screen, the purpose of that button is to cause 21· · · · Q.· ·That's also shown on Exhibit 6; right? 22· ·the CRM to send the text messages that have been 22· · · · A.· ·Yes. 23· ·selected; is that right? 23· · · · Q.· ·And Plaintiff Exhibit 7, can you tell us what 24· · · · A.· ·Yes. 24· ·that is? 25· · · · Q.· ·Now, so far everything that CyberX has 25· · · · A.· ·I believe it's the same thing.· The only Page 39 Page 41 ·1· ·testified about, from uploading the leads to adding the ·1· ·difference is, again, pointing out the communication or ·2· ·content for the text messages to clicking "send" from ·2· ·the left-hand panel over there is expanded out. ·3· ·the SMS manager screen, these are all things that take ·3· · · · · · ·So Exhibit 7 is not expanded out under global ·4· ·place within the CyberX admin portal; right? ·4· ·communications; Exhibit 6 is expanded out.· That's the ·5· · · · A.· ·Yes. ·5· ·only difference I see. ·6· · · · Q.· ·And CyberX is indicating that once the send ·6· · · · · · ·MR. RICHMOND:· Counsel, the only other ·7· ·button in the SMS manager screen is selected, then the ·7· ·difference that was intended here was if you had ·8· ·system causes the text messages to be sent. ·8· ·scrolled all the way down to the bottom. ·9· · · · · · ·How does the system go about causing those ·9· · · · · · ·So you can see Exhibit 6 is as far down as you 10· ·text messages to be sent? 10· ·can get on this page.· Whereas, Exhibit 7 shows the two 11· · · · A.· ·So this is where Twilio comes into play.· So 11· ·tabs at the top, SMS home, and broadcaster, which is the 12· ·our system has what's called an API, between our system 12· ·name of the page that is shown in both 6 and 7. 13· ·and Twilio's.· So our system sends the content and the 13· · · · · · ·MR. LEHRMAN:· I appreciate that, Counsel, and 14· ·list of who to send to, to Twilio via this API.· API is 14· ·I appreciate CyberX's testimony in identifying these. 15· ·a secure way to pass data. 15· ·And I realize that printing things off of the screen, 16· · · · Q.· ·By the way, if you need to take a break, use 16· ·it's tough to display everything. 17· ·the restroom, stretch your legs, get some more water, 17· · · · · · ·So I appreciate everyone accommodating me in 18· ·please let me know.· We're happy to accommodate you; 18· ·producing these to us now.· This is helpful. 19· ·okay? 19· ·BY MR. LEHRMAN: 20· · · · A.· ·Thank you. 20· · · · Q.· ·Now, there's one feature on both 21· · · · · · ·MR. RICHMOND:· I'm going to make a request in 21· ·Plaintiff Exhibit 6 and 7, but we could use -- work 22· ·the next 10 minutes we take a bathroom break, not right 22· ·with Plaintiff Exhibit 6, just to be clear. 23· ·now. 23· · · · · · ·Kind of midway down the page, this option 24· · · · · · ·MR. LEHRMAN:· Why don't we do it right now. 24· ·where it says the scheduling option, is how I would 25· · · · · · ·Okay.· Go off the record, please. 25· ·think of it.· It says, would you like to send the SMS www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0019 YVer1f 1 PageID 882 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 42..45 Page 42 Page 44 ·1· ·broadcast now or set it for a future time. ·1· ·Plaintiff Exhibit 8.· And this is a court filing from ·2· · · · · · ·Do you see that? ·2· ·this case, Document 63-1.· Title is Declaration of ·3· · · · A.· ·Yes. ·3· ·Christopher Pearson in Support of Defendants' Motion ·4· · · · Q.· ·CyberX is familiar with that function; right? ·4· ·for Summary Judgment. ·5· · · · A.· ·Yes. ·5· · · · · · ·Do you see this? ·6· · · · Q.· ·And what is that function? ·6· · · · A.· ·Yes. ·7· · · · A.· ·Two things for clarification on that.· One is ·7· · · · Q.· ·You recognize this document? ·8· ·this is a newer feature, and I do not know for certain ·8· · · · A.· ·Yes. ·9· ·if this was a feature at the time that the previous ·9· · · · Q.· ·Second page bears your signature at the 10· ·ones were sent or not. 10· ·bottom; is that right? 11· · · · · · ·The purpose of this feature is to set a 11· · · · A.· ·Yes. 12· ·future date and time for the delivery of the messages. 12· · · · Q.· ·And this is a declaration that you signed in 13· · · · Q.· ·The text messages that are the subject of 13· ·connection with this lawsuit; right? 14· ·this lawsuit, were those ones that were sent 14· · · · A.· ·Yes. 15· ·immediately, scheduled to be sent at a later time, or 15· · · · Q.· ·"You" meaning, in this instance, you 16· ·some other? 16· ·personally, Christopher Pearson; right? 17· · · · A.· ·I believe I sent them immediately. 17· · · · A.· ·Yes. 18· · · · Q.· ·In other words, whether or not this feature 18· · · · Q.· ·Now, paragraph 2 of this declaration says, 19· ·existed in the admin portal to send text messages at a 19· ·CyberX caused the text message described by 20· ·future time, CyberX's recollection is they sent the 20· ·paragraphs 32 to 33 of the second amended complaint to 21· ·text messages that are the subject of this lawsuit, 21· ·be sent through the Twilio platform. 22· ·immediately; correct? 22· · · · · · ·You see that? 23· · · · A.· ·Yes. 23· · · · A.· ·Yes. 24· · · · Q.· ·Now, Plaintiff Exhibit 6, under recipients 24· · · · Q.· ·And just before we took the last break, I 25· ·where it says all members, and there's a number in 25· ·think that's when you were beginning to describe kind Page 43 Page 45 ·1· ·parentheses, 10,609. ·1· ·of the interaction or interplay between CyberX's admin ·2· · · · · · ·You see that? ·2· ·portal and Twilio; right? ·3· · · · A.· ·Yes. ·3· · · · A.· ·Yes. ·4· · · · Q.· ·Does that number indicate the number of ·4· · · · Q.· ·And is that what you're referring to ·5· ·records in the selected -- or number of leads in the ·5· ·generally in paragraph 2 of your declaration? ·6· ·selected list, or something else? ·6· · · · A.· ·Yes, I believe so. ·7· · · · A.· ·Yes. ·7· · · · Q.· ·Now, paragraph 3 of the declaration, in ·8· · · · Q.· ·Yes, the number of selected leads? ·8· ·Exhibit 8, says, Twilio platform is a web-based ·9· · · · A.· ·Selected leads. ·9· ·software platform that allows a user to direct the 10· · · · Q.· ·Again, to make sure I'm understanding this 10· ·Twilio platform to send text messages to specific phone 11· ·correctly, Plaintiff Exhibit 6 -- Plaintiff Exhibit 7, 11· ·numbers provided by the user. 12· ·we see this bold title that says SMS Broadcaster; 12· · · · · · ·You see that? 13· ·right? 13· · · · A.· ·Yes. 14· · · · A.· ·Yes. 14· · · · Q.· ·And in this instance user, when it comes to 15· · · · Q.· ·And then when I look at Plaintiff Exhibit 6 15· ·CyberX's use of Twilio, is CyberX the user you're 16· ·in the left-hand navigation, under global 16· ·referring to in paragraph 3 of your declaration in 17· ·communications, one of the suboptions is SMS; right? 17· ·Exhibit 8? 18· · · · A.· ·Yes. 18· · · · A.· ·Yes. 19· · · · Q.· ·Clicking SMS, does that bring it to the SMS 19· · · · Q.· ·Paragraph 4 of the declaration states, you, 20· ·broadcaster window? 20· ·Mr. Pearson, state, the Twilio platform did not 21· · · · A.· ·Yes. 21· ·generate the phone numbers for any of the text messages 22· · · · · · ·(Whereupon, Exhibit 8 was marked for 22· ·dispatched on June 30, 2017. 23· · · · · · ·identification.) 23· · · · · · ·You see that? 24· ·BY MR. LEHRMAN: 24· · · · A.· ·Yes. 25· · · · Q.· ·Handing you and counsel what's been marked as 25· · · · Q.· ·Now, CyberX caused the text message to be www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0020 YVer1f 1 PageID 883 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 46..49 Page 46 Page 48 ·1· ·sent to Mr. Northrup on June 30, 2017; right? ·1· ·different API? ·2· · · · A.· ·Yes. ·2· · · · A.· ·The one it was referring to in the earlier ·3· · · · Q.· ·And it caused the text messages to be sent to ·3· ·testimony. ·4· ·the other leads on that FleetSeek list, also on ·4· · · · Q.· ·And what does API stand for? ·5· ·June 30, 2017; right? ·5· · · · A.· ·I don't recall exactly.· I can describe to ·6· · · · A.· ·Yes. ·6· ·you what it is, which is an authentic secure process of ·7· · · · Q.· ·And Twilio, if I understand paragraph 4 ·7· ·passing data and commands back and forth between two ·8· ·directly -- if I understand paragraph 4 correctly. ·8· ·systems.· The connection of two systems. ·9· · · · · · ·Is it that what you, Mr. Pearson, were ·9· · · · Q.· ·So CyberX understands an API to be a means of 10· ·stating is that Twilio did not generate any of those, 10· ·passing data and commands between two systems; right? 11· ·meaning the FleetSeek numbers, to send the 11· · · · A.· ·Correct. 12· ·text messages on June 30, 2017? 12· · · · Q.· ·And when CyberX refers to two systems, does 13· · · · A.· ·Yes, that's correct. 13· ·it mean two software systems? 14· · · · Q.· ·Now, CyberX has already indicated through its 14· · · · A.· ·Yes. 15· ·earlier testimony today, that the admin portal 15· · · · Q.· ·Two applications? 16· ·generated those phone numbers for the transmission of 16· · · · A.· ·Could mean either in this. 17· ·the June 30, 2017, text messages; isn't that correct? 17· · · · Q.· ·And what specific information did CyberX, 18· · · · · · ·MR. RICHMOND:· Objection.· Calls for 18· ·through its admin portal, send to Twilio?· What data 19· ·speculation and legal opinion. 19· ·and commands did the CyberX send to Twilio in 20· · · · · · ·But you can answer. 20· ·connection with sending the text messages that are the 21· · · · · · ·THE WITNESS:· I don't believe that was 21· ·subject of this lawsuit? 22· ·correct or what was stated.· The numbers were provided 22· · · · A.· ·I don't have the exact information off the 23· ·to us in the list.· We did not generate any phone 23· ·top of my head.· But what I can tell you, that I know 24· ·numbers. 24· ·that we have to provide, in order to execute, is the 25 25· ·content of the message, the numbers that we're sending Page 47 Page 49 ·1· ·BY MR. LEHRMAN: ·1· ·to.· And we completely control when it's sent as well. ·2· · · · Q.· ·Okay.· So the numbers -- I'm referring to the ·2· · · · Q.· ·And what function, if any, does Twilio ·3· ·numbers that were -- the FleetSeek numbers that were -- ·3· ·perform in connection with sending the text messages ·4· ·that CyberX loaded into its admin portal and assigned ·4· ·that are the subject of this lawsuit? ·5· ·the tag 3KITG630. ·5· · · · A.· ·They provide both the API, and the second is ·6· · · · · · ·I'm referring to those numbers; okay? ·6· ·the actual delivery to the carrier itself. ·7· · · · A.· ·Okay. ·7· · · · Q.· ·So Twilio, providing the API, is providing ·8· · · · Q.· ·And CyberX provided those telephone numbers ·8· ·the means by which CyberX can send data and commands to ·9· ·to Twilio; right? ·9· ·Twilio; right? 10· · · · A.· ·Yes. 10· · · · A.· ·Yes. 11· · · · Q.· ·And just to expand on that, CyberX provided 11· · · · Q.· ·And the second function that CyberX has 12· ·those telephone numbers to Twilio in connection with 12· ·identified is that Twilio received the text messages 13· ·sending the text messages that are the subject of this 13· ·prepared by CyberX and sent those messages to telephone 14· ·lawsuit; right? 14· ·carriers; right? 15· · · · A.· ·Yes. 15· · · · A.· ·Yes. 16· · · · Q.· ·Right before our break you were describing 16· · · · Q.· ·Now, when -- and all of these text messages 17· ·that CyberX uses an API for the purpose of sending the 17· ·that are the subject of the lawsuit, they were all sent 18· ·text message content and list of numbers to Twilio; is 18· ·on June 30, 2017; right? 19· ·that right? 19· · · · A.· ·I believe so. 20· · · · A.· ·Yes. 20· · · · Q.· ·And when you say that CyberX controls the 21· · · · Q.· ·Twilio has what they refer to as an SMS API, 21· ·timing of when the messages were sent, how does CyberX 22· ·or SMS programmatic API? 22· ·go about controlling that timing? 23· · · · A.· ·Yes. 23· · · · A.· ·With the API, we've got commands of telling 24· · · · Q.· ·Is that the API that CyberX was referring to 24· ·when to start it, who to send it to, and we have full 25· ·in its earlier testimony, or was CyberX referring to a 25· ·controls to pause, stop or terminate. www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0021 YVer1f 1 PageID 884 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 50..53 Page 50 Page 52 ·1· · · · Q.· ·And do these API commands that CyberX has ·1· · · · A.· ·Yes.· So Twilio communicates back to us, ·2· ·just identified related to the timing of when ·2· ·giving confirmation that it has been sent, or if there ·3· ·text messages are sent, does CyberX use those ·3· ·had been a reply. ·4· ·commands -- did it use those commends to indicate a ·4· · · · · · ·(Whereupon, Exhibits 9 & 10 were marked for ·5· ·specific time for sending a text message? ·5· · · · · · ·identification.) ·6· · · · · · ·Or did it use those commands to indicate the ·6· ·BY MR. LEHRMAN: ·7· ·order in which text messages would be sent to the leads ·7· · · · Q.· ·All right.· So I'm handing you two exhibits. ·8· ·on the FleetSeek list?· Or something else? ·8· ·One is Plaintiff Exhibit 9; one, Plaintiff Exhibit 10. ·9· · · · A.· ·Can you clarify.· I feel like there's a ·9· · · · · · ·So Plaintiff Exhibit 9 is kind of fuzzy, but 10· ·couple questions asked there.· If you could break that 10· ·you'll see a Bates stamp on the bottom right, CXG1. 11· ·down for me. 11· · · · · · ·You see that? 12· · · · Q.· ·Sure.· And I appreciate you seeking 12· · · · A.· ·Yes. 13· ·clarification. 13· · · · Q.· ·And I'll represent to you that 14· · · · · · ·Is the -- you indicated that there are API 14· ·Plaintiff Exhibit 10 was something that was provided, I 15· ·commands that CyberX used to indicate the timing, the 15· ·guess on Friday, by counsel, and at my request to 16· ·specific timing of when Twilio should send the subject 16· ·provide me with something that's a more legible 17· ·text messages to each of the FleetSeek leads; right? 17· ·version, say, of Exhibit 9; okay. 18· · · · A.· ·Yes. 18· · · · · · ·So if we just go off -- so 9 was produced to 19· · · · Q.· ·And what I'm asking now is, are those -- did 19· ·us previously as part of CyberX's document production, 20· ·CyberX use those commands to indicate that a specific 20· ·but I'm asking questions about Exhibit 10 now. 21· ·lead be sent a text message at a particular time? 21· · · · · · ·Do you know what Exhibit 10 is? 22· · · · A.· ·Yes.· And in this case it would have been 22· · · · A.· ·Yes. 23· ·using that send immediate function.· So at the time 23· · · · Q.· ·What is it? 24· ·that I clicked "send," it would have immediately began 24· · · · A.· ·This is the inside of the Twilio software and 25· ·to execute the list. 25· ·platform that reports and shows the text message that Page 51 Page 53 ·1· · · · Q.· ·How, specifically, would CyberX, through the ·1· ·was sent as well. ·2· ·API or otherwise, communicate to Twilio to execute the ·2· · · · Q.· ·So on the top left corner, this is a screen ·3· ·list, as opposed to just executing or sending a single ·3· ·print; right? ·4· ·text message? ·4· · · · A.· ·Yes. ·5· · · · A.· ·So, trying to think of the best, clear way to ·5· · · · Q.· ·And this screen print, under -- top left ·6· ·explain this. ·6· ·corner where it says Twilio, under there, it says ·7· · · · · · ·It's sent by individual records.· So if we go ·7· ·cpearson@cyberx, dot, dot, dot. ·8· ·back to the list, individual records.· So our software ·8· · · · · · ·You see that? ·9· ·sends to Twilio, send to this number, this message. ·9· · · · A.· ·Yes. 10· ·And then they execute that and we get a confirmation as 10· · · · Q.· ·And is that identifying this screen print as 11· ·to whether that was sent or not. 11· ·being from an account with, I guess the user name is 12· · · · · · ·And then it just goes through the list, 12· ·cpearson and so on? 13· ·literally one by one by one by one. 13· · · · A.· ·I believe so. 14· · · · Q.· ·And again, when you're saying list, you're 14· · · · Q.· ·Is this an account that you personally 15· ·referring to the list with the unique tag that you've 15· ·maintained? 16· ·previous -- that CyberX has previously identified; 16· · · · A.· ·Yes. 17· ·right? 17· · · · Q.· ·And you maintained this Twilio account for 18· · · · A.· ·Yes. 18· ·your work with CyberX; is that right? 19· · · · Q.· ·Because we're talking about this June 30, 19· · · · A.· ·Yes. 20· ·2017, set of text transmissions? 20· · · · Q.· ·And then this screen print from your personal 21· · · · A.· ·Yes. 21· ·CyberX account says, programmable SMS logs. 22· · · · Q.· ·And when you said there's some confirmation 22· · · · · · ·You see that? 23· ·that's delivered that the text was sent, does that 23· · · · A.· ·Yes. 24· ·refer to confirmation that Twilio is communicating back 24· · · · Q.· ·And these are, under that one record listed 25· ·to CyberX, or something else? 25· ·there, says, direction, outgoing API; right? www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0022 YVer1f 1 PageID 885 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 58..61 Page 58 Page 60 ·1· · · · A.· ·Correct. ·1· ·something else? ·2· · · · Q.· ·I want to make sure I understand CyberX's ·2· · · · A.· ·Yes.· It's what we refer to as a cron job or ·3· ·testimony about how CyberX used Twilio to send the ·3· ·script.· Which starts at the top of the list, and it ·4· ·text messages that are the subject of this lawsuit; ·4· ·sends those -- each transaction in a single -- in a ·5· ·okay? ·5· ·single entry. ·6· · · · A.· ·Okay. ·6· · · · Q.· ·And, I'm sorry, sir, you say a cron job? ·7· · · · Q.· ·And when I say the text messages, I'm ·7· · · · A.· ·Yeah. ·8· ·referring to the text messages sent on June 30, 2017, ·8· · · · Q.· ·Does that mean chronological? ·9· ·to these leads that have that unique tag of 3KITG630; ·9· · · · A.· ·No.· It's basically the running -- going back 10· ·okay? 10· ·to that word again, the execution of -- we've told the 11· · · · A.· ·Yes. 11· ·system to start, now that we've manually gone through 12· · · · Q.· ·I'm -- 12· ·that list and we've clicked the button to send. 13· · · · A.· ·I understand. 13· · · · · · ·Now the system starts going through, sending 14· · · · Q.· ·Great.· Okay. 14· ·each one of those items, connecting it up with the 15· · · · · · ·So my -- is it correct to say that CyberX's 15· ·content of the message and delivering those. 16· ·testimony is that the Twilio API was -- served as a 16· · · · Q.· ·What specific data in -- what's the specific 17· ·conduit for CyberX to communicate to Twilio all the 17· ·data in CyberX's admin portal that is identifying the 18· ·telephone numbers to which it wanted to send 18· ·start of the list, or the top of the list, from the 19· ·text messages; is that right? 19· ·middle of the list, from the end of the list? 20· · · · A.· ·Yes. 20· · · · A.· ·It's -- the order of the list is all based on 21· · · · Q.· ·That the Twilio API was a conduit for CyberX 21· ·the order that we received it in.· So we don't change 22· ·to communicate to Twilio the content of each 22· ·which order in any way, shape, or form.· It's based on 23· ·text message that it wanted Twilio to send on its 23· ·how we receive the list. 24· ·behalf? 24· · · · Q.· ·And CyberX has indicated in its earlier 25· · · · A.· ·Yes. 25· ·testimony that it believes it likely received a list in Page 59 Page 61 ·1· · · · Q.· ·And that Twilio would send the ·1· ·the form of a CSV file; correct? ·2· ·text message -- that Twilio would send the ·2· · · · A.· ·Correct. ·3· ·text messages provided by CyberX to the carriers; is ·3· · · · Q.· ·And that's one file that lists however many ·4· ·that right? ·4· ·records; right? ·5· · · · A.· ·Yes. ·5· · · · A.· ·Yes. ·6· · · · Q.· ·And Twilio would also provide to CyberX ·6· · · · Q.· ·And those records included a telephone ·7· ·confirmation of delivery status for all of the outgoing ·7· ·number? ·8· ·text messages? ·8· · · · A.· ·Yes. ·9· · · · A.· ·Yes. ·9· · · · Q.· ·And so whatever the -- whatever the sequence 10· · · · Q.· ·Now, CyberX used the term earlier in 10· ·of records were in that CSV file, that's the same 11· ·testimony about -- in describing how it caused 11· ·sequence that CyberX instructed Twilio to follow in 12· ·text messages to be sent immediately and not on a 12· ·sending these text messages; is that right? 13· ·scheduled basis; right? 13· · · · A.· ·Yes. 14· · · · A.· ·Yes. 14· · · · Q.· ·So it's not like Twilio was on its own coming 15· · · · Q.· ·You used the term or phrase, execute the 15· ·up with its own sequence.· Rather, Twilio was following 16· ·list; you recall that? 16· ·the sequence provided by CyberX? 17· · · · A.· ·Yes. 17· · · · A.· ·Absolutely. 18· · · · Q.· ·And so I want to get into now, kind of see if 18· · · · Q.· ·And just to clarify, what I mean is Twilio 19· ·we can unpack that and get testimony from CyberX about 19· ·was following the sequence provided by CyberX to 20· ·how CyberX caused Twilio to execute the list, if it 20· ·determine the order in which Twilio sent the 21· ·did; okay. 21· ·text messages provided by CyberX? 22· · · · · · ·So it's -- was it the case that CyberX 22· · · · A.· ·Correct. 23· ·delivered to Twilio through the API the entire list of 23· · · · Q.· ·Referring back to Plaintiff Exhibit 6.· This 24· ·telephone numbers in one communication?· Or was it that 24· ·is the SMS manager screen print.· So Exhibit -- again, 25· ·CyberX sent telephone numbers one by one to Twilio, or 25· ·CyberX has indicated it doesn't recall whether the www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0023 YVer1f 1 PageID 886 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 62..65 Page 62 Page 64 ·1· ·scheduling function existed at the time, back on ·1· · · · · · ·MR. RICHMOND:· Assumes facts not in evidence, ·2· ·June 30, 2017; correct? ·2· ·calls for speculation. ·3· · · · A.· ·Correct. ·3· ·BY MR. LEHRMAN: ·4· · · · Q.· ·But otherwise, other than that scheduling, ·4· · · · Q.· ·You understand my question? ·5· ·those few lines of scheduling, where it says, how would ·5· · · · A.· ·Yes. ·6· ·you like to send the SMS broadcast, now or send it in ·6· · · · Q.· ·And did you personally dial the number? ·7· ·for a future time, and the two options below it. ·7· · · · · · ·Same objections. ·8· · · · · · ·Aside from that, Plaintiff Exhibit 6 ·8· · · · · · ·MR. RICHMOND:· Objection.· Vague. ·9· ·otherwise fairly and accurately depicts what the SMS ·9· · · · · · ·Go ahead. 10· ·manager screen appeared, how it appeared back on 10· · · · · · ·THE WITNESS:· No. 11· ·June 30, 2017? 11· ·BY MR. LEHRMAN: 12· · · · A.· ·Yes. 12· · · · Q.· ·Now I'm asking CyberX. 13· · · · Q.· ·Including the inclusion of this send button; 13· · · · · · ·Did anyone at CyberX, after CyberX hit the 14· ·correct? 14· ·send button, did anyone at CyberX dial Mr. Northrup's 15· · · · A.· ·Yes. 15· ·number for the purpose of sending the text message to 16· · · · Q.· ·And back on June 30, 2017, CyberX accessed 16· ·him on June 30, 2017? 17· ·this particular window; right? 17· · · · A.· ·No. 18· · · · A.· ·Yes. 18· · · · Q.· ·Did -- does CyberX know if anyone at Twilio 19· · · · Q.· ·And hit that send button; right? 19· ·dialed Mr. Northrup's telephone number to send him the 20· · · · A.· ·Yes. 20· ·June 30, 2017, text message, after CyberX hit the send 21· · · · Q.· ·And hitting that send button caused CyberX's 21· ·button? 22· ·admin portal to communicate with Twilio through 22· · · · A.· ·I would not be privy to that information, so 23· ·Twilio's API; right? 23· ·I don't know. 24· · · · A.· ·Yes. 24· · · · Q.· ·CyberX does not know; correct? 25· · · · Q.· ·And caused CyberX to send phone numbers, and 25· · · · A.· ·Correct. Page 63 Page 65 ·1· ·text messages to Twilio on a one-at-a-time; right? ·1· · · · Q.· ·Does CyberX have any reason to believe that ·2· · · · A.· ·Yes. ·2· ·Twilio dialed Mr. Northrup's telephone number after ·3· · · · Q.· ·And the sequence that CyberX followed when it ·3· ·CyberX hit the send button, for purposes of sending the ·4· ·did this, was the same sequence or same order in which ·4· ·text message? ·5· ·the records appeared in the original FleetSeek CSV ·5· · · · · · ·MR. RICHMOND:· Objection.· Vague. ·6· ·file; right? ·6· · · · · · ·THE WITNESS:· It would be a speculation ·7· · · · A.· ·Yes. ·7· ·answer.· I truly don't know. ·8· · · · Q.· ·And Twilio then proceeded to send the ·8· ·BY MR. LEHRMAN: ·9· ·text messages in that sequence to the phone numbers ·9· · · · Q.· ·What I'm asking is, does CyberX -- does 10· ·provided by CyberX; right? 10· ·anyone at CyberX have any reason to believe 11· · · · A.· ·Yes. 11· ·that -- strike that. 12· · · · Q.· ·And Twilio sent those text messages without 12· · · · · · ·I'm asking CyberX.· Does CyberX have any 13· ·any person at CyberX having to manually dial any 13· ·reason to believe that someone at Twilio manually 14· ·telephone numbers after hitting the send button; is 14· ·dialed Mr. Northrup's telephone number after CyberX hit 15· ·that right? 15· ·the send button? 16· · · · A.· ·Can you ask that another way, so I understand 16· · · · A.· ·No. 17· ·better. 17· · · · Q.· ·Let me go at it a different way. 18· · · · Q.· ·Sure.· Now, you personally, were you 18· · · · · · ·Has anyone at Twilio communicated to CyberX 19· ·personally the one who hit the send button on behalf of 19· ·that it manually dialed Mr. Northrup's number after 20· ·CyberX back on June 30, 2017? 20· ·CyberX hit the send button? 21· · · · A.· ·Yes. 21· · · · A.· ·No, not that I'm aware of, or recall. 22· · · · Q.· ·After you hit the send button, did you 22· · · · · · ·MR. LEHRMAN:· Off the record for a second. 23· ·personally dial Mr. Northrup's telephone number in 23· · · · · · ·(Discussion off the record.) 24· ·order to send that text message? 24· · · · · · ·(Whereupon, Exhibit 13 was marked for 25· · · · A.· ·No. 25· · · · · · ·identification.) www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0024 YVer1f 1 PageID 887 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 82..85 Page 82 Page 84 ·1· · · · Q.· ·And secondly, CyberX has no reason to believe ·1· ·correct? ·2· ·that Twilio physically keyed in any of those numbers ·2· · · · A.· ·Yes, correct. ·3· ·dialed on June 30, 2017; right? ·3· · · · Q.· ·And CyberX has just confirmed that it ·4· · · · A.· ·Correct. ·4· ·believes that that's a -- that that methodology would ·5· · · · Q.· ·Mr. Pearson, I want to talk to you now about ·5· ·deliver a correct result; right? ·6· ·how we might go through these call log lists that are ·6· · · · · · ·MR. RICHMOND:· Objection.· Refers to multiple ·7· ·CXG28 through CXG33. ·7· ·questions, vague, speculative, intended to confuse the ·8· · · · · · ·Not right this second, but the methodology ·8· ·witness. ·9· ·the parties could use to review those call logs to ·9· · · · · · ·I'm going to instruct you not to answer. 10· ·identify the total number of text messages that were 10· · · · · · ·You want to ask him a complete question, ask 11· ·sent and delivered.· Okay. 11· ·him a complete question. 12· · · · · · ·So isn't one way of identifying all outgoing 12· ·BY MR. LEHRMAN: 13· ·messages that were sent and delivered, would be to, 13· · · · Q.· ·Does CyberX have a different way of 14· ·because these are CSV files, to identify all messages 14· ·evaluating these call log documents to determine the 15· ·that have a status of delivered -- I guess just that. 15· ·number of calls that have a status of delivered? 16· · · · · · ·I was going to say status of delivered and 16· · · · · · ·MR. RICHMOND:· Objection.· Calls for a legal 17· ·direction of outbound API, but actually just filtering 17· ·conclusion, and speculation. 18· ·each CSV file for a status of delivered, would identify 18· ·BY MR. LEHRMAN: 19· ·all outbound messages that Twilio has confirmed from 19· · · · Q.· ·Okay.· So, do you understand my question? 20· ·the carrier have been delivered to a particular device; 20· · · · A.· ·Yes. 21· ·right? 21· · · · Q.· ·Okay.· You can answer. 22· · · · A.· ·Yes, correct. 22· · · · A.· ·Can you repeat your question. 23· · · · Q.· ·And that would, conversely, that filtering 23· · · · · · ·MR. LEHRMAN:· We can read it back. 24· ·would exclude inbound messages; right? 24· · · · · · ·(Record read by the reporter as follows: 25· · · · A.· ·Correct. 25· · · · · · ·"Does CyberX have a different way of Page 83 Page 85 ·1· · · · Q.· ·And it would exclude outbound messages that ·1· · · · · · ·evaluating these call log documents to ·2· ·had the status of undelivered; right? ·2· · · · · · ·determine the number of calls that have a ·3· · · · A.· ·Yes. ·3· · · · · · ·status of delivered?") ·4· · · · Q.· ·Is there some other methodology that you ·4· · · · · · ·THE WITNESS:· Yes, there would be a different ·5· ·believe that would more accurately identify the ·5· ·way to do it. ·6· ·outgoing text messages sent on June 30, 2017 to these ·6· ·BY MR. LEHRMAN: ·7· ·leads? ·7· · · · Q.· ·What's the different way that CyberX has of ·8· · · · · · ·MR. RICHMOND:· Objection.· You're asking him ·8· ·doing this? ·9· ·a different question, so you now made the question ·9· · · · A.· ·We can do it from within our own CRM. 10· ·confusing. 10· · · · Q.· ·Has CyberX attempted to identify the number 11· · · · · · ·I'm going to instruct you not to answer. 11· ·of outgoing text messages that it sent that were -- 12· · · · · · ·The first question was whether or not he was 12· ·that were -- well, strike that. 13· ·confirming what the document says, so what information 13· · · · · · ·Has CyberX done what you just referred to? 14· ·he's received at Twilio. 14· · · · A.· ·No.· Not that I recall. 15· · · · · · ·You've now referred to that but left off the 15· · · · Q.· ·Is CyberX -- but you've indicated CyberX is 16· ·merely confirmed by Twilio and said, confirming what the 16· ·able to do what you described; right? 17· ·actual underlying data is.· That's a different question. 17· · · · A.· ·Yes, correct. 18· ·BY MR. LEHRMAN: 18· · · · Q.· ·How long would it take CyberX to perform 19· · · · Q.· ·Does CyberX -- CyberX understands the 19· ·that? 20· ·methodology that I just proposed for identifying, based 20· · · · A.· ·Couple days' time or less. 21· ·on these call logs, the number of outgoing 21· · · · Q.· ·How would CyberX perform such a search? 22· ·text messages that were sent and confirmed as delivered 22· · · · A.· ·We would go into our database, perform 23· ·to Twilio by carriers; right? 23· ·database queries. 24· · · · A.· ·Yes, I understand that. 24· · · · Q.· ·And what are the queries that CyberX would 25· · · · Q.· ·And not to you, but CyberX understands that; 25· ·perform to determine this? www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0025 YVer1f 1 PageID 888 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 86..89 Page 86 Page 88 ·1· · · · A.· ·It would depend solely on what was questioned ·1· ·when CyberX has hit the send button in its SMS manager ·2· ·of us. ·2· ·window. ·3· · · · Q.· ·And when CyberX refers to its database, is it ·3· · · · A.· ·Yes. ·4· ·referring to its admin portal, or something else? ·4· · · · Q.· ·From that point forward until the ·5· · · · A.· ·Something else. ·5· ·text messages are actually sent.· This is the time ·6· · · · Q.· ·And what's that? ·6· ·period that I want to ask you about again now; okay? ·7· · · · A.· ·The database, where all the data resides. ·7· · · · A.· ·Okay. ·8· · · · Q.· ·And CyberX, when CyberX queries its database, ·8· · · · Q.· ·You clear on the time period I'm talking ·9· ·is it able to then generate a report of that query? ·9· ·about? 10· · · · A.· ·Yes. 10· · · · A.· ·Can you ask it again, make sure we're 11· · · · Q.· ·And in what -- and is CyberX able to export 11· ·aligned. 12· ·the report from those queries? 12· · · · Q.· ·Sure.· So we previously identified and 13· · · · A.· ·Yes. 13· ·inquired about a time period between two points in 14· · · · Q.· ·And into what formats is CyberX capable of 14· ·time.· One is CyberX hitting the send button in its SMS 15· ·exporting these reports? 15· ·manager window, on June 30, 2017. 16· · · · A.· ·Multiple, but CSV would be the most common. 16· · · · A.· ·Yes. 17· · · · Q.· ·And does -- what data does CyberX have on 17· · · · Q.· ·And that's the start time. 18· ·delivery status for these text messages that were sent 18· · · · · · ·And the end time is the sending of the 19· ·on June 30, 2017, if any? 19· ·text messages to those various leads that are on the 20· · · · A.· ·Very confident that we do.· I'd have to look 20· ·list identified by the particular unique tag you 21· ·at those specifics of what they are. 21· ·previously referenced. 22· · · · Q.· ·What is the source of such delivery status 22· · · · A.· ·Okay. 23· ·data that CyberX has in its database for the particular 23· · · · Q.· ·Okay.· Same time period. 24· ·text messages? 24· · · · · · ·Does -- and I'm going back to, again, to 25· · · · A.· ·Could you please repeat that or phrase it 25· ·Twilio and what Twilio did or what Twilio did not do Page 87 Page 89 ·1· ·another way. ·1· ·during this time period; okay? ·2· · · · Q.· ·Yeah.· What's the source of the delivery ·2· · · · A.· ·Yes. ·3· ·status data?· Is it telephone carriers, Twilio or ·3· · · · Q.· ·And here's my question. ·4· ·something else? ·4· · · · · · ·My question is, does CyberX have knowledge ·5· · · · A.· ·Twilio. ·5· ·that any person employed by Twilio, took any action in ·6· · · · · · ·MR. RICHMOND:· When you get a break, we'd ·6· ·that time period in order to send the text messages ·7· ·like to take one, when you get to a stopping point. ·7· ·that were sent on June 30, 2017? ·8· ·BY MR. LEHRMAN: ·8· · · · A.· ·I have no knowledge of that. ·9· · · · Q.· ·Is the delivery status data that CyberX has ·9· · · · Q.· ·CyberX has no knowledge of that; correct? 10· ·in its database different than the data that's 10· · · · A.· ·Yes. 11· ·reflected in Plaintiff Exhibit 14? 11· · · · Q.· ·Does CyberX have any reason to believe that 12· · · · A.· ·I don't know without a review of it first. 12· ·any person employed by Twilio took any action in that 13· · · · Q.· ·And CyberX did not review its database in 13· ·time period to send these June 30, 2017, text messages? 14· ·preparing for today's deposition; right? 14· · · · A.· ·I have no reason to believe that someone 15· · · · A.· ·Correct.· Not as it relates to that. 15· ·would. 16· · · · Q.· ·And CyberX specifically did not review 16· · · · Q.· ·You personally have no reason to believe 17· ·delivery status data available in its database, in 17· ·that; correct? 18· ·preparing for this deposition; right? 18· · · · A.· ·Yes. 19· · · · A.· ·Yes, correct. 19· · · · Q.· ·And, likewise, CyberX has no reason to 20· · · · · · ·MR. LEHRMAN:· Why don't we take a break now, 20· ·believe that; right? 21· ·thanks. 21· · · · A.· ·Yes. 22· · · · · · ·(Recess taken.) 22· · · · Q.· ·Again, the telephone number 208-209-7788, was 23· ·BY MR. LEHRMAN: 23· ·that the exclusive telephone number used by CyberX to 24· · · · Q.· ·So, Mr. Pearson, I'd asked CyberX earlier 24· ·send the subject text on June 30, 2017? 25· ·about a certain time frame, the time -- point in time 25· · · · A.· ·Yes, correct. www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0026 YVer1f 1 PageID 889 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 90..93 Page 90 Page 92 ·1· · · · · · ·MR. LEHRMAN:· Can we go off the record for a ·1· ·message SID field had any relation to you being able to ·2· ·second.· Probably done. ·2· ·pull the logs that are Exhibit 14 and Exhibit 13? ·3· · · · · · ·(Discussion off the record.) ·3· · · · A.· ·Can you rephrase that for me. ·4· · · · · · ·MR. LEHRMAN:· Back on the record, and I have ·4· · · · Q.· ·Sure.· Do you believe that you would have ·5· ·no questions. ·5· ·used the message SID field to create the logs for the ·6 ·6· ·entire set of messages from the FleetSeek campaign, the ·7· · · · · · · · · · · · ·EXAMINATION ·7· ·examples of which are in Exhibits 13 and 14? ·8 ·8· · · · A.· ·Yes. ·9· ·BY MR. RICHMOND: ·9· · · · Q.· ·And that would apply to the other 10· · · · Q.· ·Mr. Pearson, my name is Bill Richmond.· I'll 10· ·spreadsheets that we have not entered into evidence? 11· ·be asking you some questions. 11· · · · A.· ·Yes, correct. 12· · · · · · ·Could you briefly state your technical and 12· · · · Q.· ·Is the data in Exhibit 13 and 14, in addition 13· ·educational background as it relates to the platforms 13· ·to the other spreadsheets that were provided in this 14· ·and the business you perform at CyberX. 14· ·case and produced to the plaintiff, the raw data from 15· · · · A.· ·Yes.· So we've been building an office 15· ·Twilio? 16· ·platform for over the last almost 13 years now, and 16· · · · A.· ·Yes. 17· ·heavily involved in not just the system, but multiple 17· · · · Q.· ·Was the raw data from Twilio about what 18· ·technical systems.· And my role is architect and 18· ·numbers were sent, when they were sent and what the 19· ·putting those systems together. 19· ·response was, whether it was delivered or not 20· · · · Q.· ·How many years have you been using the Twilio 20· ·delivered, uploaded into the CRM system? 21· ·system, or platform? 21· · · · A.· ·Yes. 22· · · · A.· ·I'd have to look to give you an exact number, 22· · · · Q.· ·Is there any other data source that the CRM 23· ·but roughly probably five years-plus now. 23· ·system would have, other than Twilio, for determining 24· · · · Q.· ·Silence means I'm skipping things. 24· ·the delivery or nondelivery information from the 25· · · · · · ·If you could pull up Exhibit 14.· It is the 25· ·text messages at issue? Page 91 Page 93 ·1· ·list of numbers from Twilio that is CXG32.· Do you have ·1· · · · A.· ·No. ·2· ·that in front of you, Mr. Pearson? ·2· · · · Q.· ·Given the use of the -- in Exhibit 13 on the ·3· · · · A.· ·Yes. ·3· ·timestamps of the send date, it looks like it says the ·4· · · · Q.· ·Great.· Was the -- was the order that Twilio ·4· ·time zone is UTC.· And it looks like in Exhibit -- ·5· ·sent the text messages and delivered them to the ·5· ·looks like in Exhibit 3 the timestamps are done in EST. ·6· ·carriers, the order that you specified from the CRM ·6· · · · · · ·Considering the differences of time ·7· ·system? ·7· ·messaging, do you have any reason to believe otherwise ·8· · · · A.· ·Yes. ·8· ·that the 2:36 P.M. Eastern Time text message that was ·9· · · · Q.· ·And to your understanding, that was what was ·9· ·sent to Mr. Northrup is about four minutes different 10· ·eventually outputted on Exhibit 14 in the SMS log? 10· ·from that same UTC time frame in Exhibit 14? 11· · · · A.· ·Yes. 11· · · · · · ·MR. LEHRMAN:· Form. 12· · · · Q.· ·If you could hold on to 14 and take a look at 12· · · · · · ·THE WITNESS:· Question is, do I understand 13· ·Exhibit 10 and 12 for me.· And it looks like in 13· ·that? 14· ·Exhibits 10 and 12, both of them have a few different 14· ·BY MR. RICHMOND: 15· ·fields at the top under the header Programmable 15· · · · Q.· ·Let me rephrase it. 16· ·SMS Logs. 16· · · · · · ·Is it your understanding that the 2:36 P.M. 17· · · · · · ·One field says search by message SID; another 17· ·Eastern Time, time frame for the message being sent to 18· ·says start date and time; another says end date and 18· ·Mr. Northrup, as reflected in Exhibit 3, the CRM, is 19· ·time; and then from and to. 19· ·only four minutes different from the timestamp under 20· · · · · · ·And it looks like you inputted, in 20· ·UTC, as listed by his number in Exhibit 14? 21· ·Exhibit 10, Mr. Northrup's number in the to, and in 21· · · · A.· ·Yes, correct. 22· ·Exhibit 12 Mr. Northrup's number in the from. 22· · · · Q.· ·Was any alteration done to the raw data that 23· · · · · · ·Is that accurate? 23· ·was received from Twilio about what was delivered or 24· · · · A.· ·Yes, correct. 24· ·not delivered? 25· · · · Q.· ·Do you have any reason to believe that the 25· · · · A.· ·No. www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0027 YVer1f 1 PageID 890 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 94..97 Page 94 Page 96 ·1· · · · Q.· ·Was -- does CyberX have any personal ·1· ·potential slight difference is the actual time, the ·2· ·knowledge as to whether the text messages listed in the ·2· ·timing mechanism, because of the delay between our ·3· ·logs as delivered, whether they were delivered to a ·3· ·system and their system. ·4· ·cell phone, a landline, a VOIP number or some other ·4· · · · Q.· ·In this case, did CyberX upload a list of ·5· ·number? ·5· ·leads to an online platform, select the names and phone ·6· · · · A.· ·No.· I'm sorry, can you rephrase that -- are ·6· ·numbers to be communicated with, draft the text message ·7· ·you asking me do we have that knowledge? ·7· ·and input it into the system, select a date and time of ·8· · · · Q.· ·Does CyberX have knowledge from Twilio, or ·8· ·delivery, and then click on the send button? ·9· ·any other source, as to whether or not the numbers that ·9· · · · · · ·MR. LEHRMAN:· Form. 10· ·say delivered, were actually delivered to a mobile 10· · · · · · ·THE WITNESS:· Yes. 11· ·number as opposed to simply delivered to a VOIP number, 11· ·BY MR. RICHMOND: 12· ·which also can accept text messages? 12· · · · Q.· ·Is the CRM system one in which you can 13· · · · A.· ·Yes, there is -- that delivery can contain 13· ·navigate to a website and log into the system? 14· ·those other landlines or VOIPs, yes. 14· · · · A.· ·Yes. 15· · · · Q.· ·When you clicked on the send button in the 15· · · · Q.· ·In this case, did CyberX navigate to a 16· ·SMS broadcast system of the CRM, which is reflected on 16· ·website, log into the CRM platform, determine the 17· ·Exhibit 6, to your understanding, is that the 17· ·content of the text messages at issue, type the content 18· ·equivalent of dialing the text messages? 18· ·of the message into the platform, determine whether to 19· · · · A.· ·Yes. 19· ·send the messages immediately or at a different time 20· · · · Q.· ·Is it your understanding or expectation that 20· ·and then click "send" to initiate the campaign? 21· ·there would be any variance to the instructions 21· · · · A.· ·Yes. 22· ·provided by clicking "send" as the message is 22· · · · · · ·MR. LEHRMAN:· Form. 23· ·transmitted through the wires and system of Twilio? 23· ·BY MR. RICHMOND: 24· · · · A.· ·No. 24· · · · Q.· ·Is the CRM system or -- back up. 25· · · · Q.· ·Do you have any reason to believe that your 25· · · · · · ·Is the CRM system utilized by CyberX Page 95 Page 97 ·1· ·instructions in this particular instance with these ·1· ·predictive of what to send, when to send it, to whom it ·2· ·particular text messages were varied, those ·2· ·should be sent, or how to send messages? ·3· ·instructions being who to send to, how soon to send it ·3· · · · · · ·MR. LEHRMAN:· Form. ·4· ·to them, and what message to be sent? ·4· · · · · · ·THE WITNESS:· Can you clarify what you mean ·5· · · · A.· ·You're asking me if it does? ·5· ·by predictive. ·6· · · · Q.· ·Do you have any reason to believe that there ·6· ·BY MR. RICHMOND: ·7· ·was variance in the instructions that you gave to ·7· · · · Q.· ·Sure.· Does the software itself make a ·8· ·Twilio, about what to send, who to send it to, when to ·8· ·determination, as opposed to the human user, as to what ·9· ·send it? ·9· ·to send, when to send it, to whom it would be sent, or 10· · · · A.· ·No. 10· ·how to send a text message? 11· · · · Q.· ·Are you familiar with CyberX's database of 11· · · · A.· ·No. 12· ·information as it relates to these particular 12· · · · · · ·MR. LEHRMAN:· Form. 13· ·text messages and the campaign that they were sent in? 13· ·BY MR. RICHMOND: 14· · · · A.· ·Yes, I am. 14· · · · Q.· ·Did you yourself decide what message to send 15· · · · Q.· ·Did you find it necessary to go back and 15· ·in these campaigns? 16· ·review the database to glean new information for this 16· · · · A.· ·The message was provided to me, and I entered 17· ·deposition? 17· ·it, yes. 18· · · · A.· ·No. 18· · · · Q.· ·Did the machine decide what message to send? 19· · · · Q.· ·From your own experience with the database of 19· · · · A.· ·No. 20· ·information and the Twilio spreadsheets, do you have 20· · · · Q.· ·Did you or the machine decide when the 21· ·any reason to believe that there's any different 21· ·messages should be sent? 22· ·information about whether or not the text messages were 22· · · · A.· ·I did. 23· ·delivered or not delivered, as shown in the Twilio 23· · · · Q.· ·And without uploading the FleetSeek list into 24· ·spreadsheets, as opposed to the CRM database? 24· ·the CRM system, and then aligning the columns to map 25· · · · A.· ·No.· I did think about that more.· The only 25· ·the data to the CRM system, could the text messages at www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0028 YVer1f 1 PageID 891 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 98..101 Page 98 Page 100 ·1· ·issue have been sent? ·1· ·whether any of them were assigned to VOIP? ·2· · · · A.· ·No. ·2· · · · A.· ·Not that I can recall. ·3· · · · Q.· ·Did you manually curate the list of customers ·3· · · · Q.· ·Did CyberX perform any line type ·4· ·on the FleetSeek list, either by aligning the ·4· ·identification test to these numbers? ·5· ·categories, or otherwise sorting them? ·5· · · · A.· ·Not that I recall. ·6· · · · A.· ·Yes. ·6· · · · Q.· ·You know what I mean by that? ·7· · · · · · ·MR. RICHMOND:· Reserve and pass. ·7· · · · A.· ·I think so, but go ahead. ·8 ·8· · · · Q.· ·What I mean in this instance is a line type ·9· · · · · · · · · · ·FURTHER EXAMINATION ·9· ·of identification test to identify a phone number as 10 10· ·being associated with a landline, wireless device, or 11· ·BY MR. LEHRMAN: 11· ·something else. 12· · · · Q.· ·Mr. Pearson, just a few questions, and 12· · · · A.· ·Uh-huh. 13· ·following up on questions that Counsel just asked you. 13· · · · Q.· ·Did CyberX perform that type of line type 14· · · · · · ·CyberX had just testified in response to some 14· ·identification on these FleetSeek numbers before 15· ·of Mr. Richmond's questions, and I'm not trying to 15· ·sending text messages? 16· ·mischaracterize CyberX's testimony. 16· · · · A.· ·Not that I recall.· Yeah, not that I recall. 17· · · · · · ·I thought the testimony was essentially that 17· · · · Q.· ·Does CyberX know if it performed any line 18· ·the -- that the value of delivered -- looking at 18· ·type identification test to those numbers after the 19· ·Plaintiff Exhibit 14, one of these call logs, under 19· ·text messages were sent? 20· ·status field.· The value of delivered could indicate 20· · · · A.· ·Not that I recall. 21· ·that a text message was sent or delivered to a VOIP. 21· · · · Q.· ·Would CyberX be able to search its business 22· · · · · · ·Am I understanding that correctly; that was 22· ·records to determine whether at any time it performed 23· ·CyberX's testimony? 23· ·any type of line type identification on these numbers? 24· · · · A.· ·You're referring to only the delivered?· Or 24· · · · A.· ·Yes, yeah. 25· ·you're referring to the undelivered? 25· · · · Q.· ·And how would CyberX go about doing that? Page 99 Page 101 ·1· · · · Q.· ·Let me start with delivered. ·1· · · · A.· ·There's a -- the ability for us also within ·2· · · · A.· ·Okay. ·2· ·the API to do what's called a lookup.· Could do a ·3· · · · Q.· ·Is that CyberX's understanding, that, looking ·3· ·lookup. ·4· ·at Plaintiff Exhibit 14, under that status of ·4· · · · Q.· ·So would CyberX be able to go into -- would ·5· ·delivered, that delivered could mean that a particular ·5· ·this be the database or admin portal or something else? ·6· ·text message was sent to a VOIP number? ·6· · · · A.· ·We'd have to go back and look at past logs ·7· · · · A.· ·It is possible, yes, for it to go through a ·7· ·and run it.· We would have to run it on these numbers. ·8· ·VOIP. ·8· · · · Q.· ·So let me be clear.· I'm not asking if CyberX ·9· · · · Q.· ·Is it also CyberX's understanding that status ·9· ·is capable of running -- performing line type 10· ·of delivered, that in an instance when a text message 10· ·identifications now. 11· ·has been sent to a VOIP number, that a carrier could 11· · · · · · ·I want to ask, is CyberX able to look through 12· ·confirm to Twilio the delivery status of that message 12· ·its business records or its database or its admin 13· ·was delivered? 13· ·portal or anything, to determine whether it previously 14· · · · A.· ·That is possible, yes. 14· ·performed a line type identification on any of these 15· · · · Q.· ·And what is the basis for CyberX's belief 15· ·numbers? 16· ·that a delivered status of delivered could result from 16· · · · A.· ·We can look to see if we did it previously. 17· ·a text message that is sent to a VOIP number? 17· ·I do not believe we did, but we can look. 18· · · · A.· ·From past experiences, I have known that, 18· · · · Q.· ·How much time would it take for CyberX to 19· ·very well that you can -- because it's an SMS versus a 19· ·perform that operation, searching through to see if it 20· ·text message directly, SMS can be delivered 20· ·previously -- 21· ·successfully over VOIP. 21· · · · A.· ·Probably a couple days. 22· · · · Q.· ·Did, at any time, CyberX perform any work to 22· · · · Q.· ·-- did line type identifications? 23· ·determine or attempt to determine whether any of the 23· · · · · · ·MR. RICHMOND:· Note that as something to 24· ·numbers in this list that we've been discussing, these 24· ·find. 25· ·FleetSeek numbers, did CyberX do any work to determine 25· · · · · · ·MR. LEHRMAN:· Thank you, sir.· That's all I www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0029 YVer1f 1 PageID 892 JOHN NORTHRUP vs INNOVATIVE HEALTH IUNSURANCE PARTNERS, LLC, ET AL. Chris Pearson on 03/11/2019 Pages 102..104 Page 102 Page 104 ·1· ·have. ·1· · · · · · · · · ·CERTIFICATE OF REPORTER ·2 ·2· · · · · · ·I, BRANDON D. COMBS, a Certified Shorthand ·3· · · · · · · · · · ·FURTHER EXAMINATION ·3· ·Reporter, hereby certify that the witness in the ·4 ·4· ·foregoing deposition was by me duly sworn to tell the ·5· ·BY MR. RICHMOND: ·5· ·truth, the whole truth, and nothing but the truth in the ·6· · · · Q.· ·Mr. Pearson, just a couple more questions. ·6· ·within-entitled cause; ·7· · · · · · ·A -- telephone carriers can include both ·7· · · · · · ·That said deposition was taken in shorthand by ·8· ·mobile and landlines within the same carrier; correct? ·8· ·me, a disinterested person, at the time and place ·9· ·For example, AT&T could have both mobile, landline, and ·9· ·therein stated, and that the testimony of the said 10· ·VOIP services that it offers? 10· ·witness was thereafter reduced to typewriting, by 11· · · · A.· ·Yes, correct. 11· ·computer, under my direction and supervision; 12· · · · Q.· ·Is another way to be able to determine 12· · · · · · ·That before completion of the deposition, 13· ·whether or not a text message was actually delivered 13· ·review of the transcript was not requested.· If 14· ·and/or received by the recipient, is to obtain the 14· ·requested, any changes made by the deponent (and 15· ·carrier's own statements for the users to determine if 15· ·provided to the reporter) during the period allowed are 16· ·it shows up on their bill as a received text message? 16· ·appended hereto. 17· · · · · · ·MR. LEHRMAN:· Form. 17· · · · · · ·I further certify that I am not of counsel or 18· · · · · · ·THE WITNESS:· Yeah, it's possible. 18· ·attorney for either or any of the parties to the said 19· ·BY MR. RICHMOND: 19· ·deposition, nor in any way interested in the event of 20· · · · Q.· ·Do you have any recollection -- 20· ·this cause, and that I am not related to any of the 21· · · · A.· ·I was going to say it's possible, not that I 21· ·parties thereto. 22· ·have got knowledge of. 22· · · · · · ·DATED: March 19, 2019 23· · · · Q.· ·You haven't seen any carrier statements for 23 24· ·these phone numbers? 24· · · · · · _______________________________________________ 25· · · · A.· ·Correct. 25· · BRANDON D. COMBS, TEXAS CSR 10927, CALIFORNIA CSR 12978 Page 103 ·1· · · · Q.· ·For the API lookup, the information that ·2· ·Mr. Lehrman was asking for, is that something that you ·3· ·can look up to see whether a prior lookup was done, or ·4· ·is it to do a lookup for a date in the past? ·5· · · · A.· ·Yeah, we can look to see if it was executed ·6· ·or not, if a lookup was or was not done. ·7· · · · Q.· ·So you could say, for example, we did do a ·8· ·lookup on that data set and here's the result, or we ·9· ·did a lookup on June -- or on July 1, 2017, to see what 10· ·was the data? 11· · · · A.· ·Correct. 12· · · · Q.· ·And is that data that you believe would still 13· ·be in the system if it existed? 14· · · · A.· ·Yes. 15· · · · Q.· ·Can you get that data to Mr. Lehrman in the 16· ·next couple days? 17· · · · A.· ·Yes. 18· · · · · · ·MR. RICHMOND:· Reserve and pass. 19· · · · · · ·MR. LEHRMAN:· Read or waive? 20· · · · · · ·MR. RICHMOND:· We'll waive. 21· · · · · · ·THE REPORTER:· Counsel, do you want a copy of 22· ·the transcript? 23· · · · · · ·MR. RICHMOND:· Yes. 24· · · · · · ·(Whereupon, the deposition adjourned at 25· · · · · · ·4:27 P.M.) www.huseby.com Huseby, Inc.· Regional Centers 800-333-2082 Charlotte ~ Atlanta ~ Washington, DC ~ New York ~ Houston ~ San Francisco DEFAPPX0030 1 PageID 893 EXHIBIT A-4 DEFAPPX0031 1 PageID 894 DEFAPPX0032 1 PageID 895 EXHIBIT B DEFAPPX0033 1 PageID 896 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION § JOHN NORTHRUP, Individually and on § behalf of a Class of Similarly Situated § Individuals, § § Civ. No. 8:17-cv-01890-CEH-JSS Plaintiff, § § v. § § CyberX Group, LLC, et al., § Defendants. § DECLARATION OF ANDREW LIN I, Andrew Lin, pursuant to 28 U.S.C. § 1746, declare as follows: 1. I am an attorney with the law firm of Platt Cheema Richmond PLLC, licensed in the State of Texas, and represent Defendants Innovative Health Insurance Partners, LLC, CyberX Group, LLC, David E. Lindsey; and Independent Truckers Group, Inc. in connection with this action. I make this Declaration based on my personal knowledge and in support of Defendants' Motion for Summary Judgment. 2. Attached hereto as Exhibit 1 is a true and correct copy of Twilio's Terms of Service, effective May 24, 2016, retrieved from https://www.twilio.com/legal/tos on June 20, 2018. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on June 25, 2018. ____________________________ Andrew Lin DEFAPPX0034 1 PageID 897 EXHIBIT B-1 DEFAPPX0035 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page522 of of 81 31 PageID PageID 898 636 Sign up Menu Legal Twilio Terms of Service L A ST U P DAT E D M AY 2 4, 2 0 1 6 Summary of Changes to Twilio's Terms of Service We've updated our Terms of Service ("Terms"), which will be effective starting May 24, 2016. If you want to review our old Terms of Service, effective before May 24, 2016 click here. On May 24, 2016, we made some tweaks to the Terms of Service to address the new Twilio Marketplace Add-ons and also to provide a "human readable" translation of the terms. What we have NOT changed We have not changed your ability to use our products and services. You may continue to access your Twilio account and use our products and services as you always have. If you have a separate contract with Twilio covering your account and use of our services, these new Terms will not apply to you. What we HAVE changed February 1, 2016 Changes: We have changed the format and tone of the Terms to make them easier to understand by taking out as much legalese as our lawyers will allow. EXHIBIT B DEFAPPX0036 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page533 of of 81 31 PageID PageID 899 637 Here is a list of some of the bigger changes we want to point out to you: Sign up Menu 3. Your Account(s): We have added language to explain the account creation process. For certain phone numbers (we'll let you know which), you must now provide an address. 5. Our Use and Storage of Customer Data: We have added a clearer definition of "customer data" and explained when we may be required to disclose it. We've also added a link to our update privacy notices. Check it out here. 6. Restrictions: (f) If you have purchased a short code through Twilio, then you had to indicate how you are going to use it and you may not change this use without Twilio's approval. We'll approve a change if we can, but it's not always up to us. (g) If you don't use the Twilio numbers in your account, we can reclaim them, although we will tell you before we do. (h) In general, you may port away your phone numbers as long as certain requirements are met. 7. Export Controls: You must now promise to comply with all export laws and regulations. 8. Affiliates: Your affiliates (e.g., subsidiaries, parent companies, etc.) may order Twilio services under these Terms. 10.2. Suggestions and Contributions: Please tell us what you think of our services, send us suggestions about improvements and additions, but please understand that we can use your feedback free of charge or any other obligations. 11.2 Beta Service: If you use any of our services while they are in a beta stage, you understand that they may have some bugs that still need to be worked out. May 24, 2016 Updates: We did not make any updates that will impact your use of any existing Twilio products or services. Instead, we just added a section to address the new Twilio Marketplace and your use of Add- ons. EXHIBIT B DEFAPPX0037 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page544 of of 81 31 PageID PageID 900 638 We also added, as a courtesy, a "human readable" translation of the terms. This "human readable" translation doesn't change any of the language of the "official" terms. Sign up Menu While we've done our best to make our Terms complete, readable, and understandable, you may still have additional questions. We get that. So, feel free to contact our support team at help@twilio.com. Or, if you prefer, you may write to us at: Twilio Inc. 375 Beale Street, Suite 300 San Francisco, CA 94105 Twilio Ireland Limited, 25-28 North Wall Quay Dublin 1, Ireland Twilio Terms of Service L A ST U P DAT E D M AY 2 4, 2 0 1 6 Ahoy! And welcome to Twilio! Twilio is a cloud communications company. Our services enable connectivity and the easy integration of telecommunications capabilities into software applications, including mobile, web-based and desktop applications. This is our terms of service. As a courtesy to you, on the left side, we've done our best to translate the legalese into a "human readable" format (though our legal team assures us that EXHIBIT B DEFAPPX0038 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page555 of of 81 31 PageID PageID 901 639 lawyers are humans, too). You should know though that the language on the right is the legally binding stuff. Sign up Menu Unless you work for a company that has negotiated a separate agreement with us, these are the terms that apply to your use of Twilio. You should read them. And, heads up, you should really check out Sections 11 and 13 because they limit our liability to you if something goes wrong. Also, if we get into a dispute, we'll have to figure it out in arbitration. Check out Section 17 for more details. Twilio provides its Services subject to the terms and conditions in this Terms of Service ("Terms" or "Agreement"). When we refer to our "Services" in these Terms, we mean to include the whole enchilada -- our platform services, which includes all of our programs, features, functions and report formats, instructions, code samples, the TwiML markup language, on-line help files and technical documentation, our website, account portal, technical support, Add-ons as well as any upgrades or updates to any of these, made generally available by us, and includes any of our SDKs, APIs or software provided to you in connection with your use of our services, and our connectivity services. To be eligible to register for a Twilio account and use Twilio's Services, you must review and accept the terms of this Agreement by clicking on the "I Accept" button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE "I ACCEPT" BUTTON AND YOU SHOULD NOT USE TWILIO'S SERVICES. In this Agreement, "we," "us," "our" or "Twilio" will refer to Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105. And, the terms "you," "your" and "Customer" will refer to you. If you are registering for a Twilio account or using Twilio's services on behalf of an organization, you are agreeing to these terms for that organization and promising Twilio that you have the authority to bind that organization to these Terms (and, in which case, the terms "you" and "your" or "customer" will refer to that organization). The exception to this is if that organization has a separate contract with Twilio covering your account and use of our Services, in which case that contract will govern your account and use of Twilio's Services. EXHIBIT B DEFAPPX0039 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page566 of of 81 31 PageID PageID 902 640 IMPORTANT NOTE: TWILIO DOESN'T PROVIDE WARRANTIES FOR ITS SERVICES, AND THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Sections 11 and 13. Sign up Menu IN ADDITION, DISPUTES ABOUT THESE TERMS OR RELATING TO YOUR TWILIO ACCOUNT OR TWILIO'S SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, go to Section 17. If you have any questions, you can reach the Twilio team at twilio.com/help/contact. If you are a U.S. federal government user or otherwise accessing or using any Twilio service in a U.S. federal government capacity, this Amendment to these Terms applies to you. 1. Changes to These Terms 2. Changes to Our Services 3. Your Account(s) 4. Access and Use of Our Services 5. Our Use and Storage of Customer Data 6. Restrictions 7. Export Controls 8. Affiliates 9. Add-ons 10. Fees, Payment Terms, Taxes 11. Ownership and Confidentiality 12. Warranties and Disclaimers 13. Indemnification 14. Exclusion of Damages; Limitations of Liability 15. Termination of These Terms 16. Survival 17. General EXHIBIT B DEFAPPX0040 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page577 of of 81 31 PageID PageID 903 641 18. Agreement to Arbitrate Sign up Menu 19. Fun 1. Changes to These Terms These terms might change. But we'll send you an email and let you know before we make any significant changes that impact you or your use of our services. If you keep using Twilio after the terms change, then you have accepted those changes. We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address we have on file. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit Twilio's website or account portal. Your continued access or use of our Services constitutes your acceptance of any revisions. If you don't agree to the revisions, you should stop using Twilio's Services and we are not obligated to provide you with the Services. 2. Changes to Our Services We are always looking to innovate and make Twilio better, so our SLA (which stands for "service level agreement") and APIs may change over time. We will let you know in advance if any API changes aren't backwards-compatible. The features and functions of our Services, including our APIs, and Twilio's service level agreement (SLA), may change over time. It is your responsibility to ensure that calls or requests you make to our Services are compatible with our then-current Services. Although we try to avoid making changes to our Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes. 3. Your Account(s) EXHIBIT B DEFAPPX0041 EXHIBIT 1 Case () Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page588 of of 81 31 PageID PageID 904 642 Sign up If you want to use Twilio, you need to create a Twilio account. To create an account, Menu you need to give us some information about yourself. The information you provide must be true and you have to keep it up to date. You are responsible for anything that happens under your account. Also, for some phone numbers, we need to have a physical address on file for you. So, please send us your new physical address if you move. To use our Services, you will be asked to create an account. As part of the account creation process, you'll be asked to provide your email address, create a password, and verify that you're a human being by providing a telephone number to which we'll send you a verification code to enter into the form. Until you apply for an account, your access to our Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account. You may also create multiple accounts as well as sub-accounts. You are solely responsible for all use (whether or not authorized) of our Services under your account(s) and subaccount(s), including for the quality and integrity of your Customer Data and each of your applications. You are also solely responsible for all use and for all acts and omissions of anyone that has access to your application ("End Users"). You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your account. For the purchase of any phone number for which Twilio is required to have an address for you on record, it is your obligation to provide us with an accurate and current address to associate with that number. You are responsible for updating that address within fifteen (15) days of a change of address. 4. Access and Use of Our Services We want to make our services available for you to use 24/7, but things happen that occasionally (very occasionally) make Twilio unavailable. If our service is ever available less than we commit it to be in our SLA, then we will give you a service credit (check out our SLA). EXHIBIT B DEFAPPX0042 EXHIBIT 1 Case Case 8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document 63-2 94 Filed Filed03/22/19 06/26/18 Page Page599 of of 81 31 PageID PageID 905 643 You can use Twilio as long as you don't violate these terms, our AUP ("Acceptable Use Policy"), and all laws that apply when you use Twilio. Sign up Menu We will make our Services available to you in accordance with our SLA, which may be updated from time to time. You may use our Services, on a non-exclusive basis, solely in strict compliance with these Terms and the Twilio's Acceptable Use Policy ("AUP"), which may be updated from time to time, and applicable law, including: a. Using our Services as needed to develop your software applications that interface with our Services ("Your Applications") or provide Services through Your Applications, b. Making our Services available to End Users of Your Applications in connection with the use of each of Your Applications, and c. Otherwise using our Services solely in connection with and as necessary for your activities under these Terms. 5. Our Use and Storage of Customer Data Please read our privacy policy. If you don't agree to it, stop using Twilio. We are not a data storage company. So we don't promise to keep or store your data on Twilio. In fact, we might have to disclose your data if: The law requires We need to protect Twilio, other customers or the public, or There is an emergency. You acknowledge that you have read Twilio's Privacy Policy and understand that it sets forth how we will collect, store, and use your Customer Data. "Customer Data" consists of information made available to us through your use of our Services under these Terms, which includes information such as your name, contact information, billing records, call or messaging logs, and traffic routing information, as well as the content of EXHIBIT B DEFAPPX0043 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page60 10ofof81 31PageID PageID906 644 communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions. If you do not agree to Twilio's Privacy Policy, you must stop using our Services. Sign up Menu Except as agreed by Twilio and you in writing, Twilio may periodically delete your Customer Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data. You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury. 6. Restrictions Some "dos and don'ts" on Twilio: a. Don't transfer our services, resell them, etc., except as allowed under Section 4. b. Don't use Twilio to try to contact emergency services unless you have agreed to Twilio's special "911 Terms". (If you aren't sure if you have, then you probably haven't.) c. Don't use Twilio to break the law, to violate these terms, to violate our AUP, or to violate someone else's rights. d. Do make sure that Twilio is allowed to use your data as needed to provide you the service. e. Don't reverse engineer, etc. any software we provide. f. If you buy a short code from us, only use it how you said you would use it. If you don't send enough traffic on a phone number, then we may have to take it back. This is because some states require a minimum amount of use for each phone number. If the minimum isn't met, they take back those numbers so that they can give to someone else who's going to actually use them. This is definitely a big deal in regions that are running out of phone numbers with certain area codes. EXHIBIT B DEFAPPX0044 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page61 11ofof81 31PageID PageID907 645 Technically, Twilio is the "customer of record" for the phone numbers we give you. We may not always let you "port away" a phone number. Usually, though, we will let you portSign awayup a phone Menu number if you have an upgraded account in good standing and the phone number in question has been in your account more than 90 days. We are excited to see what you build with our Services. But, you should know there are some restrictions on what you can do with them. a. Except as provided in Section 4 (Access and Use of Our Services), you agree not to transfer, resell, lease, license or otherwise make available our Services to third parties or offer them on a standalone basis. b. You will not attempt to use our Services to access or allow access to Emergency Services, unless you do so consistent with, and have agreed to, the Twilio Inc. 911 – Terms and Conditions. c. You will ensure that our Services are used in accordance with all applicable Law and third party rights, as well as these Terms and the Twilio AUP, as amended from time to time. d. You will ensure that we are entitled to use your Customer Data, including content of communications stored on our systems, as needed to provide our Services and will not use our Services in any manner that violates any applicable law. e. Except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with our Services. f. If you have purchased a short code, then you will not change your use of that short code from the use stated in your application to the carrier for approval of the short code without first obtaining an amendment to your application or re-applying to the carrier for approval of the short code under the new use. g. We reserve the right to reclaim any phone number from your account and return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number such that the phone number is unutilized or underutilized, as defined by any local, federal, and/or national regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. If we seek to reclaim a phone number from your account, excluding suspended and trial accounts, we will send you an email at least two (2) weeks' in advance telling you that we are reclaiming the phone number, unless we're otherwise prevented from doing so by the applicable regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers from accounts suspended for failure to pay and/or suspended for suspected fraud, and to reclaim phone numbers in free trial accounts that are unutilized for more than thirty (30) days. h. You acknowledge that we are the "customer of record" for all phone numbers provided as part of our Services. As the customer of record, Twilio has certain rights with respect to porting phone numbers. You understand and agree that you may use theEXHIBIT B provided as part of our Services subject to phone numbers DEFAPPX0045 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page62 12ofof81 31PageID PageID908 646 these Terms and until the end of the Terms Period (as defined in Section 14.1 (Terms Period)). Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in Sign up Menu our sole discretion. Regardless, we may allow you to port away phone numbers, so long as you (1) have an upgraded account in good standing, and (2) have either ported in or purchased the phone number more than 90 days prior to the port-away date. 7. Export Controls You must follow U.S. export and economic sanctions laws. Also, the U.S. government publishes lists of people that U.S. companies aren't allowed to do business with. If you use Twilio, then you are swearing that neither you nor your company is on any of those lists. Our Services, including any software we may provide in connection with those Services, may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving this software or our Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and our Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or our other aspects of our Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer any such software or other aspect of our Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce's List of Denied Persons, Entity, or Unverified List, and the Treasury Department's List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of our software and Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list. 8. Affiliates Your affiliates (businesses that your business controls) can use Twilio, but you will be responsible for everything that they do when they're using Twilio. EXHIBIT B DEFAPPX0046 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page63 13ofof81 31PageID PageID909 647 Affiliates are any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity Sign up Menu or person that controls us, is controlled by us or is under common control with us.) If applicable to you, your affiliates may order Services directly from us under these Terms, provided that all of your affiliate's activities are subject to these Terms. You will be responsible for the acts and omissions of your affiliates in connection with each affiliate's use of our Services. 9. Add-ons Add-ons that you get through the Twilio Marketplace are not Twilio products, but, instead, are being offered by third parties ("Add-on Partners"). Add-on Partners are responsible for their Add-ons, not Twilio. So, if something goes wrong with an Add-on, you need to go to the Add-on Partner for help. 9.1 Twilio may make available through the Twilio Services additional features, functionality, and services offered by its third-party partners ("Add-ons"). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you purchase through the Twilio Services, these Terms constitute a binding agreement between you and the third party licensor of that Add-on ("the Add-on Partner") only. The Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Partner of that Add-on; Twilio is acting as agent for the Add-on Partner in providing each such Add-on to you; Twilio is not a party to the license between you and the Add-on Partner with respect to that Add-on; and Twilio is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Twilio, and Twilio's subsidiaries, are third party beneficiaries of the agreement between you and the Add-on Partner for each Add-on, and that Twilio will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof. When you buy an Add-on, you are telling Twilio that it's okay for us to give the Add-on Partner information about you that they need so that they can let you use the Add-on. 9.2 By purchasing an Add-on, you grant Twilio permission to share your Application, Content, and user EXHIBIT information with the Add-on Partner as necessary in order to B provide you the Add-on. DEFAPPX0047 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page64 14ofof81 31PageID PageID910 648 If you buy an Add-on, it is for you to use, but you can't resell it. Sign up Menu 9.3 The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others. 10. Fees, Payment Terms, Taxes You agree to pay the fees generated under your account. 10.1 Fees. You agree to pay the usage fees set forth in your "Rate Schedule" (which is either our standard schedule of fees, as may be updated from time to time, and/or any other order forms for our Services ordered by you and accepted in writing by us). In addition, you agree to pay any applicable support fees in connection with your order of any support services pursuant to our Support Terms. You also agree to pay all applicable taxes. If you are exempt from paying any taxes, though, please let us know and send us proof. 10.2 Taxes. Unless otherwise stated in your Rate Schedule, you are responsible for and shall pay all applicable taxes. This includes all federal, state and local taxes, fees, charges, carrier surcharges or other similar exactions, imposed on or with respect to our Services whether these taxes are imposed directly on you or on Twilio and include, but are not limited to, sales and use taxes, utility user's fees, excise taxes, VAT, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. For purposes of this section, taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Twilio. You understand and agree that the detail of taxes charged will be made available to you through Twilio's customer portal as a csv file for download for a period of twelve (12) months after such taxes are incurred. If you're exempt from any taxes for any reason, send an email to our Tax Department at legalnotices@twilio.com with an executed, signed and dated valid exemption certificate. Once our Tax Department has received and approved your exemption certificate, we will exempt you from those taxes on a EXHIBIT B DEFAPPX0048 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page65 15ofof81 31PageID PageID911 649 going-forward basis. If, for any reason a taxing jurisdiction determines that you are not exempt from those taxes and assesses those taxes, you agree to pay Twilio those taxes, plus any applicable interest or penalties. Sign up Menu You agree to pay all fees that you owe to Twilio in US dollars no later than 30 days after the date of the invoice. If you don't pay on time, then we may send you a late notice. If we don't get your payment within 10 days after the date on the late notice, then we may charge a late fee and/or suspend your account. Please pay us on time. 10.3 Payment Terms. Subject to certain credit requirements as determined by us, we may let you pay amounts due under these Terms in arrears. If we let you to do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice. Unless you and Twilio agree otherwise in writing, all fees due under these Terms are payable in United States dollars. Payment obligations can't be canceled and fees paid are non-refundable. Subject to Section 10.4 (Fee Disputes), if you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. Subject to Section 10.4 (Fee Disputes) and following the overdue notice, we may also suspend our Services to your account until you pay the amount you are overdue plus the late fee. If you ever think that we charged you the wrong amount and you want to dispute it, then let us know, in writing, within 60 days of date on the invoice. 10.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you. EXHIBIT B DEFAPPX0049 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page66 16ofof81 31PageID PageID912 650 Again, just in case you missed it above, if you don't pay us on time (no more than 10 days after we send you a late notice), then we can suspend your account without letting you know Sign up first. Menu And, if your account is suspended, then we are not responsible for anything bad that might happen as a result. 10.5 Suspension. If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you under Section 10 of the Agreement, we may suspend our Services associated with your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section. 11. Ownership and Confidentiality What's ours is ours, and what's yours is yours. 1.1 General. As between you and Twilio, we exclusively own and reserve all right, title and interest in and to our Services. As between you and Twilio, you exclusively own and reserve all right, title and interest in Your Applications and the content of any communications sent through integration with our Services. Please let us know what you think about Twilio and our services. By the way, though, if you send us feedback, then we can use it and we don't owe you anything for it. 11.2 Suggestions and Contributions. We welcome your feedback on our Services. But please know that by submitting suggestions or other feedback about our Services ("Contributions") you agree that: 1. we are not under any obligation of confidentiality with respect to your Contributions; 2. we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; 3. you irrevocably, non-exclusively license to us rights to exploit your Contributions; and 4. you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions. EXHIBIT B DEFAPPX0050 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page67 17ofof81 31PageID PageID913 651 Sign up If you use Twilio, then we can use your company's name and logos in marketing and Menu promotional materials. You can also use our name and logos as long as you do so in compliance with these terms. Finally, we both agree to be honest about our relationship with each other -- no shenanigans, please. 11.3 Use of Marks. Subject to these Terms, we both grant each other the right to use and display each other's name and logo (the Licensor Marks) on our respective websites and in other promotional materials solely in connection with each of our respective activities under these Terms. All of this use of the Licensor Marks will be in accordance with the each other's applicable usage guidelines and will inure to the benefit of Licensor. The one of us using the other's Licensor Marks under this subsection will not use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the one of us whose Licensor Marks are being used. In using the Licensor Marks under this subsection, the one of us using the other's Licensor Marks will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. The one of us using the other's Licensor Marks will not, at any time, misrepresent the relationship between us. The one using the other's Licensor Marks will not present itself as an affiliate or other legal agent of the one of us whose Licensor Marks are being used. The rights to use and display each other's Licensor Marks under this subjection will end automatically in the event these Terms terminate. We both agree not to tell anyone else about confidential information that we get from each other. Also, we both agree to only use each other's confidential information as agreed to in these terms. 11.4 Confidentiality. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party's rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care EXHIBIT B DEFAPPX0051 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page68 18ofof81 31PageID PageID914 652 in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or Sign up Menu potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Money alone may not be enough to make us whole if one of us breaks our promise of confidentiality. So, we both can seek other remedies (like gag orders), if needed. 11.5 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section. 12. Warranties and Disclaimers Except for our SLA and other terms about Twilio's support, we are offering our products and services "as is." 12.1 NO WARRANTY. WITHOUT LIMITING TWILIO'S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, TWILIO HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12 AND TWILIO'S SLA (AND SUPPORT TERMS), TWILIO'S SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW. EXHIBIT B DEFAPPX0052 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page69 19ofof81 31PageID PageID915 653 Signbugs If we let you use one of our products or services that is still in Beta, it might contain up Menu and defects. We don't make any promises that a Beta product or service won't have problems. 12.2 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH TWILIO WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES AND DOCUMENTATION ("BETA SERVICES") OFFERED BY US. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WE ARE PROVIDING THE BETA SERVICES TO YOU "AS IS." WE MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, TWILIO DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. 13. Indemnification If someone comes after Twilio about something you've done with our products or services, then you have to fight that fight and reimburse us for any money we have to spend related to that fight. You will defend, indemnify and hold Twilio and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of Your Application, including, without limitation, any intellectual property claims relating to the Your Application and any violation by you or your End Users of the terms of Section 6 (Restrictions) ("Claim"). We and our affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 13 (Indemnification). You will pay all costs, reasonable attorneys' fees and any settlement amounts or damages awarded against us in connection with any Claim. You will also be liable to us for any costs and attorneys' fees we incur to successfully establish or enforce our right to indemnification under this Section. 14. Exclusion of Damages; Limitations EXHIBITof BLiability DEFAPPX0053 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page70 20ofof81 31PageID PageID916 654 Sign up result Generally speaking, we are not going to owe you for any bad things that might indirectly Menu from Twilio not working as intended, like lost business. Any direct damages we might owe you are capped at the amount you've paid us in the 12-month period prior to the damages. Again, you may not to use Twilio to call for emergency services. If something bad happens because you or someone using Twilio under your account tries but is unable to reach emergency services, then Twilio is not and cannot be held responsible. EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 6 (RESTRICTIONS), 11 (OWNERSHIP) OR 13 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TWILIO BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 14, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TWILIO BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. TWILIO'S SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER TWILIO NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD TWILIO HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE OUR SERVICES TO CONTACT EMERGENCY SERVICES. 15. Termination of These Terms These Terms become effective on the day you click "I accept" or when you or someone else starts using Twilio under your account. EXHIBIT B DEFAPPX0054 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page71 21ofof81 31PageID PageID917 655 15.1 Terms Period. The period of these Terms will commence on the date these Terms are accepted by you and continue for twelve months. This is called the Initial Period. These Terms will automatically renew for Sign up Menu additional one-year periods (each, a "Renewal Period"), unless either you or Twilio provides notice of non- renewal at least thirty (30) days prior to the end of the Initial Period or a Renewal Period. The Initial Period and all Renewal Periods will be referred to in this agreement as the "Terms Period". We may terminate your account and suspend your services for any reason 60 days after we give you notice. If you significantly breach these terms, and don't fix the breach within five (5) days of us telling you about the breach, then we may terminate or suspend your account. We can suspend your account for not paying us as described in Section 10.5. And, we can suspend your account immediately if you violate our AUP, send fraudulent traffic, negatively impact our service operations, legal conditions make it impractical for Twilio to operate, or you go out of business. We'll try to let you know if we need to suspend your account. 15.2 Termination and Suspension of Services. Either party may terminate your account for any reason upon 60 days written notice to the other party. Either party may also terminate or suspend your account in the event the other party commits any material breach of these Terms and fails to fix that breach within 5 days after written notice of that breach. If we terminate these Terms due to your material breach, we may terminate or suspend of your account(s) as well. In addition to suspension of our services for non-payment of fees as described in Section 10.5 (Suspension), we may also suspend our Services immediately for cause if: (a) you violate (or give us reason to believe you have violated) the Twilio AUP; (b) there is reason to believe the traffic created from your use of our Services or your use of our Services is fraudulent or negatively impacting the operating capability of our Services; (c) we determine, in our sole discretion, that providing our Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide our Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend our Services to your account, we will make a reasonable attempt to notify you. 16. Survival EXHIBIT B DEFAPPX0055 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page72 22ofof81 31PageID PageID918 656 Sign up Some terms are like zombies. They carry on even after this agreement is terminated. That Menu includes your payment obligations and Sections 5, 6, 11, 12, 13, 14, 16 and 17. Upon termination or expiration of these Terms, your payment obligations, the terms of this Section 15, and the terms of the following Sections will survive (i.e. still apply): Section 5 (Our Use and Storage of Customer Data), Section 6 (Restrictions), Section 11 (Ownership and Confidentiality), Section 12 (Warranties and Disclaimer), Section 13 (Indemnification), Section 14 (Exclusion of Damages; Limitation of Liability) and Section 17 (General). 17. General We both agree to follow the law. 17.1 Compliance with Laws. Both you and Twilio will comply with the applicable law relating to each of our respective activities under these Terms, including privacy and data protection laws and applicable rules established by the Federal Communications Commission. Just because we don't enforce some part of these terms against you now doesn't mean we can't start enforcing them against you later. 17.2 No Waiver. Twilio's failure to enforce at any time any provision of these Terms or our AUP does not waive our right to do so later. And, if we do expressly waive any provision of these Terms or our AUP, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by and us to be legally binding. You cannot just transfer these terms or your obligations under these terms to someone else without our permission. EXHIBIT B DEFAPPX0056 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page73 23ofof81 31PageID PageID919 657 17.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. Subject Sign up Menu to this Section 16.3, these Terms will be binding on both you and Twilio and each of our successors and assigns. These terms don't create any special relationship between us, like employer-employee, joint venture, or a partnership. Nothing will change that. We both will be responsible for our own employees. 17.4 Relationship. You and Twilio are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer- employee relationship or a partnership, agency, joint venture, or franchise. You and Twilio will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and Twilio will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor Twilio has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so. Except as described in Section 18, if any part of these terms is not enforceable, the rest of the terms will still be enforceable. 17.5 Unenforceability. Except as described in Section 18 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. If you need to notify us, you must use our headquarters' address and send a copy to legalnotices@twilio.com. EXHIBIT B DEFAPPX0057 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page74 24ofof81 31PageID PageID920 658 17.6 Notices. Any notice required or permitted to be given under these Terms will be given in writing to the Sign up Menu receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to Twilio shall be copied to legalnotices@twilio.com, Attn: General Counsel. This is the only set of terms that governs our relationship. 17.7 Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Twilio, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms. If one of us can't keep our promises because something crazy happens beyond our control (think earthquake, massive power outage, war), then that doesn't count as a breach of these terms. 17.8 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. If you're affiliated with a government entity, these terms still apply to your use of Twilio. 17.9 Government Terms. We provide our Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of our services, or any related documentation of any kind, EXHIBIT B DEFAPPX0058 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page75 25ofof81 31PageID PageID921 659 including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. Our services were developed fully at private Sign up Menu expense. Other than arbitration (see the next section), if we can't agree on something and we end up having a legal dispute, then California laws will apply. We definitely don't want to, but, if we have to go to court, then it will be in San Francisco, California. Court isn't a great option, but at least we'll be in one of the best cities in the world! 17.10 Governing Law and Venue. The enforceability and interpretation of Section 18 (Agreement to Arbitrate) will be determined the Federal Arbitration Act (including its procedural provisions). Apart from Section 18, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 18 (Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or our Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts. 18. Agreement to Arbitrate Please, please, please reach out to our Customer Support Team (they're amazing!) before bringing a legal case. Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way. If our Customer Support Team can't help you, then we both agree to go to binding arbitration, again, in San Francisco, California. EXHIBIT B DEFAPPX0059 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page76 26ofof81 31PageID PageID922 660 Arbitration means a professional arbitrator will decide how to resolve our dispute instead of a judge or a jury deciding the case. Sign up Menu 18.1 We Both Agree to Arbitrate. If we can't resolve our dispute through our customer support, you or any of your affiliates on one hand and Twilio and any of Twilio's affiliates on the other hand, all agree to resolve any dispute arising under these Terms, or Privacy Notices, or in relation to our Services by binding arbitration in San Francisco, California, or in another location that we have both agreed to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below in Subsection 18.2 (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using your Twilio account or have deleted it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too. Despite what we said above, there are some disputes that won't go to arbitration, but to court, like IP disputes and disputes about your violation of our AUP. We also don't have to arbitrate small claims court cases. 18.2 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Twilio and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to: 1. Your, your affiliate's, Twilio's or Twilio's affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or 2. Your violation of Twilio's AUP. Also, any of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. EXHIBIT B DEFAPPX0060 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page77 27ofof81 31PageID PageID923 661 Sign up If we arbitrate, then we'll do it through the American Arbitration Association (AAA). BeforeMenu we even arbitrate, though, we'll try mediation with a AAA mediator. If mediation doesn't work, then we'll go to arbitration through AAA with only one arbitrator (one is so much easier). And remember, the arbitrator's decision will be final and binding. 18.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA's rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA's Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section 18 conflicts with the Rules, the language of this Section 18 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 18 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator's award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. We both agree not to bring a class action suit against the other. If for some reason a court decides that this term isn't enforceable, then the entire Section 18 will go away. EXHIBIT B DEFAPPX0061 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page78 28ofof81 31PageID PageID924 662 18.4 Class Action Waiver. Both you and your affiliates, on one hand, and Twilio and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual Sign up Menu basis only. That means neither you and your affiliates on one hand nor Twilio and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Twilio customers, and cannot be used to decide other disputes with other customers. If a court decides that this Subsection 18.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 18 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply. 19. Fun Let your imagination run wild with Twilio! You understand and acknowledge that developing applications should be fun and easy, and by using our Services, you agree to let your imagination run wild. For Customers who reside in the European Union only: If you are in the EEAU, Switzerland, or are otherwise subject to the territorial scope of the national implementations of Directive 95/46/EC or the upcoming General Data Protection Regulation, you can request our data protection addendum here. For more information about Twilio's compliance with the GDPR, please visit https://www.twilio.com/gdpr. A. Data Protection Addendum. Twilio customers wishing to execute the GDPR Twilio Data Protection Addendum (DPA) may do so by submitting a request here. Upon receipt of your request we will send you a pre-signed version of the DPA ready for execution. EXHIBIT B DEFAPPX0062 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page79 29ofof81 31PageID PageID925 663 Signto You swear that it's okay for us to use your data as needed so that we can allow you upuse our Menu products and services. B. You will ensure that Twilio is enabled to use all Customer Data as necessary to provide the Services. Some things may change, but the main parts of our service will be available to you during the term. C. The primary characteristics of the Services, as agreed upon between you and Twilio will remain available to you during the Terms Period. If you reside in Germany, we promise that Twilio will, for the most part, work as advertised for 12 months from your acceptance of these terms. That's as far as it goes though. D. For Customers who reside in Germany, the following shall apply in relation to Warranties. a. Twilio warrants that for a period of 12 months from that date on which you enter into this Agreement, the Services will materially comply with the specifications as agreed upon between you and Twilio; b. Any and all further warranties are excluded. You will have a reasonable period from the date of a charge to dispute it. E. Despite Section 9.4 (Disputes) above, you will have a reasonable period from the date of any charge to dispute such charge. EXHIBIT B DEFAPPX0063 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page80 30ofof81 31PageID PageID926 664 We're only liable to each other for things we do knowingly (or we really should've known). Sign up Menu If we should've known (but not really should've known), then each of us will be responsible for any significant breaches. In either case, we're not going to be liable to the other for indirect damages (like lost profits). Instead, we'll only be liable to each other for direct (actual) damages and damages that anyone should have known could happen. F. The following shall apply in relation to the limitation of liability: a. The Parties shall only be fully liable for intent and gross negligence as well as damages caused by injury to life, body or health; b. In an event of slight negligence, the Parties shall be liable only for breaches of a material contractual obligation (cardinal duty). A "cardinal duty" in the sense of this provision is an obligation whose fulfillment makes the processing of this Agreement possible in the first place and on the fulfillment of which the other Party may therefore generally rely; c. In any of the above mentioned cases, the Parties shall not be liable for any lack of commercial success, lost profits and indirect damages d. Liability in accordance with the above clauses shall be limited to the typical, foreseeable damages: and e. Except where otherwise stated in this Agreement, the Parties shall not be liable for any loss or damage or any costs, expenses or other claims including without limitation loss of profit, business, revenue, goodwill or anticipated savings, loss of any data or information and/or special or indirect loss or consequential loss or otherwise which arise out of or in connection with this Agreement. If we make significant changes to these terms, then we'll tell you about them (in writing) at least 30 days before we make the change. G. Twilio may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Twilio will notify Customer via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from aforementioned notice, such non- EXHIBIT B DEFAPPX0064 EXHIBIT 1 Case Case8:17-cv-01890-CEH-JSS 8:17-cv-01890-CEH-JSS Document Document63-2 94 Filed Filed03/22/19 06/26/18 Page Page81 31ofof81 31PageID PageID927 665 objection may be relied upon by Twilio as your consent to any such amendment. Twilio will inform you about your right to object and the consequences of non-objection with the aforementioned notice. Sign up Menu We can't wait to see what you build. ABOUT TWILIO LEGAL P R I VA C Y TWILIO.ORG PRESS & MEDIA SIGNAL I N V E STO R S JOBS COPYRIGHT © 2018 TWILIO, INC. A L L R I G H TS R E S E RV E D. EXHIBIT B DEFAPPX0065 EXHIBIT 1