Northrup v. Itg Insurance Agency LLC et al

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

STIPULATION of agreed material facts re 94 MOTION for summary judgment and incorporated Memorandum by John Northrup. Modified text on 4/8/2019

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PageID 930 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. § § Innovative Health Insurance Partners, LLC, § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § § Defendants. § STIPULATION OF AGREED MATERIAL FACTS Pursuant to the provisions regarding Motions for Summary Judgment in the Court's Order, Docket No. 48, Paragraph II (H) (1), the parties file this stipulation of agreed material facts. 1. Defendant CyberX Group, LLC ("CyberX") caused the text message at issue in this matter, i.e., the one described by paragraphs 32-33 of the Second Amended Complaint [D.E. 38], to be sent through the Twilio Platform, to a phone number used by Plaintiff. 2. The Twilio Platform is a web-based software application which, as utilized by CyberX, allows a user to direct the Twilio Platform to send text messages to specific phone numbers provided by the user. 3. The phone numbers to which CyberX directed the Twilio Platform to send text messages on June 30, 2017 (which includes Plaintiff's phone number) were purchased from a third party company, FleetSeek, by CyberX and provided to the Twilio Platform by CyberX. 4. Defendant ITG outsourced all functions related to its underlying healthcare product to Defendant IHIP. PageID 931 5. IHIP decided to market ITG and its healthcare product via a text message and contracted with CyberX to execute the campaign and send the text messages. 6. The content of the text message was drafted by IHIP. CyberX utilized Twilio to send the text messages. 7. On June 30, 2017, at 2:40 pm Eastern time, Plaintiff received an SMS or "text" message to his wireless phone in Tampa, Florida. The text was sent to his wireless phone number with area code 813 (the area code for Tampa, Florida and surrounding areas). It stated: Hate the high price of Obama Care? Call for a free $250 rewards card and free healthcare quote. TRUCKER plans start less than $59 a month. 214-396-6822. 8. Plaintiff's claims are 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. 9. Christopher Pearson is a co-founder of CyberX and was the President and only employee of CyberX on June 30, 2017. 10. On June 30, 2017, Pearson uploaded a list of customer lead data contained in an Excel spreadsheet to the CyberX contact management software 212CRM. 11. 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 to Defendant's Motion for Summary Judgment as Exhibit A-1. 12. Upon uploading the spreadsheet, Pearson reviewed the lead data for errors. 13. Pearson initiated the sending of the text messages by pointing and clicking on the "SEND" button in 212CRM. 14. The 212CRM system then communicated the dialing/delivery instructions to 2 PageID 932 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. 15. Twilio sent only the requested message content, to the requested recipient numbers, in the requested order. 16. Twilio completed the message delivery and generated a report setting out the messaging data and responses. 17. The numbers to which the messages were sent by CyberX on June 30, 2017 were solely from the FleetSeek list. Date: April 5, 2019. Respectfully submitted, /s/ Cory S. Fein Cory S. Fein (Pro Hac Vice) E-mail: CORY FEIN LAW FIRM 712 Main St., #800 Houston, TX 77002 Telephone: (281) 254-7717 Facsimile: (530) 748-0601 Seth M. Lehrman (Fla. Bar No. 132896) E-mail: EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 Attorneys for Plaintiff 3 PageID 933 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 -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 Counsel for Defendants CERTIFICATE OF SERVICE I hereby certify that on April 5, 2019 this response was served via this Court's ECF system and thereby served on all counsel of record. /s/ Cory S. Fein Cory S. Fein 4