Wolf v. Lyft, Inc.

Northern District of California, cand-4:2015-cv-01441

COMPLAINT against Lyft, Inc. (Filing fee $ 400, receipt number 0971-9400121.). Filed by Emily Wolf.

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Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 1 of 10 1 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 2 Jonathan D. Selbin (State Bar No. 170222) 250 Hudson Street, 8th Floor 3 New York, NY 10013 Telephone: (212) 355-9500 4 Facsimile: (212) 355-9592 5 LIEFF, CABRASER, HEIMANN & MEYER WILSON CO., LPA BERNSTEIN, LLP Matthew R. Wilson (State Bar No. 290473) 6 Daniel M. Hutchinson (State Bar No. 239458) Michael J. Boyle, Jr. (State Bar No. 258560) 275 Battery Street, 29th Floor 1320 Dublin Road, Ste. 100 7 San Francisco, California 94111-3339 Columbus, Ohio 43215 Telephone: (415) 956-1000 Telephone: (614) 224-6000 8 Facsimile: (415) 956-1008 Facsimile: (614) 224-6066 9 Attorneys for Plaintiff Emily Wolf and the 10 Proposed Class 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 EMILY WOLF, on behalf of herself and all Case No. 3:15-cv-1441 15 others similarly situated, COMPLAINT FOR DAMAGES AND 16 Plaintiffs, INJUNCTIVE RELIEF PURSUANT TO 47 U.S.C. § 227 ET SEQ. 17 v. (TELEPHONE CONSUMER PROTECTION ACT) 18 LYFT, INC., CLASS ACTION 19 Defendant. JURY TRIAL DEMANDED 20 21 22 Plaintiff Emily Wolf (hereinafter referred to as "Plaintiff"), individually and on 23 behalf of all others similarly situated, alleges on personal knowledge, investigation of her 24 counsel, and on information and belief as follows: 25 NATURE OF ACTION 26 1. Plaintiff brings this action for damages, and other legal and equitable 27 remedies, resulting from the illegal actions of Lyft, Inc. ("Lyft") in contacting Plaintiff and Class 28 members on their cellular telephones via text message without their prior express consent within COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-1-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 2 of 10 1 the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (hereinafter 2 referred to as the "TCPA"). Lyft has violated the TCPA by contacting Plaintiff and Class 3 members on their cellular telephones with a text message via an "automatic telephone dialing 4 system," as defined by 47 U.S.C. § 227(a)(1), without their prior express consent within the 5 meaning of the TCPA. 6 2. Plaintiff brings this action for injunctive relief and statutory damages 7 resulting from Lyft’s illegal actions. 8 JURISDICTION AND VENUE 9 3. This Court has subject matter jurisdiction pursuant to the Class Action 10 Fairness Act of 2005 ("hereinafter referred to as CAFA") codified as 28 U.S.C. 1332(d)(2). The 11 matter in controversy exceeds $5,000,000, in the aggregate, exclusive of interest and costs, as 12 each member of the proposed Class of thousands is entitled to up to $1,500.00 in statutory 13 damages for each call that has violated the TCPA. Further, Plaintiff alleges a national class, 14 which will result in at least one Class member from a different state. 15 4. This Court also has federal question jurisdiction pursuant to 28 U.S.C. § 16 1331 and 47 U.S.C. § 227 et seq. 17 5. Venue is proper in the United States District Court for the Northern 18 District of California pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1441(a), because Defendant is a 19 Delaware corporation with its principal place of business located in San Francisco, California; 20 Defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction 21 at the time the action is commenced; and Defendant’s contacts with this District are sufficient to 22 subject it to personal jurisdiction. 23 PARTIES 24 6. Plaintiff Wolf is, and at all times mentioned herein was, an individual 25 citizen of the State of Maryland. 26 7. Lyft is a Delaware corporation, which maintains its principal place of 27 business in San Francisco, California. 28 COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-2-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 3 of 10 1 THE TELEPHONE CONSUMER PROTECTION ACT OF 1991 2 (TCPA), 47 U.S.C. § 227 3 8. In 1991, Congress enacted the TCPA,1 in response to a growing number 4 of consumer complaints regarding certain telemarketing practices. 5 9. The TCPA regulates, among other things, the use of automated telephone 6 equipment, or "autodialers." Specifically, the plain language of section 227(b)(1)(A)(iii) 7 prohibits the use of autodialers to make any call to a wireless number in the absence of an 8 emergency or the prior express consent of the called party.2 9 10. According to findings by the FCC, the agency Congress vested with 10 authority to issue regulations implementing the TCPA, such calls are prohibited because, as 11 Congress found, automated or prerecorded telephone calls are a greater nuisance and invasion of 12 privacy than live solicitation calls, and such calls can be costly and inconvenient.3 13 11. On July 3, 2003, the FCC released a Declaratory Ruling wherein it confirmed that 14 the TCPA’s definition of a "call," for purposes of the limitations on the use of an autodialer, 15 "encompasses both voice calls and text calls to wireless numbers including, for example, short 16 message service (SMS) calls...."4 17 12. On February 15, 2012, the FCC released a Declaratory Ruling wherein it clarified 18 that a party must obtain prior express written consent from the recipient prior to making 19 automated telemarketing calls to the recipient’s cellular telephone.5 20 13. On May 9, 2013, the FCC released a Declaratory Ruling holding that a corporation 21 or other entity that contracts out its telephone marketing "may be held vicariously liable under 22 1 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227 (TCPA). The TCPA amended Title II of the Communications Act of 23 1934, 47 U.S.C. § 201 et seq. 2 24 47 U.S.C. § 227(b)(1)(A)(iii). 3 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG 25 Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003). 4 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act 26 of 1991, Report and Order ("2003 FCC Declaratory Ruling"), 18 FCC Rcd. 14014, 14115 (July 3, 2003). 27 5 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 28 1991 ("2012 FCC Declaratory Ruling"), 27 F.C.C.R. 1830, 27 FCC Rcd. 1830, 55 Communications Reg. (P&F) 356, 2012 WL 507959 (Feb, 15, 2012), at ¶ 2. COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-3-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 4 of 10 1 federal common law principles of agency for violations of... section 227(b)... that are 2 committed by third-party telemarketers."6 3 14. More specifically, the May 2013 FCC Ruling held that, even in the absence of 4 evidence of a formal contractual relationship between the seller and the telemarketer, a seller is 5 liable for telemarketing calls if the telemarketer "has apparent (if not actual) authority" to make 6 the calls.7 7 FACTUAL ALLEGATIONS 8 15. At all times relevant, Plaintiff Wolf was an individual residing in the State 9 of Maryland. However, from 2010 to 2014, Plaintiff resided in Philadelphia, Pennsylvania. 10 16. Plaintiff is, and at all times mentioned herein was, a "person" as defined by 11 47 U.S.C. § 153(39). 12 17. On January 30, 2015, Plaintiff received an SMS text message from 13 telephone number (650) 300-4522 on her cellular telephone. The message read: 14 "Congrats, you’re now a Lyft Pioneer! Help us build the 15 community and enjoy 20 free rides in Philadelphia (up to $20 each) 16 over the next 15 days." 17 18. Prior to receiving this message, Plaintiff had no absolutely no connection 18 with Lyft. She has never used any products or services provided by Lyft. 19 19. At no time did Plaintiff provide her prior express written consent, or any 20 other form of consent, to Lyft to receive any marketing text messages or calls. 21 20. At no time did Plaintiff provide her cellular telephone number to Lyft. 22 Plaintiff has no idea how Lyft, or an agent of Lyft, acquired her cellular telephone number. 23 21. Lyft is, and at all times mentioned herein was, a "person", as defined by 24 47 U.S.C. § 153(39). 25 26 6 In the Matter of The Joint Petition Filed by DISH Network, LLC, the United States of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling 27 Concerning the Telephone Consumer Protection Act (TCPA) Rules, et al. ("May 2013 FCC Ruling"), CG Docket No. 11-50, 28 F.C.C.R. 6574, 6574 (¶ 1) (May 9, 2013). 28 7 May 2013 FCC Ruling, 28 F.C.C.R. at 6586 (¶ 34). COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-4-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 5 of 10 1 22. On information and belief, the SMS message sent on behalf of Lyft to 2 Plaintiff on her cellular telephones was made via an "automatic telephone dialing system," as 3 defined by 47 U.S.C. § 227(a)(1). 4 23. The telephone number that Lyft or its agents texted to contact Plaintiff by 5 an "automatic telephone dialing system," was assigned to a cellular telephone service as specified 6 in 47 U.S.C. § 227(b)(1)(A)(iii). 7 24. The SMS text message sent by or on behalf of Lyft to Plaintiff’s cellular 8 phone was not "for emergency purposes" as described in 47 U.S.C. § 227(b)(1)(A). 9 25. The SMS text message sent on behalf of Lyft to Plaintiff’s cellular phone 10 placed by an "automatic telephone dialing system" for non-emergency purposes and in the 11 absence of Plaintiff’s prior express written consent violated 47 U.S.C. § 227(b)(1)(A). 12 26. Under the TCPA and pursuant to the FCC’s 2012 Declaratory Ruling, the 13 burden is on Lyft to demonstrate that Plaintiff provided express consent within the meaning of the 14 statute.8 15 CLASS ACTION ALLEGATIONS 16 27. Plaintiff brings this action on behalf of herself and on behalf of all other 17 persons similarly situated (hereinafter referred to as "the Class"). 18 28. Plaintiff proposes the following Class definition, subject to amendment 19 as appropriate: 20 All persons within the United States who, on or after October 16, 2013, received a SMS text message to a cellular telephone advertising membership in the "Lyft 21 Pioneer" program, and for whom Lyft cannot demonstrate prior express written consent. 22 23 Collectively, all these persons will be referred to as "Class members." Plaintiff represents, and is 24 a member of, the Class. Excluded from the Class are Lyft and any entities in which Lyft has a 25 controlling interest, Lyft’s agents and employees, any Judge to whom this action is assigned and 26 any member of such Judge’s staff and immediate family, and claims for personal injury, wrongful 27 death and/or emotional distress. 28 8 See 2012 Declaratory Ruling, 27 F.C.C.R. at 1844 (¶33). COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-5-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 6 of 10 1 29. Plaintiff does not know the exact number of members in the Class, but 2 based upon the representations of Lyft as to its market share, Plaintiff reasonably believes that 3 Class members number at minimum in the thousands. 4 30. Plaintiff and all members of the Class have been harmed, and their 5 privacy invaded, by the acts of Lyft. 6 31. This Class Action Complaint seeks injunctive relief and money damages. 7 The FCC has recognized that wireless customers are charged for incoming calls whether they pay 8 in advance or after the minutes are used.9 9 32. The joinder of all Class members is impracticable due to the size and 10 relatively modest value of each individual claim. The disposition of the claims in a class action 11 will provide substantial benefit to the parties and the Court in avoiding a multiplicity of identical 12 suits. The Class can be identified easily through records maintained by Lyft and/or its agents. 13 33. There are well defined, nearly identical, questions of law and fact 14 affecting all parties. The questions of law and fact involving the class claims predominate over 15 questions which may affect individual Class members. Those common questions of law and fact 16 include, but are not limited to, the following: 17 a. Whether Lyft sent non-emergency SMS text messages to Plaintiff and Class members’ cellular telephones; 18 b. Whether Lyft can meet its burden of showing it obtained 19 prior express written consent to send SMS text messages for telemarketing purposes; 20 c. Whether Lyft’s conduct was knowing and/or willful; 21 d. Whether Lyft is liable for damages, and the amount of such 22 damages; and 23 e. Whether Lyft should be enjoined from engaging in such conduct in the future. 24 25 34. As a person who received SMS text messages, without her prior express 26 written consent within the meaning of the TCPA, Plaintiff asserts claims that are typical of each 27 9 Rules and Regulations Implementing the Telephone Consumer Protection Act of 28 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003). COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-6-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 7 of 10 1 Class member. Plaintiff will fairly and adequately represent and protect the interests of the Class, 2 and has no interests which are antagonistic to any member of the Class. 3 35. Plaintiff has retained counsel experienced in handling class action claims 4 involving violations of federal and state consumer protection statutes, including claims under the 5 TCPA. 6 36. A class action is the superior method for the fair and efficient 7 adjudication of this controversy. Classwide relief is essential to compel Lyft to comply with the 8 TCPA. The interest of Class members in individually controlling the prosecution of separate 9 claims against Lyft is small because the statutory damages in an individual action for violation of 10 the TCPA are relatively small. Management of these claims is likely to present significantly 11 fewer difficulties than are presented in many class claims because the texts at issue are all 12 automated and the Class members, by definition, did not provide their prior express consent 13 required under the statute to authorize calls/texts to their cellular telephones. 14 37. Lyft has acted on grounds generally applicable to the Class, thereby 15 making final injunctive relief and corresponding declaratory relief with respect to the Class as a 16 whole appropriate. Moreover, on information and belief, Plaintiff alleges that the TCPA 17 violations complained of herein are substantially likely to continue in the future if an injunction is 18 not entered. 19 CAUSES OF ACTION 20 FIRST COUNT 21 KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ. 22 23 38. Plaintiff incorporates by reference the foregoing paragraphs of this 24 Complaint as if fully stated herein. 25 39. The foregoing acts and omissions of Lyft constitute numerous and 26 multiple knowing and/or willful violations of the TCPA, including but not limited to each of the 27 above-cited provisions of 47 U.S.C. § 227 et seq. 28 COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-7-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 8 of 10 1 40. As a result of Lyft’s knowing and/or willful violations of 47 U.S.C. § 227 2 et seq., Plaintiff and each member of the Class are entitled to treble damages of up to $1,500.00 3 for each and every SMS text message in violation of the statute, pursuant to 47 U.S.C. 4 § 227(b)(3). 5 41. Plaintiff and all Class members are also entitled to and do seek injunctive 6 relief prohibiting such conduct violating the TCPA by Lyft in the future. Plaintiff and Class 7 members are also entitled to an award of attorneys’ fees and costs. 8 SECOND COUNT 9 VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. 10 11 42. Plaintiff incorporates by reference the foregoing paragraphs of this 12 Complaint as if fully set forth herein. 13 43. The foregoing acts and omissions of Lyft constitute numerous and 14 multiple violations of the TCPA, including but not limited to each of the above cited provisions of 15 47 U.S.C. § 227 et seq. 16 44. As a result of Lyft’s violations of 47 U.S.C. § 227 et seq., Plaintiff and 17 Class members are entitled to an award of $500.00 in statutory damages for each and every SMS 18 text message in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 19 45. Plaintiff and Class members are also entitled to and do seek injunctive 20 relief prohibiting Lyft’s violation of the TCPA in the future. 21 46. Plaintiff and Class members are also entitled to an award of attorneys’ 22 fees and costs. 23 PRAYER FOR RELIEF 24 WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff and all Class 25 members the following relief against Defendant: 26 A. Injunctive relief prohibiting such violations of the TCPA by Lyft in the future; 27 B. As a result of Lyft’s willful and/or knowing violations of 47 U.S.C. § 227(b)(1), 28 Plaintiff seeks for herself and each Class member treble damages, as provided by statute, of up to COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-8-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 9 of 10 1 $1,500.00 for each and every SMS text message that violated the TCPA; 2 C. As a result of Lyft’s violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself 3 and each Class member $500.00 in statutory damages for each and every SMS text message that 4 violated the TCPA; 5 D. An award of attorneys’ fees and costs to counsel for Plaintiff and the Class; 6 E. An order certifying this action to be a proper class action pursuant to Federal Rule 7 of Civil Procedure 23, establishing an appropriate Class and any Subclasses the Court deems 8 appropriate, finding that Plaintiff is a proper representative of the Class, and appointing the 9 lawyers and law firms representing Plaintiff as counsel for the Class; 10 F. Such other relief as the Court deems just and proper. 11 DEMAND FOR JURY TRIAL 12 Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of any 13 and all issues in this action so triable of right. 14 Dated: March 30, 2015 Respectfully submitted, 15 By:/s/Jonathan D. Selbin Jonathan D. Selbin 16 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 17 Jonathan D. Selbin (State Bar No. 170222) Email: jselbin@lchb.com 18 250 Hudson Street, 8th Floor New York, NY 10013 19 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 20 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 21 Daniel M. Hutchinson (State Bar No. 239458) Email: dhutchinson@lchb.com 22 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 23 Telephone: 415.956.1000 Facsimile: 415.956.1008 24 25 26 27 28 COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-9-RELIEF CASE NO. 3:15-CV-1441 Case 4:15-cv-01441-JSW Document 1 Filed 03/30/15 Page 10 of 10 1 MEYER WILSON CO., LPA Matthew R. Wilson (State Bar No. 290473) 2 Email: mwilson@meyerwilson.com Michael J. Boyle, Jr. (State Bar No. 258560) 3 Email: mboyle@meyerwilson.com 1320 Dublin Road, Ste. 100 4 Columbus, Ohio 43215 Telephone: (614) 224-6000 5 Facsimile: (614) 224-6066 6 Attorneys for Plaintiff Emily Wolf and the Proposed Class 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR DAMAGES AND INJUNCTIVE 1220377.1-10-RELIEF CASE NO. 3:15-CV-1441