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1 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 9:13-cv KAM AJA DE LOS SANTOS, an individual, on behalf of herself and all others similarly situated, Plaintiff, v. COMPLAINT - CLASS ACTION MILLWARD BROWN, INC., a Delaware corporation, Defendant. / SECOND AMENDED CLASS ACTION COMPLAINT FOR STATUTORY DAMAGES AND INJUNCTIVE RELIEF UNDER 47 U.S.C. 227 et seq., THE TELEPHONE CONSUMER PROTECTION ACT JURY DEMAND 1. [T]he right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. Olmstead v. United States, 277 U.S. 438 (1928) (Justice Louis D. Brandeis, dissenting). In congruence with this fundamental right to privacy, Plaintiff files this class action complaint alleging violations of 47 U.S.C 227 et seq., the Telephone Consumer Protection Act ( TCPA ). For over four years preceding this action, Defendant has engaged in a campaign of invasively soliciting consumers utilizing a particularly insidious form of solicitation known as autodialing. All allegations contained herein are based upon information and belief of Plaintiff or the investigative efforts of the undersigned counsel. 2. In enacting the TCPA, Congress sought to protect the privacy interests of telephone subscribers. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009); see also, Bonime v. Avaya, Inc., 547 F.3d 497, 499 (2nd Cir. 2008) ( Congress s stated

2 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 2 of 11 purpose in enacting the TCPA was to protect the privacy interests of residential telephone subscribers... ); S. REP. NO at 5 reprinted in 1991 U.S.C.C.A.N. 1968, (1991) ( The Committee believes that Federal legislation is necessary to protect the public from automated telephone calls. These calls can be an invasion of privacy, an impediment to interstate commerce, and a disruption to essential public safety services. ). The findings of Congress stated that automated calls and prerecorded messages are a nuisance, an invasion of privacy, and when an emergency or medical assistance telephone line is seized, a risk to public safety. See Pub. L , 2, 5 6, 9 10, 13 14, 105 Stat 2394 (1991). 3. Over the past four years, the Defendant has placed millions of automated market research calls in violation of the TCPA. By effectuating these calls, Defendant has caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies unsolicited telephone calls, but also because consumers frequently have to pay their cell phone service providers for minutes of wireless telephone usage, and because such calls diminish cellular battery life, waste data storage capacity, and are an intrusion upon seclusion. In order to redress these injuries, Plaintiff, on behalf of herself and the proposed class of similarly situated individuals, brings this suit under the TCPA, which specifically prohibits unsolicited, automated calls to cellular phones. On behalf of the class, Plaintiff seeks an injunction requiring Defendant to cease all autodialing in violation of the TCPA, and an award of statutory damages to the class members, together with costs and reasonable attorney s fees. 2

3 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 3 of 11 JURISDICTION AND VENUE 4. This Court has jurisdiction over Plaintiff s individual claim pursuant to 28 U.S.C as this is a civil actions arising under the Constitution, laws, or treaties of the United States. See Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012). Venue in this District is proper because Plaintiff resides here and Defendant conducts business in this District. PARTIES 5. Plaintiff, AJA DE LOS SANTOS ( Plaintiff or Mrs. De Los Santos ), is a natural person, and citizen of the State of Florida, residing in Palm Beach County, Florida. 6. Defendant MILLWARD BROWN, INC. ( Millward Brown ) is a Delaware corporation and a leading global market research company, whose mission is to provide researchbased consultancy to help marketers successfully manage their brands, optimize the return on their media and communications investments, and create value for their businesses, employees and shareholders Millward Brown is a subsidiary of WPP plc, the world s second-largest market research company after Neilson Company, and part of Kantar Group, WPP plc s insights arm. Millward Brown sometimes does business under the trade name Kantar Ops. 8. Millward Brown has 86 offices in 56 countries, including at least 9 locations equipped with automatic telephone dialing systems in the Midwestern United States alone. 2 1 Source: (last visited October 14, 2013). 2 Source: LinkedIn Profile of Millward Brown Employee Ricky LeFlore, attached hereto as Exhibit A. Also note that the 630 area code from which Millward Brown autodialed the Plaintiff corresponds to the greater Chicago metropolitan area. 3

4 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 4 of 11 PROHIBITION OF AUTOMATIC TELEPHONE DIALING SYSTEMS 9. In recent years, thrifty businesses have increasingly looked to emerging technologies in pursuit of new ways to contact consumers cheaply. 10. One such technology is the use of automatic telephone dialing systems, known commonly as autodialers. 11. Autodialing is the use of computerized telephone systems to place calls automatically, without manually dialing numbers, and then deliver pre-recorded messages, or connect calls to live persons when the system detects that a live human has picked up. 12. Autodialing allows companies to place voluminous telephone solicitations at de minimis costs, without staffing large boiler rooms with telephone operators. The process is almost entirely automated. 13. Unlike more conventional forms of communication, autodialing, particularly to wireless phones, can actually cost their recipients money, because cell phone users must frequently pay their respective wireless service providers for minutes of airtime, or incur usage allocation deductions to their voice plans, regardless of whether or not the call is authorized. 14. Defendant Millward Brown is a member of the Council of American Survey Research Organizations (CASRO). In the past, CASRO has advised its membership that federal law strictly prohibits autodialed calls to cellular telephones. (last accessed October 12, 2013). 15. Similarly, since 2008, the American Association for Public Opinion Research (AAPOR) has repeatedly and publicly cautioned research companies against the use of automatic telephone dialing systems to place calls to cellular telephones. See AAPOR Cell Phone 4

5 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 5 of 11 Task Force, Guidelines and Considerations for Survey Researchers When Planning and Conducting RDD and Other Telephone Surveys in the U.S. With Respondents Reached via Cell Phone Numbers (2008), available at (last accessed October 12, 2013); and AAPOR Cell Phone Task Force, New Considerations for Survey Researchers When Planning and Conducting RDD Telephone Surveys in the U.S. With Respondents Reached via Cell Phone Numbers (2010), available at (last accessed October 12, 2013). 16. The Marketing Research Association advises in its industry best practices that federal law prohibits autodialed calls to cellular telephones. A copy of these industry best practices is attached hereto as Exhibit B. The Marketing Research Association is the leading and largest association dedicated solely to promoting, unifying and advancing the insight, opinion and marketing research profession. See (last accessed October 12, 2013). 17. According to findings by the Federal Communication Commission ( FCC ), the agency Congress vested with authority to issue regulations implementing the TCPA, such calls are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No , Report and Order, 18 FCC Rcd (2003). 5

6 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 6 of Under the TCPA and pursuant to the FCC s January 2008 Declaratory Ruling, the burden is on Defendant to demonstrate that Plaintiff provided express consent within the meaning of the statute. See FCC Declaratory Ruling, 23 F.C.C.R. at 565 ( 10). FACTUAL ALLEGATIONS AS TO PLAINTIFF AJA DE LOS SANTOS 19. At all times material hereto, Plaintiff was the sole subscriber, owner, possessor, and operator of a cellular telephone with the assigned number ending in (the 6674 number ). Plaintiff is and has always been financially responsible for this cellular phone and the telephone service connected therewith. 20. During the month of January 2013, Plaintiff received an unsolicited telephone call on her cellular telephone, the 6674 number, from telephone number Upon answering this telephone call, the Plaintiff was first met with a noticeable period of dead air while the Defendant s telephone system attempted to connect her with a live person. 22. Once the automated call was connected, the caller identified himself as an employee of Millward Brown, and attempted to offer the Plaintiff a gift card if she agreed to take a survey about her familiarity with popular brand-name products. 23. These calls were placed using the IBM SPSS Data Collection Dialer, a cutting-edge automatic telephone dialing system ( autodialer ) designed for large-scale market research organizations. The Chief Information Officer of Defendant Millward Brown, Ron Markham, was previously the Chief Information Officer at SPSS, Inc., the IBM Company that developed and maintains the IBM SPSS Data Collection Dialer. 6

7 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 7 of Said autodialer has the capacity to store or produce numbers and dial those numbers at random, in sequence, or from a database of numbers All autodialed calls at issue were placed from an autodialer operated by the Defendant. 26. The Defendant dialed the telephone numbers at issue using Random Digit Dialing ( RDD ), wherein a computer randomly generates telephone numbers based upon an algorithm and then dials them. 27. Plaintiff has never patronized Millward Brown, nor had any previous contact with said company. 28. Plaintiff received several additional automated calls from Millward Brown, all making similar offers in order to entice the Plaintiff into taking market research surveys. CLASS ALLEGATIONS 29. This action is brought on behalf of a class of consumers defined as follows: (i) all cellular telephone subscribers in the United States; (ii) to whom MILLWARD BROWN, INC. placed a telephone call; (iii) to said person s cellular telephone; (iv) using an automatic telephone dialing system; (v) during the four year period prior to the filing of the complaint in this action through the date of certification. 30. Defendant placed millions of autodialed telephone calls to a bulk list of telephone numbers, which included the named Plaintiff and the putative class members. 31. Thousands of aggrieved consumers have lodged complaints about Defendant s autodialing practices. A cursory visit to lists over 700 complaints from consumers about Defendant s autodialed calls. 4 Numerous complaints about autodialed calls from this number indicate that the caller-id associated with the call read 3 Source: IBM SPSS Data Collection Interviewer Server User s Guide, p. 284 (2011). 4 Source: (last accessed October 12, 2013). 7

8 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 8 of 11 Millward Brown. A true and correct printout of these 800notes.com complaints is attached hereto as Exhibit C Plaintiff alleges on information and belief that, based upon the Defendant s use of autodialing, the class is so numerous that joinder of all members of the class is impractical. 33. There are questions of law or fact common to the class, which common issues predominate over any issues involving only individual class members. The common factual and/or legal issues common to each class member are as follows: (a) (b) (c) Whether Defendant s conduct and equipment are governed by the TCPA? Whether the telephone calls by Defendant violated the TCPA? Whether the class members are entitled to treble damages based upon the willfulness of Defendant s conduct? (d) Whether Defendant should be enjoined from engaging in such conduct in the future? 34. Plaintiff s claim is typical of those of the class members. All claims are based on the same facts and legal theories. 35. Plaintiff will fairly and adequately protect the interests of the class. She has retained counsel experienced in handling actions involving unlawful practices under the TCPA and class actions. Neither Plaintiff nor her counsel has any interests that might cause them not to vigorously pursue this action. 36. Certification of the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that: 5 Watermark not in original. Plaintiff has redacted portions of these complaints to protect the privacy of certain executives of Millward Brown. Several disgruntled individuals had posted personal information associated with Millward Brown executives as retribution for the autodialed calls they had been receiving. 8

9 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 9 of 11 a. The questions of law or fact common to the members of the class predominate over any questions affecting an individual member. b. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. 37. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate in that Defendant has acted on grounds generally applicable to the class thereby making appropriate relief with respect to the class as a whole. Injunctive relief is appropriate and necessary to cause the illegal telemarketing to stop. 38. Plaintiff requests certification of a hybrid class pursuant to both Rule 23(b)(3), for monetary damages and Rule 23(b)(2) for injunctive relief. COUNT I VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 39. Plaintiff incorporates all previous Paragraphs. 40. Defendant made unsolicited market research telephone calls to consumers cellular telephones (i.e. members of the class) using an automatic telephone dialing system. 41. The calls were made without the prior express consent of the called parties. 42. The aforesaid calls were made in violation of the TCPA, 47 U.S.C. 227(b)(1)(A)(iii). WHEREFORE, Plaintiff requests that the Court enter judgment in her favor and in favor of the class, against Defendant MILLWARD BROWN, INC., for: (a) (b) (c) An order certifying this case to proceed as a class action; Statutory damages at $500 dollars per call; Willful damages at $1500 dollars per call; 9

10 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 10 of 11 (d) An injunction requiring Defendant to cease all communications in violation of the TCPA; (e) A declaration that the equipment used by defendant is an automatic telephone dialing system; (f) (g) Reasonable attorney s fees and costs; and Such further relief as this Court may deem appropriate. Plaintiff demands trial by jury. JURY DEMAND Respectfully submitted this 23rd day of October, SCOTT D. OWENS, ESQ. 664 E. Hallandale Beach Boulevard Hallandale, FL Telephone: Facsimile: By: /s/ Scott D. Owens, Esq. Scott D. Owens, Esq. Florida Bar No BRET L. LUSSKIN, Esq. Attorney for Plaintiff Biscayne Blvd., Ste 302 Aventura, Florida Telephone: (954) Facsimile: (954) By: /s/ Bret L. Lusskin, Esq. Florida Bar No Bret L. Lusskin, Esq. DOCUMENT PRESERVATION DEMAND Plaintiff hereby demands that Defendant place a formal litigation hold as to any documents or data relating to the allegations in this case. Specifically, and without limitation, 10

11 Case 9:13-cv DPG Document 25 Entered on FLSD Docket 10/23/2013 Page 11 of 11 Plaintiff requests that all market research call records, documents and data that might bear on prior express consent or any other defense, all documents and communications regarding use of any type of instrumentality, hardware, software or hosted telephone dialer communications between the parties regarding marketing by phone, contracts and agreements between the parties. This list is non-exhaustive. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 23rd, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this date via U.S. mail and/or some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. BRET L. LUSSKIN, Esq. Attorney for Plaintiff Biscayne Blvd., Ste 302 Aventura, Florida Telephone: (954) Facsimile: (954) By: /s/ Bret L. Lusskin, Esq. Florida Bar No Bret L. Lusskin, Esq. 11

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