BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com

BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) 2665 S. Bayshore Dr. Ste. 220 Miami, FL 33133-5402 Telephone: (305) 330-5512 Facsimile: (212) 989-9163 Email: scott@bursor.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

PATRICK ROBERTS, on behalf of himself and all others similarly situated,

Plaintiff,

v.

MUSICAL.LY, INC.

Defendant.

Case No.

CLASS ACTION COMPLAINT

JURY TRIAL DEMANDED

Case 2:19-cv-00098-KJM-CKD Document 1 Filed 01/14/19 Page 1 of 10

Plaintiff Patrick Roberts (“Plaintiff” or “Mr. Roberts”), individually and on behalf of all

others similarly situated, alleges the following on information and belief against Musical.ly, Inc.

(“Musical.ly ” or “Defendant”) regarding Defendant’s violations of the Telephone Consumer

Protection Act, 47 U.S.C. § 227 (the “TCPA”). Plaintiff brings this Complaint to: (1) stop

Defendant’s practice of sending text messages using an automatic telephone dialing system

(“ATDS”) to the cellular telephones of consumers nationwide without their prior express written

consent; (2) enjoin Defendant from continuing to send text messages using an ATDS to consumers

who did not provide their prior express written consent to receive them; and (3) obtain redress for

all persons injured by its conduct.

PARTIES

1. Plaintiff Patrick Roberts is, and at all times mentioned herein was, a resident of

Vallejo, California, and a citizen of the State of California.

2. Defendant Musical.ly, Inc. is a corporation organized under the laws of California,

with a principal place of business at 1920 Olympic Boulevard, Santa Monica, CA 90404.

Musical.ly conducts business in this District and throughout the United States.

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over this action pursuant to the Class

Action Fairness Act of 2005, Pub. L. No. 109-2 Stat. 4 (“CAFA”), which, inter alia, amends 28

U.S.C. § 1332, at new subsection (d), conferring federal jurisdiction over class actions where, as

here: (a) there are 100 or more members in the proposed class; (b) some members of the proposed

class have a different citizenship from Defendant; and (c) the claims of the proposed class

members exceed the sum or value of five million dollars ($5,000,000) in aggregate. See 28 U.S.C.

§ 1332(d)(2) and (6).

4. This Court also has federal question jurisdiction pursuant to 28 U.S.C. § 1331

because this action involves violations of a federal statute, the TCPA.

5. This Court has personal jurisdiction over Defendant because Defendant sent and

continues to send unwanted autodialed text messages in this District, and because the wrongful

conduct giving rise to this case occurred in, was directed to, and/or emanated from this District.

6. Venue is proper in this District under 28 U.S.C. § 1391(b) because Plaintiff resides

in this District, Defendant sent and continues to send unwanted autodialed text messages in this

District, and because the wrongful conduct giving rise to this case occurred in, was directed to,

and/or emanated from this District.

FACTS COMMON TO ALL CAUSES OF ACTION

A. The TCPA Of 1991

7. In 1991, Congress enacted the TCPA in response to a growing number of consumer

complaints regarding certain telemarketing practices.

8. The TCPA regulates, among other things, the use of automated telephone

equipment, or “autodialers,” 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). Specifically, the plain language of section

227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the

absence of an emergency or the prior express consent of the called party.

9. The FCC has issued rulings clarifying that in order to obtain an individual’s consent,

a clear, unambiguous, and conspicuous written disclosure must be provided by the individual.

2012 FCC Order, 27 FCC Rcd. at 1839 (“[R]equiring prior written consent will better protect

consumer privacy because such consent requires conspicuous action by the consumer—providing

permission in writing—to authorize autodialed or prerecorded telemarketing calls. . . .”).

10. According to 47 U.S.C. §227(a)(1), the ban on telephone calls made by using an

automatic telephone dialing system (“ATDS”) extends to unsolicited autodialed text messages sent

to cellular phones. Gager v. Dell Fin. Servs., Inc., 727 F.3d 265, 269 n.2 (7th Cir. 2013); FCC

Declaratory Ruling, 27 F.C.C.R. 15391, 2012 WL 5986338 (Nov. 29, 2012). The Federal

Communications Commission has declared that unsolicited text messages are “[a]nnoying and

time-consuming,” as well as “[i]ntrusive and costly.” FCC Guide, Spam: Unwanted Text

Messages and Email, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email.

Pursuant to 47 U.S.C. §227(b)(1)(A)(iii), it is illegal for Defendant to send unsolicited text

messages to its users without their prior consent.

B. Defendant’s Text Messages to Plaintiff and Class Members

11. Prior to receiving the text messages at issue, Plaintiff never had any contact with

Defendant. He is not a customer of Defendant and does not owe Defendant a debt.

12. Musical.ly texted Plaintiff using an automatic telephone dialing system without his

prior express written consent at least three times, including two messages on December 25, 2018

and one on December 26, 2018 from the short code telephone number 59109:

13. The impersonal nature of these text messages and the number of complaints from

consumers (set out below) indicate that Defendant was texting consumers from a list of telephone

numbers and without human intervention.

14. At all times material to this Complaint, Defendant was and is fully aware that

unwanted autodialed text messages are being sent to consumers’ telephones through its own efforts

and those of its agents.

15. Defendant knowingly sent (and continues to make) autodialed text messages to

consumers’ telephones without the prior express written consent of the recipients. In so doing,

Defendant not only invaded the personal privacy of Plaintiff and members of the putative Classes,

but also intentionally and repeatedly violated the TCPA.

16. Online consumer complaints regarding Defendant’s unsolicited text messages from

this same number are legion: • “I have texted stop & messages continue. Please help”

• “Received four unsolicited text messages from this number. Have responded with HELP, STOP and CANCEL, with no reply or confirmation received”

• “Never heard of this and did not request. I don’t like to respond when unsolicited so deleted them.”

• “I have never used this app before in my life and do not have it installed anywhere. I had never heard of it before receiving the sms.”

• “I got a verification code sent to me from this number. I don’t have anything to do with this app. There is no reason I should be receiving a verification code.”

• “No clue who these folks are.”

• “no idea what this is regarding”

17. These complaints represent just a small sampling of voluminous customer

complaints regarding Musical.ly’s practices and clear violations of the TCPA.

CLASS ACTION ALLEGATIONS

18. Plaintiff brings this action on behalf of himself and on behalf of all other persons

similarly situated.

19. Plaintiff proposes the following Class definition: All persons within the United States who (a) received a text message on his or her cellular telephone; (b) made by or on behalf of Defendant; (c) at any time in the period that begins four years before the filing of the complaint in this action to the date that class notice is disseminated.

20. Plaintiff represents, and is a member of, these proposed class. Excluded from the

Classes is Defendant and any entities in which Defendant has a controlling interest, Defendant’s

agents and employees, any Judge and/or Magistrate Judge to whom this action is assigned, and any

member of such Judges’ staffs and immediate families.

21. Numerosity. Plaintiff does not know the exact number of members in the proposed

Class, but reasonably believes, based on the scale of Defendant’s business, that the classes are so

numerous that individual joinder would be impracticable.

22. Existence and predominance of common questions of law and fact. Plaintiff and

all members of the proposed Class have been harmed by the acts of Defendant in the form of

multiple involuntary telephone and electrical charges, the aggravation, nuisance, and invasion of

privacy that necessarily accompanies the receipt of unsolicited and harassing text messages, and

violations of their statutory rights.

23. The disposition of the claims in a class action will provide substantial benefit to the

parties and the Court in avoiding a multiplicity of identical suits.

24. The proposed class can be identified easily through records maintained by

Defendant.

25. There are well defined, nearly identical, questions of law and fact affecting all

parties. The questions of law and fact involving the class claims predominate over questions which

may affect individual members of the proposed class. Those common question of law and fact

include, but are not limited to, the following:

a. Whether Defendant sent text messages to Plaintiff and class members using an ATDS

without prior express consent;

b. Whether Defendant’s conduct was knowing and/or willful;

c. Whether Defendant is liable for damages, and the amount of such damages, and

d. Whether Defendant should be enjoined from engaging in such conduct in the future.

26. Typicality. Plaintiff asserts claims that are typical of each member of the classes

because they are all persons who received text messages on their telephones sent using an ATDS

without their prior express written consent. Plaintiffs will fairly and adequately represent and

protect the interests of the proposed class, and have no interests which are antagonistic to any

member of the proposed class.

27. Adequacy of Representation. Plaintiff will fairly and adequately represent and

protect the interests of the proposed class, and has no interests which are antagonistic to any

member of the proposed class.

28. Plaintiff has retained counsel experienced in handling class action claims involving

violations of federal and state consumer protection statutes.

29. Superiority. A class action is the superior method for the fair and efficient

adjudication of this controversy.

30. Class wide relief is essential to compel Defendant to comply with the TCPA.

31. The interest of the members of the proposed class in individually controlling the

prosecution of separate claims against Defendant is small because the statutory damages in an

individual action for violation of the TCPA are relatively small.

32. Management of these claims is likely to present significantly fewer difficulties than

are presented in many class claims because the text messages at issue are all automated and the

members of the classes, by definition, did not provide the prior express consent required under the

statute to authorize transmissions to their telephones.

33. Defendant has acted on grounds generally applicable to the proposed class, thereby

making final injunctive relief and corresponding declaratory relief with respect to the proposed

class as a whole appropriate.

34. Moreover, on information and belief, Plaintiff alleges that the TCPA violations

complained of herein are substantially likely to continue in the future if an injunction is not

entered.

FIRST CAUSE OF ACTION KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq.

35. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if

fully stated herein.

36. The foregoing acts and omissions of Defendant constitute numerous and multiple

knowing and/or willful violations of the TCPA, including but not limited to each of the above-cited

provisions of 47 U.S.C. § 227 et seq.

37. As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et

seq., Plaintiff and members of the proposed class are entitled to treble damages of up to $1,500.00

for each and every text message sent in violation of the statute, pursuant to 47 U.S.C. §

227(b)(3)(C).

38. Plaintiff and members of the proposed class are also entitled to and do seek

injunctive relief prohibiting such conduct violating the TCPA by Defendant in the future.

39. Plaintiff and members of the proposed class are also entitled to an award of

attorneys’ fees and costs.

SECOND CAUSE OF ACTION VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq.

40. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if

fully stated herein.

41. The foregoing acts and omissions of Defendant constitute numerous and multiple

violations of the TCPA, including but not limited to each of the above-cited provisions of 47

U.S.C. § 227 et seq.

42. As a result of Defendant’s violations of 47 U.S.C. § 227 et seq., Plaintiff and

members of the proposed class are entitled to an award of $500.00 in statutory damages for each

and every text message sent in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).

43. Plaintiff and members of the proposed class are also entitled to, and do, seek

injunctive relief prohibiting such conduct violating the TCPA by Defendant in the future.

44. Plaintiff and members of the proposed class are also entitled to an award of

attorneys’ fees and costs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff and all

members of the proposed class the following relief against Defendant:

a. Injunctive relief prohibiting such violations of the TCPA by Defendant in

the future;

b. As a result of Defendant’s willful and/or knowing violations of the TCPA,

Plaintiff seeks for himself and each member of the proposed Class treble damages,

as provided by statute, of up to $1,500.00 for each and every text message that

violated the TCPA;

c. As a result of Defendant’s violations of the TCPA, Plaintiff seeks for

himself and each member of the proposed Class $500.00 in statutory damages for

each and every text message that violated the TCPA;

d. An award of attorneys’ fees and costs to counsel for Plaintiff and the

proposed class;

e. An order certifying this action to be a proper class action pursuant to Federal

Rule of Civil Procedure 23, establishing appropriate classes, finding that Plaintiff

is a proper representative of the classes, and appointing the lawyers and law firm

representing Plaintiff as counsel for the classes;

f. Such other relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of any

and all issues in this action so triable of right.

Dated: January 14, 2019 Respectfully submitted,

By: /s/ L. Timothy Fisher L. Timothy Fisher

BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com

BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) 2665 S. Bayshore Dr. Ste. 220 Miami, FL 33133-5402 Telephone: (305) 330-5512 Facsimile: (212) 989-9163 Email: scott@bursor.com

Attorneys for Plaintiff