McClintic v. Lithia Motors, Inc.

Filing 14

PROPOSED MOTION to Intervene by Intervenor Plaintiff Dan McLaren. (Attachments: # 1 Ex A - complaint in intervention, # 2 Ex B - Edelson declaration, # 3 Proposed Order) Noting Date 8/12/2011, (Cantor, Clifford)

Exhibit A

The Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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KEVIN McCLINTIC, on behalf of himself
and all others similarly situated,

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No. C11-859 RAJ

Plaintiff,
— and —

PLAINTIFF-INTERVENOR
DAN McLAREN’S
COMPLAINT IN INTERVENTION

DAN McLAREN, individually and on behalf
of a class and subclass of similarly situated
individuals,

— CLASS ACTION

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Plaintiff-Intervenor,
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v.
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DEMAND FOR JURY TRIAL

LITHIA MOTORS, INC., an Oregon
corporation, and DMEAUTOMOTIVE LLC,
a Delaware limited liability company,
Defendants.

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Plaintiff-intervenor Dan McLaren brings this complaint in intervention against Lithia
Motors, Inc. (“Lithia”) and DMEautomotive LLC (“DME”) (collectively, “Defendants”) to stop
Defendants’ practice of making unsolicited text-message calls to cellular telephones and to
obtain redress for all persons injured by their conduct. McLaren, for his complaint in
intervention, alleges as follows upon personal knowledge as to himself and his own acts and
experiences and, as to all other matters, upon information and belief, including investigation
conducted by his attorneys.

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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

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C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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NATURE OF THE CASE
1.

Wireless spam is a growing problem in the United States. According to a recent

3 study conducted by the Pew Research Center, “Spam isn’t just for email anymore; it comes in
4 the form of unwanted text messages of all kinds—from coupons to phishing schemes—sent
5 directly to user’s cell phones.” In fact, “57% of adults with cell phones have received unwanted
6 or spam text messages on their phone.” Amanda Lenhart, Cell Phones and American Adults:
7 They Make Just as Many Calls, but Text Less than Teens, Pew Research Center (2010) at
8 http://pewinternet.org/Reports/2010/Cell-Phones-and-American-Adults.aspx.
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2.

In an effort to promote the sale of its automotive products, Lithia, an automobile

10 dealership, engaged DME, a mobile marketing firm, to conduct an especially pernicious form of
11 marketing: the transmission of unauthorized advertisements in the form of “text message” calls
12 to the cellular telephones of consumers throughout the nation.
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3.

By effectuating these unauthorized text message calls (hereinafter, “wireless

14 spam”), Defendants have caused consumers actual harm, not only because consumers were
15 subjected to the aggravation that necessarily accompanies wireless spam, but also because
16 consumers frequently have to pay their cell phone service providers for the receipt of such
17 wireless spam.
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4.

In order to redress these injuries, plaintiff-intervenor, on behalf of himself and

19 classes of similarly situated individuals defined below, brings this suit under the Telephone
20 Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), which prohibits unsolicited voice
21 and text calls to cell phones.
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5.

Plaintiff-intervenor seeks an injunction requiring Defendants to cease all wireless

23 spam activities towards him and the proposed classes, as well as an award of actual and statutory
24 damages to the class members, together with costs and reasonable attorneys’ fees.
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PARTIES
6.

Plaintiff-intervenor is a resident of Oregon.

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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

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C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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7.

Defendant Lithia is an automobile dealership that sells new and used cars

2 throughout the nation, including in Washington and this District. It is incorporated under the
3 laws of Oregon and maintains its principal place of business in Oregon.
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8.

Defendant DME is a marketing firm that conducts advertising campaigns on

5 behalf of automotive dealerships throughout the nation, including in Washington and this
6 District. It is incorporated under the laws of Delaware and maintains its principal place of
7 business in Florida.
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JURISDICTION AND VENUE
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The Court has original jurisdiction over this action pursuant to 28 U.S.C.

10 § 1332(d) because: (a) at least one member of the putative class is a citizen of a state different
11 from Defendants, (b) the amount in controversy exceeds $5,000,000, exclusive of interest and
12 costs, and (c) none of the exceptions under that subsection apply to this action.
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10.

Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(c)

14 because Defendant Lithia resides in this District and § 1391(a) because Defendant Lithia is
15 subject to personal jurisdiction in this District.
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11.

This Court has personal jurisdiction over Defendants because each of them

17 systematically and continuously does business in Washington and a substantial number of the
18 wrongful acts alleged herein were committed in Washington.
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CONDUCT COMPLAINED OF
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In recent years, marketers who often have felt stymied by federal laws limiting

21 solicitation by telephone, facsimile machine, and e-mail have increasingly looked to alternative
22 technologies through which to send bulk solicitations cheaply.
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One of the newest types of such bulk marketing is to advertise through Short

24 Message Services, commonly know as text messages. The term “Short Message Service,”
25 “SMS,” or “text message” describes a messaging system that allows cellular telephone
26 subscribers to use their cellular telephones to send and/or receive short text messages, usually
27 limited to 160 characters.
L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

-3-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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14.

A “SMS message” is a text message call directed to a wireless device through the

2 use of the telephone number assigned to the device. When a SMS message call is successfully
3 made, the recipient’s cell phone rings, alerting him or her that a call is being received.
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15.

Unlike more conventional advertisements, SMS message calls, and particularly

5 wireless spam, can actually cost their recipients money, because cell phone users must frequently
6 pay their respective wireless service providers either for each text message call they receive, or
7 incur a usage allocation deduction to their text plan, regardless of whether or not the message is
8 authorized.
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16.

DME is a self-described “multi-channel marketer” for clients in the automotive

10 industry including Carmax, AutoNation and Defendant Lithia. DME performs numerous
11 marketing activities such as inbound and outbound call generation and reception, email
12 transmission, and, pertinent to this Complaint, text message marketing.
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17.

In order to perform text message marketing for its automotive clients, DME

14 contracts with one or more third-parties known as text message aggregators to deliver text
15 messages on behalf of its clients, including those text messages promoting Defendant Lithia,
16 directly to consumers’ cellular telephones.
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18.

Beginning in at least April of 2011 and continuing for weeks if not months

18 thereafter, Defendants and/or their agents caused mass transmissions of wireless spam to the cell
19 phones of what they hoped were potential customers of Lithia automobile products and services.
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19.

For instance, on or about April 11, 2011, plaintiff-intervenor’s cell phone rang,

21 indicating that a text call was being received.
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20.

The “from” field of the transmission was identified as “35703,” which is an

23 abbreviated telephone number known as a SMS short code and was operated by DME on behalf
24 of its clients, including Defendant Lithia. The body of the text message read:
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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

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C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

0% FINANCING ON USED VEHICLES DURING THE BIGGEST
SALE EVER. OVER 3000 USED VEHICLES AT LITHIA
MOTORS HTTP://BIT.LY/HOJPLX
REPLY STOP TO OPT-OUT

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21.

Upon receiving this text message, plaintiff-intervenor attempted to “opt-out” of

5 receiving further text messages by replying “STOP” to the text message above.
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22.

Despite following the instructions to “opt-out” set forth in the message above,

7 indicating a clear desire to not receive additional text messages from Defendants, on April 19,
8 2011, plaintiff-intervenor’s cell phone rang again, indicating that a text call was being received.
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23.

The “from” field of the transmission was again identified as “35703” and the

10 body of the text message read:
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WE ARE SERIOUS, 0% ON USED VEHICLES,
SHOP LITHIA @ HTTP://BIT.LY/DS675E
TO SEE FOR YOURSELF

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24.

Defendants’ and their agents’ use of a short code enabled the en masse

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transmission of wireless spam to lists of cellular telephone numbers, including those belonging to
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plaintiff-intervenor and the proposed Classes set forth below.
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25.

Although plaintiff-intervenor attempted to opt out of receiving additional

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messages, Defendants knowingly constructed a system whereby the cellular telephone numbers
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of consumers who affirmatively “opt-out” of receiving further messages are not removed from
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the lists of text message recipients, but instead are subjected to further wireless spam.
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26.

At no time did plaintiff-intervenor consent to the receipt of the above-referenced

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text messages or any other such wireless spam text messages from Defendants.
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CLASS ALLEGATIONS
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Plaintiff-intervenor brings this action, pursuant to Federal Rules of Civil

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Procedure 23(b)(2) and 23(b)(3), on behalf of himself and two classes and a subclass
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(collectively the “Classes”) defined below:
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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

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C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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A)

The “Lithia Class” consisting of plaintiff-intervenor and all others

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nationwide who received one or more unauthorized text message advertisements

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from DME by or on behalf of Lithia;

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B)

The “DME Class” consisting of plaintiff-intervenor and all others

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nationwide who received from DME one or more unauthorized text message

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advertisements on behalf of a third-party after affirmatively opting out; and

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C)

The “Lithia Subclass” consisting of plaintiff-intervenor and all

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others nationwide who received from DME one or more unauthorized text

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message advertisements by or on behalf of Lithia after affirmatively opting out.

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In order to make the en masse transmission of text message advertisements

11 economical, Defendants use lists of thousands of cellular telephone numbers. As such, the
12 Classes consist of thousands of individuals, making joinder impractical.
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29.

Common questions of law and fact exist as to all members of the Lithia Class, and

14 such questions predominate over questions affecting plaintiff-intervenor or individual members.
15 Common questions for the Lithia Class include:
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(a)

Does the wireless spam Defendants distributed violate the TCPA?

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(b)

Are the members of the Lithia Class entitled to treble damages

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based on the willfulness of Defendants’ conduct?

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(c)

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dialing system” as defined in 47 U.S.C. § 227?

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(d)

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Were the text messages transmitted with an “automatic telephone

Does the wireless spam Defendants distributed violate the right to

privacy of the members of the Lithia Class?
30.

Common questions of law and fact exist as to all members of the DME Class, and

24 such questions predominate over questions affecting plaintiff-intervenor or individual members.
25 Common questions for the DME Class include:
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(a)

Did DME Class members opt-out of receiving further messages

from the Defendants?
L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

-6-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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(b)

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messages from Defendants after opting-out?

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(c)

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Were the text messages transmitted with an “automatic telephone

dialing system” as defined in 47 U.S.C. § 227?

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(d)

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Are the members of the DME Class entitled to treble damages

based on the willfulness of Defendant DME’s conduct?

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(e)

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Did DME Class members continue receiving unauthorized text

Does the wireless spam DME distributed violate the right to

privacy of the members of the DME Class?
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Common questions of law and fact exist as to all members of the Lithia Subclass,

10 and such questions predominate over questions affecting plaintiff-intervenor or individual
11 members. Common questions for the Lithia Subclass include:
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(a)

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from the Defendants?

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(b)

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Did Lithia Subclass members continue receiving unauthorized text

messages from Defendants after opting-out?

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(c)

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Were the text messages transmitted with an “automatic telephone

dialing system” as defined in 47 U.S.C. § 227?

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(d)

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Did Lithia Subclass members opt-out of receiving further messages

Are the Lithia Subclass members entitled to treble damages based

on the willfulness of Defendants’ conduct?
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Plaintiff-intervenor will fairly and adequately protect the interests of the Classes,

21 his claims are typical of the claims of the members of each of the Classes, and he has retained
22 counsel competent and experienced in similar class action litigation.
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33.

A class action is superior to other available methods for fairly and efficiently

24 adjudicating this controversy because, among other things, (a) joinder of all members of the
25 Classes is impracticable, and (b) many members of the Classes cannot vindicate their rights by
26 individual lawsuits because their damages are small relative to the burden and expense of
27 litigating individual actions.
L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

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C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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COUNT I

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Violation of the TCPA, 47 U.S.C. § 227, on behalf of the Classes

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34.

Plaintiff-intervenor incorporates by reference the foregoing allegations as if fully

4 set forth herein.
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35.

Defendants and their agents made unsolicited commercial text calls to the

6 wireless telephone numbers of plaintiff-intervenor and the other members of the Classes using
7 equipment that had the capacity to store or produce telephone numbers to be called using a
8 random or sequential number generator and to dial such numbers.
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36.

These text calls were made en masse through the use of a short code without the

10 prior express consent of plaintiff-intervenor and the Classes.
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37.

Defendants have, therefore, violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii).

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38.

As a result of Defendants’ illegal conduct, the members of the Classes suffered

13 actual damages and, under section 227(b)(3)(B), are each entitled to, inter alia, a minimum of
14 $500.00 in damages for each such violation of the TCPA.
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39.

Defendants’ misconduct was willful and knowing, particularly as it relates to the

16 text messages sent to the DME Class and Lithia Class. As such, the Court should, pursuant to
17 section 227(b)(3)(C), treble the amount of statutory damages recoverable by plaintiff-intervenor
18 and members of the Classes.
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PRAYER FOR RELIEF
Plaintiff-intervenor Dan McLaren, on behalf of himself and the Classes, prays for the

21 following relief:
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A.

An order certifying the Classes as defined above;

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B.

An injunction requiring Defendants to cease all wireless spam activities;

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C.

An award of actual and statutory damages;

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D.

An award of reasonable attorneys’ fees and costs; and

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E.

Such further and other relief the Court deems reasonable and just.

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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

-8-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

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JURY DEMAND
Plaintiff-intervenor requests trial by jury of all claims that can be so tried.

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Dated July 26, 2011.

Respectfully submitted,

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LAW OFFICES OF CLIFFORD A. CANTOR, P.C.
By: s/ Cliff Cantor, WSBA # 17893
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone]
Fax: [phone]

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Michael J. McMorrow
John C. Ochoa
EDELSON McGUIRE, LLC
350 North LaSalle, Ste. 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiff-Intervenor Dan McLaren

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Certificate of Service

I certify that I filed this complaint in intervention (as an attachment to plaintiffintervenor’s motion to intervene) with the Clerk of the Court using the CM/ECF system, which
18 will email notification of filing to all counsel of record.
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s/ Cliff Cantor, WSBA # 17893

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L AW O FFICES OF

McLAREN’S COMPLAINT IN INTERVENTION
No. C11-859 RAJ

-9-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]