Anthony Oliver v. The Mens Wearhouse, Inc.

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.June 23, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion and Motion Case No. 16-cv-01100 for Partial Summary Judgment David C. Parisi (SB #162248) dcparisi@parisihavens.com Suzanne Havens Beckman (SB #188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Fax: (818) 501-7852 Attorneys for Plaintiff [Additional counsel appear on signature page] IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANTHONY OLIVER, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE MEN’S WEARHOUSE, a Texas corporation Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-CV-01100-TJH PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Hearing Date: August 14, 2017 Hearing Time: UNDER SUBMISSION Location: Courtroom 9B Hon. Terry J. Hatter, Jr. TO DEFENDANT AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on August 14, 2017, or as soon thereafter as counsel may be heard, in the United States District Court for the Central District of California, Courtroom 9B, located at 350 W. 1st Street, Los Angeles, California 90012, Plaintiff Anthony Oliver will and hereby does move this Court pursuant to Federal Rule of Civil Procedure 56 and the Court’s Order entered on June 5, 2017 (Dkt. 44) for summary judgment on Plaintiff’s claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. Case 2:16-cv-01100-TJH-AS Document 45 Filed 06/23/17 Page 1 of 4 Page ID #:426 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion and Motion Case No. 16-cv-01100 for Summary Judgment 2 The basis for Plaintiff’s Motion is that Defendant did not have valid prior express written consent as required under the TCPA to place certain of the automated text message advertisements received by Plaintiff. Specifically, while Plaintiff consented to receive up to three text message advertisements per “week” from Defendant, on two separate occasions Defendant sent more than three text message advertisements in a seven day period, including sending four text messages during a regular calendar week beginning on a Sunday and ending on a Saturday. Because Plaintiff received additional unauthorized text message advertisements from Defendant, Plaintiff is entitled to a ruling that Defendant did not have consent to send such text message advertisements to his cellular telephone. Plaintiff’s Motion is based on this Notice of Motion and Motion for Summary Judgment, the separately filed Memorandum of Points and Authorities in Support, the Statement of Uncontroverted Facts and Conclusions of Law, the Declaration of Eugene Y. Turin, any other papers on file in this matter, and upon evidence or argument that may be presented at or before the hearing on this Motion. LOCAL RULE 7-3: Plaintiff’s Counsel and Defendant’s Counsel have met and conferred regarding the relief sought by this Motion and Defendant’s Counsel has represented that Defendant opposes the relief sought. Case 2:16-cv-01100-TJH-AS Document 45 Filed 06/23/17 Page 2 of 4 Page ID #:427 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion and Motion Case No. 16-cv-01100 for Summary Judgment 3 Dated: June 23, 2017 Respectfully submitted, By: /s/ Eugene Y. Turin Eugene Y. Turin David C. Parisi (SBN 162248) dcparis@parisihavens.com Suzanne Havens Beckman (SBN 188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Eugene Y. Turin (pro hac vice) eturin@mcgpc.com 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Attorneys for Plaintiff and the Putative Class Case 2:16-cv-01100-TJH-AS Document 45 Filed 06/23/17 Page 3 of 4 Page ID #:428 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion and Motion Case No. 16-cv-01100 for Summary Judgment 4 CERTIFICATE OF SERVICE I, Eugene Y. Turin, an attorney, certify that on June 23, 2017, I filed the foregoing Plaintiff’s Notice of Motion and Motion for Summary Judgment via the Court’s CM/ECF electronic filing system. A copy of said document will be electronically transmitted to the following counsel of record: Charles R. Messer Messerc@cmtlaw.com Stephen A. Watkins Watkinss@cmtlaw.com David J. Kaminski Kaminskid@cmtlaw.com Carlson and Messer LLP 5959 W. Century Blvd., Ste. 1214 Los Angeles, California 90045 Christopher C Wager ccwager@vorys.com John L Landolfi jllandolfi@vorys.com Vorys Sater Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215 /s/ Eugene Y. Turin Case 2:16-cv-01100-TJH-AS Document 45 Filed 06/23/17 Page 4 of 4 Page ID #:429 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment David C. Parisi (SB #162248) dcparisi@parisihavens.com Suzanne Havens Beckman (SB #188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Fax: (818) 501-7852 Attorneys for Plaintiff [Additional counsel appear on signature page] IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANTHONY OLIVER, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE MEN’S WEARHOUSE, a Texas corporation Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-CV-01100-TJH PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Hearing Date: August 14, 2017 Hearing Time: UNDER SUBMISSION Location: Courtroom 9B Hon. Terry J. Hatter, Jr. ) Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 1 of 19 Page ID #:430 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment ii TABLE OF CONTENTS I. INTRODUCTION ......................................................................................... 1 II. BACKGROUND ............................................................................................ 1 III. LEGAL STANDARD .................................................................................... 3 IV. ARGUMENT ................................................................................................. 3 A. The TCPA ............................................................................................ 3 B. The TCPA requires written consent for each automated text message advertisement sent and permits limitations on the scope of any consent provided ...................................................................... 5 C. Defendant only had consent to send Plaintiff up to three text messages per “week” ........................................................................... 7 D. Defendant sent Plaintiff additional unauthorized text messages that were outside the scope of the consent provided by Plaintiff ............................................................................................ 8 V. CONCLUSION ............................................................................................ 12 Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 2 of 19 Page ID #:431 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment iii TABLE OF AUTHORITIES Page(s) United States Supreme Court Cases: Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) .............................................................................................. 4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................ 3 Mastronbuono v. Shearson Lehman Hutton Inc., 514 U.S. 52 (1995)................................................................................................ 12 Mims v. Arrow Financial Services, 132 S.Ct. 740 (2012) ............................................................................................... 3 Ronkendorff v. Taylor’s Lessee, 29 U.S. 349 (1830)................................................................................................ 10 United States Circuit Court of Appeals Cases: Day v. AT&T Disability Income Plan, 685 F.3d 848 (9th Cir. 2012) ................................................................................ 12 Miller v. United States, 363 F.3d 999 (9th Cir. 2004) ................................................................................ 12 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) .................................................................................. 4 State Appellate Court Cases: Niles Twp. V. Berrien Co., 146 N.W.2d 105 (Mich. Ct. App. 1966) ............................................................... 10 Mortel v. Independent School Dist., 334 N.W.2d 408 (Minn. June 3, 1983) ................................................................. 10 People v. Rexford, 579 N.W.2d 111 (Mich. Ct. App. 1998) ........................................................... 9–10 Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 3 of 19 Page ID #:432 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment iv United States District Court Cases: Headlines Reserve, LLC. v. Ctr. for Natural Land Mgmt., 523 F. Supp. 2d 1113 (C.D. Cal. 2007) .................................................................. 9 Hovilia v. Tween Brands, Inc., No. 09-cv-0491, 2010 WL 1433417 (C.D. Cal, April 7, 2010) ............................. 3 Pac. Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114 (9th Cir. 2003) ................................................................................ 4 Palmer v. Sprint Nextel Corp., 674 F. Supp. 2d 1224, 1226 (W.D. Wash. 2009) ................................................... 3 Reardon v. Uber Techs., Inc., 115 F. Supp. 3d 1090 (N.D. Cal. 2015) .................................................................. 4 Stavrinides v. Pac. Gas & Elect. Co., No. 16-cv-00433, 2016 WL 3345426 (N.D. Cal. 2016) .................................... 6, 8 Statutes and Court Rules: Cal. Civ. Code § 1644 ................................................................................................ 12 Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. .......................... passim 47 C.F.R. § 64.1200. .................................................................................................... 5 Miscellaneous: Black’s Law Dictionary (10th ed. 2014) ..................................................................... 9 American Heritage Dictionary (5th ed. 2017) ............................................................. 9 Merriam Webster’s Dictionary (web) .......................................................................... 9 Pub. L. 102-243, 105 Stat. 2394 (1991) ...................................................................... 3 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CC Dkt. No. 92-90, 7 FCC Rcd. 8752 (1992) ................................................................................... 6 Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 4 of 19 Page ID #:433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment v In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CG Dkt. No. 02-278, 18 FCC Rcd. 14014 (July 3, 2003) .................................................................... 4 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CG Dkt. No. 02-278, 27 FCC Rcd. 1830 (Feb. 15, 2012) ................................................................... 4 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling, CG Dkt. No. 02-278, 30 FCC Rcd. 7961 (July 10, 2015) ................................................................ 4–7 Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 5 of 19 Page ID #:434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 1 I. INTRODUCTION In an effort to market its merchandise and increase sales, Defendant, The Men’s Wearhouse (“Men’s Wearhouse” or “Defendant”), sent unauthorized automated text message advertisements to thousands of individuals across the country. Specifically, Defendant created a text messaging program that allowed individuals to sign up to receive regular, automated text message advertisements for its men’s apparel merchandise. However, the terms of the text messaging program that Plaintiff and other individuals agreed to, terms that were put in place by Defendant itself, specifically stated that Defendant would not send more than three text message advertisements per week. Nonetheless, on multiple occasions, Defendant sent additional unauthorized text messages to Plaintiff that exceeded the scope of the consent that he provided to Defendant. While Defendant may attempt to make various claims as to how a “week” should be defined, Defendant cannot dispute that it sent five text message advertisements to Plaintiff in the seven-day period during the 2015 Thanksgiving holiday—between Thursday, November 26, 2015, and Tuesday, December 1, 2015. Nor can Defendant dispute that it sent four text messages to Plaintiff during a regular “calendar” week beginning on Sunday, February 14, 2016 and ending on Saturday, February 20, 2016. Accordingly, under any reasonable definition of a “week,” Defendant sent Plaintiff additional text messages beyond the three that he had consented to receive. Because Plaintiff only consented to receive three text messages per week, and because the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”) requires consent for each text message advertisement sent, the additional text messages that Plaintiff received during these time periods – beyond the three that he consented to receive – were sent without his consent in violation of the TCPA. II. BACKGROUND On August 22, 2015, in an effort to sign up for Defendant’s automated text messaging program, Plaintiff sent Defendant a text message containing the Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 6 of 19 Page ID #:435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 2 keyphrase “MW.” (See Plaintiff’s Statement of Uncontroverted Facts (“SUF”), filed contemporaneously herewith, at No. 1). Shortly thereafter, Plaintiff received a text message response from Defendant stating: MW: Almost in! Reply “Y” for $10 off $50 & up to 3 msgs/wk at this #! No OptIn Req’d to buy goods; may be autodialed. TC: mensw.com/TC. Rts may apply (SUF at No. 2.) In response to the above text message and the representations made therein, and following Defendant’s instructions, Plaintiff sent a text message response stating “Y”. (Id. at No. 3.) Shortly thereafter, Plaintiff received the following verification message from Defendant, reaffirming that Plaintiff only consented to receive three text messages per week: MW: Welcome! Save $10 off $50 in-store or online w/ http://vbs.cm/j02fNP or use code: ACFU3386771 Valid 30 days 3msgs/wk HELP4helpSTOP2quit Rts may apply (Id. at No. 4.) Even though Defendant specifically represented that it would only send up to three text messages per week, and even though Plaintiff had specifically agreed to receive no more than three messages per week, in November 2015, in an attempt to market its “Black Friday” and “Cyber Monday” deals during the Thanksgiving holiday shopping season, Defendant sent a series of five text messages to his cellular telephone during the seven-day period between Thursday, November 28, 2015 and Tuesday, December 1, 2015—including three text message advertisements in a row that were sent on November 28, November 29, and November 30. (Id. at Nos. 5–8.) In addition, Defendant similarly sent Plaintiff four text message advertisements during the calendar week of Sunday, February 14, 2016 through Saturday, February 20, 2016. (Id. at No. 9.) Plaintiff filed his original Complaint on February 17, 2015 (Dkt. 1), and Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 7 of 19 Page ID #:436 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 3 on May 11, 2016, by agreement of the Parties and with the Court’s permission, Plaintiff filed his First Amended Complaint. (Dkts. 16–18.) Plaintiff’s Amended Complaint alleges that Defendant violated the TCPA by sending unauthorized automated text message advertisements outside the scope of consent provided by Plaintiff. (Dkt. 17 at ¶¶ 14–24, 33–35.) On June 10, 2016, Defendant filed its Motion to Dismiss, arguing in part that Plaintiff did not suffer any concrete injury because Defendant never sent more than three text messages during any seven-day period between a Monday and Sunday. (Dkt. 20-1 at 7–9.) The Court ultimately rejected Defendant’s arguments and denied its Motion to Dismiss in its entirety. (Dkt. 37.) III. LEGAL STANDARD Under Fed. R. Civ. P. 56(a) a movant is entitled to summary judgment if he can show that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Hovilia v. Tween Brands, Inc., No. 09-cv-0491, 2010 WL 1433417 at *2, (C.D. Cal, April 7, 2010). Once the movant has met this initial burden, the non-moving party then bears the burden of showing that there is a genuine issue of material fact that must be resolved at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). IV. ARGUMENT A. The TCPA “Voluminous consumer complaints about abuses of telephone technology . . . prompted Congress to pass the TCPA.” Mims v. Arrow Financial Services, 132 S.Ct. 740, 744 (2012). In passing the TCPA, Congress specifically noted that “unrestricted telemarketing” constituted an “invasion of privacy” and even posed “a risk to public safety.” Palmer v. Sprint Nextel Corp., 674 F. Supp. 2d 1224, 1226 (W.D. Wash. 2009); citing Pub. L. No. 102-243, 105 Stat. 2394, §§ 2 (5)–(6) (1991); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Accordingly, the TCPA prohibits parties from making: Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 8 of 19 Page ID #:437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 4 any call (other than a call made . . . with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call. 47 U.S.C. § 227(b)(1)(A)(iii).1 Despite the TCPA making it unlawful to place unauthorized automated telephone calls, including text messages,2 to cellular telephone numbers, the Federal Communication Commission (“FCC”) still reports that “[m]onth after month, unwanted robocalls and texts, both telemarketing and informational, top the list of consumer complaints received by the [FCC].” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling, CG Dkt. No. 02-278, 30 FCC Rcd. 7961, at ¶ 1 (July 10, 2015) (“2015 FCC Ruling”). Accordingly, pursuant to the FCC’s rulemaking authority, see 47 U.S.C. § 227(b)(2),3 the FCC implemented further regulations requiring that automated calls containing an advertisement could only be sent to individuals who provided their prior express written consent. See In the Matter of Rules and Regulations Implementing the Telephone 1 Whether the text messages at issue were sent using an automatic telephone dialing system is not being argued by the Parties at this time as the Parties seek to first resolve the issue of whether Defendant acquired valid consent under the TCPA. 2 Text messages constitute calls under the TCPA. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CG Docket No. 02-278, 18 FCC Rcd. 14014, at ¶ 165 (July 3, 2003); Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016), as revised (Feb. 9, 2016) (“A text message to a cellular telephone . . . qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii)”). 3 Pursuant to the Hobbs Act, FCC orders implementing the TCPA are binding on District courts. Reardon v. Uber Techs., Inc., 115 F. Supp. 3d 1090, 1097 (N.D. Cal. 2015) (citing Pac. Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114, 1125 (9th Cir. 2003). Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 9 of 19 Page ID #:438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 5 Consumer Protection Act of 1991, FCC Report and Order, CG Dkt. No. 02-278, 27 FCC Rcd. 1830, at ¶ 20 (Feb. 15, 2012) (“2012 FCC Order”). The Federal Regulations implementing the TCPA codified the 2012 FCC Order and specifically prohibit any entity from making “any telephone call that includes or introduces an advertisement or constitute telemarketing, using an automatic telephone dialing system . . . to [a cellular telephone], other than a call made with the prior express written consent of the called party[.]” 47 C.F.R. § 64.1200(a)(2). The Federal Regulations further clarify that “the term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver . . . advertisements or telemarketing messages using an automatic telephone dialing system[.]” 47 C.F.R. 64.1200(f)(8). These regulations requiring written consent specifically apply to the automated text message advertisements at issue here, as “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase . . . of . . . goods[.]” 47 C.F.R. 64.1200(f)(12). The text messages Plaintiff received specifically advertised various sales at Defendant’s retail stores, including “Black Friday deals” (SUF at Nos. 6–8), and were placed by Defendant for the purpose of encouraging sales of its products. (Id. at No. 10.) B. The TCPA requires written consent for each automated text message advertisement sent and permits limitations on the scope of any consent provided. The FCC has also clarified that written consent must be obtained for each phone call made and that the consent obtained by the caller can be limited in scope by the called party. Specifically, in its 2015 Ruling the FCC stated that “the TCPA places responsibility on the caller alone to ensure that he or she has valid consent for each call made using an autodialer, artificial voice, or prerecorded voice.” 2015 FCC Ruling at ¶ 81 (emphasis added). Accordingly, Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 10 of 19 Page ID #:439 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 6 and particularly relevant here, the TCPA’s “prior-express-written-consent requirements apply for each call made to a wireless number, rather than to a series of calls to wireless numbers made as part of, for example, a marketing or advertising campaign as a whole.” 2015 FCC Ruling at ¶ 100. Thus, the prior express written consent requirement applies “per call.” Id. (emphasis in original). The FCC has also ruled that even where a called party provides consent, such consent is not absolute and may be limited in scope if the called party provides any “instructions to the contrary.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CC Dkt. No 92-90, 7 FCC Rcd. 8752, 8755 (1992) (“1992 FCC Ruling”). Demonstrating how “instructions to the contrary” can operate to limit the scope of consent provided to a caller, the court in Stavrinides v. Pac. Gas & Elect. Co., No. 16-cv-00433, 2016 WL 3345426 (N.D. Cal. 2016), found that even though the plaintiff gave the defendant express consent to place automated calls when the plaintiff provided his phone number, the defendant did not have full consent to place any calls it wished because the plaintiff also provided “instructions to the contrary.” See Stavrinides, 2016 WL 3345426 at *3 (citing 2015 FCC Ruling at ¶ 49). Specifically, in Stavrinides, while the Plaintiff provided his phone number to the defendant, in doing so the plaintiff also stated that the defendant had “ten days” to contact him at that number and only in regard to settling the case. Id. The court saw this limiting language as “clear instructions limiting the scope of his consent.” Id. Thus, under the TCPA, Defendant was required to obtain prior express written consent for each text message advertisement it sent to Plaintiff’s cell phone, and had to comply with any instructions limiting the scope of consent provided by Plaintiff. Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 11 of 19 Page ID #:440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 7 C. Defendant only had consent to send Plaintiff up to three text messages per week. The scope of Defendant’s consent here was specifically set by the initial text messages that Plaintiff received and responded to when he signed up for Defendant’s text messaging program. After Plaintiff sent the initial text message to Defendant, Defendant sent a response stating; MW: Almost in! Reply “Y” for $10 off $50 & up to 3 msgs/wk at this #! No OptIn Req’d to buy goods; may be autodialed. TC: mensw.com/TC. Rts may apply (SUF at No. 2) (emphasis added). Plaintiff replied “Y” in response to this message and the specific representation by Defendant that it would only send “up to 3 msgs/wk”, and thus provided his consent to receive “3 msgs/wk.” (Id. at No. 3.) Further confirming that the scope of Plaintiff’s consent was limited to just “3 msgs/wk,” Defendant sent another text message confirming Plaintiff’s agreement to receive the messages, stating; MW: Welcome! Save $10 off $50 in-store or online w/ http://vbs.cm/j02fNP or use code: ACFU3386771 Valid 30 days 3msgs/wk HELP4helpSTOP2quit Rts may apply (Id. at No. 4) (emphasis added). Because, as stated above, the TCPA requires valid consent for each automated text message advertisement sent (2015 FCC Ruling at ¶¶ 81, 100), and because Plaintiff provided consent to receive only “3 msgs/wk” – as specifically represented by Defendant – Defendant did not have consent to send any additional text message advertisements in any given week. Any such additional messages were contrary to Defendant’s representations and outside the limited scope of consent provided by Plaintiff. Alternatively, to the extent the Court finds that Plaintiff provided any consent to receive text message advertisements from Defendant, the terms of the text messaging program agreed to by Plaintiff were “instructions to the Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 12 of 19 Page ID #:441 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 8 contrary” that worked to limit the scope of consent provided by Plaintiff. As in Stavrinides, while Defendant may have had consent to send text message advertisements to Plaintiff generally, Defendant’s consent was limited by the “clear instructions limiting the scope of [its] consent” that were provided by Defendant itself, and agreed to by Plaintiff, permitting only three text message advertisements per “week.” 2016 WL 3345426 at *3. Thus, the only issue before the Court here is whether Defendant sent any excess text messages that were outside the scope of the consent provided by Plaintiff—three messages per week. D. Defendant sent Plaintiff additional unauthorized text messages that were outside the scope of the consent provided by Plaintiff. There is no dispute between the Parties as to when and how many text messages Plaintiff received (SUF at Nos. 2–5, 9), or as to the fact that Plaintiff only consented to receive up to three messages per week. And because there can be no dispute that Defendant was required to obtain consent or comply with limiting instructions as to each text message it sent Plaintiff, the issue of whether Defendant sent any unauthorized text messages turns solely on determining the definition of a “week” as used in the terms of consent that Plaintiff provided. Such a question is a legal issue that is properly addressed on summary judgment. Here, Plaintiff’s agreement with Defendant to receive up to three messages per week was effectively a contract, the terms of which can be interpreted using contract law and common law principles. “When interpreting a contract to discern the parties’ mutual intent, courts look first to the plain language of the contract.” Headlines Reserve, LLC. v. Ctr. for Natural Land Mgmt., 523 F. Supp. 2d 1113, 1125 (C.D. Cal. 2007). Further “[t]he words of a contract are to be understood in their ordinary and popular sense.” Id. Using Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 13 of 19 Page ID #:442 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 9 the plain and ordinary meaning of the word “week,” Defendant has sent more than three messages in a given week. According to the American Heritage Dictionary a “week” is defined as either a “period of seven days” or “a seven-day calendar period, especially one starting with Sunday and continuing through Saturday.” American Heritage Dictionary (5th ed. 2017). While Merriam Webster’s Dictionary (web) similarly defines a “week” as either “any of a series of 7-day cycles used in various calendars; especially: a 7-day cycle beginning on Sunday and ending on Saturday” or “any seven consecutive days.” (emphasis in original). Furthermore, Black’s Law Dictionary defines a “week” as “1. A period of seven consecutive days beginning on either Sunday or Monday” or “2. Any consecutive seven-day period.” Black’s Law Dictionary (10th ed. 2014). In addition, courts that have looked at the issue have come to similar conclusions. For example, in People v. Rexford, 579 N.W.2d 111 (Mich. Ct. App. 1998), the Michigan court of appeals also had to determine the definition of the term “calendar week” for purposes of applying an administrative rule that did not define the term. 579 N.W.2d at 113–14. The court in Rexford found that the term “calendar week” means “a seven-day period from Sunday through Saturday.” Id. at 113. The court further explained that “Webster’s College Dictionary (1995) defines week as a ‘period of seven successive days, usu[ally] understood as beginning with Sunday and ending with Saturday.” Id. at 114 (emphasis added). Citing to another case, the Rexford court stated that “a statute requiring notice by publication for at least three weeks immediately preceding the presentation of an annexation petition, meant that notice must be published at least once during each of the [preceding] three calendar weeks – Sunday through Saturday[.]” Id. (citing Niles Twp. V. Berrien Co., 146 N.W.2d 105, (1966)) (emphasis added). Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 14 of 19 Page ID #:443 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 10 Other courts have held that a “week” is simply any “seven consecutive day period.” See Mortel v. Independent School Dist., 334 N.W. 2d 408, 410 (Minn. June 3, 1983). In fact, even the Supreme Court came to a similar conclusion in one of its early cases. In Ronkendorff v. Taylor’s Lessee, 29 U.S. 349 (1830), the Court dealt with a public law that required “public notice of the time and place of sale of lots . . . [be] given by advertising ‘once a week’ in some newspaper in the city[.]” 29 U.S. at 349 (emphasis added). The Supreme Court ultimately held that “[o]nce a week means once in every seven days; from one day, to a particular day, to another, a corresponding day in the succeeding week. Id. at 356–57. Finally, simply looking at the purpose of the limiting language included by Defendant, and the purpose of the TCPA, it is clear that “week” was meant to be defined as any seven-day period. While Defendant was free to define the scope of consent as agreeing to generally receive any number of text messages, Defendant specifically limited it to “up to 3 msgs/wk.” (SUF at Nos. 2, 4.) In so doing Defendant was informing the called parties that it would limit the number of text message advertisements it would send in order to avoid bombarding them with text messages. However, if “week” were to be defined as solely a seven-day period from Monday to Sunday, as Defendant seems to suggest (Motion to Dismiss, Dkt. 20-1, at 8), Defendant would have been free to send three text messages in a row on a Sunday, and then an additional three text messages in a row the very next day, on the following Monday—with the called party receiving a total of 6 text message advertisements in what could be the span of less than 24 hours. The language used by Defendant, which Plaintiff specifically agreed to, was meant to prohibit exactly such a scenario. However, regardless of whether the Court finds that a week is properly defined as any seven-day period, or as a “calendar” week beginning on a Sunday and ending on a Saturday, Defendant sent Plaintiff additional Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 15 of 19 Page ID #:444 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 11 unauthorized text messages beyond the three per “week” that Plaintiff consented to receive. On two separate, consecutive seven-day periods, Defendant sent more than three text message advertisements. (SUF at Nos. 5, 9.) Plaintiff received five text messages in just the span of six days on November 26, 27, 28, 30 and December 1, 2015. (Id. at No. 5.) Plaintiff also received four text messages in the span of seven days on February 14, 15, 18, and February 20, 2016. (Id. at No. 9.) Thus, there can be no doubt that, under the definition of a “week” as a seven-day period, Defendant sent Plaintiff more than three messages in a week on at least two separate occasions. In addition, Plaintiff received an excess unauthorized text message advertisement during the seven-day “calendar” week beginning on Sunday, February 14, 2016, and ending on Saturday, February 20, 2016—having received messages on Sunday February 14, 2016, Monday February 15, 2016, Thursday February 18, 2016, and Saturday February 20, 2016. (SUF at No. 9.) Thus, even under the definition of a “week” as a calendar week beginning on a Sunday and ending on a Saturday, Defendant sent Plaintiff more than three messages in a week on at least one occasion. Accordingly, regardless of how a week is defined, Defendant sent Plaintiff unauthorized text messages on at least one occasion— December 1, 2015, and/or February 20, 2016. As Defendant previously argued in its Motion to Dismiss, and as Defendant will surely argue in its own motion for summary judgment, the only way that Defendant did not send Plaintiff unauthorized text messages is if a week is defined as a seven-day period from “Monday to Sunday.” (Dkt. 20-1 at 8.) To be clear, Plaintiff does not suggest that he received more than three text messages in any consecutive seven-day period from Monday to Sunday. However, and as set forth in detail above, there is virtually no authority for defining a week specifically as a seven-day period from Monday to Sunday— the only definition that could even potentially allow Defendant to escape Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 16 of 19 Page ID #:445 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 12 liability for these messages. And to the extent the Court concludes that the definition of a “week” is ambiguous, the ambiguity arises from the terms of Defendant’s proposed contract with Plaintiff to sign up for the text messaging program. As such, the Court should apply one of Plaintiff’s proposed definitions of a week, as “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Miller v. United States, 363 F.3d 999, 1006 (9th Cir. 2004) (citing Cal. Civ. Code § 1644); Mastronbuono v. Shearson Lehman Hutton Inc., 514 U.S. 52, 62 (1995) (“a court should construe ambiguous language against the interest of the party that drafted it”); see also Day v. AT&T Disability Income Plan, 685 F.3d 848 (9th Cir. 2012). As the party that drafted the terms of the agreement that Plaintiff accepted, and chose to set the scope of consent that it obtained, Defendant should bear responsibility for failing to clearly define any key terms. Any ambiguity as to the definition of a “week” created by Defendant should be resolved in favor of Plaintiff, and either of Plaintiff’s proposed definitions – as supported by numerous authorities – should be applied. Under either such definition, Defendant exceeded the scope of any consent Plaintiff had otherwise provided and sent unauthorized text messages. V. CONCLUSION Because the TCPA requires consent for each automated text message advertisement sent, the scope of consent established by Defendant in the text messaging terms Plaintiff accepted are determinative of whether Defendant sent any text messages without proper consent. Here, the terms provided by Defendant itself permitted up to three text message advertisements per “week.” Because there is no dispute that Plaintiff received more than three text messages under any reasonable definition of a “week,” and because any ambiguity about the terms Plaintiff agreed to should be resolved in his favor, Defendant did not have consent to send each of the additional text message advertisements Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 17 of 19 Page ID #:446 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 13 Plaintiff received. For the foregoing reasons, Plaintiff is entitled to summary judgment that the excess text messages he received were sent without proper prior express written consent as required under the TCPA. Plaintiff Anthony Oliver respectfully requests that this Honorable Court grant Plaintiff’s Motion for Summary Judgment and enter an Order finding that that Defendant sent unauthorized text message advertisements to Plaintiff’s cellular telephone. Dated: June 23, 2017 Respectfully submitted, By: /s/ Eugene Y. Turin Eugene Y. Turin David C. Parisi (SBN 162248) dcparis@parisihavens.com Suzanne Havens Beckman (SBN 188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Eugene Y. Turin (pro hac vice) eturin@mcgpc.com MCUIRE LAW, P.C. 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Attorneys for Plaintiff and the Putative Class Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 18 of 19 Page ID #:447 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Memorandum in Support of Case No. 16-cv-01100 Mot. for Summary Judgment 14 CERTIFICATE OF SERVICE I, Eugene Y. Turin, an attorney, certify that on June 23, 2017, I filed the foregoing Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment via the Court’s CM/ECF electronic filing system. A copy of said document will be electronically transmitted to the following counsel of record: Charles R. Messer Messerc@cmtlaw.com Stephen A. Watkins Watkinss@cmtlaw.com David J. Kaminski Kaminskid@cmtlaw.com Carlson and Messer LLP 5959 W. Century Blvd., Ste. 1214 Los Angeles, California 90045 Christopher C Wager ccwager@vorys.com John L Landolfi jllandolfi@vorys.com Vorys Sater Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215 /s/ Eugene Y. Turin Case 2:16-cv-01100-TJH-AS Document 45-1 Filed 06/23/17 Page 19 of 19 Page ID #:448 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl’s Statement of Uncontroverted Facts Case No. 16-cv-01100 David C. Parisi (SB #162248) dcparisi@parisihavens.com Suzanne Havens Beckman (SB #188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Fax: (818) 501-7852 Attorneys for Plaintiff [Additional counsel appear on signature page] IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANTHONY OLIVER, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE MEN’S WEARHOUSE, a Texas corporation Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-CV-01100-TJH PLAINTIFF’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Hearing Date: August 14, 2017 Hearing Time: UNDER SUBMISSION Location: Courtroom 9B Hon. Terry J. Hatter, Jr. ) Case 2:16-cv-01100-TJH-AS Document 45-2 Filed 06/23/17 Page 1 of 5 Page ID #:449 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pl’s Statement of Uncontroverted Facts Case No. 16-cv-01100 Pursuant to Fed. R. Civ. P. 56 and C.D. Cal. L.R. 56-1, Plaintiff Anthony Oliver submits this Separate Statement of Uncontroverted Facts and Conclusions of Law in support of his concurrently-filed Motion for Summary Judgment. UNCONTROVERTED FACTS 1. On or about August 22, 2015, Plaintiff sent a text message containing the phrase “MW” to the short code “66960.” (Plf’s 1st Amend. Compl., Dkt. 17, at ¶ 26; Def’s Answer, Dkt. 41, at ¶ 15.) 2. On or about August 22, 2015, Plaintiff received a text message from The Men’s Wearhouse (“Men’s Wearhouse”) responding to the text message identified above that he sent on or about August 22, 2015, stating: MW: Almost in! Reply “Y” for $10 off $50 & up to 3 msgs/wk at this #! No OptIn Req’d to buy goods; may be autodialed. TC: mensw.com/TC. Rts may apply (Plf’s 1st Amend. Compl. at ¶ 16; Def’s Answer at ¶ 16.) 3. On or about August 22, 2015, Plaintiff sent a text message responding to Men’s Wearhouse’s August 22, 2015 text message identified above, stating “Y”. (Plf’s 1st Amend. Compl. at ¶ 18; Def’s Answer at ¶ 18.) 4. On or about August 22, 2015, Plaintiff received a text message from Men’s Wearhouse responding to the August 22, 2015 text message identified above, stating: MW: Welcome! Save $10 off $50 in-store or online w/ http://vbs.cm/j02fNP or use code: ACFU3386771 Valid 30 days 3msgs/wk HELP4helpSTOP2quit Rts may apply (Exhibit 1 to the Declaration of Eugene Y. Turin in Support of Plaintiff’s Motion for Partial Summary Judgment, attached hereto as Exhibit A.) 5. Plaintiff received text messages from Men’s Wearhouse on his cellular telephone containing advertisements for its retail stores on Thursday, Case 2:16-cv-01100-TJH-AS Document 45-2 Filed 06/23/17 Page 2 of 5 Page ID #:450 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Pl’s Statement of Uncontroverted Facts Case No. 16-cv-01100 November 26, 2015; Friday, November 27, 2015; Saturday, November 28, 2015; Monday, November 30, 2015; and Tuesday, December 1, 2015. (Plf’s 1st Amend. Compl. at ¶ 21; Def’s Answer at ¶ 21; Exhibit 1 to the Declaration of Eugene Y. Turin.) 6. The text message advertisement Plaintiff received from Men’s Wearhouse on Thursday, November 26, 2015 read: MW: Happy Thanksgiving! Lock in your early Black Friday deals up to 65% off by shopping online! http://vbs.cm/k0amWk **Stores are closed** HELP4help STOP2quit (Exhibit 1 to the Declaration of Eugene Y. Turin.) 7. The text message advertisement Plaintiff received from Men’s Wearhouse on Friday, November 27, 2015 read: MW: Black Friday doorbusters! $99.99 topcoats & cashmere v-neck sweaters + MORE! Shop NOW http://vbs.cm/U03noh Get store coupon online, Excls Apply STOP2quit (Exhibit 1 to the Declaration of Eugene Y. Turin.) 8. The text message advertisement Plaintiff received from Men’s Wearhouse on Tuesday, December 1, 2015 read: MW: Cyber Monday Deals Extended All Day Today! Up to 70% off. Shop online or print coupon for store: http://vbs.cm/v0qo5H Excls Apply. HELP4Help, STOP2quit (Exhibit 1 to the Declaration of Eugene Y. Turin.) 9. Plaintiff received text messages from Men’s Wearhouse on his cellular telephone containing advertisements for its retail stores on Sunday, February 14, 2016; Monday, February 15, 2016; Thursday, February 18, 2016; Case 2:16-cv-01100-TJH-AS Document 45-2 Filed 06/23/17 Page 3 of 5 Page ID #:451 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Pl’s Statement of Uncontroverted Facts Case No. 16-cv-01100 and Saturday, February 20, 2016. (Plf’s 1st Amend. Compl. at ¶ 22; Def’s Answer at ¶ 22; Exhibit 1 to the Declaration of Eugene Y. Turin.) 10. The text messages sent by Men’s Wearhouse and received by Plaintiff on November 26, 2015; November 27, 2015; November 28, 2015; November 30, 2015; December 1, 2015; February 14, 2016; February 15, 2016; February 18, 2016; and February 20, 2016, all contained advertising material that encouraged the purchase of Men’s Wearhouse products. (Exhibit 1 to the Declaration of Eugene Y. Turin.) Dated: June 23, 2017 Respectfully submitted, By: /s/ Eugene Y. Turin Eugene Y. Turin David C. Parisi (SBN 162248) dcparis@parisihavens.com Suzanne Havens Beckman (SBN 188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Eugene Y. Turin (pro hac vice) eturin@mcgpc.com MCUIRE LAW, P.C. 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Attorneys for Plaintiff and the Putative Class Case 2:16-cv-01100-TJH-AS Document 45-2 Filed 06/23/17 Page 4 of 5 Page ID #:452 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Pl’s Statement of Uncontroverted Facts Case No. 16-cv-01100 CERTIFICATE OF SERVICE I, Eugene Y. Turin, an attorney, certify that on June 23, 2017, I filed the foregoing Plaintiff’s Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment via the Court’s CM/ECF electronic filing system. A copy of said document will be electronically transmitted to the following counsel of record: Charles R. Messer Messerc@cmtlaw.com Stephen A. Watkins Watkinss@cmtlaw.com David J. Kaminski Kaminskid@cmtlaw.com Carlson and Messer LLP 5959 W. Century Blvd., Ste. 1214 Los Angeles, California 90045 Christopher C Wager ccwager@vorys.com John L Landolfi jllandolfi@vorys.com Vorys Sater Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215 /s/ Eugene Y. Turin Case 2:16-cv-01100-TJH-AS Document 45-2 Filed 06/23/17 Page 5 of 5 Page ID #:453 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Eugene Y. Turin in Support of Case No. 16-cv-01100 Pl’s Mot. for Summary Judgment 1 David C. Parisi (SB #162248) dcparisi@parisihavens.com Suzanne Havens Beckman (SB #188814) shavens@parisihavens.com PARISI & HAVENS LLP 212 Marine Street, Ste. 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Fax: (818) 501-7852 Attorneys for Plaintiff [Additional counsel appear on signature page] IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANTHONY OLIVER, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE MEN’S WEARHOUSE, a Texas corporation Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-CV-01100-TJH DECLARATION OF EUGENE Y. TURIN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Hearing Date: August 14, 2017 Hearing Time: UNDER SUBMISSION Location: Courtroom 9B Hon. Terry J. Hatter, Jr. DECLARATION OF EUGENE Y. TURIN I, Eugene Y. Turin, hereby aver, pursuant to 28 U.S.C. § 1746, that I have personal knowledge of all matters set forth herein unless otherwise indicated, and would testify thereto if called as a witness in this matter. 1. I am an adult over the age of 18 and a resident of the State of Illinois. I am an attorney with the law firm McGuire Law, P.C. and I am licensed to practice law in the State of Illinois. I am admitted pro hac vice in this matter and serve as one of the attorneys representing Plaintiff. I am fully Case 2:16-cv-01100-TJH-AS Document 45-3 Filed 06/23/17 Page 1 of 4 Page ID #:454 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Eugene Y. Turin in Support of Case No. 16-cv-01100 Pl’s Mot. for Summary Judgment 2 competent to make this Declaration and make such Declaration in support of Plaintiff’s Motion for Summary Judgment. 2. Attached hereto as Exhibit 1 is a true and accurate copy of the calling records showing the inbound and outbound text messages sent and received between Plaintiff Anthony Oliver and Defendant The Men’s Wearhouse, which was produced by Defendant to Plaintiff on May 3, 2016. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on June 23, 2017 in Chicago, Illinois. /s/ Eugene Y. Turin Eugene Y. Turin Case 2:16-cv-01100-TJH-AS Document 45-3 Filed 06/23/17 Page 2 of 4 Page ID #:455 Exhibit 1 Case 2:16-cv-01100-TJH-AS Document 45-3 Filed 06/23/17 Page 3 of 4 Page ID #:456 message created_date_dim_key phone_number 10.00 off 2015-08-22 +17472427750 Oops we didn't understand your msg. Txt "MW" for autodialed mktg txts at this #, 3 msgs/wk. Msg&DataRatesMayApply, consent not req to buy. HELP4help, STOP2quit 2015-08-22 +17472427750 MW 2015-08-22 +17472427750 MW: Almost in! Reply "Y" for $10 off $50 & up to 3 msgs/wk at this #! No OptIn Req'd to buy goods; may be autodialed. TC: mensw.com/TC. Rts may apply 2015-08-22 +17472427750 "Y" 2015-08-22 +17472427750 MW: Welcome! Save $10 off $50 in-store or online w/ http://vbs.cm/j02fNP or use code: ACFU3386771 Valid 30 days 3msgs/wk HELP4helpSTOP2quit Rts may apply 2015-08-22 +17472427750 MW: Last Chance Summer Sale! Select Suits $199.99 + Buy 1 Get 1 FREE on even more! Shop now: http://vbs.cm/y0Afrn Excls apply Ends 8/30 STOP2quit 2015-08-28 +17472427750 MW: DAILY DEAL! All ties 2 for $60! Shop instore or online http://vbs.cm/w0xfAu Ends 9/9 Excls apply HELP4help, STOP2quit 2015-09-09 +17472427750 MW: Shop our Fall 4-Day Sale. Extra 40% off Clearance + Buy 1 Get 1 Free On Even More! 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Shop NOW http://vbs.cm/A0EwHr Excls Apply STOP2quit 2016-02-26 +17472427750 Case 2:16-cv-01100-TJH-AS Document 45-3 Filed 06/23/17 Page 4 of 4 Page ID #:457