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Filing # 170425038 E-Filed 04/05/2023 03:48:23 PM
IN THE CIRCUIT COURT OF THE ELEVENTH CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.
HERIBERTO VALIENTE,
individually and
on behalf of all others similarly situated, CLASS REPRESENTATION
Plaintiff, JURY TRIAL DEMANDED
v.
LIFE IS BEAUTIFUL, LLC,
Defendant.
_______________________________________________/
PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
Plaintiff, by and through the undersigned counsel, hereby respectfully moves this Court for an
Order certifying this case as a class action pursuant to Fla. R. Civ. P. 1.220(a) and (b)(3).
I. INTRODUCTION
This case involves Defendant’s violations of the Telephone Solicitation provisions of the
Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, and Telephone Consumer Protection
Act, 47 U.S.C. § 227, et seq. (the “TCPA”). Federal law prohibits soliciting individuals who have placed
their telephone numbers on the National Do-Not-Call Registry. Florida law proscribes the sending of
telemarketing calls, defined to include text messages sent “for the purpose of soliciting a sale of…goods
or services” or to be used to solicit a sale of good or services. Fla. Stat. § 501.059(1)(j). Absent prior,
express consent, no entity is permitted to “make or knowingly allow [to be made]” a telephonic sales
call utilizing an “automated system for the dialing or selection of telephone numbers.” § 501.059(8)(a).
Anyone who receives a proscribed telephonic sales call can file suit to enjoin such action and to recover
up to $500.00 in statutory damages. § 501.059(10). If the violations were knowing and/or willful, courts
are permitted to treble such damages. Id. Notwithstanding such clear law, Defendant delivered spam,
telemarketing text messages to the cell phone numbers of Plaintiff and all members of the putative Class.
To deliver such text messages en masse, Defendant utilized an “automated system for the dialing or
selection” of the phone numbers, and did not secure valid prior express consent to deliver any of the
text messages.
This case is eminently suitable for class treatment. Class treatment of the claims alleged here—
which entitle Class Members to, at most, $500.00-$1,500.00 in individual damages—is far superior to
any other form of adjudication, and common issues of law and fact clearly predominate over any
individual issues. There are two major issues in this litigation: (1) did the content of the text messages
constitute “telemarketing” material, and (2) did Defendant utilize an “automated system for the dialing
or selection” of the telephone numbers sent the text messages. Both issues are subject to common proof
and are subject to common resolution. Sending text messages advertising a current deal or coupon code
is either telemarketing or it is not, the dialing system Defendant utilizes is either an “automated system”
or it is not. Whatever the answer, however, it is the same for all members of the Class.
Moreover, there is no question the class is adequately defined with reference to objective
criteria, that Plaintiff and Class Counsel are and will be adequate representatives, and that joinder of all
individual claims would be impracticable. As such, and for the reasons more fully explained below,
Plaintiff respectfully submits that the instant motion should be granted.
II. PROPOSED CLASSES
Based upon these facts and allegations in the operative complaint, and as forthcoming discovery
will support, Plaintiff seeks to represent two classes defined as follows:
DNC Class: All persons in the United States who from four years
prior to the filing of this action through the date of class certification
(1) Defendant, or anyone on Defendant’s behalf, (2) placed more
than one text message call within any 12-month period; (3) where
the person’s telephone number that had been listed on the National
Do Not Call Registry for at least thirty days; (4) regarding
Defendant’s property, goods, and/or services; (5) who did not
purchase or transact business with Defendant during the eighteen
months immediately preceding the date of the first message; and
(6) who did not contact Defendant during the three months
immediately preceding the date of the first message with an inquiry
about a product, good, or service offered by Defendant.
FTSA Class: All persons in Florida who, (1) were sent a more than
one text message regarding Defendant’s property, goods, and/or
services, (2) using the same equipment or type of equipment
utilized to call Plaintiff, (3) from July 1, 2021 through the date of
class certification.
III. LEGAL STANDARD
The class action process is intended to address situations “when the court is faced with
a multiplicity of individual actions” and that process “has a real and meaningful position in
the administration of justice to address the ever-increasing caseload burden placed upon our
trial courts.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103, 105 (Fla. 2011).1 To certify
a class, a trial court must analyze whether the class representative and putative class members
meet the requirements for class certification pursuant to Florida Rule of Civil Procedure 1.220.
Id. A trial court should resolve doubts concerning certification in favor of certification,
especially in the early stages of litigation. Id. Courts should analyze the merits of a case only
to the extent necessary to determine whether to certify a class. Id.
Rule l.220(a)(l)-(4) requires a showing of numerosity, commonality, typicality, and
adequacy. If these requirements are satisfied, at least one of the three criteria of Rule
1
All citations and quotations omitted and emphasis supplied unless specified otherwise.
l.220(b)(l)-(3) must also be met. See, e.g., Fla. Dep 't of Agr. & Consumer Servs. v. City of
Pompano Beach, 829 So. 2d 928, 930 (Fla. 4th DCA 2002).
To the extent that the Court finds that additional factual showings are necessary, it
should reserve ruling, allow further discovery, and require a further showing on those
elements, rather than denying the class certification motion. See Cordell v. World Ins. Co.,
355 So. 2d 479 (Fla. 1st DCA 1978) (trial court should have reserved ruling on class until
plaintiffs had opportunity for discovery); Whigum v. Heilig-Meyers Furniture, Inc., 682 So. 2d
643, 645 (Fla. 1st DCA 1996) (trial court prematurely denied class certification before
plaintiff had opportunity for discovery); Commonwealth Land Title Ins. Co. v. Higgins, 975
So. 2d 1169, 1175 (Fla. 1st DCA 2008) (before deciding class certification, trial court must
permit discovery that is “sufficiently broad” to give plaintiff realistic opportunity to meet class
certification requirements); Coastal Physician Servs. of Broward Cnty., Inc. v. Ortiz, 720 So.
2d 324, 326-327 (Fla. 4th DCA 1998) (same). Trial courts are afforded broad discretion in
determining whether class certification prerequisites and requirements are satisfied. See Sosa,
73 So. 3d at 98. But, if a plaintiff demonstrates that the aforementioned requirements are
satisfied, a court abuses its discretion by declining to certify the class. See Disc. Sleep of
Ocala, LLC v. City of Ocala, 245 So. 3d 842 (Fla. 5th DCA 2018) (reversing order denying
class certification because all Rule 1.220 requirements were satisfied and holding that class
should have been certified).
IV. THE THRESHOLD STANDING REQUIREMENT FOR CLASS
CERTIFICATION IS SATISFIED
Prior to the Rule 1.220 analysis, it must be determined as a threshold matter that Plaintiff
possesses standing to prosecute the claim. Sosa, 73 So. 3d at 116 (“A threshold inquiry in a motion for
class certification is whether the class representative has standing to represent the putative class
members.”). A plaintiff has standing to sue so long as they allege—and eventually show—either a legal
or a factual injury. Id. Unlike federal courts, Florida state courts possess plenary jurisdiction. As such,
if a statute creates a new cause of action and prescribes statutory damages, plaintiffs that allege a
statutory violation—and nothing more—are entitled to the statutory damages (if successful) and thus
have standing to sue in Florida state courts. See Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation,
390 So. 2d 64, 66–67 (Fla. 1980) (“[P]rivate citizens of Florida may institute suit under [the] statute
without a showing of special injury.”); Laughlin v. Household Bank, Ltd., 969 So. 2d 509 (Fla. 1st DCA
2007) (“Laughlin is not required to prove actual damages, but only a violation of one of the prohibited
practices in the FCCPA.”).
Here, Plaintiff alleges he received text messages from Defendant in violation of the FTSA,
pursuant to which he possesses a cause of action and is entitled to statutory damages of $500 per text
message. Additionally, Plaintiff is entitled to and seeks declaratory and injunctive relief under the FTSA.
As such, he alleges a legal injury sufficient to establish standing to sue in Florida courts.
V. THE CLASS SATISFIES EACH RULE 1.220(a) PREREQUISITE
A. The Numerosity Requirement is Satisfied
Fla. R. Civ. P. l.220(a)(l) requires that “the members of the class be so numerous that
separate joinder of each member is impracticable.” Id. Case law holds that the numerosity test
is presumed satisfied with at least 40-50 class members. See, e.g., Terry L. Baum, P.A. v.
Campb ell, 827 So. 2d 261, 266 (Fla. 5th DCA 2002). In this case, any common-sense
assumptions clearly indicate the joinder would be impracticable, with class size ranging well over
40, and likely into the thousands. Although the precise number of Class Members is unknown to
Plaintiff at this time and can only be determined by appropriate discovery, Plaintiff is informed
and believes that the classes of persons affected by Defendant’s unlawful acts consists of at least
100 persons.
While discovery has not yet occurred and thus confirmed that the numerosity requirement is
satisfied, the important point at this juncture is that the class is “adequately defined” such that it will be
possible (through discovery) to establish that the numerosity requirement is met. See Leibell v. Miami-
Dade County, 84 So. 3d 1078, 1083 (Fla. 3d DCA 2012) (to establish numerosity, class must be
adequately defined and clearly ascertainable). A class is adequately defined if its members are capable
of determination through objective criteria (and not subjective criteria such as, for example, state of
mind). See Cherry v. Dometic Corp., 986 F.3d 1296, 1304 (11th Cir. 2021) (explaining that “adequately
defined” and “clearly ascertainable” requires the same thing: that the class be capable of determination
through objective criteria).2 Here, the criteria for class membership are all objective and determinable.
As such, the numerosity requirement is satisfied here, as discovery will confirm. See, e.g., Mohamed v.
Off Lease Only, Inc., 320 F.R.D. 301, 311 (S.D. Fla. 2017) (class defined with reference to receipt of
text messages with advertising materials was objective criteria); Grant v. Regal Auto. Grp., Inc., 2020
U.S. Dist. LEXIS 91897, at *7-10 (M.D. Fla. May 27, 2020) (holding that plaintiff had demonstrated
class membership was based on objective criteria).
B. Commonality Requirement is Satisfied
Rule l. 220(a)(2) requires that there be questions of law or fact common to the class.
Fla. R. Civ. P. l .220(a)(2). The primary concern is whether the claims arise from the same
practice or course of conduct and are based on the same legal theory. Sosa, 73 So. 3d at 107-
108. The threshold of the commonality requirement is not high. Id. A mere factual difference
2
Because Rule 1.220 is patterned after Fed. R. Civ. P. 23, Florida courts look to federal
interpretation of Rule 23 as part of its analysis. See Powell v. River Ranch Property Owners Asso.,
522 So. 2d 69, 70 (Fla. 2d DCA 1988).
between class members does not necessarily preclude satisfaction of the commonality
requirement. Id. Moreover, individualized damage inquiries will also not preclude class
certification. Id. As described in Sosa,
The commonality requirement is aimed at determining whether there is
a need for, and benefit derived from, class treatment…More
specifically, the commonality prong only requires that resolution of a
class action affect all or a substantial number of the class members, and
that the subject of the class action presents a question of common or
general interest ... The commonality requirement is satisfied if the
common or general interest of the class members is in the object of the
action, the result sought, or the general question implicated in the
action... This core of the commonality requirement is satisfied if the
questions linking the class members are substantially related to the
resolution of the litigation, even if the individuals are not identically
situated.
Id.
Based on this liberal Sosa standard, commonality is easily satisfied in this case. The
questions of law and fact that are common to Plaintiff’s and the Class members’ claims
include, but are not limited to, the following: (a) whether the dialing system utilized by Defendant
is an “automated system for the dialing or selection of telephone numbers” and (b) whether the
content of the text messages delivered by Defendant constitutes telemarketing material. Both are
issues the resolution of which will apply equally to all members of the Class. See Williams v.
Bluestem Brands, Inc., 2019 U.S. Dist. LEXIS 56655, at *8 (M.D. Fla. Apr. 2, 2019) (whether a
dialing system is “automated” within the meaning of a similar statute as at issue here constituted
a “common question”); Gonzalez v. TCR Sports Broad. Holding, LLP, 2019 U.S. Dist. LEXIS
87506, at *6 (S.D. Fla. May 24, 2019) (same); Jackson v. Paycron Inc., 2019 U.S. Dist. LEXIS
80325 (S.D. Fla. May 13, 2019) (whether content was “telemarketing” was common question).
Moreover, all members of the Class allege claims based on the same injury—violation of Fla. Stat.
§ 501.059—for which they entitled to the same statutory damages, and, as such, commonality is
established. Sosa, 73 So. 3d at 108.
C. Plaintiff’s Claims are Typical of the Class
The third prong of Rule l.220(a) requires that the claims or defenses of the
representative party be typical of the claim or defenses of the class. Fla. R. Civ. P. l.220(a)(3).
The key inquiry for a trial court to determine whether a proposed class satisfies the typicality
requirement is whether the class representative possesses the same legal interest and has
endured the same legal injury as the class members. Sosa, 73 So. 3d at 114-115.3 The test for
typicality is not demanding and focuses generally on the similarities between the class
representative and the putative class members. Id. Furthermore, mere factual differences
between the class representative's claims and the claims of the class members will not defeat
typicality. Id. Rather, the typicality requirement is satisfied when there is a strong similarity
in the legal theories upon which those claims are based and when the claims of the class
representative and class members are not antagonistic to one another. Id.
As set forth above, Plaintiff’s claim is based on the same legal theory as those of the Class:
Defendant violated the FTSA by placing telemarketing sales calls via an “automated system for the
dialing or selection of telephone numbers” and did not obtain valid consent prior to doing so.
Furthermore, Plaintiff seeks the same remedies and damages as Class Members: $500.00 (or, if trebled,
$1,500.00) in statutory damages and to enjoin future violations. Morgan, 33 So. 3d at 65 (“The typicality
requirement may be satisfied despite substantial factual differences . . . when there is a strong similarity
of legal theories.”). Because both Plaintiff and the putative class allege the same violation and harm,
3
In other words, the typicality and commonality requirements are very similar—the difference
being that rather than comparing putative class members’ claims in general, the comparison is
between the named plaintiff versus unnamed plaintiffs. See Eufaula Drugs, Inc. v. TDI Managed
Care Servs., 250 F.R.D. 670, 676 (M.D. Ala. 2008).
and claim the same remedy, Plaintiff does not have interests antagonistic to the Class, and there is no
issue specific to Plaintiff that threatens to overwhelm the litigation. See Koos v. First Nat'l Bank, 496
F.2d 1162, 1164 (7th Cir. 1974) (“[T]ypicality is destroyed only” if issues unique to the named plaintiffs
“are likely to usurp a significant portion of plaintiff's time and energy, distracting him from
representing” the class members’ interests). Thus, the typicality requirement is also satisfied here. See
Sosa, 73 So. 3d at 115 (where claims were based on violations of the same statute, typicality prerequisite
was met).
D. The Adequacy of Representation Requirement is Satisfied
To grant class certification, a trial court must determine that the class representative satisfies the
adequacy requirement of rule l .220(a), i.e., it must find that “the representative party can fairly and
adequately protect and represent the interests of each member of the class.” Sosa, 73 So. 3d at 115. This
inquiry serves to uncover conflicts of interest between the presumptive class representative and the class
he or she seeks to represent. Id. A trial court's inquiry concerning whether the adequacy requirement is
satisfied contains two prongs. The first concerns the qualifications, experience, and ability of class
counsel to conduct the litigation. Id. The second pertains to whether the class representative's interests
are antagonistic to the interests of the classmembers. Id.
Here, Plaintiff has the exact same interest as the other members of the putative Classes—
enforcement of FTSA and establishing entitlement to statutory damages prescribed therein. His pursuit
of this matter in retaining counsel to enforce his and others’ rights demonstrates that she will be a zealous
advocate for the proposed class. Moreover, Plaintiff has no interests antagonistic to those of the
proposed Class.
In addition, Plaintiff’s counsel are well-respected members of the legal community, have
regularly engaged in major complex litigation involving the federal TCPA and the FTSA, and have
successfully litigated numerous class actions and complex litigation in numerous fields and areas of
law. Proposed class counsel have already diligently investigated, prosecuted, and dedicated substantial
resources to the investigation of the claims at issue in this action, and will continue to do so throughout
its pendency. Id. Thus, both Plaintiff and his counsel will adequately represent the class.
VI. THE CLASS MEETS THE REQUIREMENTS OF FLA. R. CIV. P. 1.220(B)(3)
In addition to satisfying the four elements of Fla. R. Civ. P. l .220(a), class certification
is proper under 1.220(b)(3). To meet the requirements of Rule 1.220(b)(3), the party moving
for class certification must establish that the common questions of law and fact predominate
over individual class member claims and that class treatment is superior to alternative methods
of adjudication. Sosa, 73 So. 3d at 111-112.
A. Common Questions Predominate Over Any Individual Questions
Florida courts have held that common questions of fact predominate when the
defendant acts toward the class members in a similar or common way. See Stone v.
CompuServe Interactive Servs., Inc., 804 So. 2d 383, 388 (Fla. 4th DCA 2001). The
methodology employed by a trial court in determining whether class claims predominate over
individual claims involves a proof-based inquiry. More specifically, a class representative
establishes predominance if he or she demonstrates a reasonable methodology for generalized
proof of class-wide impact. Id. A class representative accomplishes this if he or she, by
proving his or her own individual case, necessarily proves the cases of the other class
members. Id. If, in examining the claims, a trial court finds that common issues of fact and
law impact more substantially the efforts of every class member to prove liability than the
individual issues that may arise, then class claims predominate. Id. However, it is not the
burden of the class representative to illustrate that all questions of fact or law are common. Id.
Rather, the class representative must only demonstrate that some questions are common, and
that they predominate over individual questions. Id.
As federal courts have explained, perhaps the surest way of determining whether
common issues predominate is to take the elements of the claims and defenses at issue and
predict whether the individual elements will be proven by common or individualized proof.
See Brown v. Electrolux Home Products, Inc., 817 F. 3d 1225, 1234 (11th Cir. 2016). Here,
the elements of Plaintiffs’ claim are that class members (a) receive a telemarketing sales text
message (b) via an “automated system for the dialing or selection of telephone numbers.”
Both elements will be demonstrated through common proof. That class members received a
telemarketing sales text will be shown through evidence from Defendants that text campaign
content was successfully transmitted to the respective telephone numbers. Whether such
content constitutes “telemarketing” is subject to the same answer for all Class Members.
Moreover, discovery will show that Defendants utilized the same dialing system to deliver
every text message—whether such system qualifies as an “automated system for the dialing
or selection of phone numbers” is a question of law to be resolved by this Court, and such
resolution will equally apply to all Class Members.
Moreover, the primary affirmative defense here is likely to be Defendant’s claim that
Class Members consented to receive telemarketing sales calls. But such “consent”—which is
not actually valid consent—will be based on form language equally applicable to every
member of the Class. As such, common proof—or rather, the lack thereof—dominates
Defendants’ defense as well.
As such, the predominance requirement of Rule 1.220(b)(3) is easily met here.
B. Class Treatment is Superior
Finally, class certification is proper pursuant to Rule 1.220(b)(3) because class
treatment is superior to any alternative method of adjudication. The three factors relevant to
the superiority analysis are: (1) whether class treatment is the only economically-viable
remedy; (2) whether the individual damages are significant enough to justify individual
prosecution; and (3) whether class treatment is manageable as compared to alternative
methods of adjudication. City of Ocala, 245 So. 3d at 856.
Here, all three factors counsel in favor of finding class treatment to be superior.
Maximum statutory damages are $500.00-$1,500.00 per text message, meaning class
treatment is the only economically-viable remedy precisely because individual damages are
insufficient to justify individual prosecution. See C-Mart, Inc. v. Metro. Life Ins. Co., 299
F.R.D. 679, 691 (S.D. Fla. 2014) (the same amount in statutory damages supported finding of
superiority because such damages are insufficient to warrant individual prosecution of the
claim). Moreover, because both liability and damages are straightforward, statutorily-based
issues, class treatment is manageable—certainly, it is more manageable than thousands of
individual suits, discovery phases, expert disclosures, deposition testimony, and ultimately
adjudications of the merits. See Morgan v. Coats, 33 So. 3d 59, 67 (Fla. 2d DCA 2010) (“We
also believe that due to the large number of potential class members and the fact that their
claims are based on the same course of conduct, the litigation would be more manageable if
it was subject to class action status rather than individual suits.”); see also Klay v. Humana,
Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004) (because superiority is a comparative analysis,
and because it is extremely unlikely litigation of thousands of claims will be more manageable
than management of a class action, manageability concerns “will rarely, if ever, be in itself
sufficient to prevent certification of a class.”).
Accordingly, certification of the proposed class under Rule l.220(b)(3) is appropriate.
WHEREFORE, Plaintiff, individually and on behalf of the proposed class, respectfully
requests that the Court (1) continue Plaintiff’s Motion for Class Certification and defer its ruling on
Plaintiff’s Motion; (2) allow for the Parties to engage in discovery on class-wide issues; (3) grant
Plaintiff leave to file a full renewed memorandum in support of the Motion for Class Certification upon
the conclusion of class-wide discovery; (4) in the alternative, grant Plaintiff’s Motion for Class
Certification, appoint Plaintiff as Class Representative and the undersigned as Class Counsel pursuant
to Rule 1.220(g), and direct the Parties to jointly submit a proposed Notice Plan within sixty (60) days
of the Court’s Order, and (5) provide all other and further relief that the Court deems equitable and just.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this document was served with a copy of the Complaint.
DATED: April 5, 2023
Respectfully Submitted,
HIRALDO P.A.
/s/ Manuel S. Hiraldo
Manuel S. Hiraldo, Esq.
Florida Bar No. 030380
401 E. Las Olas Boulevard
Suite 1400
Ft. Lauderdale, Florida 33301
Email: mhiraldo@hiraldolaw.com
Telephone: 954.400.4713
Counsel for Plaintiff
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Filing # 170425038 E-Filed 04/05/2023 03:48:23 PM IN THE CIRCUIT COURT OF THE ELEVENTH CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. HERIBERTO VALIENTE, individually and on behalf of all others similarly situated, CLASS REPRESENTATION Plaintiff, JURY TRIAL DEMANDED v. LIFE IS BEAUTIFUL, LLC, Defendant. _______________________________________________/ PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Plaintiff, by and through the undersigned counsel, hereby respectfully moves this Court for an Order certifying this case as a class action pursuant to Fla. R. Civ. P. 1.220(a) and (b)(3). I. INTRODUCTION This case involves Defendant’s violations of the Telephone Solicitation provisions of the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, and Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”). Federal law prohibits soliciting individuals who have placed their telephone numbers on the National Do-Not-Call Registry. Florida law proscribes the sending of telemarketing calls, defined to include text messages sent “for the purpose of soliciting a sale of…goods or services” or to be used to solicit a sale of good or services. Fla. Stat. § 501.059(1)(j). Absent prior, express consent, no entity is permitted to “make or knowingly allow [to be made]” a telephonic sales call utilizing an “automated system for the dialing or selection of telephone numbers.” § 501.059(8)(a). Anyone who receives a proscribed telephonic sales call can file suit to enjoin such action and to recover up to $500.00 in statutory damages. § 501.059(10). If the violations were knowing and/or willful, courts are permitted to treble such damages. Id. Notwithstanding such clear law, Defendant delivered spam, telemarketing text messages to the cell phone numbers of Plaintiff and all members of the putative Class. To deliver such text messages en masse, Defendant utilized an “automated system for the dialing or selection” of the phone numbers, and did not secure valid prior express consent to deliver any of the text messages. This case is eminently suitable for class treatment. Class treatment of the claims alleged here— which entitle Class Members to, at most, $500.00-$1,500.00 in individual damages—is far superior to any other form of adjudication, and common issues of law and fact clearly predominate over any individual issues. There are two major issues in this litigation: (1) did the content of the text messages constitute “telemarketing” material, and (2) did Defendant utilize an “automated system for the dialing or selection” of the telephone numbers sent the text messages. Both issues are subject to common proof and are subject to common resolution. Sending text messages advertising a current deal or coupon code is either telemarketing or it is not, the dialing system Defendant utilizes is either an “automated system” or it is not. Whatever the answer, however, it is the same for all members of the Class. Moreover, there is no question the class is adequately defined with reference to objective criteria, that Plaintiff and Class Counsel are and will be adequate representatives, and that joinder of all individual claims would be impracticable. As such, and for the reasons more fully explained below, Plaintiff respectfully submits that the instant motion should be granted. II. PROPOSED CLASSES Based upon these facts and allegations in the operative complaint, and as forthcoming discovery will support, Plaintiff seeks to represent two classes defined as follows: DNC Class: All persons in the United States who from four years prior to the filing of this action through the date of class certification (1) Defendant, or anyone on Defendant’s behalf, (2) placed more than one text message call within any 12-month period; (3) where the person’s telephone number that had been listed on the National Do Not Call Registry for at least thirty days; (4) regarding Defendant’s property, goods, and/or services; (5) who did not purchase or transact business with Defendant during the eighteen months immediately preceding the date of the first message; and (6) who did not contact Defendant during the three months immediately preceding the date of the first message with an inquiry about a product, good, or service offered by Defendant. FTSA Class: All persons in Florida who, (1) were sent a more than one text message regarding Defendant’s property, goods, and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff, (3) from July 1, 2021 through the date of class certification. III. LEGAL STANDARD The class action process is intended to address situations “when the court is faced with a multiplicity of individual actions” and that process “has a real and meaningful position in the administration of justice to address the ever-increasing caseload burden placed upon our trial courts.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103, 105 (Fla. 2011).1 To certify a class, a trial court must analyze whether the class representative and putative class members meet the requirements for class certification pursuant to Florida Rule of Civil Procedure 1.220. Id. A trial court should resolve doubts concerning certification in favor of certification, especially in the early stages of litigation. Id. Courts should analyze the merits of a case only to the extent necessary to determine whether to certify a class. Id. Rule l.220(a)(l)-(4) requires a showing of numerosity, commonality, typicality, and adequacy. If these requirements are satisfied, at least one of the three criteria of Rule 1 All citations and quotations omitted and emphasis supplied unless specified otherwise. l.220(b)(l)-(3) must also be met. See, e.g., Fla. Dep 't of Agr. & Consumer Servs. v. City of Pompano Beach, 829 So. 2d 928, 930 (Fla. 4th DCA 2002). To the extent that the Court finds that additional factual showings are necessary, it should reserve ruling, allow further discovery, and require a further showing on those elements, rather than denying the class certification motion. See Cordell v. World Ins. Co., 355 So. 2d 479 (Fla. 1st DCA 1978) (trial court should have reserved ruling on class until plaintiffs had opportunity for discovery); Whigum v. Heilig-Meyers Furniture, Inc., 682 So. 2d 643, 645 (Fla. 1st DCA 1996) (trial court prematurely denied class certification before plaintiff had opportunity for discovery); Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169, 1175 (Fla. 1st DCA 2008) (before deciding class certification, trial court must permit discovery that is “sufficiently broad” to give plaintiff realistic opportunity to meet class certification requirements); Coastal Physician Servs. of Broward Cnty., Inc. v. Ortiz, 720 So. 2d 324, 326-327 (Fla. 4th DCA 1998) (same). Trial courts are afforded broad discretion in determining whether class certification prerequisites and requirements are satisfied. See Sosa, 73 So. 3d at 98. But, if a plaintiff demonstrates that the aforementioned requirements are satisfied, a court abuses its discretion by declining to certify the class. See Disc. Sleep of Ocala, LLC v. City of Ocala, 245 So. 3d 842 (Fla. 5th DCA 2018) (reversing order denying class certification because all Rule 1.220 requirements were satisfied and holding that class should have been certified). IV. THE THRESHOLD STANDING REQUIREMENT FOR CLASS CERTIFICATION IS SATISFIED Prior to the Rule 1.220 analysis, it must be determined as a threshold matter that Plaintiff possesses standing to prosecute the claim. Sosa, 73 So. 3d at 116 (“A threshold inquiry in a motion for class certification is whether the class representative has standing to represent the putative class members.”). A plaintiff has standing to sue so long as they allege—and eventually show—either a legal or a factual injury. Id. Unlike federal courts, Florida state courts possess plenary jurisdiction. As such, if a statute creates a new cause of action and prescribes statutory damages, plaintiffs that allege a statutory violation—and nothing more—are entitled to the statutory damages (if successful) and thus have standing to sue in Florida state courts. See Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So. 2d 64, 66–67 (Fla. 1980) (“[P]rivate citizens of Florida may institute suit under [the] statute without a showing of special injury.”); Laughlin v. Household Bank, Ltd., 969 So. 2d 509 (Fla. 1st DCA 2007) (“Laughlin is not required to prove actual damages, but only a violation of one of the prohibited practices in the FCCPA.”). Here, Plaintiff alleges he received text messages from Defendant in violation of the FTSA, pursuant to which he possesses a cause of action and is entitled to statutory damages of $500 per text message. Additionally, Plaintiff is entitled to and seeks declaratory and injunctive relief under the FTSA. As such, he alleges a legal injury sufficient to establish standing to sue in Florida courts. V. THE CLASS SATISFIES EACH RULE 1.220(a) PREREQUISITE A. The Numerosity Requirement is Satisfied Fla. R. Civ. P. l.220(a)(l) requires that “the members of the class be so numerous that separate joinder of each member is impracticable.” Id. Case law holds that the numerosity test is presumed satisfied with at least 40-50 class members. See, e.g., Terry L. Baum, P.A. v. Campb ell, 827 So. 2d 261, 266 (Fla. 5th DCA 2002). In this case, any common-sense assumptions clearly indicate the joinder would be impracticable, with class size ranging well over 40, and likely into the thousands. Although the precise number of Class Members is unknown to Plaintiff at this time and can only be determined by appropriate discovery, Plaintiff is informed and believes that the classes of persons affected by Defendant’s unlawful acts consists of at least 100 persons. While discovery has not yet occurred and thus confirmed that the numerosity requirement is satisfied, the important point at this juncture is that the class is “adequately defined” such that it will be possible (through discovery) to establish that the numerosity requirement is met. See Leibell v. Miami- Dade County, 84 So. 3d 1078, 1083 (Fla. 3d DCA 2012) (to establish numerosity, class must be adequately defined and clearly ascertainable). A class is adequately defined if its members are capable of determination through objective criteria (and not subjective criteria such as, for example, state of mind). See Cherry v. Dometic Corp., 986 F.3d 1296, 1304 (11th Cir. 2021) (explaining that “adequately defined” and “clearly ascertainable” requires the same thing: that the class be capable of determination through objective criteria).2 Here, the criteria for class membership are all objective and determinable. As such, the numerosity requirement is satisfied here, as discovery will confirm. See, e.g., Mohamed v. Off Lease Only, Inc., 320 F.R.D. 301, 311 (S.D. Fla. 2017) (class defined with reference to receipt of text messages with advertising materials was objective criteria); Grant v. Regal Auto. Grp., Inc., 2020 U.S. Dist. LEXIS 91897, at *7-10 (M.D. Fla. May 27, 2020) (holding that plaintiff had demonstrated class membership was based on objective criteria). B. Commonality Requirement is Satisfied Rule l. 220(a)(2) requires that there be questions of law or fact common to the class. Fla. R. Civ. P. l .220(a)(2). The primary concern is whether the claims arise from the same practice or course of conduct and are based on the same legal theory. Sosa, 73 So. 3d at 107- 108. The threshold of the commonality requirement is not high. Id. A mere factual difference 2 Because Rule 1.220 is patterned after Fed. R. Civ. P. 23, Florida courts look to federal interpretation of Rule 23 as part of its analysis. See Powell v. River Ranch Property Owners Asso., 522 So. 2d 69, 70 (Fla. 2d DCA 1988). between class members does not necessarily preclude satisfaction of the commonality requirement. Id. Moreover, individualized damage inquiries will also not preclude class certification. Id. As described in Sosa, The commonality requirement is aimed at determining whether there is a need for, and benefit derived from, class treatment…More specifically, the commonality prong only requires that resolution of a class action affect all or a substantial number of the class members, and that the subject of the class action presents a question of common or general interest ... The commonality requirement is satisfied if the common or general interest of the class members is in the object of the action, the result sought, or the general question implicated in the action... This core of the commonality requirement is satisfied if the questions linking the class members are substantially related to the resolution of the litigation, even if the individuals are not identically situated. Id. Based on this liberal Sosa standard, commonality is easily satisfied in this case. The questions of law and fact that are common to Plaintiff’s and the Class members’ claims include, but are not limited to, the following: (a) whether the dialing system utilized by Defendant is an “automated system for the dialing or selection of telephone numbers” and (b) whether the content of the text messages delivered by Defendant constitutes telemarketing material. Both are issues the resolution of which will apply equally to all members of the Class. See Williams v. Bluestem Brands, Inc., 2019 U.S. Dist. LEXIS 56655, at *8 (M.D. Fla. Apr. 2, 2019) (whether a dialing system is “automated” within the meaning of a similar statute as at issue here constituted a “common question”); Gonzalez v. TCR Sports Broad. Holding, LLP, 2019 U.S. Dist. LEXIS 87506, at *6 (S.D. Fla. May 24, 2019) (same); Jackson v. Paycron Inc., 2019 U.S. Dist. LEXIS 80325 (S.D. Fla. May 13, 2019) (whether content was “telemarketing” was common question). Moreover, all members of the Class allege claims based on the same injury—violation of Fla. Stat. § 501.059—for which they entitled to the same statutory damages, and, as such, commonality is established. Sosa, 73 So. 3d at 108. C. Plaintiff’s Claims are Typical of the Class The third prong of Rule l.220(a) requires that the claims or defenses of the representative party be typical of the claim or defenses of the class. Fla. R. Civ. P. l.220(a)(3). The key inquiry for a trial court to determine whether a proposed class satisfies the typicality requirement is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members. Sosa, 73 So. 3d at 114-115.3 The test for typicality is not demanding and focuses generally on the similarities between the class representative and the putative class members. Id. Furthermore, mere factual differences between the class representative's claims and the claims of the class members will not defeat typicality. Id. Rather, the typicality requirement is satisfied when there is a strong similarity in the legal theories upon which those claims are based and when the claims of the class representative and class members are not antagonistic to one another. Id. As set forth above, Plaintiff’s claim is based on the same legal theory as those of the Class: Defendant violated the FTSA by placing telemarketing sales calls via an “automated system for the dialing or selection of telephone numbers” and did not obtain valid consent prior to doing so. Furthermore, Plaintiff seeks the same remedies and damages as Class Members: $500.00 (or, if trebled, $1,500.00) in statutory damages and to enjoin future violations. Morgan, 33 So. 3d at 65 (“The typicality requirement may be satisfied despite substantial factual differences . . . when there is a strong similarity of legal theories.”). Because both Plaintiff and the putative class allege the same violation and harm, 3 In other words, the typicality and commonality requirements are very similar—the difference being that rather than comparing putative class members’ claims in general, the comparison is between the named plaintiff versus unnamed plaintiffs. See Eufaula Drugs, Inc. v. TDI Managed Care Servs., 250 F.R.D. 670, 676 (M.D. Ala. 2008). and claim the same remedy, Plaintiff does not have interests antagonistic to the Class, and there is no issue specific to Plaintiff that threatens to overwhelm the litigation. See Koos v. First Nat'l Bank, 496 F.2d 1162, 1164 (7th Cir. 1974) (“[T]ypicality is destroyed only” if issues unique to the named plaintiffs “are likely to usurp a significant portion of plaintiff's time and energy, distracting him from representing” the class members’ interests). Thus, the typicality requirement is also satisfied here. See Sosa, 73 So. 3d at 115 (where claims were based on violations of the same statute, typicality prerequisite was met). D. The Adequacy of Representation Requirement is Satisfied To grant class certification, a trial court must determine that the class representative satisfies the adequacy requirement of rule l .220(a), i.e., it must find that “the representative party can fairly and adequately protect and represent the interests of each member of the class.” Sosa, 73 So. 3d at 115. This inquiry serves to uncover conflicts of interest between the presumptive class representative and the class he or she seeks to represent. Id. A trial court's inquiry concerning whether the adequacy requirement is satisfied contains two prongs. The first concerns the qualifications, experience, and ability of class counsel to conduct the litigation. Id. The second pertains to whether the class representative's interests are antagonistic to the interests of the classmembers. Id. Here, Plaintiff has the exact same interest as the other members of the putative Classes— enforcement of FTSA and establishing entitlement to statutory damages prescribed therein. His pursuit of this matter in retaining counsel to enforce his and others’ rights demonstrates that she will be a zealous advocate for the proposed class. Moreover, Plaintiff has no interests antagonistic to those of the proposed Class. In addition, Plaintiff’s counsel are well-respected members of the legal community, have regularly engaged in major complex litigation involving the federal TCPA and the FTSA, and have successfully litigated numerous class actions and complex litigation in numerous fields and areas of law. Proposed class counsel have already diligently investigated, prosecuted, and dedicated substantial resources to the investigation of the claims at issue in this action, and will continue to do so throughout its pendency. Id. Thus, both Plaintiff and his counsel will adequately represent the class. VI. THE CLASS MEETS THE REQUIREMENTS OF FLA. R. CIV. P. 1.220(B)(3) In addition to satisfying the four elements of Fla. R. Civ. P. l .220(a), class certification is proper under 1.220(b)(3). To meet the requirements of Rule 1.220(b)(3), the party moving for class certification must establish that the common questions of law and fact predominate over individual class member claims and that class treatment is superior to alternative methods of adjudication. Sosa, 73 So. 3d at 111-112. A. Common Questions Predominate Over Any Individual Questions Florida courts have held that common questions of fact predominate when the defendant acts toward the class members in a similar or common way. See Stone v. CompuServe Interactive Servs., Inc., 804 So. 2d 383, 388 (Fla. 4th DCA 2001). The methodology employed by a trial court in determining whether class claims predominate over individual claims involves a proof-based inquiry. More specifically, a class representative establishes predominance if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact. Id. A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members. Id. If, in examining the claims, a trial court finds that common issues of fact and law impact more substantially the efforts of every class member to prove liability than the individual issues that may arise, then class claims predominate. Id. However, it is not the burden of the class representative to illustrate that all questions of fact or law are common. Id. Rather, the class representative must only demonstrate that some questions are common, and that they predominate over individual questions. Id. As federal courts have explained, perhaps the surest way of determining whether common issues predominate is to take the elements of the claims and defenses at issue and predict whether the individual elements will be proven by common or individualized proof. See Brown v. Electrolux Home Products, Inc., 817 F. 3d 1225, 1234 (11th Cir. 2016). Here, the elements of Plaintiffs’ claim are that class members (a) receive a telemarketing sales text message (b) via an “automated system for the dialing or selection of telephone numbers.” Both elements will be demonstrated through common proof. That class members received a telemarketing sales text will be shown through evidence from Defendants that text campaign content was successfully transmitted to the respective telephone numbers. Whether such content constitutes “telemarketing” is subject to the same answer for all Class Members. Moreover, discovery will show that Defendants utilized the same dialing system to deliver every text message—whether such system qualifies as an “automated system for the dialing or selection of phone numbers” is a question of law to be resolved by this Court, and such resolution will equally apply to all Class Members. Moreover, the primary affirmative defense here is likely to be Defendant’s claim that Class Members consented to receive telemarketing sales calls. But such “consent”—which is not actually valid consent—will be based on form language equally applicable to every member of the Class. As such, common proof—or rather, the lack thereof—dominates Defendants’ defense as well. As such, the predominance requirement of Rule 1.220(b)(3) is easily met here. B. Class Treatment is Superior Finally, class certification is proper pursuant to Rule 1.220(b)(3) because class treatment is superior to any alternative method of adjudication. The three factors relevant to the superiority analysis are: (1) whether class treatment is the only economically-viable remedy; (2) whether the individual damages are significant enough to justify individual prosecution; and (3) whether class treatment is manageable as compared to alternative methods of adjudication. City of Ocala, 245 So. 3d at 856. Here, all three factors counsel in favor of finding class treatment to be superior. Maximum statutory damages are $500.00-$1,500.00 per text message, meaning class treatment is the only economically-viable remedy precisely because individual damages are insufficient to justify individual prosecution. See C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D. 679, 691 (S.D. Fla. 2014) (the same amount in statutory damages supported finding of superiority because such damages are insufficient to warrant individual prosecution of the claim). Moreover, because both liability and damages are straightforward, statutorily-based issues, class treatment is manageable—certainly, it is more manageable than thousands of individual suits, discovery phases, expert disclosures, deposition testimony, and ultimately adjudications of the merits. See Morgan v. Coats, 33 So. 3d 59, 67 (Fla. 2d DCA 2010) (“We also believe that due to the large number of potential class members and the fact that their claims are based on the same course of conduct, the litigation would be more manageable if it was subject to class action status rather than individual suits.”); see also Klay v. Humana, Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004) (because superiority is a comparative analysis, and because it is extremely unlikely litigation of thousands of claims will be more manageable than management of a class action, manageability concerns “will rarely, if ever, be in itself sufficient to prevent certification of a class.”). Accordingly, certification of the proposed class under Rule l.220(b)(3) is appropriate. WHEREFORE, Plaintiff, individually and on behalf of the proposed class, respectfully requests that the Court (1) continue Plaintiff’s Motion for Class Certification and defer its ruling on Plaintiff’s Motion; (2) allow for the Parties to engage in discovery on class-wide issues; (3) grant Plaintiff leave to file a full renewed memorandum in support of the Motion for Class Certification upon the conclusion of class-wide discovery; (4) in the alternative, grant Plaintiff’s Motion for Class Certification, appoint Plaintiff as Class Representative and the undersigned as Class Counsel pursuant to Rule 1.220(g), and direct the Parties to jointly submit a proposed Notice Plan within sixty (60) days of the Court’s Order, and (5) provide all other and further relief that the Court deems equitable and just. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this document was served with a copy of the Complaint. DATED: April 5, 2023 Respectfully Submitted, HIRALDO P.A. /s/ Manuel S. Hiraldo Manuel S. Hiraldo, Esq. Florida Bar No. 030380 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, Florida 33301 Email: mhiraldo@hiraldolaw.com Telephone: 954.400.4713 Counsel for Plaintiff