Legal Document: CASTIGLIA, JONATHAN

On April 05, 2023 a NOTICE OF REMOVAL - DEFENDANTT'S NOTICE OF FILING NOTICE OF REMOVAL was filed involving a dispute between Castiglia, Jonathan, and for Circuit Civil in the District Court of Lake County.

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INSTRUMENT#: 2023053856 OR BK 6138 PG 876 PAGES: 51 5/8/2023 4:25:10 PM
GARY J. COONEY, CLERK OF THE CIRCUIT COURT & COMPTROLLER, LAKE COUNTY, FLORIDA
REC FEES: $0.00

Filing # 172572101 E-Filed 05/05/2023 05:05:39 PM

IN THE CIRCUIT COURT OF THE FIFTH
JUDICIAL CIRCUIT, IN AND FOR LAKE
COUNTY, FLORIDA

CASE NUMBER: 35-2023-CA-001856-AXXX-XX

JONATHAN CASTIGLIA,
individually and on behalf of all
others similarly situated,

Plaintiff,

Vv.

SOCIAL FINANCE, INC.,

Defendant.
/

DEFENDANT’S NOTICE OF FILING NOTICE OF REMOVAL

Notice is hereby given that Defendant Social Finance, Inc.,! through the undersigned

counsel and pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, has filed a Notice of Removal in the

United States District Court for the Middle District of Florida, Ocala Division, a copy of which,

together with its supporting exhibits, is attached as Composite Exhibit A. Pursuant to 28 U.S.C.

§ 1446(d), this constitutes written notice to all parties and the Clerk of the Circuit Court that this

case has been removed to the United States District Court for the Middle District of Florida, Ocala

Division. Pursuant to 28 U.S.C. § 1446(d), “the State court shall proceed no further unless and

until the case is remanded.”

Dated: May 5, 2023

1 Social Finance, Inc. is not the correct defendant and reserves any and all defenses related to Plaintiff's failure to
name the proper entity.

FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 05/08/2023 10:10:42 AM
INSTRUMENT# 2023053856 OR BOOK 6138/PAGE 877 PAGE 2 of 51

Respectfully submitted,

McGUIREWOODS LLP

/s/ Kathleen D. Dackiewicz
Sara F. Holladay
Florida Bar No. 0026225
Kathleen D. Dackiewicz
Florida Bar No. 1003294
sholladay@meguirewoods.com
kdackiewicz@mcguirewoods.com
clambert@mcguirewoods.com
flservice@meguirewoods.com
50 North Laura Street, Suite 3300
Jacksonville, Florida 32202
(904) 798-3224
(904) 798-3207 (fax)
Attorneys for Defendant Social Finance, Inc.

CERTIFICATE OF SERVICE
1 HEREBY CERTIFY a copy of the foregoing was furnished by E-mail on May 5, 2023, to
the following:

Manuel S. Hiraldo, Esq.
Hiraldo P.A.
401 E. Las Olas Blvd., Suite 1400
Ft. Lauderdale, FL 33301
mhiraldo@hiraldolaw.com

Rachel Dapeer, Esq.
Dapeer Law, P.A.
20900 NE 30" Ave., Suite 417
Aventura, FL 33180
rachel@dapeer.com

Attorneys for Plaintiff Jonathan Castiglia

/s/ Kathleen D. Dackiewicz
Attorney
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DEFENDANT'S NOTICE OF FILING NOTICE OF REMOVAL

COMPOSITE EXHIBIT A

Castiglia v. Social Finance, Inc.
Circuit Court, Fifth Judicial Circuit, in and For Lake County, Florida
Case No. 35-2023-CA-001856-AXXX-XX
INSTRUMENT# 2023053856 OR BOOK 6138/PAGE 879 PAGE 4 of 51

IN THE CIRCUIT COURT OF THE FIFTH
JUDICIAL CIRCUIT, IN AND FOR LAKE
COUNTY, FLORIDA

CASE NUMBER: 35-2023-CA-001856-AXXX-XX

JONATHAN CASTIGLIA,
individually and on behalf of all
others similarly situated,

Plaintiff,

Vv.

SOCIAL FINANCE, INC.,

Defendant.
/

DEFENDANT’S NOTICE OF FILING NOTICE OF REMOVAL

Notice is hereby given that Defendant Social Finance, Inc.,! through the undersigned

counsel and pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, has filed a Notice of Removal in the

United States District Court for the Middle District of Florida, Ocala Division, a copy of which,

together with its supporting exhibits, is attached as Composite Exhibit A. Pursuant to 28 U.S.C.

§ 1446(d), this constitutes written notice to all parties and the Clerk of the Circuit Court that this

case has been removed to the United States District Court for the Middle District of Florida, Ocala

Division. Pursuant to 28 U.S.C. § 1446(d), “the State court shall proceed no further unless and

until the case is remanded.”

Dated: May 5, 2023

! Social Finance, Inc. is not the correct defendant and reserves any and all defenses related to Plaintiff's failure to
name the proper entity.
INSTRUMENT# 2023053856 OR BOOK 6138/PAGE 880 PAGE 5 of 51

Respectfully submitted,

McGUIREWOODS LLP

CERTIFICATE OF SERVICE
1 HEREBY CERTIFY a copy of the foregoing was furnished by E-mail on May 5, 2023, to
the following:

Manuel S. Hiraldo, Esq.
Hiraldo P.A.
401 E. Las Olas Blvd., Suite 1400
Ft. Lauderdale, FL 33301
mhiraldo@hiraldolaw.com

Rachel Dapeer, Esq.
Dapeer Law, P.A.
20900 NE 30" Ave., Suite 417
Aventura, FL 33180
rachel@dapeer.com

Attorneys for Plaintiff Jonathan Castiglia

/s/ Kathleen D. Dackiewicz
Attorney
INSTRUMENT# 2023053856 OR BOOK 6138/PAGE 881 PAGE 6 of 51

DEFENDANT'S NOTICE OF FILING NOTICE OF REMOVAL

COMPOSITE EXHIBIT A

Castiglia v. Social Finance, Inc.
Circuit Court, Fifth Judicial Circuit, in and For Lake County, Florida
Case No. 35-2023-CA-001856-AXXX-XX
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Case 5:23-cv-00288 Document1 Filed 05/05/23 Page 1 of 11 PagelD 1

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

JONATHAN CASTIGLIA,
individually and on behalf of all
others similarly situated,

Plaintiff,
vs. CASE NO.:

SOCIAL FINANCE, INC.,

Defendant.

NOTICE OF REMOVAL

Defendant Social Finance, Inc.! (“SoFi” or “Defendant”), through counsel and

pursuant to 28 U.S.C. §§ 1332, 1441 and 1446(a), removes the above-captioned civil

action currently pending in the Circuit Court of the Fifth Judicial Circuit in and for

Lake County, Florida to the United States District Court for the Middle District of

Florida, Ocala Division. In support of this Notice of Removal, Defendant states:

I BACKGROUND AND PROCEDURAL POSTURE

1 On April 5, 2023, Plaintiff Jonathan Castiglia (“Plaintiff”) filed a putative

class action Complaint against SoFi in the Circuit Court of the Fifth Judicial Circuit

in and for Lake County, Florida, styled Jonathan Castiglia v. Social Finance, Inc.,

Case No. 35-2023-CA-001856-AXXX-XX (“State Court Action”). Plaintiff alleges

SoFi uses an automated system to send “unsolicited text message marketing” to

Social Finance, Inc. is not the correct defendant and reserves any and all defenses related to Plaintiff's
failure to name the proper entity.
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Plaintiff and the putative class members without their prior express consent in

violation of the Florida Telephone Solicitation Act, Fla. Stat. §§ 501.059, et seq.

(“FTSA”). Compl. {ff 1-3.
2. Contemporaneously with filing the Complaint, Plaintiff also filed a

Motion for Class Certification seeking to certify a class consisting of “All persons in

Florida who, (1) were sent a [sic] 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.”

Cert. Mtn. § II; see also Compl. § 37.

3 On April 6, 2023, SoFi was served with a copy of the Summons and

Complaint, which is the initial pleading setting forth the claims for relief upon which

this removal is based.

4 Removal of this Complaint is timely under 28 U.S.C. § 1446(b) because

this Notice of Removal was filed within 30 days after SoFi was served with the initial

pleading on April 6, 2023.

5 The United States District Court for the Middle District of Florida,

Ocala Division, is the district and division within which this action is pending under

28 U.S.C. §§ 1441(a), 1446(a), and is, therefore, the proper venue for this action. See

also M.D. Fla. L.R. 1.04(a) & 1.06(a).

6. In accordance with 28 U.S.C. § 1446(a) and Local Rule 1.06(b), SoFi is

filing legible copies of “all process, pleadings, and orders” that have been docketed in

the State Court Action as attachments to this Notice of Removal.
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7 Pursuant to 28 U.S.C. § 1446(d), SoFi has given written notice to

Plaintiff by contemporaneously serving this Notice of Removal on Plaintiff's counsel.

SoFi is also contemporaneously filing a copy of this Notice of Removal in the State

Court Action.

8 As set forth below, this case is properly removed to this Court because

this Court has jurisdiction over this action under the Class Action Fairness Act of 2005,

28 U.S.C. §§ 1332, 1453 (“CAFA”).

I. GROUNDS FOR REMOVAL UNDER CAFA

9 There is no presumption against removal under CAFA, “which Congress

enacted to facilitate adjudication of certain class actions in federal court.” Dart

Cherokee Basin Operating Co., LLC v. Owens, 574 US. 81, 89 (2014).

10. Based on the Complaint’s allegations and the removal exhibits, including

Plaintiff's Motion for Class Certification, this Court has subject matter jurisdiction

over this action under CAFA, 28 U.S.C. § 1332(d), because: (i) the putative class

consists of at least 100 proposed class members, § 1332(d)(5)(B); (ii) the citizenship of

at least one putative class member is different from that of SoFi, § 1332(d)(2)(A); and

(iii) the aggregate amount placed in controversy by the claims of Plaintiff and the

putative class members exceeds $5,000,000, exclusive of interest and costs,

§ 1332(d)(2). See S. Fla. Wellness v. Allstate Ins, Co., 745 F.3d 1312, 1315 (11th Cir.

2014).
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A. The Putative Class Consists of at Least 100 Proposed Class Members
ll. To qualify for removal under 28 U.S.C. § 1332(d)(2), SoFi must first

establish Plaintiff's putative class contains 100 or more members. See 28 U.S.C.

§ 1332(d)(5)(B).
12. Plaintiff purports to bring this action on behalf of “All persons in Florida

who, (1) were sent a [sic] 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.” Compl.

437.
13. Although Plaintiff at first alleges that the number of class members is “at

least SO persons,” see Compl. { 39, Plaintiff also alleges that “the classes of persons

affected by Defendant’s unlawful acts consists of at least 100 persons” and “class size

rang[es] well over 40, and likely into the thousands.” Cert. Mtn. § V.A. (emphasis

added). Given Plaintiffs estimation of “at least 100” if not “thousands” of class

members, the aggregate number of putative class members is at least 100 for purposes

of § 1332(d)(5)(B). Perret v. Wyndham Vacation Resorts, Inc., No. 11-CV-61904,

2012 WL 592171, at *2 (S.D. Fla. Feb. 22, 2012) (concluding plaintiff's allegation that

“potentially thousands” of class members existed was sufficient on its face to establish

jurisdiction in case removed under CAFA).
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B The Citizenship of at Least One Putative Class Member is Different from
that of SoFi

14. Minimal diversity of citizenship, as required by CAFA, exists between

SoFi and Plaintiff and/or the putative class members. See 28 U.S.C. § 1332(d)(2)(A)

(requiring that “any member of a class of plaintiffs [be] a citizen of a State different

from any defendant”). Defendant is not a citizen of the State of Florida, where this

action was originally filed. See 28 U.S.C. § 1332(d)(4).

15. Plaintiff is and was at all relevant times a Florida resident domiciled in

Lake County, Florida. Compl. 45 (“Plaintiff is, and at all times relevant hereto was,

a citizen and resident of Lake County, Florida”). Therefore, Plaintiff is a Florida

citizen for diversity jurisdiction purposes. See, e.g., Beach Terrace Condo. Ass'n, Inc.

v. Goldring Investments, Inc., No. 8:15-CV-1117-T-33TBM, 2015 WL 3770401, at *1

(M.D. Fla. June 17, 2015) (“[T]here is a presumption that the state in which a person

resides at any given time is also that person’s domicile”) (internal citations and

quotation marks omitted); Huchon v. Jankowski, No. 06-10094-CIV, 2007 WL

221421, at *2 (S.D. Fla. Jan. 25, 2007) (finding defendant properly alleged plaintiffs

citizenship by asserting in notice of removal plaintiff “was and is a Florida resident

domiciled in Monroe County, Florida”).

16. SoFi is a Delaware corporation with its principal place of business in

California. Thus, SoFi is a citizen of Delaware and California. See 28 U.S.C.

§ 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of every State and foreign

state by which it has been incorporated and of the State or foreign state where it has
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its principal place of business.”); see also Baez v. Greystone Prop. Mgmt. Corp.,

620CV175ORL37EJK, 2020 WL 10088568, at *2 (M.D. Fla. Mar. 5, 2020). Plaintiff

himself admits SoFi is a “foreign corporation.” Compl. 7 (“Defendant is, and at all

times relevant hereto was, a foreign corporation .. . .”); see also Katz v. J.C. Penney

Corp., Inc., 09-CV-60067, 2009 WL 1532129, at *2 (S.D. Fla. June 1, 2009) (plaintiff's

identification of defendant as a “foreign corporation” sufficient to establish diversity).

17. Because Plaintiff (a Florida citizen) is diverse from SoFi(a California and

Delaware citizen), the required minimal diversity exists under § 1332(d)(2)(A).

Cc. The Aggregate Amount in Controversy Exceeds $5,000,000, Exclusive
of Interest and Costs

18. Under CAFA, the claims of the individual class members in a class action

are aggregated to determine if the amount in controversy exceeds the sum or value of

$5,000,000, exclusive of interest and costs. 28 U.S.C. § 1332(d)(6). Plaintiffs putative

class claims meet this jurisdictional threshold.

19. The amount in controversy is “an estimate of how much will be put at

issue during the litigation,” rather than “a prediction of how much the plaintiffs are

ultimately likely to recover.” S. Fla. Wellness, 745 F.3d at 1315 (internal citations and

quotation marks omitted). A defendant’s “notice of removal need include only a

plausible allegation that the amount in controversy exceeds the jurisdictional

threshold.” Dart Cherokee Basin, 574 U.S. at 89 (emphasis added).

20. Although Plaintiff does not specify the amount of “actual liquidated

damages” he seeks, see Compl. Wherefore Clause, this Court should consider the
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discretionary $1,500 maximum amount per violation in calculating the amount in

controversy based on Plaintiffs allegations as set forth in his Motion for Class

Certification. Sce Fla. Stat. § 501.059(10)(b).
21. In his Motion, Plaintiff alleges that cach class member is entitled to

“$500.00-$1,500.00 in individual damages.” Cert. Mtn. § I. As Plaintiff notes, the

maximum amount per violation is $1,500 because Fla. Stat. § 501.059(10)(b) gives a

court the discretion to increase the amount of the award up to three times the statutory

amount of $500 “[i]f the court finds that the defendant willfully or knowingly violated”

the statute. Fla. Stat. § 501.059(10)(b) (emphasis added). Plaintiff alleges that treble

damages are available if SoFi’s alleged violations were knowing and/or willful. See

Cert. Mtn. § 1.

22. Here, Plaintiff not only acknowledges the availability of treble damages,

he also pleads them. The Complaint affirmatively alleges SoFi “made and/or

knowingly allowed the telephonic sales calls to be made to Plaintiff and the Class

members.” Compl. {ff 52-23 (emphasis added). Given Plaintiff's affirmative allegation

of a knowing violation, it “is a reasonable extrapolation” to calculate damages at

$1,500 per violation for the purposes of determining the amount in controversy. See,

eg., Calta v. Vision Solar FL, LLC, 8:22-CV-897-CEH-MRM, 2022 WL 17730114,

at *3 (M.D. Fla. Dec. 16, 2022) (finding that calculating damages of $1,500 per FTSA

violation “is a reasonable extrapolation from the Complaint for the purpose of the

amount in controversy” where the plaintiff affirmatively alleged in its complaint that

the defendant acted willfully and knowingly, therefore placing into controversary
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damages at $1,500 per violation instead. of $500 per violation).

23. Based on the Class definition as framed by Plaintiff, it is also a reasonable

extrapolation that each class member would have at least two claims. Plaintiff alleges

that he received three text messages. Compl. { 11. And, Plaintiff explicitly seeks to

represent a putative class of Florida persons who “were sent a [sic] more than one text

message... .” Compl. { 37; see also Cert. Mtn. § II (defining the putative class as

“All persons within Florida who (1) were sent a [sic] more than one text message

regarding Defendant’s property, goods, and/or services using the same equipment or

type of equipment utilized to call Plaintiff... .”). Thus, the Court may reasonably

conclude that each putative class member suffered at least two violations, totaling

$3,000 in damages per class member.

24, With a reasonable extrapolation of $3,000 in damages per class member,

the class size would have to include, at a minimum, 1,667 members. Plaintiff alleges

that the class size in this case is “well over 40, and likely into the thousands.” Cert.

Motion § V.A. (emphasis added). Plaintiff's estimation of thousands of class members

is more than reasonably plausible, as SoFi has nearly 5.7 million members nationwide.

See Press Release — SoFi Technologies, Inc. Reports First Quarter 2023 Results,

https://s27.q4cdn.com/749715820/files/doc_financials/2023/q1/Q1-2023-Earning

s-Release.pdf.?

? In reviewing whether the jurisdictional threshold has been met, this Court may properly consider
information from a publicly available website. See, e.g., Katz, 2009 WL 1532129, at *2 (rejecting
plaintiff's challenge to defendant’s reliance on a Broward County Property Report copied from the
Broward County Property Appraiser’s website).
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25. Given the reasonable extrapolation of $3,000 in damages per class

member and SoFi’s nearly 5.7 million membership, as well as Plaintiffs own

allegation that the size of the class is “well over 40, and likely into the thousands,”

Cert. Motion § V.A (emphasis added), it is reasonably plausible that the aggregate

amount in controversy exceeds the $5,000,000 threshold under CAFA. See 28 U.S.C.

§ 1332(d)(2).

26. In sum, as (i) the putative class has greater than 100 members, (ii) there

is minimal diversity between the parties, and (iii) the amount in controversy exceeds

$5,000,000, this case is properly removed to this Court pursuant to CAFA, 28 U.S.C.

§§ 1332(d), 1453.
Il. RESERVATION OF RIGHTS

27, In filing this Notice of Removal, Defendant does not waive and

expressly reserves any defenses, exceptions, rights, and motions, including any right

to compel arbitration. See, e.g., Kostelac v. Allianz Glob. Corp. & Specialty
AG, 517

F. App’x 670, 675 n.6 (11th Cir. 2013) (“The removal of an action from state to federal

court does not waive any Rule 12(b) defenses”); Vanwechel v. Regions Bank, 8:17-

CV-738-T-23AAS, 2017 WL 1683665, at *2 (M.D. Fla. May 3, 2017) (filing notice of

removal did not waive right to compel arbitration); Zahm v. OneWest Bank, N.A.,

8:15-CV-765-T-30TBM, 2015 WL 2095644, at *2 (M.D. Fla. May 5, 2015) (same).

No statement or omission in this Notice shall be deemed an admission of any of

allegations of or damages sought in the Complaint. Similarly, by filing this Notice of
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Removal, Defendant does not agree class certification is appropriate and reserves all

defenses and arguments concerning same.

28. Defendant further reserves the right to supplement the evidence of the

amount in controversary should this Court so require or should Plaintiff contest it. Sec

Dart Cherokee Basin, 574 U.S. at 89 (“[A] defendant’s notice of removal need include

only a plausible allegation that the amount in controversy exceeds the jurisdictional

threshold. Evidence establishing the amount is required by § 1446(c)(2)(B) only when

the plaintiff contests, or the court questions, the defendant’s allegation.”).

WHEREFORE, Defendant Social Finance, Inc. respectfully requests that the

above-captioned action now pending in the Fifth Judicial Circuit in and for Lake

County, Florida, be removed to the United States District Court for the Middle District

of Florida, Ocala Division, and that said Court assume exclusive jurisdiction of this

action and enter such other and further relief as may be necessary.

DATED: May 5, 2023
McGUIREWOODS LLP

7s/Kathleen D. Dackiewicz
Sara F. Holladay
Florida Bar No. 0026225
Kathleen D. Dackiewicz
Florida Bar No. 1003294
sholladay@mcguirewoods.com
kdackiewicz@mcguirewoods.com
clambert@mcguirewoods.com
flservice@mcguirewoods.com
50 North Laura Street, Suite 3300
Jacksonville, Florida 32202
(904) 798-3224 | (904) 798-3207 (fax)
Attormeys for Defendant Social Finance, Inc.

10
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY a copy of the foregoing was furnished by E-mail on
May 5, 2023, to the following:

Manuel S. Hiraldo, Esq.
Hiraldo P.A.
401 E. Las Olas Bivd., Suite 1400
Ft. Lauderdale, FL 33301
mhiraldo@hiraldolaw.com

Rachel Dapeer, Esq.
Dapeer Law, P.A.
20900 NME 30" Ave., Suite 417
Aventura, FL 33180
rachel@dapeer.com
Attorneys for Plaintiff Jonathan Castiglia

Zs/ Kathleen D, Dackiewicz
Attorney

11
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‘ Case 5:23-cv-00288 Document 1-1 Filed 05/05/23 Page 1 of 12 PagelD 12
. Filing # 170396291 E-Filed 04/05/2023 12:42:11 PM

IN THE CORCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR LAKE COUNTY, FLORIDA.

CASE NO.

JONATHAN CASTIGLIA,
individually and
on behalf of all others similarly situated, CLASS REPRESENTATION

Plaintiff, JURY TRIAL DEMANDED

SOCIAL FINANCE, INC.,

Defendant.
/

CLASS ACTION COMPLAINT

Plaintiff Jonathan Castiglia brings this class action against Defendant Social Finance, Inc., and

alleges as follows upon personal knowledge as to Plaintiff and Plaintiff's own acts and experiences,

and, as to all other matters, upon information and belief, including investigation conducted by Plaintiff's

attorneys.

NATURE OF THE ACTION

1 This is a putative class action under the Florida Telephone Solicitation Act

(FTSA”), Fla. Stat. § 501.059.

2. To promote its outdoor furniture, Defendant engages in unsolicited text message

marketing to those who have not provided Defendant with their prior express written consent as

required by the FTSA.

3 Defendant’s unsolicited text message spam caused Plaintiff and the Class members

harm, including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their
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privacy, and intrusion upon seclusion. Defendant’s text messages also occupied storage space on

Plaintiffs and the Class members’ telephones.

4 Through this action, Plaintiff seeks an injunction and actual liquidated damages on

behalf of Plaintiff and the Class members, as defined below, and any other available legal or

equitable remedies resulting from the unlawful actions of Defendant.

PARTIES

5 Plaintiff is, and at all times relevant hereto was, a citizen and resident of Lake

County, Florida.

6 Plaintiff is, and at all tines relevant hereto was, an individual and a “called party”

as defined by Fla. Stat. § 501.059(1)(a) in that Plaintiff was the regular user of cellular telephone

number that received Defendant’s telephonic sales calls.

7 Defendant is, and at all times relevant hereto was, a foreign corporation and a

“telephone solicitor” as defined by Fla. Stat. § 501.059(f).

JURISDICTION AND VENUE

8 This Court has subject matter jurisdiction pursuant to Florida Rule of Civil

Procedure 1.220 and Fla. Stat. § 26.012(2). The matter in controversy exceeds the sum or value of

$30,000 exclusive of interest, costs, and attorney’s fees.

9 Defendant is subject to personal jurisdiction in Florida because this suit arises out

of and relates to Defendant’s contacts with this state. Defendant initiated and directed

telemarketing and/or advertising text messages into Florida, Specifically, Defendant initiated and

directed the transmission of unsolicited advertisement or telemarketing text messages to Plaintiff’s

cellular telephone number to sell goods, services or products in Florida. Plaintiff's telephone
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number has an area code (407) that specifically coincides with locations in Florida, and Plaintiff

received such messages while residing in and physically present in Florida.

10. Venue for this action is proper in this Court pursuant to Fla. Stat. § 47.051 because

the cause of action accrued in this County.

FACTS
Il. On or about August 22, 2022, September 19, 2022, and October 3, 2022, Defendant

sent text message advertisements regarding its goods and services to Plaintiff's cellular telephone,

including the following:

‘Teat Message
Mon, Aug 22 at 8:11 PM
oF: Our mortgage rates dropped!
Goto ages or call '
| 4-844-763-4466, Ter rms apply, Text
STOP to opt out.
NMLS#696891/1121636. Equal
: Housing Lender.
Mon, Sep 19 at 3:07 PM
FoF #iiKeep the cold out this winter +
with a no-fee $6K-$100K home '
improvement loan. Special offer at
}. Terms apply. i
L Text STOP to opt out.
“}
Mon, Oct 3 ot 2:36 PM
“ SOF Our mortgage rates dropped! \
Go to SoFi.com/mortaages or call
| 1-844-763-4466.
STOP to opt out.
Terms apply. Text
NMLS#696891/1121636. Equal
! Housing Lender. ,
The senderfs not In your contact list,
Report Junk
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12. As demonstrated by the above screenshot, the purpose of Defendant’s text

messages was to solicit the sale of consumer goods and/or services. Specifically, the purpose of

these text messages was to encourage Plaintiff to purchase loan products from Defendant.

13. The messages also advertise and call attention to Defendant’s products and related

services.

14. Plaintiff is the regular user of the telephone number that received the above

telephonic sales calls.

15. Plaintiff utilizes his cellular telephone number for personal purposes and the

number is Plaintiff's residential telephone line.

16. Plaintiff was in Florida when Plaintiff received the above text message calls, and

Defendant’s violative conduct occurred in substantial part in Florida.

17. Upon information and belief, Defendant maintains and/or has access to outbound

transmission reports for all text messages sent advertising/promoting its services and goods. These

reports show the dates, times, target telephone numbers, and content of each message sent to

Plaintiff and the Class members.

18. To send the text messages, Defendant used a messaging platform (the “Platform”),

which permitted Defendant to transmit blasts of text messages automatically and without any

human involvement. The Platform automatically made a series of calls to Plaintiff's and the Class

members’ stored telephone numbers with no human involvement after the series of calls were

initiated utilizing the Platform. Defendant’s use of lengthy generic text messages (depicted above)

further demonstrates that Defendant utilizes automated dialing systems to mass transmit

solicitation texts to consumers.
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Case 5:23-cv-00288 Document 1-1 Filed 05/05/23 Page 5 of 12 PagelD 16

19. In fact, on its website, Defendant attempts to conceal in lengthy terms and

conditions that it uses an “automatic texting system” to solicit consumers. See

www.sofi.com/terms-of-use.

20. Defendant was not required to and did not need to utilize the Platform to send

messages to Plaintiff and the Class members. Instead, Defendant opted to use the Platform to

maximize the reach of its text message advertisements at a nominal cost to Defendant.

21. Defendant would be able to conduct its business operations without sending

automated text messages to consumers.

22. Defendant would be able to send automated text messages to consumers, and in

compliance with the FTSA, by securing the proper consent from consumers prior to sending text

messages.

23. Defendant would be able to send text messages to consumers without consent by

utilizing a non-automated text messaging system.

24. Accordingly, it is not impossible for Defendant to comply with the FTSA in the

context of transmitting text messages.

25. The burden and cost to Defendant of securing consent from consumers that

complies with the FTSA is nominal.

26. Compliance with the FTSA will not result in Defendant having to cease its business

operations.

27. Compliance with the FTSA will not result in Defendant having the alter the prices

of any goods or services it provides in the marketplace.

28. Compliance with the FTSA will not force Defendant to seek regulatory approval

from the State of Florida before undertaking any type of commercial transaction.
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29. Because a substantial part of Defendant’s FTSA violations occurred in Florida,

requiring Defendant’s compliance with the FTSA will not have the practical effect of regulating

commerce occurring wholly outside of Florida.

30. ‘The Platform has the capacity to select and dial numbers automatically from a list

of numbers, which was in fact utilized by Defendant.

31. The Platform has the capacity to schedule the time and date for future transmission

of text messages, which was in fact utilized by Defendant.

32. The Platform also has an auto-reply function that results in the automatic

transmission of text messages.

33. Plaintiff never provided Defendant with express written consent authorizing

Defendant to transmit telephonic sales calls to Plaintiff's cellular telephone number utilizing an

automated system for the selection and dialing of telephone numbers.

34, More specifically, Plaintiff never signed any type of authorization permitting or

allowing the placement of a telephonic sales call by text message using an automated system for

the selection and dialing of telephone numbers.

35. Since July 1, 2021, on information and belief, Defendant sent at least 50 text

message solicitations to as many consumers in Florida.

36. Defendant’s unsolicited text message spam caused Plaintiff and the Class members

harm, including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their

privacy, and intrusion upon seclusion. Defendant’s text messages also occupied storage space on

Plaintiff’s and the Class members’ telephones.
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Case 5:23-cv-00288 Document 1-1 Filed 05/05/23 Page 7 of 12 PagelD 18

CLASS ALLEGATIONS

PROPOSED CLASS

37. Plaintiff brings this lawsuit as a class action on behalf of Plaintiff individually and

on behalf of all other similarly situated persons as a class action pursuant to Florida Rule of Civil

Procedure 1.220(b)(2) and (b)(3). The Class that Plaintiff seeks to represent are defined as:

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.

38. Defendant and its employees or agents are excluded from the Class.

NUMEROSITY

39. Upon information and belief, Defendant has placed telephonic sales calls to

telephone numbers belonging to at least 50 persons. The members of the Class, therefore, are

believed to be so numerous that joinder of all members is impracticable.

40. The exact number and identities of the Class members are unknown at this time and

can be ascertained only through discovery. Identification of the Class members is a matter capable

of ministerial determination from Defendant’s call records.

COMMON QUESTIONS OF LAW AND Fact

Al. There are numerous questions of law and fact common to the Classes which

predominate over any questions affecting only individual members of the Classes. Among the

questions of law and fact common to the Class are:

(a) Whether Defendant initiated telephonic sales calls to Plaintiff and the Class

members;
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Case 5:23-cv-00288 Document 1-1 Filed 05/05/23 Page 8 of 12 PagelD 19

(b) Whether Defendant can meet its burden of showing that it had prior express written

consent to make such calls; and

42. The common questions in this case are capable of having common answers. If

Plaintiff's claim that Defendant routinely transmits telephonic sales calls without prior express

written consent is accurate, Plaintiff and the Class members will have identical claims capable of

being efficiently adjudicated and administered in this case.

‘TYPICALITY

43. Plaintiff's claims are typical of the claims of the Class members, as they are all

based on the same factual and legal theories.

PROTECTING THE INTERESTS OF THE CLASS MEMBERS

44, Plaintiff is a representative who will fully and adequately assert and protect the

interests of the Class and has retained competent counsel. Accordingly, Plaintiff is an adequate

representative and will fairly and adequately protect the interests of the Class.

SUPERIORITY

45. A class action is superior to all other available methods for the fair and efficient

adjudication of this lawsuit because individual litigation of the claims of all members of the Class

is economically unfeasible and procedurally impracticable. While the aggregate damages sustained

by the Class are in the millions of dollars, the individual damages incurred by each member of the

Class resulting from Defendant’s wrongful conduct are too small to warrant the expense of

individual lawsuits. The likelihood of individual Class members prosecuting their own separate

claims is remote, and, even if every member of the Class could afford individual litigation, the

court system would be unduly burdened by individual litigation of such cases.
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46. The prosecution of separate actions by members of the Class

Case Info

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TAKAC, MICHAEL G Track Judge’s New Case

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May 05, 2023

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April 05, 2023

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