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Filing # 134962192 E-Filed 09/21/2021 08:54:35 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CASE NO.
INDIRA FALCON,
individually and on behalf of all,
others similarly situated, CLASS ACTION
Plaintiff, JURY TRIAL DEMANDED
Vv.
ALBEE BABY CARRIAGE, CO., INC.,
Defendant.
/
CLASS ACTION COMPLAINT
Plaintiff Indira Falcon brings this class action against Defendant Albee Baby Carriage, Co., 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 class action under the Florida Telephone Solicitation Act (“FTSA”), Fla.
Stat. § 501.059, as amended by Senate Bill No. 1120.!
2. Defendant engages in telephonic sales calls to consumers without having secured
prior express written consent as required by the FTSA.
3. Defendant’s telephonic sales calls have caused Plaintiff and the Class members
harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and
invasion of their privacy.
' The amendment to the FTSA became effective on July 1, 2021.
4
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14. Through this action, Plaintiff seeks an injunction and statutory damages on behalf
of herself 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
Hillsborough County, Florida.
6. Plaintiff is, and at all times relevant hereto was, an individual and a “called party”
as defined by Fla. Stat. § 501.059(1)(a) in that he 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). Defendant maintains its primary place
of business and headquarters in New York, New York.
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 made or caused to be made
telephonic sales calls into Florida without the requisite prior express written consent in violation
of the FTSA. Plaintiff received such calls 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.
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2FACTS
11. On September 3, 2021, Defendant sent the following telephonic sales call to
Plaintiffs cellular telephone number:
ea eo
UP TO
— 60% OFF
SALE GEAR
Albee Baby: It's the Labor Day Sale! You worked.
ane a ae AT eee ae
eve cee
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 312. The purpose of Defendant’s telephonic sales call was to solicit the sale of consumer
goods and/or services.
13. Upon information and belief, Defendant caused similar telephonic sales calls to be
sent to individuals residing in Florida.
14. Plaintiff is the regular user of the telephone number that received the above
telephonic sales calls.
15. To transmit the above telephonic sales call, Defendant utilized a computer software
system that automatically selected and dialed Plaintiff's and the Class members’ telephone
numbers.
16. 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 or dialing of telephone numbers.
17. Defendant’s telephonic sales calls caused Plaintiff and the Class members harm,
including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance.
CLASS ALLEGATIONS
PROPOSED CLASS
18. Plaintiff brings this lawsuit as a class action on behalf of herself 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 is defined as:
All persons in Florida who, (1) were sent a telephonic sales call
regarding Defendant’s goods and/or services, (2) using the same
equipment or type of equipment utilized to call Plaintiff.
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 419. Defendant and its employees or agents are excluded from the Class. Plaintiff does
not know the exact number of members in the Class but believes the Class members number in the
several thousands, if not more.
NUMEROSITY
20. Upon information and belief, Defendant has placed telephonic sales calls to
telephone numbers belonging to thousands of consumers listed throughout Florida without their
prior express written consent. The members of the Class, therefore, are believed to be so numerous
that joinder of all members is impracticable.
21. 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
22. There are numerous questions of law and fact common to the Class which
predominate over any questions affecting only individual members of the Class. Among the
questions of law and fact common to the Class are: [1] Whether Defendant initiated telephonic
sales calls to Plaintiff and the Class members; [2] Whether Defendant can meet its burden of
showing that it had prior express written consent to make such calls; and [3] Whether Defendant
is liable for damages, and the amount of such damages.
23. | 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.
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5TYPICALITY
24. 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
25. 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
26. Acclass 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.
27. The prosecution of separate actions by members of the Class would create a risk of
establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For
example, one court might enjoin Defendant from performing the challenged acts, whereas another
may not. Additionally, individual actions may be dispositive of the interests of the Class, although
certain class members are not parties to such actions.
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6COUNT I
VIOLATION OF FLA. ST. 501.059
(On Behalf of Plaintiff and the Class)
28. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth
herein.
29. — Itis a violation of the FTSA to “make or knowingly allow a telephonic sales call to
be made if such call involves an automated system for the selection or dialing of telephone numbers
or the playing of a recorded message when a connection is completed to a number called without
the prior express written consent of the called party.” Fla. Stat. § 501.059(8)(a).
30. A “telephonic sales call” is defined as a “telephone call, text message, or voicemail
transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services,
soliciting an extension of credit for consumer goods or services, or obtaining information that will
or may be used for the direct solicitation of a sale of consumer goods or services or an extension
of credit for such purposes.” Fla. Stat. § 501.059(1)(i).
31. “Prior express written consent” means an agreement in writing that:
1. Bears the signature of the called party;
2. Clearly authorizes the person making or allowing the placement of a telephonic
sales call by telephone call, text message, or voicemail transmission to deliver
or cause to be delivered to the called party a telephonic sales call using an
automated system for the selection or dialing of telephone numbers, the playing
of a recorded message when a connection is completed to a number called, or
the transmission of a prerecorded voicemail;
3. Includes the telephone number to which the signatory authorizes a telephonic
sales call to be delivered; and
4. Includes a clear and conspicuous disclosure informing the called party that:
a. By executing the agreement, the called party authorizes the person
making or allowing the placement of a telephonic sales call to deliver or
cause to be delivered a telephonic sales call to the called party using an
automated system for the selection or dialing of telephone numbers or
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7the playing of a recorded message when a connection is completed to a
number called; and
b. He or she is not required to directly or indirectly sign the written
agreement or to agree to enter into such an agreement as a condition of
purchasing any property, goods, or services.
Fla. Stat. § 501.059(1)(g).
32. Defendant failed to secure prior express written consent from Plaintiff and the Class
members.
33. In violation of the FTSA, Defendant made and/or knowingly allowed telephonic
sales calls to be made to Plaintiff and the Class members without Plaintiff's and the Class
members’ prior express written consent.
34. Defendant made and/or knowingly allowed the telephonic sales calls to Plaintiff
and the Class members to be made utilizing an automated system for the selection or dialing of
telephone numbers.
35. As aresult of Defendant’s conduct, and pursuant to § 501.059(10)(a) of the FTSA,
Plaintiff and Class members were harmed and are each entitled to a minimum of $500.00 in
damages for each violation. Plaintiff and the Class members are also entitled to an injunction
against future calls. Id.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for the following
relief:
a) An order certifying this case as a class action on behalf of the Class as defined above,
and appointing Plaintiff as the representative of the Class and Plaintiff's counsel as Class
Counsel;
b) An award of statutory damages for Plaintiff and each member of the Class;
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8c) An order declaring that Defendant’s actions, as set out above, violate the FTSA;
d) An injunction requiring Defendant to cease all telephonic sales calls made without
express written consent, and to otherwise protect the interests of the Class;
e) Such further and other relief as the Court deems necessary.
JURY DEMAND
Plaintiff, individually and on behalf of the Class, hereby demand a trial by jury.
DOCUMENT PRESERVATION DEMAND
Plaintiff demands that Defendant take affirmative steps to preserve all records, lists, electronic
databases or other itemization of telephone numbers associated with the communications or transmittal
of the calls as alleged herein.
DATED: September 21, 2021
Respectfully Submitted,
HIRALDO P.A.
Js/ 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
9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9
Preview
Filing # 134962192 E-Filed 09/21/2021 08:54:35 AM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. INDIRA FALCON, individually and on behalf of all, others similarly situated, CLASS ACTION Plaintiff, JURY TRIAL DEMANDED Vv. ALBEE BABY CARRIAGE, CO., INC., Defendant. / CLASS ACTION COMPLAINT Plaintiff Indira Falcon brings this class action against Defendant Albee Baby Carriage, Co., 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 class action under the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, as amended by Senate Bill No. 1120.! 2. Defendant engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. 3. Defendant’s telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. ' The amendment to the FTSA became effective on July 1, 2021. 4 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14. Through this action, Plaintiff seeks an injunction and statutory damages on behalf of herself 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 Hillsborough County, Florida. 6. Plaintiff is, and at all times relevant hereto was, an individual and a “called party” as defined by Fla. Stat. § 501.059(1)(a) in that he 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). Defendant maintains its primary place of business and headquarters in New York, New York. 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 made or caused to be made telephonic sales calls into Florida without the requisite prior express written consent in violation of the FTSA. Plaintiff received such calls 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. 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2FACTS 11. On September 3, 2021, Defendant sent the following telephonic sales call to Plaintiffs cellular telephone number: ea eo UP TO — 60% OFF SALE GEAR Albee Baby: It's the Labor Day Sale! You worked. ane a ae AT eee ae eve cee 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 312. The purpose of Defendant’s telephonic sales call was to solicit the sale of consumer goods and/or services. 13. Upon information and belief, Defendant caused similar telephonic sales calls to be sent to individuals residing in Florida. 14. Plaintiff is the regular user of the telephone number that received the above telephonic sales calls. 15. To transmit the above telephonic sales call, Defendant utilized a computer software system that automatically selected and dialed Plaintiff's and the Class members’ telephone numbers. 16. 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 or dialing of telephone numbers. 17. Defendant’s telephonic sales calls caused Plaintiff and the Class members harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance. CLASS ALLEGATIONS PROPOSED CLASS 18. Plaintiff brings this lawsuit as a class action on behalf of herself 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 is defined as: All persons in Florida who, (1) were sent a telephonic sales call regarding Defendant’s goods and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff. 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 419. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the exact number of members in the Class but believes the Class members number in the several thousands, if not more. NUMEROSITY 20. Upon information and belief, Defendant has placed telephonic sales calls to telephone numbers belonging to thousands of consumers listed throughout Florida without their prior express written consent. The members of the Class, therefore, are believed to be so numerous that joinder of all members is impracticable. 21. 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 22. There are numerous questions of law and fact common to the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the Class are: [1] Whether Defendant initiated telephonic sales calls to Plaintiff and the Class members; [2] Whether Defendant can meet its burden of showing that it had prior express written consent to make such calls; and [3] Whether Defendant is liable for damages, and the amount of such damages. 23. | 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. 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5TYPICALITY 24. 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 25. 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 26. Acclass 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. 27. The prosecution of separate actions by members of the Class would create a risk of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For example, one court might enjoin Defendant from performing the challenged acts, whereas another may not. Additionally, individual actions may be dispositive of the interests of the Class, although certain class members are not parties to such actions. 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6COUNT I VIOLATION OF FLA. ST. 501.059 (On Behalf of Plaintiff and the Class) 28. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 29. — Itis a violation of the FTSA to “make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.” Fla. Stat. § 501.059(8)(a). 30. A “telephonic sales call” is defined as a “telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.” Fla. Stat. § 501.059(1)(i). 31. “Prior express written consent” means an agreement in writing that: 1. Bears the signature of the called party; 2. Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the called party a telephonic sales call using an automated system for the selection or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail; 3. Includes the telephone number to which the signatory authorizes a telephonic sales call to be delivered; and 4. Includes a clear and conspicuous disclosure informing the called party that: a. By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using an automated system for the selection or dialing of telephone numbers or 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7the playing of a recorded message when a connection is completed to a number called; and b. He or she is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services. Fla. Stat. § 501.059(1)(g). 32. Defendant failed to secure prior express written consent from Plaintiff and the Class members. 33. In violation of the FTSA, Defendant made and/or knowingly allowed telephonic sales calls to be made to Plaintiff and the Class members without Plaintiff's and the Class members’ prior express written consent. 34. Defendant made and/or knowingly allowed the telephonic sales calls to Plaintiff and the Class members to be made utilizing an automated system for the selection or dialing of telephone numbers. 35. As aresult of Defendant’s conduct, and pursuant to § 501.059(10)(a) of the FTSA, Plaintiff and Class members were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the Class members are also entitled to an injunction against future calls. Id. PRAYER FOR RELIEF WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for the following relief: a) An order certifying this case as a class action on behalf of the Class as defined above, and appointing Plaintiff as the representative of the Class and Plaintiff's counsel as Class Counsel; b) An award of statutory damages for Plaintiff and each member of the Class; 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8c) An order declaring that Defendant’s actions, as set out above, violate the FTSA; d) An injunction requiring Defendant to cease all telephonic sales calls made without express written consent, and to otherwise protect the interests of the Class; e) Such further and other relief as the Court deems necessary. JURY DEMAND Plaintiff, individually and on behalf of the Class, hereby demand a trial by jury. DOCUMENT PRESERVATION DEMAND Plaintiff demands that Defendant take affirmative steps to preserve all records, lists, electronic databases or other itemization of telephone numbers associated with the communications or transmittal of the calls as alleged herein. DATED: September 21, 2021 Respectfully Submitted, HIRALDO P.A. Js/ 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 9/21/2021 8:54 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9