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Abbas Kazerounian, Esq. (SBN: 249203) ak@kazlg.com Kazerouni Law Group, APC 2700 North Main Street, Suite 1000 Santa Ana, California 92705 (800) 400-6808 Joshua B. Swigart, Esq. (SBN: 225557) josh@westcoastlitigation.com Hyde & Swigart 411 Camino Del Rio South, Suite 301 San Diego, CA 92108-3551 (619) 233-7770 (619) 297-1022 Attorneys for Jason Ibey

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Jason Ibey, individually and on behalf of all others similarly situated Plaintiffs, v. Taco Bell Corp. Defendant. Case No: 12-cv-0583-H-WVG Memorandum of Points and Authorities in Support of Plaintiff's Motion to Reconsider Pursuant to Fed. R. Civ. P. 59 and Fed. R. Civ. P. 60. Date: August 6, 2012 Time: 10:30 AM Judge: Hon. Marilyn L. Huff Oral Argument Requested

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Memorandum of Points and Authorities in Support of Plaintiffs Motion to Reconsider

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I.

Introduction This is a class action lawsuit meant to protect consumers from the ongoing

proliferation of SPAM messages being sent to their cellular telephones. SPAM has plagued consumers in the past through e-mail, and this latest marketing scheme is designed to SPAM cellular telephones in the same manner. Even so, this SPAM is still in its infancy. But the practice is growing as these marketing companies test the water to see what they can get away with, as here, and once these numbers are trapped, these companies often go so far as to then exchange the numbers they trap with other solicitors, for the further purpose of making even more telephone calls. The numbers become valuable commodities. The Supreme Court of the United States recently noted that consumers are outraged over the proliferation of these intrusive, nuisance calls, and that Congress has found these calls to be an invasion of privacy. Mims v. Arrow Fin. Servs. LLC, 132 S. Ct. 740, 745 (U.S. 2012). The time to curtail this type of SPAM is now; early in the evolution of such practices. This lawsuit attempts to do just that. A. Legal Standard Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. Or. 1993), citing All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645, 648 (D. Hawaii 1987), rev'd on other grounds, 855 F.2d 860 (9th Cir. 1988). There may also be other, highly unusual, circumstances warranting reconsideration. Id. II. Argument A. Plaintiff adequately pleaded the issue of Defendant using an ATDS in its initial complaint The relevant portion of the TCPA provides as follows:

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It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-... to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.] 47 U.S.C. 227(b)(1) (2006). (Emphasis added.) The statute further defines automatic telephone dialing system (the "ATDS") as equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. Id. 227(a)(1). The plain text of the statute requires only the capacity for such random or sequential generation, see 47 U.S.C. 227(a)(1), and the implementing regulations impose no higher burden. See 47 C.F.R. 64.1200(f)(1). Further, the Court of Appeals for the Ninth Circuit found this clear language mandates only allegations of this capacity. see Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 950 (9th Cir. Cal. 2009). See also, Abbas v. Selling Source, LLC, 2009 U.S. Dist. LEXIS 116697, 13-14 (N.D. Ill. Dec. 14, 2009), citing Satterfield, and holding under Fed. R. Civ. P. 12(b)(6), it is enough for a plaintiff to merely allege that the equipment used by the defendant had the capacity to produce or store and dial numbers randomly or sequentially. That is exactly what was pleaded here. This is also consistent with prior holdings in the Southern District of California. In Ryabyshchuk v. Citibank (South Dakota) N.A., 2011 U.S. Dist. LEXIS 136506, 5-6 (S.D. Cal. Nov. 28, 2011), the court found:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id.

Section 227(b)(1)(A)(iii) of the TCPA, provides in pertinent part: It shall be unlawful for any person within the United States to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service . Ryabyshchuk at 5-6, citing 47 U.S.C. 227(b)(1)(A)(iii). The Ninth Circuit has held that "a text message is a 'call' within the meaning of the TCPA." Ryabyshchuk citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). Furthermore, the TCPA defines an automatic telephone dialing system ("ATDS") as "equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers." 47 U.S.C. 227(a)(1). Id. "[A] system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it." Satterfield, 569 F.3d at 951. In Plaintiffs initial complaint, Plaintiff alleged that This unsolicited text message advertisement placed to Plaintiffs cellular telephone was placed via an automatic telephone dialing system, (ATDS) as defined by 47 U.S.C. 227 (a) (1) as prohibited by 47 U.S.C. 227 (b)(1)(A), Plaintiffs FAC, 19. Section 227 (a)(1) states that The term automatic telephone dialing system means equipment which has the capacity - (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. Consequently, Plaintiffs initial pleading was adequately pleaded, as held by the Ninth Circuit in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), and finding otherwise is an error that should be reconsidered and vacated.

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B. Defendants argument regarding the legislative history of the TCPA, was misleading and improper as the legislative history is inapplicable. In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. Cal. 2009), as is the case here, a plaintiff received a single text message; an unsolicited text message. Satterfield, 569 F.3d at 949. This single text message was sent to the plaintiff, Laci Satterfield by Simon & Schuster. Simon & Schuster sent the text message as part of its promotional campaign for the Steven King novel Cell. Id. The court in Satterfield noted that Satterfield received this single text message after she became a registered user of Nextones.com. Id. This was due to the same kind of promotional program Defendant was marketing here. In Satterfield, as here, Satterfields son signed up for a promotional program and filled out a form which provided for certain terms and conditions that included permission to receive the text message. Id. In response, a single text message was sent to Satterfield. ([O]n January 18, 2006 at 12:30 a.m., Satterfield received a text message (on the phone registered with Nextones.com) from Simon & Schuster advertising its publication of a novel by Stephen King. Id.) Again, that is what happened here, except that here there was more than one message sent to Plaintiff. In Satterfield the defendant argued that the message was not a call under the TCPA, just as the defendant argues here. The Ninth Circuit rejected that argument. In construing the provisions of a statute, we first look to the language of the statute to determine whether it has a plain meaning. McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008). "The preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous." Id. (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S. Ct. 1587, 158 L. Ed. 2d 338 (2004) (internal quotation marks omitted)). Reviewing this statute, we conclude that the statutory text is clear and unambiguous.
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Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. Cal. 2009). With regard to the call itself, Satterfield went on and found that this single text message was a call within the TCPA, and was actionable. The TCPA makes it unlawful "to make any call" using an ATDS. 47 U.S.C. 227(b)(1)(A). While the TCPA does not define "call," the FCC has explicitly stated that the TCPA's prohibition on ATDSs "encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls." In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 (July 3, 2003) (hereinafter "2003 Report and Order"). The FCC subsequently confirmed that the "prohibition on using automatic telephone dialing systems to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS), as well as voice calls." In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934 (FCC August 12, 2004). In the Notice of Proposed Rulemaking of the CANSPAM Act, the FCC also noted "that the TCPA and Commission rules that specifically prohibit using automatic telephone dialing systems to call wireless numbers already apply to any type of call, including both voice and text calls." Id. at 15933. Therefore, the FCC has determined that a text message falls within the meaning of "to make any call" in 47 U.S.C. 227(b)(1)(A). [FN 2] Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. Cal. 2009). Consequently, in Satterfield, the court specifically held that the statutory text of the TCPA is clear and unambiguous, and any inquiry begins with the statutory text, and ends there as well. Satterfield, 569 F.3d at 951. Looking beyond the plain language of the statute in such an instance is improper; any inquiry must end at the language of the statute as well. Courts can only insert language into a statute if the result of the statutes plain meaning is
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absurd.

Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078, 1082 (9th Cir. Cal.

2005), citing Lamie v. United States Tr., 540 U.S. 526, 537-538 (U.S. 2004). The TCPA makes it unlawful to make any call using an ATDS. Satterfield, 569 F.3d at 952 (Emphasis added). It does not require a series of calls; it requires any call. See also, Adamcik v. Credit Control Servs., 832 F. Supp. 2d 744 (W.D. Tex. 2011). (Emphasizing that the FCC applies regardless of the content of the calls, and that it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number. (Italics is that of the court)). Interpreting the TCPAs legislative history is improper where, as here, the statutory text is clear and unambiguous. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. Cal. 2009). Thus, our inquiry begins with the statutory text, and ends there as well. Id. Thus, when the Court accepted the defendants arguments regarding the legislative history of the TCPA, this was improper; as the legislative history is inapplicable where the statutory text is clear and unambiguous, which the Ninth Circuit expressly found. Id. Thus, when the Court found in its June 18, 2012 Order that the TCPA applies only to certain calls, this was clear error, which should be reconsidered and the Order vacated. Further, even if a series of calls were required, here, a series of marketing calls were made by Defendant using an ADTS. FAC, 9-23. And even the last message sent to the plaintiff again solicited the plaintiff in an attempt to continue to encourage the plaintiff to do business with the defendant, inviting him to call 1-646-216-2032. The conclusion reached by the Court in its June 18, 2012 Order is directly contrary to the Ninth Circuits holding in Satterfield, the FCCs interpretation of the TCPA, and the Southern District of Californias prior holding in Melingonis v. Network Communs. Intl Corp., 2010 U.S. Dist. LEXIS 125348 (S.D. Cal. Nov. 29, 2010). Satterfield established that the TCPA clearly does apply to a single text
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message, while Melingonis and In re the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 F.C.C.R 559, 565 (Jan. 4, 2008) established that the content of the text message is irrelevant to litigation. However, here the Court was persuaded by the defendants unsupported argument that the TCPAs legislative history should be considered, and that the holding in Satterfield should be rejected. In response the Court ordered: Defendant argues that the legislative history of the TCPA indicates that the statute cannot be read to impose liability for a single, confirmatory opt-out message. (Doc. No. 15.) The Court agrees. The Court concludes that the TCPA does not impose liability for a single, confirmatory text message. Courts Order, dated June 18, 2012, Docket #20. In Melingonis, the Southern District of California recently noted that the Ninth Circuit has recently defined call as it applies to the TCPA, as to communicate with or try to get into communication with a person by telephone. Id., citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). That is exactly what happened in this matter. Here the defendant was communicating with the plaintiff on his telephone, by text message. In the Courts June 18, 2012 order, however, the Court was apparently influenced by the defendants argument that Defendant argues that the legislative history of the TCPA indicates that the statute cannot be read to impose liability for a single, confirmatory opt-out message. Docket #20, page 4, lns 22-25. But that is clearly wrong, legally, and factually in dispute. In Melingonis v. Network Communs. Intl Corp., 2010 U.S. Dist. LEXIS 125348 (S.D. Cal. Nov. 29, 2010), the Southern District of California found this issue to be of such importance, it stated in bold face type, We note that this prohibition applies regardless of the content of the call, and is not limited only to calls that constitute telephone solicitations. Id., at 4 (Bold face is from the
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court.) See also, Adamcik v. Credit Control Servs., 832 F. Supp. 2d 744 (W.D. Tex. 2011), emphasizing again that We also reiterate that the plain language of section 227(b)(1)(A) (iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party. We note that this prohibition applies regardless of the content of the call, and is not limited only to calls that constitute "telephone solicitations." Adamcik v. Credit Control Servs. at *24. (Italics added.) However, now this Court finds the opposite; that the content of the call is of such importance liability should be denied. This is directly at odds with the Ninth Circuit and the Southern District. It is also at direct odds with other federal and FCC opinions, for example, Resource Bankshares Corp., v. St. Paul Mercury Ins. Co., 407 F. 3d 631, 642 (4th Cir. 2005) ([T]he TCPAs unsolicited fax prohibition protects seclusion privacy, for which content is irrelevant.); See also, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, Declaratory Ruling, 23 FCC Rcd 559 (2008), p. 11 (the prohibition against the use of automatic telephone dialing systems to make calls to cellular telephones applies regardless of the content of the call) and Adamcik v. Credit Control Servs., 832 F. Supp. 2d 744 (W.D. Tex. 2011) (same). In summary, it is not the content of the communication, but rather the communication itself that the TCPA seeks to regulate. Consequently, even if the defendant claim that this case involves a single, confirmatory text message were true, the holding that the TCPA does not apply to a single, confirmatory text message is clearly erroneous. III. Conclusion The Courts June 18, 2012 Order, Docket #20, should be reconsidered and vacated; it is clear error, and directly contradicts the Ninth Circuits ruling in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. Cal. 2009). The

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intentionally broad scope of the TCPA (Melingonis v. Network Communs. Intl Corp., 2010 U.S. Dist. LEXIS 125348, *5 (S.D. Cal. Nov. 29, 2010)) protects consumers from these types of calls. Further, and contrary to the defendants claims, the case does not involve a single, confirmatory opt-out message, but instead involves numerous text messages designed to solicit business; all messages were SPAM. Even the very last message made one last desperate attempt at soliciting the plaintiff by urging him to call the defendant at 1-646-216-2032. But the content is not the issue. As the Southern District of California found recently, the content of these messages are irrelevant. We note that this prohibition applies regardless of the content of the call, and is not limited only to calls that constitute telephone solicitations. Melingonis v. Network Comm. Intl. Corp., 2010 TCPA Rep. 2060, 2010 WL 4918979 (S.D. Cal. Nov. 29, 2010). The defendants claim that the statute cannot be read to impose liability for a single, confirmatory opt-out message is both factually and legally insufficient, and the Court erred in accepting such representations. Consequently, the Courts June 18, 2012 Order, Docket #20, should be reconsidered and vacated, and discovery allowed to go forward. Respectfully submitted: Kazerouni Law Group, APC Date: July 2, 2012 By: /s/ Abbas Kazerounian Abbas Kazerounian Attorneys for Plaintiffs

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