PlainSite. Legal Document. Florida Southern District Court Case No. 0:12-cv WJZ Benzion et al v. Vivint, Inc. Document 165.

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1 PlainSite Legal Document Florida Southern District Court Case No. 0:12-cv WJZ Benzion et al v. Vivint, Inc. Document 165 View Document View Docket A joint project of Think Computer Corporation and Think Computer Foundation. Cover art 2015 Think Computer Corporation. All rights reserved. Learn more at

2 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 1 of 14 MATTHEW BENZION, individually and on behalf of others similarly situated, v. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION Plaintiff, VIVINT, INC., a Utah corporation, Case No. 0:12-cv WJZ Defendant. / PLAINTIFF S RESPONSE IN OPPOSITION TO DEFENDANT S MOTION TO STRIKE PLAINTIFF S PROPOSED WITNESS RANDALL A. SNYDER AND BAR HIM FROM TESTIFYING The defendant in this telemarketing class action, Vivint, Inc. ( Vivint or Defendant ), has moved to strike the opinions offered by Randall A. Snyder in their entirety. Mr. Snyder is the expert witness offered by the plaintiff, Matthew Benzion ( Plaintiff ), as to the technology used to make the unsolicited telemarketing calls that are the subject of this case. As Mr. Snyder is properly qualified as an expert witness, and his testimony based upon his review of the same reliable data that forms the basis of the expert opinion of Defendant s expert will assist the trier of fact, his testimony should be admitted. The Motion to Strike fails to credibly establish that Mr. Snyder s opinions are lacking in foundation or constitute legal conclusions, and because Mr. Snyder s opinions will assist the trier of fact, the Motion to Strike should be DENIED. I. BACKGROUND The Telephone Consumer Protection Act of 1991 ( TCPA ) prohibits using an automatic telephone dialing system ( ATDS ) to call a cell phone without the prior express consent of the

3 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 2 of 14 called party. 47 U.S.C. 227(b)(1)(A)(iii). An ATDS is defined 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[,] 47 U.S.C. 227(a)(1), and includes predictive dialers 1 and any other equipment that has the capacity to dial numbers without human intervention. Buslepp v. Improv Miami, Inc., No , 2012 WL , at *2 (S.D. Fla. Oct. 16, 2012) (quoting In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd 14014, 14092, para. 132 (2003) ( FCC 2003 Order )). The Defendant, a Utah-based home automation and security company, utilizes telemarketing to market its products and services, and has for a number of years. A business with whom the Defendant contracted, Axium, made telemarketing calls to the Plaintiff and others using an automatic telephone dialing system that delivered prerecorded voice messages to cellular telephones, and despite their registration with the National Do Not Call Registry. 2 See Rookstool Dep. Vol. I, 38:13-39:4; 79:9-20; 85:24-86:7 (May 9, 2013) (attached hereto as Exhibit 1). The Axium calls were made in a manner whereby prerecorded snippets of the Vivintapproved script would be played by a representative pressing the respective key on his or her 1 A predictive dialer is equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers. FCC 2003 Order, 18 FCC Rcd at 14091, para As referenced to herein, Axium refers to the various iterations of Jody Rookstool s lead generation business, including 1to1 Sales Group LLC, which was rebranded to Savantius, LLC in 2009, and later rebranded to Revocalize, LLC in 2010, with Axium Marketing, LLC ultimately being used to generate leads for Vivint specifically, until Mr. Rookstool shut down his operations in July See generally Rookstool Dep. Vol. I, 11:17-14:18; 17:16-20:1. Axium also made the calls to generate leads for a separate Vivint lead provider, Blue Dolphin Media, Inc. (DE 149, Def. s Resp. to Mot. Class Cert., p. 3.) 2

4 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 3 of 14 keyboard during the call. See Rookstool Dep. Vol. I, at 71:21-72:24. Once a consumer expressed potential interest, the lead would be automatically posted to Vivint s lead management service, LeadConduit, and Defendant would then have its own Utah-based sales agents attempt to close the sale by either (1) using Vivint s own dialer to call the lead back or (2) having the lead generator directly transfer the live call. See id. at 80:1-17. Axium s calls to generate leads for Vivint were made initially through CallAssistant, LLC (a call center in Utah) and then, starting in approximately fall 2010, through DirectAccess Corp., a now-defunct foreign call center in the Philippines. 3 A dialer, Five9, has produced call logs evidencing well over 5,000,000 telephone calls made by Axium through DirectAccess, including more than 500,000 telephone calls made promoting Vivint goods and services that the Plaintiff is attempting to certify in his motion for class certification. II. THE EXPERT OPINION OF RANDALL A. SNYDER Following receipt of the call logs evidencing more than 500,000 telephone calls made promoting Vivint goods and services, all made using the same telephone system at Five9, the Plaintiff retained an expert witness to opine on the technology used to deliver the telephone calls, as a common question capable of class-wide determination in this case is whether the phone calls at issue were made using a prerecorded voice or ATDS, such as a predictive dialer or other equipment with the capacity to dial numbers without human intervention. Buslepp, 2012 WL , at *2 (quoting FCC 2003 Order, 18 FCC Rcd at 14092, para. 132). The complete opinions of Mr. Snyder are set forth in detail at his deposition and in his expert report that was submitted to the Court as an attachment to the Plaintiff s motion for class certification. In that report, Mr. Snyder states: 3 ROI Solutions LLC was also briefly used for a few months in 2010, before the transition to DirectAccess. See Rookstool Dep. Vol. II, 303:10-19 (June 4, 2013) (attached as Exhibit 2). 3

5 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 4 of 14 I have over 28 years of experience in telecommunications network and system architecture, engineering, design and technology. I am an expert in the fields of both wireline and wireless telecommunications networking technology. I have been a testifying or consulting expert in over 60 cases regarding cellular telecommunications technology, including 33 cases regarding the TCPA and associated regulations. In addition, I have been retained as an expert by both plaintiffs and defendants in cases regarding the TCPA. 4 I have taught classes and seminars on both wireline and wireless technology, have been a panelist and speaker at conferences as an expert in telecommunications networks, and have been issued 15 patents on telecommunications network technology, and have consulted for and been employed by many wireless telecommunications companies including McCaw Cellular, AirTouch, AT&T Wireless, AT&T Mobility, Lucent, Nokia, Ericsson, Nextwave, MCI, Sprint and other telecommunications technology vendors and service providers. 5 The TCPA prohibits unsolicited voice and text calls to cellular telephone numbers using an Automatic Telephone Dialing System ( ATDS ), which the statute defines as equipment which has the capacity (i) to store or produce telephone numbers to be called, using a random or sequential number generator; and (ii) to dial such numbers. Additionally, it is my understanding that the FCC has issued further regulations that also define an ATDS as including the capacity to dial telephone numbers from a provided list or database of telephone numbers without human intervention. 6 Based on my review of the relevant documents and the facts described above, it is my expert opinion that cellular telephone calls made from Vivint to the Plaintiff were made using an ATDS as defined within the TCPA and additional regulations promulgated thereunder. 7 It is my understanding that Vivint employed lead generators Blue Dolphin Media, Inc. and Axium, who used telecommunications services provided by Five9 for the purpose of telemarketing to consumers. 8 According to Mr. Jody Rookstool, owner of Axium Marketing, LLC, Revocalize, LLC and Savantius, LLC, in his deposition (see Rookstool Dep. [Vol. I] ) and describing a general process for how calls were made on their behalf, They had a third party dialer. You would load the data [list of telephone numbers] into the dialer, designate the call rate, meaning you designate how many lines were going to be used on a particular campaign. You would assign those calls to a particular agent location within the call center, and the dialer is a predictive dialer. So it would begin dialing. (See Rookstool Dep. [Vol. I] 78:10-17.) According to Ms. Anya Verkhovskaya, in her affidavit, there were 539,488 unique cellular telephone numbers called on behalf of Vivint. 9 4 (Snyder Aff. 5) (attached hereto as Exhibit 3). 5 Id. at 6. 6 Id. at 8. 7 Id. at 9. The extensive documents that Mr. Snyder reviewed to arrive at this conclusion are discussed infra, and they far exceed the review of the Five9 website and Google searches that the Defendant repeatedly mischaracterizes throughout its motion. 8 Id. at Id. at 13. 4

6 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 5 of 14 Five9 provides various software services to its client customers, enabling them to realize a virtual contact center facility. Five9 provides automated and sophisticated software services to companies desiring to communicate with prospective customers via the telephone. These automated services include managing telemarketing campaigns, managing call agents, managing prospective customers and customer lists, call monitoring, technical support, etc. 10 The primary mechanism by which Five9 implements telemarketing services on behalf of their contact center customers is via automatic telephone dialing hardware and software. Five9 provides their automatic telephone dialing services as a hosted solution, also known as a Software as a Service ( SaaS ) solution. A hosted/saas system is a software delivery model whereby software and associated data are centrally hosted in the cloud, meaning a large, centralized computer equipment system serving multiple remote users in real-time, via internet connections. These systems are typically accessed by customer users using a web-based application through a web browser. The web-based application enables contact center customers to input lists of telephone numbers to be subsequently dialed by the hosted automatic telephone dialing system. 11 Five9 provides several types of automatic telephone dialing software services including predictive dialing services. Predictive dialing is a computerized method for dialing lists of telephone numbers commonly used in call center operations. Predictive dialing is a type of automatic telephone dialing as defined by the FCC to make outbound telephone calls without human intervention for sales, telemarketing, collections or other purposes. Predictive dialing also provides the capability to predict the availability of call center agents that can respond to the outbound calls that have been dialed by the predictive dialer and answered by the called party. 12 Vivint hired lead generators that employed automatic telephone dialing services provided by Five9 for the purpose of soliciting prospective customers to buy products or services via telephone calls. The equipment used by Five9 on behalf of Vivint has the capacity to store or produce cellular telephone numbers to be called, using a random or sequential number generator, or from a list of telephone numbers; the equipment used by Five9 on behalf of Vivint did, in fact, store a list of cellular telephone numbers to be called; the equipment used by Five9 on behalf of Vivint has the capacity to dial cellular telephone numbers without human intervention; and the equipment used by Five9 on behalf of Vivint did, in fact, dial cellular telephone numbers without human intervention. 13 III. STANDARD Rule 702 of the Federal Rules of Civil Procedure states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 10 Id. at Id. at Id. at Id. at 20, 24. 5

7 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 6 of 14 (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. More specifically, Rule 703 of the Federal Rules of Civil Procedure reads: An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Rule 702 allows expert testimony on scientific matters, technical matters, or matters involving other specialized knowledge so long as the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011) (emphasis in original) (internal quotation marks omitted). The touchstone of the rule is whether the testimony will assist the jury. Id. Additionally, [u]nlike an ordinary witness an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation, Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993) (citing Fed. R. Evid. 702, 703), so long as the opinion is based on the expert s knowledge, skill, experience, training, or education. Ellis v. Navarro, No. No , 2012 WL , at *6 (N.D. Cal. Aug. 17, 2012) (citing Fed. R. Evid. 702); see also Wonderland Nurserygoods Co., Ltd. v. Thorley Indus., LLC, No , 2013 WL , at *4 (W.D. Pa. Dec. 5, 2013) ( [E]ven if an expert does not have a concrete methodology, the expert s testimony can still assist the average juror and prove to be helpful. ). 6

8 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 7 of 14 Mr. Snyder s opinions are undoubtedly helpful in this case to analyzing the relevant evidence and educating the Court about telemarketing industry practices and procedures, and Mr. Snyder s opinions would be helpful to the Court in analyzing the evidence and arguments before it and drawing its own conclusions as to the class certification requirements. IV. ARGUMENT Mr. Snyder is a telecommunications expert with over 25 years of telecommunications industry experience and over ten years of both hands-on and consulting experience directly conducting, overseeing, and consulting on telemarketing campaigns of the very type at issue in this litigation. He offers one key opinion in this case that the phone calls to the putative class members were made using equipment that dialed their numbers without human intervention, from a list of stored numbers. (Snyder Aff. 24.) A. Mr. Snyder s Opinions offered in this case are based upon review of relevant facts. In its motion, Defendant takes great effort to attack merely part of the process employed by Mr. Snyder in rendering his opinion, rather than attacking the heart of his testimony. This is undoubtedly because the factual basis for those opinions are straightforward, as is Mr. Snyder s conclusion that the use of Five9 s predictive dialing service by the lead generators hired by Vivint has the capacity to and did, in fact, dial numbers without human intervention. First, Defendant endeavors to attack Mr. Snyder s professionalism by blankly stating, Despite the statement to the contrary in paragraph 2 of his affidavit, Mr. Snyder has no personal knowledge of any of the information contained in his affidavit and that the sole basis for Mr. Snyder s testimony is his review of the Five9 website and some Google searches 14. See (DE 14 After this statement, the Defendant explains in a footnote that Mr. Snyder also mentioned some other documents, but must have been confused claiming that he didn t understand that Vivint s lead generators also used the Five9 system. This is also wrong. See Snyder Dep., 8:4-7

9 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 8 of at 5). This representation is patently false. Mr. Snyder s affidavit identifies the information used to arrive at his opinions in his report. In addition to his background knowledge with 25 years of telemarketing communications experience, his education and training in the field, Mr. Snyder reviewed the following documents: Plaintiffs First Amended Complaint; Defendant Vivint, Inc. s Motion to Dismiss Plaintiff s Second Amended Complaint and Memorandum in Support; The MP3 call recording from Vivint to Mr. Matthew Benzion; Deposition of Mr. Jody Rookstool dated May 9, 2013; Deposition of Mr. Michael Guardabasco dated May 31, 2013; Deposition of Jesse Leishman dated August 8, 2013; Affidavit of Anya Verkhovskaya dated September 25, 2013; Telephone Consumer Protection Act of 1991, 47 U.S.C. 227 ( TCPA ) and regulations promulgated thereunder; and FCC Report and Orders dated July 3, 2003 and February 15, (Snyder Aff. 4). Even further, Mr. Snyder s opinion is consistent with the testimony of the lead generator involved in actually making the calls. As explained by Axium s owner, Jody Rookstool: [DirectAccess] had a third-party dialer. You would load the data into the dialer, designate the call rate, meaning you designate, you know, how many lines were going to be used on a particular campaign. You would assign those calls to particular agent locations within the call center. And the dialer is a you know, it s [a] predictive dialer, so it would begin dialing. And when -- if you have a group of agents and when a call would connect, an agent would immediately be connected to that call, and the agent would begin interacting with the lead. 13 (Nov. 21, 2013) ( Q. When you say they, do you mean calls made by Vivint or calls made by some of the lead generators that you mentioned? A. Perhaps I should clarify. Calls either made on behalf of Vivint or calls made on behalf of Vivint by one or more companies that were employed by Vivint. So that there are many parties involved here, but Five9s was the primary one that was made obvious to me, and through the other depositions, the organization that actually automatically dialed these numbers. ) (attached hereto as Exhibit 4). To represent that Mr. Snyder does not understand that Vivint s lead generators also used the Five9 system is inaccurate. 8

10 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 9 of 14 Rookstool Dep. Vol. I, at 79:9-20; compare Hicks v. Client Servs., Inc., No , 2009 WL , at *5 (S.D. Fla. June 9, 2009) (finding that particular device calls a set of numbers without human intervention based on defense testimony that once the numbers are entered into the dialer, the device will continue to dial numbers regardless of whether live employees are present, and if a live person answers, it will connect that person with Defendant s employee ). Mr. Snyder quotes Mr. Rookstool s deposition transcript in his report, which he reviewed in rendering his opinion about the Five9 predictive dialing service, and using additional discovery and other information available to him, combined with decades of experience concluded that the Five9 equipment used on behalf of Vivint in this case (1) has the capacity to store or produce cellular telephone numbers to be called, using a random or sequential number generator, or from a list of telephone numbers[,] (2) did store a list of numbers to be called, (3) has the capacity to dial cellular telephone numbers without human intervention[,] and (4) did, in fact, dial cellular telephone numbers without human intervention. (Snyder Aff. 24.) To reach this conclusion, Mr. Snyder reviewed the documents identified above, as well as reviewed other information regarding the Five9 dialing system that was available to him. Defendant s motion tries to make significant the fact that an in-person inspection of the Five9 system was not done by Mr. Snyder, and goes on to state that [n]one of the information he viewed at the Five9 website or as a result of his Google searches was produced or even identified. (DE 144 at 7). As an initial matter, this is another factual misrepresentation made by the Defendant. On November 26, 2013, prior to the filing of the Defendant s motion, counsel for the Plaintiff provided to Defendant all of the information and websites reviewed by Mr. Snyder that was mentioned at his deposition. See Exhibit 5, attached. Included in those documents was even a video providing a step-by-step process for using the Five9 predictive dialer. See 9

11 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 10 of 14 (last visited December 4, 2013). The instructions in that video, as well as all of the other information reviewed by Mr. Snyder, support his conclusion. Defendant s position that an in-person inspection of the dialing software used through Five9 does not grasp the point that the Five9 system is used exclusively through the internet, as pointed out by Mr. Snyder in his report. (Snyder Aff. 12.) As such, insinuating that using documents explaining an internet-based system obtained from the internet is improper should not be well-received. B. Mr. Snyder s opinion regarding the equipment utilized in transmitting the telemarketing calls at issue is not a legal conclusion. Mr. Snyder s opinion regarding the equipment used in transmitting the telemarketing calls to Plaintiff and the other class members is not an improper legal conclusion. While Mr. Snyder does opine on whether an ATDS was utilized, such an opinion is not a legal conclusion, but rather a factual conclusion as to an element of a TCPA claim. That is, Mr. Snyder does not opine as to whether Defendant violated the TCPA, simply whether the messages were sent using equipment falling within the definition of an ATDS. See Buslepp v. B & B Entm t, LLC, No , 2012 WL , at *1 (S.D. Fla. May 3, 2012) (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009), for the proposition that the issue of whether defendant s device is an ATDS is question of fact ); see Satterfield, 569 F.3d at 951 (considering testimony from Mr. Snyder and an opposing expert to ultimately decide that there is a genuine issue of material fact whether this telephone system has the requisite capacity to be considered an ATDS under the TCPA ). In his affidavit, Mr. Snyder objectively and correctly states the definition of an ATDS under the TCPA, (Snyder Aff. 16), and then concludes that the calls were transmitted using 10

12 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 11 of 14 equipment which has the capacity to store or produce cellular telephone numbers to be called, using a random or sequential number generator, or from a list of telephone numbers[,] as well as with the capacity to dial cellular telephone numbers without human intervention[.] (Snyder Aff. 24). The fact that Mr. Snyder also states that an ATDS was used, and not merely that equipment that matches the definition of an ATDS was used, does not render his conclusion regarding the abilities and use of the equipment a legal conclusion. Although Mr. Snyder s opinion as to the utilization of a certain type of equipment does not address an ultimate issue or anything that requires a legal analysis or legal conclusion, even if this were the case, such an opinion would still be permissible under the Federal Rules of Evidence. See Fed. R. Evid. 704(a) ( An opinion is not objectionable just because it embraces an ultimate issue. ). Mr. Snyder s reference to the TCPA and FCC regulations is also not improper; an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion. Darensburg et al v. Metro. Transp. Comm n, No , 2008 WL , *2 (N.D. Cal., Sept. 15, 2008) (citing Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998 (9th Cir. 2004). In fact, another court recently rejected similar arguments against the use of Mr. Snyder as an expert in another putative TCPA class action. In Smith v. Microsoft, Corp., Mr. Snyder gave his opinion that an opt-in as has been similarly argued in this case is not really evidence of consent namely because, even if people agreed to receive messages from C & S, they did not consent to receive messages from Microsoft or about the Xbox. Smith v. Microsoft Corp., No , 2013 WL , at *4 (S.D. Cal. Dec. 10, 2013). The court found in favor of the plaintiff and Mr. Snyder, stating: The Court also finds that Snyder s opinions are not improper legal conclusions. It is uncontested that Snyder is unqualified to analyze a Ninth Circuit case and state 11

13 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 12 of 14 a legal conclusion by applying the facts of this case to his interpretation of the law. However, Snyder merely discusses a case for which he served as an expert witness. He does not draw any legal conclusions or principles, much less apply the facts of this case to one, nor does he suggest that the Court is bound to analyze Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir.2009), as he does. Microsoft has distinguished the case. Accordingly, at this stage in the proceedings, the Court sees no harm in allowing this testimony. The Court finds no reason to doubt the reliability, relevance, or foundation of Snyder s testimony regarding industry opt-in procedures, and therefore OVERRULES these objections. Smith, 2013 WL , at *5 (internal citations omitted). The same is true here. Mr. Snyder is not drawing a legal conclusion as to whether Vivint violated the TCPA; he only offers his opinion based on years of experience, expertise in the field, and an examination of the relevant facts and materials presented in this particular case as to the technology used to make calls on behalf of Defendant. Whether the dialing equipment had the requisite capacity to dial cellular numbers without human intervention is an unrebutted factual determination, not a legal conclusion. Mr. Snyder s opinion is proper, and the motion to strike it should be denied. V. CONCLUSION Mr. Snyder s expert opinion regarding the technology used to call the putative class members was based on over 25 years of industry experience paired with a thorough review of relevant materials, and ultimately concurs with the testimony of the lead generator involved in actually making the calls. 15 Mr. Snyder is a qualified expert, and his testimony will assist the 15 Not only does Axium s owner admit that the dialer is a predictive dialer[,] but it is obvious that no one was physically dialing the calls made in this case. Robo-agents were only connected to calls after the dialer made them. See Rookstool Dep. Vol. I, 79:17-20 ( And when -- if you have a group of agents and when a call would connect, an agent would immediately be connected to that call, and the agent would begin interacting with the lead[.] ); accord Rookstool Dep. Vol. II, 345:12-21 ( The system itself worked by, you d set up campaigns inside of their server where you would load specific data that would be tied to that campaign that the dialer would begin calling through. You set the volume of dials, meaning how fast do you want it to 12

14 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 13 of 14 trier of fact in ultimately determining that Vivint did, in fact, violate the TCPA by causing the cell phones of Plaintiff and the other putative class members to be called using an ATDS and prerecorded voice without prior express consent. Vivint s motion should be denied. Dated: December 16, 2013 Respectfully submitted, MATTHEW BENZION, individually and on behalf of others similarly situated By: /s/ Scott D. Owens Scott D. Owens (No ) SCOTT D. OWENS, P.A. 664 E. Hallandale Beach Blvd. Hallandale, FL Telephone: (954) Facsimile: (954) scott@scottdowens.com Edward A. Broderick Anthony I. Paronich (admitted pro hac vice) Broderick Law, P.C. 125 Summer St., Suite 1030 Boston, MA Telephone: (617) ted@broderick-law.com anthony@broderick-law.com Matthew P. McCue (admitted pro hac vice) Law Office of Matthew P. McCue 1 South Avenue, Suite 3 Natick, MA Telephone: (508) mmccue@massattorneys.net Alexander H. Burke (admitted pro hac vice) BURKE LAW OFFICES, LLC dial depending on how many agents you have, and the dialer would connect those to the Direct Access server which connected to the script engine. ). 13

15 Case 0:12-cv WJZ Document 165 Entered on FLSD Docket 12/16/2013 Page 14 of 14 CERTIFICATE OF SERVICE 155 N. Michigan Ave., Suite 9020 Chicago, IL Telephone: (312) Daniel J. Marovitch (admitted pro hac vice) MAROVITCH LAW FIRM, LLC 233 S. Wacker Dr., 84th Floor Chicago, IL Telephone: (312) Counsel for Plaintiff I hereby certify that on December 16, 2013, I electronically filed the foregoing document with the Clerk of the Court, using the CM/ECF system, which will send a notice of electronic filing to the following counsel of record: Elizabeth J. Campbell LOCKE LORD, LLP 3333 Piedmont Road, N.E. Terminus 200, Suite 1200 Atlanta, GA ecampbell@lockelord.com Bruce E. Reinhart MCDONALD HOPKINS LLC 505 South Flagler Drive, Suite 300 West Palm Beach, FL breinhart@mcdonaldhopkins.com Thomas J. Cunningham Martin W. Jaszczuk LOCKE LORD, LLP 111 South Wacker Drive Chicago, IL tcunningham@lockelord.com mjaszczuk@lockelord.com Counsel for Defendant /s/ Scott D. Owens Scott D. Owens Florida Bar No One of Plaintiff s Attorneys