Filing # E-Filed 01/31/ :35:29 PM

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1 Filing # E-Filed 01/31/ :35:29 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION SHARON MEMMER, individually and on behalf of all others similarly situated, Case No.: Plaintiff, v. CLASS REPRESENTATION BRIGHT HOUSE NETWORKS, LLC, d/b/a BRIGHT HOUSE SPECTRUM, d/b/a SPECTRUM, a foreign limited liability company, and CHARTER COMMUNICATIONS OPERATING, LLC, a/k/a CHARTER COMMUNICATIONS, a foreign limited liability company, Defendant. / CLASS-ACTION COMPLAINT COMES NOW, SHARON MEMMER (hereinafter, Plaintiff ), by and through undersigned counsel pursuant to Rules and 1.220, Florida Rules of Civil Procedure, on behalf of herself and all others similarly situated, and hereby sues BRIGHT HOUSE NETWORKS, LLC, d/b/a BRIGHT HOUSE SPECTRUM, d/b/a SPECTRUM (hereinafter Defendant Bright House ), and CHARTER COMMUNICATIONS OPERATING, LLC, a/k/a CHARTER COMMUNICATIONS (hereinafter, Defendant Charter ) (hereinafter collectively with Defendant Bright House, Defendants ). In support thereof, Plaintiff states: PRELIMINARY STATEMENT This is a class action brought pursuant to Rule 1.220, Florida Rules of Civil Procedure, against Defendants for their routine and systematic violations of both the Florida Consumer Collection Practices Act, Chapter 559, Florida Statutes (hereinafter, FCCPA ) and the Florida 1

2 Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (hereinafter, FDUPTA ). Specifically, Defendants: Repeatedly and systematically attempt to collect illegitimate consumer debts from Florida consumers in violation of the FCCPA via unlawful billing statements (hereinafter, Form Statements ) asserting as due an Illegitimate WiFi Activation Fee (as that term is hereinafter defined) from Florida consumers without a legal or contractual basis to collect said fee; and Repeatedly and systematically engage in unfair methods of competition, unconscionable acts and practices, and unfair and deceptive practices in conducting trade or commerce in the state of Florida in violation of the FDUTPA by unlawfully and without authority or justification asserting certain Florida customers ordered new WiFi service and subsequently invoicing them and taking payment for such illegitimate services. PARTIES, JURISDICTION & VENUE 1. This Class-Action Complaint is an action for damages that exceeds $15, exclusive of attorneys fees and costs. 2. Jurisdiction and venue for purposes of this action are conferred by Florida Statutes, Sections , and Plaintiff is a resident of the state of Florida and at all material times to this Class- Action Complaint resides in Pinellas County, Florida. 4. The alleged violations described in this Class-Action Complaint occurred and therefore accrued in Pinellas County, Florida, and with respect to proposed Classes as defined herein throughout the state of Florida. As such, venue of this action is proper in this Court pursuant to Florida Statutes, Section , et seq. 5. Defendant Bright House is a foreign limited liability company existing under the laws of the state of Delaware that, itself and through its employees, representatives, and/or agents, regularly markets and provides telecommunications and broadband services (i.e., cable, voice, and 2

3 internet) to consumers throughout Pinellas County and the state of Florida, ultimately invoicing those consumers for said services. At the time of the filing of this Class-Action Complaint, Defendant Bright House is headquartered at Powerscourt Drive, St. Louis, MO, Defendant Charter is a foreign limited liability company existing under the laws of the state of Delaware that, itself and through co-defendant Bright House, its employees, representatives, and/or agents, regularly markets and provides telecommunications and broadband services (i.e., cable, voice, and internet) to consumers throughout Pinellas County and the state of Florida, ultimately invoicing those consumers for said services. At the time of the filing of this Class-Action Complaint, Defendant Charter is headquartered at Powerscourt Drive, St. Louis, MO, and manages and/or controls Defendant Bright House. GENERAL ALLEGATIONS 7. On or about May 18, 2016, Defendant Charter and its affiliates acquired Defendant Bright House and Time Warner Cable for an estimated $71 billion. 8. At the time of this Class-Action Complaint, Defendant Bright House continues to operate and does business in the state of Florida as Spectrum. 9. At the time of this Class-Action Complaint, Defendant Charter operates and does business in the state of Florida as Bright House and/or Spectrum. 10. At all material times herein, Defendants attempts to collect illegitimate debts from Plaintiff and Class Members, including but not limited to, the Illegitimate WiFi Activation Fee or Debt, as those terms are hereinafter defined. Please see attached a true and correct copy of Plaintiff s Form Billing Statement (as that term is herein defined) labeled as Exhibit A. 11. At all material times herein, Defendants are each a creditor as defined by Florida Statutes, Section (5). 3

4 12. At all material times herein, Plaintiff and Class Members are debtors or consumers as defined by Florida Statutes, Section (8). 13. At all material times herein, the Debt results from a transaction for goods or services and were incurred primarily for personal, household or family use. 14. At all material times herein, Defendants are each a person subject to Florida Statutes, Section See Florida Statutes, Section (7); Schauer v. General Motors Acceptance Corp., 819 So. 2d 809 (Fla. 4th DCA 2002). 15. At all material times herein, Defendants correspondence with respect to the Debt complained of below qualifies as communication as defined by Florida Statutes, Section (2). 16. At all material times herein, Defendants provided goods or services to consumers in the state of Florida, thereby engaging in trade or commerce as that term is defined by and used in Florida Statutes, Section (8). 17. At all material times herein, Plaintiff and Class Members are consumers as defined by Florida Statutes, Section (7). 18. At all material times herein, Defendants false assertions to Plaintiff and Class Members regarding their WiFi services and subsequent invoicing regarding the Illegitimate WiFi Activation Fee is collectively an unfair method of competition, an unconscionable act or practice, and/or and unfair or deceptive act or practice in Defendants trade or commerce conduct, as those phrases are used in Florida Statutes, Section At all material times herein, Defendants act themselves, through each other, its agents, employees, officers, members, directors, successors, assigns, principals, trustees, sureties, subrogees, representatives, third-party vendors, attorneys, agents and/or insurers. 4

5 20. All conditions precedent to the filing of the action occurred or have been waived by Defendants. REPRESENTATIVE PLAINTIFFS ALLEGATIONS 21. As noted above, in May 2016, Charter Communications, Inc., Defendant Charter s parent company acquired Defendant Bright House (hereinafter, Bright House Acquisition ). 22. Defendant Bright House continues to operate in the state of Florida at the direction of, and for the benefit of, Defendant Charter and its affiliates. 23. After the Bright House Acquisition, Defendants continued serving former Defendant Bright House customers who were under contract with Defendant Bright House for WiFi services before and up through the date of the Bright House Acquisition (hereinafter, Bright House Legacy WiFi Customer(s) ). 24. Both prior to and after the Bright House Acquisition, Defendants maintained that Bright House legacy customers aren t going to see any change in their service or price package. Please see attached a true and correct copy of a Tampa Bay Times article labeled Exhibit B, (last accessed January 27, 2017). 25. Plaintiff has maintained and continued the same internet and WiFi service with Defendant Bright House for many years, dating back to a date well before the Bright House Acquisition. As such, Plaintiff is a Bright House Legacy WiFi Customer. 26. Plaintiff did not, at any time after the Bright House Acquisition, order new WiFi services from the Defendants. 27. Notwithstanding Defendant Bright House s aforementioned representation to Bright House Legacy WiFi Customers regarding their WiFi services, without authorization, 5

6 Defendants illegitimately asserted Plaintiff had newly enrolled for WiFi service and charged her a $9.99 Spectrum WiFi activation fee (i.e., the Illegitimate WiFi Activation Fee) for such service. 28. Defendants knowingly undertook this conduct despite the fact that Plaintiff is a Bright House Legacy WiFi Customer who has had WiFi services with Defendant Bright House for years and never terminated her services. Defendants nonetheless charged Plaintiff $9.99 for a WiFi activation that never occurred (i.e., the Illegitimate WiFi Activation Fee). 29. Specifically, on or about January 13, 2017, Defendant sent Plaintiff Sharon a uniform monthly billing statement (hereinafter, Form Billing Statement ) in an attempt to collect the illegitimate Debt, namely the Illegitimate WiFi Activation Fee. 30. Plaintiff s January 13, 2017 Form Billing Statement, sent by Defendants to Plaintiff, itemizes a One Time Charge of $9.99 on page 1 and details said charge as a Spectrum WIFI Activation charge of $9.99 on page 2 of 4. Please see attached a true and correct copy of Plaintiff s Form Billing Statement labeled as Exhibit A. 31. Plaintiff did not change or alter her internet or WiFi service with Defendants prior to Defendants advising Plaintiff that they had enrolled Plaintiff in a new service and were attempting to collect the Illegitimate WiFi Activation Fee from Plaintiff. 32. Plaintiff did not activate a WiFi or other internet service with Defendants after the Bright House Acquisition and prior to Defendants advising Plaintiff she was enrolled in such new service and attempting to collect the Illegitimate WIFI Activation Fee (i.e., the Debt) from Plaintiff. 33. Bright House Legacy WiFi Customers, as that term is herein used, does not include any consumers who ordered new WiFi services from Defendants after the date of the Bright House Acquisition. 6

7 34. Plaintiff paid the Debt and the Illegitimate WiFi Activation Fee as a result of receiving the Form Billing Statement from Defendants. As a result, Plaintiff does not otherwise have the use or benefit of her monies that were used paid the Debt. 35. Defendants continue to attempt to collect the illegitimate Debt (and in fact have collected the illegitimate Debt) directly from Plaintiff and Class Members in violation of the FCCPA and the FDUTPA. 36. Defendants conduct, as described above, is a knowing, willful, and continuing violation of Plaintiff s and Class Members FCCPA and FDUTPA rights. 37. Given Defendants conduct, and their apparent intention and ability to continue to falsely and unilaterally assert WiFi service orders and/or collect the Debt directly from Plaintiff and Class Members in violation of said consumer protection laws, Plaintiff and Class Members have no adequate remedy at law. 38. Florida Statutes, Section provides for an award of up to $1, in statutory damages against each Defendant, actual damages, and an award of attorneys fees and costs to Plaintiff should Plaintiff prevail in this action against Defendants; it also provides for declaratory and injunctive relief. 39. Florida Statutes, Section provides for an award of actual damages, and an award of attorneys fees and costs to Plaintiff should Plaintiff prevail in this action against Defendants; it also provides for declaratory judgment and injunctive relief. CLASS ACTION ALLEGATIONS 40. Pursuant to Rules 1.220(a), 1.220(b)(1), 1.220(b)(2) and/or 1.220(b)(3), Florida Rules of Civil Procedure, Plaintiff brings this class-action on behalf of herself and all other consumers and consumer debtors similarly situated who are members of one or more of the 7

8 following classes defined as: FCCPA Statutory Damage Class All Bright House Legacy WiFi Customers to whom Defendants sent, in collecting or attempting to collect a Debt (i.e., an Illegitimate WIFI Activation Fee) as defined and asserted herein, a Form Billing Statement in substantially the same form as the billing statement attached as Exhibit A, to an address in the state of Florida, for the purpose of collecting the illegitimate consumer Debt in violation of the FCCPA, where such improper Debt collection activity took place or is continuing to take place within a two-year period of time prior to the filing of this Class-Action Complaint and up through the present date (hereinafter, FCCPA Statutory Damage Class or FCCPA Statutory Damage Class Members ). FCCPA Actual Damage Sub-Class All persons who are members of the FCCPA Statutory Damage Class, by virtue of Defendants improper conduct in collecting or attempting to collect the alleged Debt (i.e., an Illegitimate WIFI Activation Fee) as defined and asserted herein, who incurred actual damages, including but not limited to paying the illegitimate Debt or any portion thereof, or who incurred attorneys fees or costs in responding to or disputing Defendants attempts to collect the Debt, within a two-year period of time prior to the filing of this Class- Action Complaint and up through the present (hereinafter, FCCPA Actual Damage Sub-Class or FCCPA Actual Damage Sub-Class Members ). FDUTPA Class All Bright House Legacy WiFi Customers to whom Defendants represented were enrolled in a new WiFi service and who were invoiced for an activation fee (i.e., the Illegitimate WIFI Activation Fee) via a Form Billing Statement in substantially the same form as the billing statement attached hereto as Exhibit A, to an address in the state of Florida and who paid the illegitimate Debt, in violation of the FDUTPA for the same reasons stated herein, where such improper trade or commerce took place or is continuing to take place within a four-year period of time prior to the filing of this Class- Action Complaint and up through the present date (hereinafter, FDUTPA Class or FDUTPA Class Members ). 8

9 41. The FCCPA Statutory Damage Class Members together with the FCCPA Actual Damage Sub-Class Members shall at all times herein collectively be referred to as the FCCPA Class Members or FCCPA Classes. 42. The members of all of the Classes described above shall hereinafter be collectively referred to as Class Members or Classes. 43. Excluded from the Classes are all directors, officers, agents, and employees of Defendants and the courts to which this case may be assigned. Also excluded from the Classes are the Judge, members of the Judge's staff, and the Judge's immediate family members. 44. All recipients of the Form Billings Statements whether paper, electronic or otherwise namely Plaintiff and Class Members, that included the Illegitimate WiFi Activation Fee, are victims of the same improper conduct, unlawful representations and demands of Defendants. 45. This action is properly brought as a class action under Rule for the following reasons: (a) These Classes each consist of hundreds if not thousands of persons, a number so numerous that joinder of all Class Members, whether otherwise required or permitted, is impracticable; (b) There are questions of law and fact common to all Class Members, which questions predominate over any question affecting only individual Class Members. These include, but are not necessarily limited to, the following questions of law and fact: i. Whether Defendants knowingly attempted to collect an illegitimate Debt from Plaintiff and Class Members in violation of the FCCPA; ii. Whether Defendants actually collected an illegitimate Debt from 9

10 Plaintiff and Class Members in violation of the FCCPA; iii. Whether Plaintiff and Class Members suffered statutory damages as a result of Defendants unlawful Debt collection practices described herein, and in what amount, under the FCCPA; iv. Whether Class Members suffered actual damages as a result of Defendants unlawful Debt collection practices described herein, and in what amount, under the FCCPA; v. Whether Plaintiff and Class Members are entitled to declaratory and/or injunctive relief pursuant to the FCCPA and/or the FDUTPA; vi. Whether Defendants were engaged in trade or commerce when they asserted to Plaintiff and Class Members via their Form Billing Statements that they had ordered new WiFi service when in fact they had not; vii. Whether Defendants assertions to Plaintiff and Class Members that they had ordered and were financially responsible for a one-time Spectrum WiFi Activation Charge was conduct undertaken in violation of the FDUTPA; viii. Whether, if Defendants are found to have knowingly collected an illegitimate Debt in violation of Section (9), such conduct and resulting liability comes under s statute that proscribes unfair, deceptive, or unconscionable acts, thereby subjecting the Defendants to FDUTPA liability for such violations; ix. Whether FDUTPA Class Members are entitled to actual damages, and in what amount, under the FDUPTA; x. Whether Defendants acted or refused to act on grounds generally applicable to Class Members, thereby making final injunctive relief or declaratory 10

11 relief concerning Plaintiff and the Classes as a whole appropriate under Florida Statutes, Section 1.220(b)(2); and xi. Whether Plaintiff and Class Members, as the prevailing parties in this Class-Action Complaint, are entitled to reasonable attorneys fees and costs under the FCCPA and/or the FDUTPA, and if so, in what amount. 46. Defendants act or refuse to act on grounds generally applicable to the Classes in that Defendants engaged in a routine and systematic course of conduct consisting of its utilization of its Form Billing Statements in advising Class Members they were enrolled in an illegitimate, unauthorized new service and in attempting to collect the illegitimate Debt (i.e., the Illegitimate WiFi Activation Fee) from Plaintiff and Class Members. 47. Injunctive and declaratory relief is appropriate with respect to Classes as a whole as a result of Defendants routine and systematic course of conduct. 48. Plaintiff s claims are typical of the claims of the proposed Class Members. 49. Plaintiff will fairly and adequately protect the interests of the Class Members, and Plaintiff has retained as counsel attorneys that are experienced in consumer, class action and complex litigation. 50. A class action is superior to other available methods for the fair and efficient adjudication of this controversy for at least the following reasons: (a) Given the size of the proposed Classes, individual joinder of each Class Member s claims is impracticable; (b) Given the relatively small damages suffered by individual Class Members, as well as the unlikelihood that many Class Members will know their rights have been violated, most Class Members have little ability to prosecute an individual action due to 11

12 the complexity of issues involved in this litigation and the significant costs attendant to litigation on this scale; (c) When the liability of Defendants is adjudicated, claims of all members of the Classes can be determined by the Court; (d) This action is particularly well-suited for declaratory and/or injunctive relief on behalf of all Class Members as Defendants have acted or refused to act on grounds generally applicable to all Class Members, thereby making final injunctive relief or declaratory relief concerning Plaintiff and the Classes as a whole appropriate; (e) This action will cause an orderly and expeditious administration of the Class Members claims, and economies of time, effort and expense will be fostered and uniformity of decisions will be insured; (f) Other available means of adjudicating Plaintiff s and Class Members claims such as the filing of hundreds if not thousands of individual actions brought separately and pursued independently in courts throughout the state of Florida are impracticable and inefficient; (g) Without a class action, Class Members will continue to suffer damages and Defendants violations of law will proceed without remedy while they continue their unfair and deceptive trade practices, as well as their unlawful Debt collection activities; and (h) This action presents no difficulties that would preclude management by the Court as a class action. 51. Florida Statutes, Section provides, in the case of a class action, for statutory damages in such amount as the court may allow for all other FCCPA Class Members, without regard to a minimum individual recovery, not to exceed the lesser of $500, or 1 per centum 12

13 of the net worth of Defendants, and an award of attorneys fees and costs to Plaintiff, should Plaintiff prevail in this matter against either Defendant. Declaratory and injunctive relief is also available to the FCCPA Class Members. COUNT ONE: UNFAIR DEBT COLLECTION PRACTICE VIOLATION OF FLORDA STATUTES (9) Plaintiff re-alleges paragraphs one (1) through fifty-one (51) as if full restated herein and further states as follows: 52. Defendants are subject to, and violated the provisions of, Florida Statutes, Section (9) by knowingly attempting to collect an illegitimate Debt from Plaintiff and FCCPA Statutory Damage Class Members. 53. Specifically, Defendants, via its Form Billing Statements, assert to Plaintiff and FCCPA Statutory Damage Class Members that new WiFi services were ordered and attempt to collect a $9.99 alleged Debt, namely the Illegitimate WiFi Activation Fee, from FCCPA Statutory Damage Class Members who did not alter, amend, activate, or order WiFi services eligible to be charged and invoiced a WiFi Activation Fee. 54. Defendants know the Illegitimate WiFi Activation Fees are not legitimate as to any FCCPA Statutory Damage Class Members, yet Defendants attempt to collect such illegitimate Debts from Plaintiff and other FCCPA Statutory Damage Class Members who did not alter, amend, activate, or order WiFi services. 55. Defendants did not accidentally assert the new WiFi services ordered on the Form Billing Statements or accidentally send the Form Billing Statements with the Illegitimate WiFi Activation Fee contained therein to the Plaintiff and FCCPA Statutory Damage Class Members. 56. Instead, Defendants above-referenced conduct constitutes the knowing collection 13

14 of illegitimate Debts from Plaintiff and FCCPA Statutory Damage Class Members in violation of the FCCPA, Section (9). See generally, Exhibits. A and B. 57. As a direct and proximate result of each Defendants actions, Plaintiff and other FCCPA Statutory Damage Class Members sustained damages as defined by Florida Statutes, Section COUNT TWO: DECEPTIVE AND UNFAIR TRADE PRACTICES ACT VIOLATION OF FLORIDA STATUTES, SECTION (1) Plaintiff re-alleges paragraphs one (1) through forty-nine (49) as if fully restated herein and further states as follows: 58. Defendants are subject to, and have violated the provisions of, Florida Statutes, Section (1) by conducting and engaging in unfair and deceptive acts or practices in the conduct of any trade or commerce in violation of the FDUTPA. 59. Specifically, Plaintiff and FDUTPA Class Members did not alter, amend, or activate WIFI services. 60. Defendants, however, engaged in unfair and deceptive acts in the conduct of trade or commerce by nonetheless routinely and systematically asserting to Plaintiff and FDUTPA Class Members via Form Billing Statements that they had ordered new WiFi services and charging them $9.99 (i.e., the Illegitimate WiFi Activation Fees) for such purported services. 61. Defendants unfairly engaged in such conduct with a profit-motive in order to unlawfully enrich themselves at the expense of Plaintiff and FDUPTA Class Members. 62. Furthermore, Defendants violated Florida Statutes, Section (9) when they knowingly collected an illegitimate Debt from the FDUTPA Class Members. See Count I, supra. The FCCPA is a statute that proscribes unfair, deceptive, or unconscionable Debt collection 14

15 practices, the violations of which, is a violation of the FDUTPA. 63. As such, those Bright House Legal Customers that paid the Illegitimate WiFi Activation Fee (i.e., Plaintiff and FDUTPA Class Members) and incurred actual damages as a direct and proximate result of Defendants conduct as enumerated herein, are entitled to actual damages as defined by Florida Statutes, Section , including statutory interest on monies paid, as provided for by Florida Statutes. PRAYER FOR RELIEF WHEREFORE, as a direct and proximate result of Defendants conduct, Plaintiff and Class Members respectfully requests entry of: a. An Order certifying the Classes requested herein, appointing Plaintiff as class representatives to act on behalf of the Classes, and appointing her attorneys as counsel for the Classes; b. Judgment against Defendants declaring that Defendants have violated the FCCPA and FDUTPA; c. Judgment against Defendants enjoining them from further violations of the FCCPA and FDUTPA as asserted herein; d. Judgment against each Defendants for maximum statutory damages under the FCCPA; e. Judgment against Defendants for actual damages, in an amount to be determined at trial; f. An award of reasonable attorneys fees and costs pursuant to the FCCPA and FDUPTA; and g. Any other such relief the Court may deem proper. 15

16 DEMAND FOR JURY TRIAL Plaintiff and Class Members hereby demand a trial by jury on all issues triable by right. SPOLIATION NOTICE AND DEMAND TO RETAIN EVIDENCE Plaintiff and Class Members hereby give notice to Defendants and demand that Defendants and their affiliates safeguard all relevant evidence paper, electronic documents, or data pertaining to this litigation as required by law. Respectfully submitted, LEAVENLAW /s/ Ian R. Leavengood Ian R. Leavengood, Esq., FBN J. Andrew Meyer, Esq., FBN Aaron M. Swift, Esq., FBN Northeast Professional Center 3900 First Street North, Suite 100 St. Petersburg, FL Phone: (727) Fax: (727) consumerservice@leavenlaw.com ileavengood@leavenlaw.com ameyer@leavenlaw.com aswift@leavenlaw.com Attorneys for Plaintiff and Class Members 16