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Case: 1:14-cv-07952 Document #: 1 Filed: 10/11/14 Page 1 of 11 PageID #:1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION


DAVID IZSAK, individually and on behalf of
all others similarly situated,


Plaintiff,



v.

INC.,

a

Delaware


DRAFTKINGS,
corporation,






Defendant.




Case No. 14-cv-7952


JURY TRIAL DEMANDED


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CLASS ACTION COMPLAINT

Plaintiff David Izsak (“Plaintiff”) brings this Class Action Complaint against Defendant

Draftkings Inc. (“Draftkings”), on behalf of himself and all others similarly situated, and

complains and alleges upon personal knowledge as to himself and his own acts and experiences,

and, as to all other matters, upon information and belief, including investigation conducted by his

attorneys.

I. NATURE OF THE ACTION

1.

Draftkings is a corporation that offers the opportunity to win cash prizes by

competing in daily and weekly fantasy sports contests on the Internet and mobile devices, such

as wireless telephones, in exchange for entry fees. In an effort to market its products and

services, Draftkings sent (or directed to be sent on its behalf) unsolicited text messages to the

wireless telephones of Plaintiff and each of the members of the Class without prior express



Case: 1:14-cv-07952 Document #: 1 Filed: 10/11/14 Page 2 of 11 PageID #:2

written consent1 in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.

(“TCPA”).

2.

Neither Plaintiff nor the other Class members ever consented in writing,

authorized, desired or permitted Draftkings to send text messages to their wireless telephones.

3.

By sending such unauthorized text messages, Draftkings caused Plaintiff and each

of the Class members actual harm, including the aggravation and nuisance that necessarily

accompanies the receipt of unsolicited text messages, and the monies paid to their wireless

carriers for the receipt of such messages.

4.

In order to redress these injuries, Plaintiff seeks an injunction requiring Draftkings

to cease all unsolicited text message activities, an award of statutory damages to the Class

members under the TCPA, and an award for damages for conversion, together with costs and

reasonable attorneys’ fees.

II.

JURISDICTION AND VENUE

5.

This Court has original jurisdiction over the claims in this action pursuant to 28

U.S.C. § 1331 because they arise under the laws of the United States and further, under 28

U.S.C. § 1332(d), because (a) at least one member of the putative class is a citizen of a state

different from Draftkings, (b) the amount in controversy exceeds $5,000,000, exclusive of

interest and costs, and (c) none of the exceptions under that subsection apply to this action.

6.

This Court has personal jurisdiction over Draftkings under the Illinois long-arm

statute, 735 ILCS 5/2-209, because Draftkings engaged in solicitation or service activities within

the State of Illinois. This Court also has personal jurisdiction over Draftkings because a

substantial a portion of the wrongdoing alleged in this Complaint took place in and/or was



1 As of October 16, 2013, prior express written consent is required. See In the Matter of Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278,
Report and Order (FCC Feb. 15, 2012) (amending 47 C.F.R. 64.1200(a)(2)).

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directed toward this State. Draftkings, by sending mass text messages into this State soliciting

business, has sufficient contacts in this State to render the exercise of jurisdiction by this Court

permissible.

7.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a

substantial part of the events giving rise to the claim occurred in this District.

Plaintiff

III.

PARTIES

8.

Plaintiff David Izsak is an individual domiciled in Cook County, Illinois. For

purposes of 28 U.S.C. § 1332, Plaintiff is a citizen of the State of Illinois.

Defendant

9.

Defendant Draftkings is a corporation organized in and existing under the laws of

the State of Delaware with its principal place of business located in Suffolk County,

Massachusetts. For purposes of 28 U.S.C. § 1332, Draftkings is a citizen of the States of

Delaware and Massachusetts.

IV.

FACTUAL BACKGROUND

Background on Unsolicited SMS Activity

10.

In recent years, marketers who have often felt stymied by federal laws limiting

solicitation by telephone, fax machine, and e-mail have increasingly looked to alternative

technologies through which to send bulk solicitations cheaply.

11.

One of the most prevalent alternatives is bulk advertising through so-called Short

Message Services. “Short Message Services” or “SMS” is a messaging system that allows for the

transmission and receipt of short text messages (usually no more than 160 characters) to and

from wireless telephones.

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12.

SMS messages are directed to a wireless device using the telephone number

assigned to the device. When an SMS message is successfully made, the recipient’s wireless

phone rings, alerting him or her that a message is being received. As wireless telephones are

inherently mobile and are frequently carried on their owner’s person, SMS messages may be

received by the called party virtually anywhere in the world.

13.

According to a recent study conducted by the Pew Research Center, “Spam isn’t

just for email anymore; it comes in the form of unwanted text messages of all kinds—from

coupons to phishing schemes—sent directly to user’s cell phones.”2 In fact, “57% of adults with

cell phones have received unwanted or spam text messages on their phone.”3

14.

Unlike more conventional advertisements, SMS message advertisements can

actually cost their recipients money because wireless phone users must pay their wireless service

providers either for each text message call they receive or incur a usage allocation deduction to

their text messaging plan, regardless of whether the message is authorized.

15.

Due to the growing concern over unwanted SMS message advertisements, the

Federal Communications Commission (“FCC”) updated its rules on consent.

16.

As of October 16, 2013, senders of SMS message advertisements for goods or

services must obtain the recipient’s prior express written consent.

Draftkings’ Unsolicited SMS Message Advertisement to Plaintiff

17.

As part of its advertising campaign, Draftkings has sent and continues to send

unsolicited text messages to Plaintiff’s and the Class members’ wireless phones without prior

express written consent.



2 Amanda Lenhart, Cell Phones and American Adults: They Make Just as Many Calls, but Text
Less than Teens, Pew Research Center (2010), http://www.pewinternet.org/Reports/2010/Cell-Phones-
and-American-Adults.aspx (last visited November 28, 2012).

3 Id.

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18.

On September 1, 2014, Draftkings transmitted the following text message to

Plaintiff’s wireless phone:

From [email protected]:
Come play DraftKings with
me. Use my link and we’ll
both get a bonus https://
www.draftkings.com/r/
GERONIMO11


A true and correct copy of the text message is attached as Exhibit A.


The “from” field of such transmission was identified as “617-849-9834.”

Upon calling the phone number identified above, the following message is heard:

Hi, this automated message from Draftkings. Please refer to the
original message you received from this number.

The website identified in the text message attached as Exhibit A is registered by

19.

20.

21.

Draftkings.

22.

Draftkings sent or transmitted, or had sent or transmitted on its behalf, the same

(or substantially the same) text messages en masse to a list of thousands of wireless telephone

numbers or randomly generated phone numbers.

23.

On information and belief, Draftkings sent these text messages to Plaintiff and the

Class members using equipment that had the capacity to store or produce telephone numbers to

be called using a random or sequential number generator, and to dial such numbers.

24.

Plaintiff never consented to in writing, requested, or otherwise desired or

permitted Draftkings to send or transmit text messages to his wireless phone.







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V. CLASS ALLEGATIONS

25.

Plaintiff brings this action, as set forth below, on behalf of himself and as a class

action pursuant to the provisions of Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil

Procedure on behalf of a class defined as:

All individuals in the United States who received a non-
emergency, unsolicited text message to their wireless telephones
from Defendant Draftkings, Inc. through the use of an automatic
dialing system, at any time within the four years prior to the filing
of the instant Complaint (the “Class”).


Excluded from the Class are Draftkings and its subsidiaries and affiliates; all persons who make

a timely election to be excluded from the Class; governmental entities; and the judge to whom

this case is assigned and any immediate family members thereof.

26.

Certification of Plaintiff’s claims for class-wide treatment is appropriate because

Plaintiff can prove the elements of his claims on a class-wide basis using the same evidence as

would be used to prove those elements in individual actions alleging the same claims.

27.

Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the

Class are so numerous that individual joinder of all Class members is impracticable. On

information and belief, there are thousands of consumers who have been damaged by Draftkings’

wrongful conduct as alleged herein. The precise number of Class members and their addresses is

presently unknown to Plaintiff, but may be ascertained from Draftkings’ books and records.

Class members may be notified of the pendency of this action by recognized, Court-approved

notice dissemination methods, which may include U.S. mail, electronic mail, Internet postings,

and/or published notice.

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28.

Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2)

and 23(b)(3). This action involves common questions of law and fact, which predominate over

any questions affecting individual Class members, including, without limitation:

a.

b.

c.


d.


e.


29.

whether Draftkings’ conduct constitutes a violation of the TCPA;

whether the equipment Draftkings used to send the text messages in question was
an automatic telephone dialing system as contemplated by the TCPA;

whether Plaintiff and the Class are entitled to actual, statutory, or other forms of
damages, and other monetary relief and, in what amount(s);

whether Plaintiff and the Class are entitled to treble damages based on the
willfulness of Draftkings’ conduct; and

whether Plaintiff and the Class are entitled to equitable relief, including but not
limited to injunctive relief and restitution.

Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claim is

typical of the other Class members’ claims because, among other things, all Class members were

comparably injured through the uniform prohibited conduct described above.

30.

Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4).

Plaintiff is an adequate representative of the Class because his interests do not conflict with the

interests of the other Class members he seeks to represent; he have retained counsel competent

and experienced in complex commercial and class action litigation; and Plaintiff intends to

prosecute this action vigorously. The interests of the Class members will be fairly and

adequately protected by the Plaintiff and his counsel.

31.

Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2).

Draftkings has acted or refused to act on grounds generally applicable to Plaintiff and the other

Class members, thereby making appropriate final injunctive relief and declaratory relief, as

described below, with respect to the Class as a whole.

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32.

Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is

superior to any other available means for the fair and efficient adjudication of this controversy,

and no unusual difficulties are likely to be encountered in the management of this class action.

The damages or other financial detriment suffered by Plaintiff and the other Class members are

relatively small compared to the burden and expense that would be required to individually

litigate their claims against Draftkings, so it would be impracticable for Class members to

individually seek redress for Draftkings’ wrongful conduct. Even if Class members could afford

individual litigation, the court system could not. Individualized litigation creates a potential for

inconsistent or contradictory judgments, and increases the delay and expense to all parties and

the court system. By contrast, the class action device presents far fewer management difficulties,

and provides the benefits of single adjudication, economy of scale, and comprehensive

supervision by a single court.

VI.

CLAIMS ALLEGED

COUNT I

Violation of the TCPA, 47 U.S.C. § 227

(On behalf of the Class)

33.

Plaintiff incorporates by reference paragraphs 1-32 as if fully set forth herein.

34.

Draftkings and/or its agents sent unsolicited commercial text messages to the

wireless telephone number of Plaintiff and the other Class members en masse without their prior

express written consent.

35.

Draftkings sent the text messages, or had them sent on its behalf, using

equipment that had the capacity to store or produce telephone numbers to be called using a

random or sequential number generator, and to dial such numbers.

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36.

Draftkings utilized equipment that sent the text messages to Plaintiff and other

Class members simultaneously and without human intervention.

37.

By sending the unsolicited text messages to Plaintiff and the Class, Draftkings has

violated 47 U.S.C. § 227(b)(1)(A)(iii). As a result of Draftkings’ unlawful conduct, the Class

members suffered actual damages in the form of monies paid to receive the unsolicited text

messages on their wireless phones and under section 227(b)(3)(B) are each entitled to, inter alia,

a minimum of $500.00 in damages for each such violation of the TCPA.

38.

Should the Court determine that Draftkings’ conduct was willful or knowing, the

Court may, pursuant to section 227(b)(3)(C), treble the amount of statutory damages recoverable

by Plaintiff and the other Class members.

COUNT II
Conversion

(On behalf of the Class)



39.

40.

Plaintiff incorporates by reference paragraphs 1-32 as if fully set forth herein.

By sending texts to Plaintiff’s and the other Class members’ wireless telephones,

Draftkings converted to its own use data usage under Plaintiff’s and the other Class members’

wireless telephone plans and components of Plaintiff’s and the other Class member’s wireless

telephones.

41.

This loss of use constitutes an asset of economic value paid for by Plaintiff and

the other Class members when they acquired their wireless telephones and subscribed for

wireless telephone service.

42.

Immediately prior to the sending of the texts, Plaintiff and the other Class

members owned and had an unqualified right and immediate right to the possession of wireless

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telephones and the data service under their wireless telephone plans used to receive Draftkings’

texts.

43.

By sending texts (or directing texts to be sent on its behalf), Draftkings’

appropriated to its own use the data usage and wireless telephones used to receive the texts in

such a manner as to make them unusable or decrease their performance. Such appropriation was

wrongful and without authorization.

44.

Draftkings knew or should have known that such appropriation of the data usage

and phone components was wrongful and without authorization.

45.

Plaintiff and the other Class members were deprived of the data usage and

performance of their wireless telephones, which could no longer be used for any other purpose.

46.

Accordingly, Plaintiffs and the other Class members suffered damages as a result

of the receipt of the texts.

VII.

JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of all

claims in this Complaint so triable.

VIII. REQUEST FOR RELIEF

WHEREFORE, Plaintiff David Izsak, individually and on behalf of the Class, requests

that the Court enter an Order as follows:

A.

Certifying the Class as defined above, appointing Plaintiff David Izsak as the
representative of the Class, and appointing his counsel as Class Counsel;

B. Awarding of actual and statutory damages;

C.

Requiring Defendant Draftkings, Inc. to cease all text message activities initiated
without prior express written consent, and otherwise protecting the interests of the
Class;

D. Awarding of reasonable attorneys’ fees and costs; and





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E.

Awarding such other and further relief that the Court deems reasonable and just.













Respectfully submitted,

DAVID IZSAK, individually and on behalf
of all others similarly situated



By:________________________________

s/ Joseph J. Siprut
One of the Attorneys for Plaintiff
And the Proposed Putative Class



Dated: October 11, 2014





Joseph J. Siprut
[email protected]
Ismael T. Salam
[email protected]
SIPRUT PC
17 North State Street
Suite 1600
Chicago, Illinois 60602
312.236.0000
Fax: 312.241.1260




4815-0176-2078, v. 1

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