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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

INTRODUCTION

1. Plaintiff, Arthur Hernandez, brings this action against Defendant 

Counter Brands, LLC d/b/a Beautycounter (“Defendant”), to secure 

redress for violations of the Telephone Consumer Protection Act 

(“TCPA”), 47 U.S.C. § 227, Florida Statute § 501.059, and Florida 

Statute § 501.601.

2. This is a putative class action pursuant to the Telephone Consumer 

Protection Act, 47 U.S.C. § 227 et seq., (the “TCPA”), Fla. Stat. § 

Arthur Hernandez, 

individually and on behalf of 

others similarly situated,

 

Plaintiff,

 

 v. 

Counter Brands, LLC d/b/a/ 

Beautycounter,

 Defendant.

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Case No.:

CLASS ACTION

CLASS ACTION COMPLAINT 

FOR 

1. VIOLATIONS OF THE 

TELEPHONE CONSUMER 

PROTECTION ACT, 47 

U.S.C. § 227

2. VIOLATIONS OF 

FLORIDA STATUTE § 

501.059

3. VIOLATIONS OF 

FLORIDA STATUTE § 

501.601

JURY TRIAL DEMANDED

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501.059, and Fla. Stat. § 501.601. 

3. Defendant manufactures and sells cosmetic products. To promote its 

services, Defendant engages in unsolicited marketing, harming 

thousands of consumers in the process. 

4. Through this action, Plaintiff seeks injunctive relief to halt Defendant’s 

illegal conduct, which has resulted in the invasion of privacy, 

harassment, aggravation, and disruption of the daily life of thousands of 

individuals. Plaintiff also seeks statutory damages on behalf of himself

and members of the class, and any other available legal or equitable 

remedies. 

5. Plaintiff makes these allegations on information and belief, with the 

exception of those allegations that pertain to Plaintiff, or to Plaintiff’s 

counsel, which Plaintiff alleges on personal knowledge.

6. While many violations are described below with specificity, this 

Complaint alleges violations of the statutes cited in its entirety. 

7. Unless otherwise stated, all the conduct engaged in by Defendant took 

place in the Southern District of Florida.

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8. Any violations by Defendant was knowing, willful, and intentional, and 

Defendant did not maintain procedures reasonably adapted to avoid any 

such violation.

9. Unless otherwise indicated, the use of Defendants’ name in this 

Complaint includes all agents, employees, officers, members, directors, 

heirs, successors, assigns, principals, trustees, sureties, subrogees, 

representatives, and insurers of Defendants’ named.

JURISDICTION AND VENUE

10. Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges 

violations of a federal statute, the TCPA. Jurisdiction is also proper under 

28 U.S.C. § 1332(d)(2) because Plaintiff alleges a national class, which 

will result in at least one class member belonging to a different state than 

that of Defendant. Plaintiff seeks up to $1,500.00 (one-thousand-fivehundred dollars) in damages for each call in violation of the TCPA, 

which, when aggregated among a proposed class numbering in the tens 

of thousands, or more, exceeds the $5,000,000.00 (five-million dollars) 

threshold for federal court jurisdiction under the Class Action Fairness 

Act (“CAFA”). Therefore, both the elements of diversity jurisdiction and 

CAFA jurisdiction are present.

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11. Venue is proper in the United States District Court for the Southern 

District of Florida pursuant to 28 U.S.C. § 1391(b) and (c) because 

Defendant is deemed to reside in any judicial district in which it is 

subject to the court’s personal jurisdiction, and because Defendant 

provides and markets its services within this district thereby establishing 

sufficient contacts to subject it to personal jurisdiction. Further, 

Defendant’s tortious conduct against Plaintiff occurred within the State 

of Florida and, on information and belief, Defendant has made the same 

phone calls complained of by Plaintiff to other individuals within this 

judicial district, such that some of Defendant’s acts in making such calls 

have occurred within this district, subjecting Defendant to jurisdiction in 

the State of Florida. 

PARTIES

12. Plaintiff is a natural person residing in the County of Palm Beach, 

City of Delray Beach, State of Florida. 

13. Defendant is a company based in the City of Santa Monica, County 

of Los Angeles, State of California, conducting business in Florida. 

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THE TCPA

14.The TCPA prohibits: (1) any person from calling a cellular telephone 

number; (2) using an automatic telephone dialing system; (3) without 

the recipient’s prior express consent. 47 U.S.C. § 227(a)(4)(A).

15.The TCPA defines the term “telephone solicitation” as “the initiation 

of a telephone call or message for the purpose of encouraging the 

purchase or rental of, or investment in, property, goods, or services, 

which is transmitted to any person.” 47 U.S.C. § 227(a)(4). 

16.The TCPA regulations promulgated by the FCC define 

“telemarketing” as “the initiation of a telephone call or message for the 

purpose of encouraging the purchase or rental of, or investment in, 

property, goods, or services.” 47 C.F.R. § 64.1200(f)(12).In 

determining whether a communication constitutes telemarketing, a 

court must evaluate the ultimate purpose of the communication. See 

Golan v. Veritas Entm't, LLC, 788 F.3d 814, 820 (8th Cir. 2015).

17.“Neither the TCPA nor its implementing regulations ‘require an 

explicit mention of a good, product, or service’ where the implication 

of an improper purpose is ‘clear from the context.’” Id. (citing 

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)). 

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18.As recently held by the United States Court of Appeals for the Ninth 

Circuit: “Unsolicited telemarketing phone calls or text messages, by 

their nature, invade the privacy and disturb the solitude of their 

recipients. A plaintiff alleging a violation under the TCPA ‘need not 

allege any additional harm beyond the one Congress has identified.’” 

Van Patten v. Vertical Fitness Grp., No. 14-55980, 2017 U.S. App. 

LEXIS 1591, at *12 (9th Cir. May 4, 2016) (quoting Spokeo, Inc. v. 

Robins, 136 S. Ct. 1540, 1549 (2016) (emphasis original)).

FLA. STAT. § 501.059

19.It is a violation of the FTSA to “make or knowingly allow a telephonic 

sales call to be made if such call involves . . . the playing of a recorded 

message when a connection is completed to a number without the prior 

express written consent of the called party.” Fla. Stat § 501.059(8)(A).

20.The statute defines “telephonic sales call” as a “telephone call, text 

message, or voicemail transmission to a consumer for the purpose of 

soliciting a sale of any consumer goods or services, soliciting an 

extension of credit for consumer goods services, or obtaining 

information that will or may be used for the direct solicitation of a sale 

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of consumer goods or services or an extension of credit for such 

purposes.” Fla. Stat. § 501.059(1)(I).

21. A person will be defined as a “called party” if they are a “person who 

is the regular user of the telephone number that receives a telephonic 

sales call,” under Fla. Stat. § 501.059(1)(A).

22.An “unsolicited telephonic sales call” is one that is made other than in 

direct response to the express request of the person who is called. under 

Fla. Stat. § 501.059(4)(K).

FLA. STAT. § 501.601

27. The Florida Telemarketing law states that a “Commercial Telephone 

Solicitation” means: “other communication with a person where a gift, 

award, or prize is offered.” Fla. Stat. § 501.603(1)(b)(1).

28. “Other Communication” means a written or oral notification or 

advertisement transmitted through any means. 

29. “Commercial telephone seller” means a person who engages in 

commercial telephone solicitation on his or her own behalf or through 

salespersons. Fla. Stat. § 501.603(2).

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30.“Person” means a single human being and does not mean a firm, 

association of individuals, corporation, partnership, joint venture, sole 

proprietorship, or any other entity. Fla. Stat. § 501.603(7).

GENERAL ALLEGATIONS

31.At all times relevant, Plaintiff was an individual residing within the State 

of Florida.

32. At all times relevant, Defendants conducted business in the State of 

Florida.

33. On or around May 3, 2022, Plaintiff received a text from Defendant 

discussing Defendant’s lobbying efforts in Washington DC, and linked 

a vimeo video about the issue.

34. On or around May 23, 2022, Defendant sent Plaintiff a text promoting 

a sale called “The Friends and Family Event,” where Plaintiff would 

receive 25% savings if he purchased over $250 in their products.

35. On or around June 26, 2022, Defendant sent Plaintiff a text to promote 

their “Creamy Concealer” where they described the product and 

advertised the savings Plaintiff could get if he purchased together with 

their other products.

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36. On or around June 30, 2022, Defendant sent Plaintiff a text discussing 

a summer sale. In the text, Defendant outlined what was on sale and the 

savings Plaintiff could receive if he purchased Defendants products 

during this promotional sale.

37. Defendant sent multiple texts similar to the ones mentioned for several 

weeks between May 2022 and July 2022.

38. Defendant’s text messages constitute telephone solicitation because it 

encouraged the future purchase or investment in property, goods, or 

services under 47 U.S.C. § 227(a)(4), and Fla. Stat. § 501.059(1)(I). i.e., 

attempting to sell Plaintiff beauty products.

39. Plaintiff received the text messages within this judicial district and, 

therefore, Defendant’s violation of the TCPA occurred within this 

district. Upon information and belief, Defendant text other individuals 

residing within this judicial district. 

40. At no point in time did Plaintiff provide Defendant with his express 

written consent to be contacted. This is in violation of 47 U.S.C. § 

227(a)(5). 

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41. Defendant’s unsolicited text messages caused Plaintiff actual harm, 

including invasion of his privacy, aggravation, annoyance, intrusion on 

seclusion, trespass, and conversion. 

42.Defendant’s text messages also inconvenienced Plaintiff and caused 

disruption to his daily life. 

43.Furthermore, Defendant’s text messages took up memory on Plaintiff’s 

cellular phone. The cumulative effect of unsolicited text messages like 

Defendant’s poses a real risk of ultimately rendering the phone unusable 

for other purposes as a result of the phone’s memory being taken up. 

CLASS ALLEGATIONS

PROPOSED CLASS

44.Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, 

on behalf of himself and all others similarly situated.

45.Plaintiff brings this case on behalf of a Class defined as follows:

All persons within the United States who received any 

solicitation/telemarketing text messages from Defendant to said 

person’s cellular telephone and such person had not previously 

consented to receiving such text messages within the four years 

prior to the filing of this Complaint.

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46.Defendant and its employees or agents are excluded from the Class. 

Plaintiff does not know the number of members in the Class but believes 

the Class members number in the several thousands, if not more.

NUMEROSITY

47.Upon information and belief, Defendant has placed automated and/or 

prerecorded calls and/or text messages to cellular telephone numbers 

belonging to thousands of consumers throughout the United States 

without their prior express consent. The members of the Class, 

therefore, are believed to be so numerous that joinder of all members is 

impracticable.

48.The exact number and identities of the Class members are unknown at 

this time and can only be ascertained through discovery. Identification 

of the Class members is a matter capable of ministerial determination 

from Defendant’s call and text records.

COMMON QUESTIONS OF LAW AND FACT

49.There are numerous questions of law and fact common to the Class 

which predominate over any questions affecting only individual 

members of the Class. Among the questions of law and fact common to 

the Class are:

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(1) Whether Defendant sent text messages to Plaintiff’s and Class 

members’ cellular telephones;

(2) Whether Defendant can meet its burden of showing that it 

obtained prior express written consent to make such text messages;

(3) Whether Defendant’s conduct was knowing and willful;

(4) Whether Defendant is liable for damages, and the amount of such 

damages; and

(5) Whether Defendant should be enjoined from such conduct in the 

future.

50.The common questions in this case are capable of having common 

answers. If Plaintiff’s claim that Defendant routinely made text 

messages to telephone numbers assigned to cellular telephone services 

is accurate, Plaintiff and the Class members will have identical claims 

capable of being efficiently adjudicated and administered in this case.

TYPICALITY

51.Plaintiff’s claims are typical of the claims of the Class members, as they 

are all based on the same factual and legal theories.

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PROTECTING THE INTERESTS OF THE CLASS MEMBERS

52.Plaintiff is a representative who will fully and adequately assert and 

protect the interests of the Class and has retained competent counsel. 

Accordingly, Plaintiff is an adequate representative and will fairly and 

adequately protect the interests of the Class.

PROCEEDING VIA CLASS ACTION IS SUPERIOR AND 

ADVISABLE

53.A class action is superior to all other available methods for the fair and 

efficient adjudication of this lawsuit, because individual litigation of the 

claims of all members of the Class is economically unfeasible and 

procedurally impracticable. While the aggregate damages sustained by 

the Class are in the millions of dollars, the individual damages incurred 

by each member of the Class resulting from Defendant’s wrongful 

conduct are too small to warrant the expense of individual lawsuits. The 

likelihood of individual Class members prosecuting their own separate 

claims is remote, and, even if every member of the Class could afford 

individual litigation, the court system would be unduly burdened by 

individual litigation of such cases.

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54.The prosecution of separate actions by members of the Class would 

create a risk of establishing inconsistent rulings and/or incompatible 

standards of conduct for Defendant. For example, one court might 

enjoin Defendant from performing the challenged acts, whereas another 

may not. Additionally, individual actions may be dispositive of the 

interests of the Class, although certain class members are not parties to 

such actions.

COUNT I

VIOLATIONS OF THE TCPA, 47 U.S.C. § 227(B)

(ON BEHALF OF PLAINTIFF AND THE CLASS)

55.Plaintiff re-alleges and incorporates the foregoing allegations as if fully 

set forth herein. 

56.It is a violation of the TCPA 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 prerecorded voice ... to any telephone number assigned to a ... cellular 

telephone service ....” 47 U.S.C. § 227(b)(1)(A)(iii). 

57.Defendant – or third parties directed by Defendant – used equipment 

having the capacity to dial numbers without human intervention to send 

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text messages to the cellular telephones of Plaintiff and the other 

members of the Class defined below. 

58.These text messages were made without regard to whether or not 

Defendant had first obtained express permission from the called party to 

send such text messages.

59.Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by 

using an automatic telephone dialing system and/or pre-recorded voice 

messages to send non-emergency text messages to the cell phones of 

Plaintiff and the other members of the putative Class without their prior 

express written consent.

60.Defendant knew that it did not have prior express consent to send these

texts and knew or should have known that it was using equipment that 

at constituted an automatic telephone dialing system. The violations 

were therefore willful or knowing. 

61.As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the 

TCPA, Plaintiff and the other members of the putative Class were 

harmed and are each entitled to a minimum of $500.00 in damages for 

each violation. Plaintiff and the class are also entitled to an injunction 

against future calls. Id. 

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COUNT II

KNOWING AND/OR WILLFUL VIOLATION OF THE TCPA, 47 U.S.C.

§ 227(B)

(ON BEHALF OF PLAINTIFF AND THE CLASS)

62.Plaintiff re-alleges and incorporates the foregoing allegations as if fully 

set forth herein.

63.At all times relevant, Defendant knew or should have known that its 

conduct as alleged herein violated the TCPA.

64.Defendant knew that it did not have prior express consent to send these 

text messages and knew or should have known that its conduct was a 

violation of the TCPA.

65.Because Defendant knew or should have known that Plaintiff and Class 

Members had not given prior express consent to receive its text 

messages, the Court should treble the amount of statutory damages 

available to Plaintiff and the other members of the putative Class 

pursuant to § 227(b)(3) of the TCPA.

66.As a result of Defendant’s violations, Plaintiff and the Class Members 

are entitled to an award of $1,500.00 in statutory damages, for each and 

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every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 

227(b)(3)(C).

COUNT III

VIOLATIONS OF FLA. STAT. § 501.059

(ON BEHALF OF PLAINTIFF AND THE CLASS)

67. Plaintiff re-alleges and incorporates the foregoing allegations as if fully 

set forth herein. 

68.Defendant – or third parties directed by Defendant – used equipment 

having the capacity to dial numbers without human intervention to make 

non-emergency text messages to the cellular telephones of Plaintiff and 

the other members of the Class in violation of Fla. Stat § 501.059(8)(A).

69.Under Fla. Stat § 501.059(1)(G), prior consent includes the signature of 

the called party, the telephone of the called party, as well as clear 

authorization to the person making or allowing the telephonic sales call 

to make the call. Defendant did not have prior express consent to call 

the cell phones of Plaintiff and the other members of the putative Class 

when these telephonic sales calls were made. Id.

70.Defendant has, therefore, violated Fla. Stat § 501.059(8)(A) AND Fla. Stat 

§ 501.059(1)(G) by using an automatic telephone dialing system to send

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non-emergency text messages to the cell phones of Plaintiff and the 

other members of the putative Class without their prior express written 

consent.

71.Defendant knew that it did not have prior express consent to send these 

text messages and knew or should have known that it was using 

equipment that constituted an automatic telephone dialing system. The 

violations were therefore willful or knowing. 

72.As a result of Defendant’s conduct and pursuant to Fla. Stat §

501.059(10)(B), Plaintiff and the other members of the putative Class 

were harmed and are each entitled to a minimum of $500.00 in damages 

for each violation. 

VIOLATIONS OF THE FLORIDA TELEMARKETING ACT

(ON BEHALF OF PLAINTIFF AND THE CLASS)

73. Plaintiff re-alleges and incorporates the foregoing allegations as if fully 

set forth herein. 

74.It is a violation of the Florida Telemarketing Act for a salesperson to 

send messages without prior consent.

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75.These text messages were sent without regard to whether or not 

Defendant had first obtained express permission from the Plaintiff to 

make such texts.

76.Pursuant to Fla. Stat §501.625, Plaintiff and putative class persons are 

entitled to recovery of actual damages and/or punitive damages, 

including court costs, and attorney’s fees.

WHEREFORE, Plaintiff, on behalf of himself and the other members of 

the Class, prays for the following relief: 

a. A declaration that Defendant’s practices described herein violate the 

Telephone Consumer Protection Act, 47 U.S.C. § 227, Florida 

Statute § 501.059, and Florida Statute § 501.601; 

b. An injunction prohibiting Defendant from using a telephone dialing 

system to call and text message telephone numbers assigned to 

cellular telephones without the prior express permission of the called 

party; 

c. An award of actual and statutory damages; and 

d. Such further and other relief the Court deems reasonable and just.

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TRIAL BY JURY

77.Pursuant to the seventh amendment to the Constitution of the United 

States of America, Plaintiff is entitled to, and demands, a trial by jury.

Dated: September 19, 2022 Respectfully submitted,

BY: /S/ RYAN L. MCBRIDE______

RYAN L. MCBRIDE, ESQ.

TRIAL COUNSEL FOR PLAINTIFF

Mohammad Kazerouni (1034549)

Kazerouni Law Group, APC 

245 Fischer Ave,. Suite D1

Costa Mesa, CA 92626

Telephone: (800) 400-6808

Facsimile: (800) 520-5523

mike@kazlg.com

Ryan L. McBride (1010101)

Kazerouni Law Group, APC

 301 E. Bethany Home Road

Suite C-195

Phoenix, AZ 85012

Telephone: (800) 400-6808

Facsimile: (800) 520-5523

ryan@kazlg.com

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