Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.585 Page 1 of 9
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`
`KAZEROUNI LAW GROUP, APC
`Abbas Kazerounian, Esq. (SBN: 249203)
`ak@kazlg.com
`Jason Ibey, Esq. (SBN: 284607)
`Jason@kazlg.com
`245 Fischer Avenue, Suite D1
`Costa Mesa, CA 92626
`Telephone: (800) 400-6808
`Facsimile: (800) 520-5523
`
`[Additional Counsel On Signature Page]
`
`Attorneys for Plaintiff,
`Erik Knutson
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`Erik Knutson, Individually and
`On Behalf of All Others Similarly
`Situated,
`
`v.
`
`Plaintiff,
`
`Sirius XM Radio Inc.
`
`Defendant.
`
`Case No.: 3:12-cv-00418-AJB-DHB
`
`FIRST AMENDED CLASS
`ACTION COMPLAINT FOR
`DAMAGES
`
`Jury Trial Demanded
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB
`
`
`
`KAZEROUNI LAW GROUP, APC
`
`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-1
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.586 Page 2 of 9
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`1.
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`INTRODUCTION
`Erik Knutson (“Plaintiff”) brings this Class Action Complaint for damages,
`injunctive relief, and any other available legal or equitable remedies,
`resulting from the illegal actions of Sirius XM Radio Inc. (“Sirius”), in
`negligently, and/or willfully contacting Plaintiff through a marketing
`messages on Plaintiff’s cellular telephone, in violation of the Telephone
`Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby
`invading Plaintiff’s privacy. Plaintiff alleges as follows upon personal
`knowledge as to his own acts and experiences, and, as to all other matters,
`upon information and belief, including investigation conducted by his
`attorneys.
`
`2.
`
`JURISDICTION AND VENUE
`Jurisdiction is proper under 28 U.S.C. § 1332(d)(2) because Plaintiff seeks up
`to $1,500 in damages for each call in violation of the TCPA, which, when
`aggregated among a proposed class number in the tens of thousands, exceeds
`the $5,000,000 threshold for federal court jurisdiction. Further, Plaintiff
`alleges a national class, which will result in at least one class member
`belonging to a different state than that of Sirius, providing jurisdiction under
`28 U.S.C. Section 1332(d)(2)(A). Therefore, both elements of diversity
`jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”) are
`present, and this Court has jurisdiction.
`3. Venue is proper in the United States District Court for the Southern District
`of California pursuant to 18 U.S.C. § 1391(b) and 1441(a) because the events
`giving rise to Plaintiff’s causes of action against Sirius occurred within the
`State of California and the County of San Diego, within this judicial district.
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB PAGE 1 OF 8
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`KAZEROUNI LAW GROUP, APC
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`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-2
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.587 Page 3 of 9
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`4.
`
`5.
`
`PARTIES
`Plaintiff is, and at all times mentioned herein was, a citizen and resident of
`the State of California. Plaintiff is, and at all times mentioned herein was a,
`“person” as defined by 47 U.S.C. § 153 (39).
`Plaintiff is informed and believes, and thereon alleges, that Sirius is, and at
`all times mentioned herein was, a corporation whose primary corporate
`address is in New York, New York, and Sirius is therefore a citizen of New
`York for diversity purposes. Sirius is, and at all times mentioned herein was,
`a corporation and a “person,” as defined by 47 U.S.C. § 153 (39). Sirius
`provides various consumer credit products and advertises those products
`through the use of telephone calls. Plaintiff alleges that at all times relevant
`herein Sirius conducted business in the State of California and in the County
`of San Diego, and within this judicial district.
`FACTUAL ALLEGATIONS
`At all times relevant, Plaintiff was a citizen of the State of California.
`Plaintiff is, and at all times mentioned herein was, a “person” as defined by
`47 U.S.C. § 153 (39).
`Sirius is, and at all times mentioned herein was, a corporation and a “person,”
`as defined by 47 U.S.C. § 153 (39).
`At all times relevant Sirius conducted business in the State of California and
`in the County of San Diego, within this judicial district.
`Plaintiff, on or before November 12, 2011, purchased a Toyota Tacoma truck
`which, for marketing purposes, includes a “free” three month trial
`subscription to Sirius XM Radio.
`10. At no time did Plaintiff ever provide his current cellular telephone to
`Defendant through any medium.
`11. At no time did Plaintiff ever enter into a business relationship with
`Defendant.
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`6.
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`7.
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`KAZEROUNI LAW GROUP, APC
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`245 FISCHER AVENUE, UNIT D1
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`COSTA MESA, CA 92626
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`
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB
`PAGE 2 OF 8
`
`Fraunhofer Ex 2013-3
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

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`through
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`information
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`12. At no time did Plaintiff ever submit a credit application to Defendant for the
`extension of credit.
`13. Subsequently, Sirius obtained Plaintiff’s contact
`unknown means.
`14. On or about January 27, 2012 Defendant contacted Plaintiff on Plaintiff’s
`cellular telephone via an “automatic telephone dialing system,” (“ATDS”) as
`defined by 47 U.S.C. § 227 (a)(1) using an “artificial or prerecorded voice”
`as prohibited by 47 U.S.C. § 227 (b)(1)(A).
`15. Subsequently, on or about January 30, 2012 at or around 8:30 PM Defendant
`contacted Plaintiff on Plaintiff’s cellular telephone via an ATDS.
`16. This ATDS has the capacity to store or produce telephone numbers to be
`called, using a random or sequential number generator.
`17. The telephone number Sirius called was assigned to a cellular telephone
`service for which Plaintiff incurs a charge for incoming calls pursuant to 47
`U.S.C. § 227 (b)(1).
`18. These telephone calls constituted calls that were not for emergency purposes
`as defined by 47 U.S.C. § 227 (b)(1)(A)(i).
`19. To date, Plaintiff has received a total of three phone calls where it takes at
`least a minute for an agent of Sirius to pick up the other end of the line
`because Sirius is using an ATDS.
`CLASS ACTION ALLEGATIONS
`20. Plaintiff brings this action on behalf of himself and on behalf of and all
`others similarly situated (the “Class”).
`21. Plaintiff represents, and is a member of the Class, consisting of:
`
`All persons within the United States who received any
`unsolicited telephone call/s from Defendant or its agent/s
`and/or employee/s to said person’s cellular telephone
`made through the use of any automatic telephone dialing
`system or with an artificial or prerecorded voice within
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB PAGE 3 OF 8
`
`KAZEROUNI LAW GROUP, APC
`
`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-4
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.589 Page 5 of 9
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`the four years prior to the filing of the Complaint.
`
`22. Sirius 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 hundreds of thousands, if not more. Thus, this
`matter should be certified as a Class action to assist in the expeditious
`litigation of this matter.
`23. Plaintiff and members of the Class were harmed by the acts of Sirius in at
`least the following ways: Sirius, either directly or through its agents, illegally
`contacted Plaintiff and the Class members via their cellular telephones by
`using marketing and artificial or prerecorded voice messages, thereby
`causing Plaintiff and the Class members to incur certain cellular telephone
`charges or reduce cellular telephone time for which Plaintiff and the Class
`members previously paid, and invading the privacy of said Plaintiff and the
`Class members. Plaintiff and the Class members were damaged thereby.
`24. This suit seeks only damages and injunctive relief for recovery of economic
`injury on behalf of the Class and it expressly is not intended to request any
`recovery for personal injury and claims related thereto. Plaintiff reserves the
`right to expand the Class definition to seek recovery on behalf of additional
`persons as warranted as facts are learned in further investigation and
`discovery.
`25. The joinder of the Class members is impractical and the disposition of their
`claims in the Class action will provide substantial benefits both to the parties
`and to the court. The Class can be identified through Sirius’ records or
`Sirius’ agents’ records.
`26. There is a well-defined community of interest in the questions of law and fact
`involved affecting the parties to be represented. The questions of law and
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB PAGE 4 OF 8
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`KAZEROUNI LAW GROUP, APC
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`245 FISCHER AVENUE, UNIT D1
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`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-5
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

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`fact to the Class predominate over questions which may affect individual
`Class members, including the following:
`27. Whether, within the four years prior to the filing of this Complaint, Sirius or
`its agents sent any marketing and artificial or prerecorded voice messages to
`the Class (other than a message made for emergency purposes or made with
`the prior express consent of the called party) to a Class member using any
`automatic telephone dialing and/or SMS texting system to any telephone
`number assigned to a cellular telephone service;
`28. Whether Plaintiff and the Class members were damaged thereby, and the
`extent of damages for such violation; and
`29. Whether Sirius and its agents should be enjoined from engaging in such
`conduct in the future.
`30. As a person that received at least one marketing and artificial or prerecorded
`voice message without Plaintiff’s prior express consent, Plaintiff is asserting
`claims that are typical of the Class. Plaintiff will fairly and adequately
`represent and protect the interests of the Class in that Plaintiff has no
`interests antagonistic to any member of the Class.
`31. Plaintiff and the members of the Class have all suffered irreparable harm as a
`result of the Sirius’ unlawful and wrongful conduct. Absent a class action,
`the Class will continue to face the potential for irreparable harm. In addition,
`these violations of law will be allowed to proceed without remedy and Sirius
`will likely continue such illegal conduct. Because of the size of the
`individual Class member’s claims, few, if any, Class members could afford
`to seek legal redress for the wrongs complained of herein.
`32. Plaintiff has retained counsel experienced in handling class action claims and
`claims involving violations of the Telephone Consumer Protection Act.
`33. A class action is a superior method for the fair and efficient adjudication of
`this controversy. Class-wide damages are essential to induce Sirius to
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB
`PAGE 5 OF 8
`
`KAZEROUNI LAW GROUP, APC
`
`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-6
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

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`comply with federal and California law. The interest of Class members in
`individually controlling the prosecution of separate claims against Sirius is
`small because the maximum statutory damages in an individual action for
`violation of privacy are minimal. Management of these claims is likely to
`present significantly fewer difficulties than those presented in many class
`claims.
`34. Sirius has acted on grounds generally applicable to the Class, thereby making
`appropriate final injunctive relief and corresponding declaratory relief with
`respect to the Class as a whole.
`FIRST CAUSE OF ACTION
`NEGLIGENT VIOLATIONS OF THE
`TELEPHONE CONSUMER PROTECTION ACT
`47 U.S.C. § 227 ET SEQ.
`35. Plaintiff incorporates by reference all of the above paragraphs of this First
`Amended Complaint as though fully stated herein.
`36. The foregoing acts and omissions of Sirius and its agents constitute
`numerous and multiple negligent violations of the TCPA, including but not
`limited to each and every one of the above-cited provisions of 47 U.S.C. §
`227 et seq.
`37. As a result of Sirius’, and Sirius’ agents’, negligent violations of 47 U.S.C. §
`227 et seq, Plaintiff and the Class are entitled to an award of $500.00 in
`statutory damages, for each and every violation, pursuant to 47 U.S.C. §
`227(b)(3)(B).
`38. Plaintiff and the Class are also entitled to and seek injunctive relief
`prohibiting such conduct in the future.
`SECOND CAUSE OF ACTION
`KNOWING AND/OR WILLFUL VIOLATIONS OF THE
`TELEPHONE CONSUMER PROTECTION ACT
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB PAGE 6 OF 8
`
`KAZEROUNI LAW GROUP, APC
`
`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-7
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.592 Page 8 of 9
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`47 U.S.C. § 227 ET SEQ.
`39. Plaintiff incorporates by reference all of the above paragraphs of this First
`Amended Complaint as though fully stated herein.
`40. The foregoing acts and omissions of Sirius’ constitute numerous and multiple
`knowing and/or willful violations of the TCPA, including but not limited to
`each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq.
`41. As a result of Sirius’ knowing and/or willful violations of 47 U.S.C. § 227 et
`seq., Plaintiff and each of the Class are entitled to treble damages, as
`provided by statute, up to $1,500.00, for each and every violation, pursuant
`to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).
`42. Plaintiff and the Class are also entitled to and seek injunctive relief
`prohibiting such conduct in the future.
`PRAYER FOR RELIEF
`43. Wherefore, Plaintiff respectfully requests the Court grant Plaintiffs and the
`Class members the following relief against Sirius:
`FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATION OF
`THE TCPA, 47 U.S.C. § 227 ET SEQ.
`a) As a result of Sirius’ and Sirius’ agents’ negligent violations of 47
`U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member
`$500.00 in statutory damages, for each and every violation, pursuant to 47
`U.S.C. § 227(b)(3)(B).
`b) Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief
`prohibiting such conduct in the future.
`c) Any other relief the Court may deem just and proper.
`SECOND CAUSE OF ACTION FOR KNOWING AND/OR WILLFUL VIOLATION
`OF THE TCPA, 47 U.S.C. § 227 ET SEQ.
`a) As a result of Sirius’ willful and/or knowing violations of 47 U.S.C. §
`227(b)(1), Plaintiff seeks for himself and each Class and Subclass
`
`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB PAGE 7 OF 8
`
`KAZEROUNI LAW GROUP, APC
`
`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-8
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`Case 3:12-cv-00418-AJB-DHB Document 52 Filed 05/29/15 PageID.593 Page 9 of 9
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`member treble damages, as provided by statute, up to $1,500.00 for each
`and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C.
`§ 227(b)(3)(C).
`b) Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such
`conduct in the future.
`
`TRIAL BY JURY
`44. Pursuant to the seventh amendment to the Constitution of the United States
`of America, Plaintiff is entitled to, and demands, a trial by jury.
`
`Date: May 29, 15
`
`Kazerouni Law Group, APC
`
`By: _/s Abbas Kazerounian____
`Abbas Kazerounian
` Attorneys for Plaintiff
`
`Other Attorneys of Record, besides caption page:
`
`HYDE & SWIGART
`Joshua B. Swigart, Esq. (SBN: 225557)
`josh@westcoastlitigation.com
`2221 Camino Del Rio South, Suite 101
`San Diego, CA 92108-3551
`Telephone: (619) 233-7770
`Facsimile: (619) 297-1022
`Attorneys for Plaintiff
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO.: 3:12-cv-00418-AJB-DHB
`PAGE 8 OF 8
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`KAZEROUNI LAW GROUP, APC
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`
`
`245 FISCHER AVENUE, UNIT D1
`
`COSTA MESA, CA 92626
`
`Fraunhofer Ex 2013-9
`Sirius XM v Fraunhofer, IPR2018-00682
`
`