`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
`
`YEFIM ELIKMAN, individually and on behalf of
`classes of similarly situated individuals,
`
`Plaintiff,
`
`v.
`
`SIRIUS XM RADIO, INC., a Delaware
`corporation, CAREER HORIZONS, INC., an
`Indiana corporation,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 15-cv-02093
`
`Hon. Joan H. Lefkow
`
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`Plaintiff Yefim Elikman (“Plaintiff”) brings this second amended class action complaint
`
`against Defendants Sirius XM Radio, Inc. (“Sirius XM”) and Career Horizons, Inc. d/b/a
`
`TeleServices Direct (“TeleServices”) (collectively “Defendants”), to stop Defendants’ unlawful
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`telephone solicitation practices in the form of unauthorized telephone calls using an automatic
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`telephone dialing system (“ATDS”), and to obtain redress for all persons injured by their
`
`conduct. Plaintiff alleges as follows upon personal knowledge as to himself and his own acts
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`and experiences, and as to all other matters, upon information and belief, including investigation
`
`conducted by his attorneys.
`
`NATURE OF THE ACTION
`
`1.
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`In a misguided effort to market its satellite radio subscription services, Sirius XM,
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`together with its agent TeleServices, established an automated calling operation to place
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`unsolicited automated calls to the cellular telephones of thousands of consumers nationwide.
`
`1
`
`Fraunhofer Ex 2015-1
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 2 of 11 PageID #:82
`
`2.
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`Defendants Sirius XM and TeleServices violated federal law when the automated
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`calling operation established, directed, and operated by Defendants to market Sirius XM’s
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`satellite radio service, placed unauthorized automated telephone calls using an ATDS
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`(“robocalls”) to the cellular telephones of individuals throughout the nation.
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`3.
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`Defendants Sirius XM and TeleServices also violated federal law when the
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`automated calling operation established, directed, and operated by Defendants to market Sirius
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`XM’s satellite radio service, placed unauthorized telephone solicitation calls to the telephones of
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`individuals throughout the nation whose phone numbers were registered with the National Do-
`
`Not-Call registry, as established by 47 U.S.C. § 227(c).
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`4.
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`By effectuating these unauthorized calls, Defendants have violated the called
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`parties’ statutory rights and have caused such call recipients actual harm, not only because the
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`called parties were subjected to the aggravation and invasion of privacy that necessarily
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`accompanies unsolicited telephone solicitation calls, but also because the recipients sometimes
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`have to pay their cellular phone providers for receiving the calls or incur a usage deduction on
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`their plan.
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`5.
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`In order to redress these injuries, Plaintiff, on behalf of himself and two
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`nationwide classes brings suit under the Telephone Consumer Protection Act, 47 U.S.C.
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`§ 227 (the “TCPA”), which protects the privacy right of consumers to be free from receiving
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`unsolicited automated telephone calls.
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` 6.
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`On behalf of the classes, Plaintiff seeks an injunction requiring Defendants to
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`cease all unauthorized automated telephone calls, and an award of statutory damages to the
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`members of the classes, together with costs and reasonable attorneys’ fees.
`
`
`
`2
`
`Fraunhofer Ex 2015-2
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 3 of 11 PageID #:83
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`JURISDICTION AND VENUE
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`7.
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`This Court has federal question subject matter jurisdiction under 28 U.S.C.
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`§ 1331, as the action arises under the federal Telephone Consumer Protection Act, 47 U.S.C.
`
`§ 227 et seq.
`
`8.
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`Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(b)
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`because Plaintiff resides in this District, Defendants transact business in this District, and a
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`substantial part of the events concerning the unauthorized robocalls at issue occurred in this
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`District, as Plaintiff’s cellular telephone received Defendants’ unsolicited robocalls within this
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`District.
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`9.
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`Plaintiff Elikman is a resident of the State of Illinois.
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`PARTIES
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`10.
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`Defendant Sirius XM Radio, Inc. is a nationwide provider of satellite radio
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`services. Sirius XM is a Delaware corporation with its principal place of business located in
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`New York. Sirius XM conducts business in this District, and conducts business elsewhere
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`throughout the United States.
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`11.
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`Defendant Career Horizons, Inc. d/b/a TeleServices Direct is a global operator of
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`call centers located in the United States and in other countries. TeleServices is an Indiana
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`corporation with
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`its
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`principal
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`place
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`of
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`business
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`located
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`in
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`Indiana.
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`COMMON ALLEGATIONS OF FACT
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`12.
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`Sirius XM is a nationwide provider of a paid subscription satellite radio service.
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`13.
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`TeleServices is a global operator of call centers that works with various
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`companies to establish automated phone call operations that market their goods and services by
`
`3
`
`Fraunhofer Ex 2015-3
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 4 of 11 PageID #:84
`
`using an ATDS to place telephone calls to the phone numbers of thousands of potential
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`customers.
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`14.
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`In an effort to promote its satellite radio service, Sirius XM contracted with
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`TeleServices to establish an automated calling operation to solicit potential customers.
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`15.
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`Sirius XM and TeleServices both shared control over various aspects of the day-
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`to-day operations of the automated calling operation.
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`16.
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`Sirius XM authorized and directed the automated calling operation to act on its
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`behalf and establish contractual relationships between Sirius XM and called parties who agreed
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`to purchase Sirius XM’s satellite radio service as a result of a successful telephone solicitation
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`call.
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`17.
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` Starting at least as early as 2014, Defendants engaged in the mass transmission of
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`unsolicited robocalls to the cell phones nationwide of what they hoped were potential customers
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`of Sirius XM services.
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`18.
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`Beginning in or about December 2014, in an apparent effort to sell Sirius XM’s
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`satellite radio subscription service to Plaintiff, Defendants began placing robocalls to Plaintiff’s
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`cellular telephone.
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`19.
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`Specifically, Plaintiff’s cell phone would ring and indicate that he was receiving a
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`phone call from 888-539-7474, a phone number associated with Defendants’ automated calling
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`operation that markets Sirius XM’s satellite radio service.
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`20.
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`These automated solicitation calls, including the calls made to Plaintiff, were
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`placed en masse using “predictive dialing” technology, which automatically places calls without
`
`
`
`4
`
`Fraunhofer Ex 2015-4
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 5 of 11 PageID #:85
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`human intervention until the called party answers the call, at which time such automatic dialer
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`attempts to connect the called party with a human representative.
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`21. When Plaintiff would answer the phone calls, the call would be connected to
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`Defendants’ automated calling operation and a sales representative would eventually come on
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`the line and attempt to make a “sales pitch” promoting Sirius XM’s satellite radio service.
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`22.
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`For example, on or about February 26, 2015, Plaintiff received yet another
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`unauthorized robocall from Defendants. When Plaintiff answered the call, a sales associate
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`introduced herself by name, stated that she was calling on behalf of Sirius XM Radio, and
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`proceeded to make a sales pitch. The sales associate told Plaintiff to call 888-553-9879 –
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`another phone number associated with Defendants’ automated calling operation that markets
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`Sirius XM’s satellite radio service – if he was interested in purchasing a subscription in the
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`future.
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`23.
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`Plaintiff received these unwanted and unsolicited robocalls one to two times a
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`week, every week, over the past several months preceding the filing of the instant complaint.
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`24.
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`Plaintiff has never been a Sirius XM subscriber and at no time did Plaintiff
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`provide Sirius XM or TeleServices with consent, including any written consent, to place any
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`telephone calls, including any calls made through an ATDS, to his cellular telephone number.
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`25.
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`Plaintiff’s cellular telephone number has been registered with the National Do-
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`Not-Call Registry since August 2006 and at all times that he received robocalls from Defendants.
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`26.
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`Plaintiff has never contacted Sirius XM or TeleServices for any purpose and has
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`never had any business relationship with either Defendant.
`
`
`
`5
`
`Fraunhofer Ex 2015-5
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 6 of 11 PageID #:86
`
`27.
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`Sirius XM was, or should have been, aware that the automated calling operation
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`marketing its satellite radio service was placing telephone solicitation calls in violation of the
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`TCPA.
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`28.
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`Sirius XM had the ability to prevent unauthorized calls in violation of the TCPA
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`from being placed by the automated calling operation.
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`CLASS ACTION ALLEGATIONS
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`29.
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`Plaintiff brings this action on behalf of himself, two nationwide classes, and one
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`subclass (together, the “Classes”) defined as follows:
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`(i) The Called Party Class: All persons in the United States and its Territories who, within
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`four years prior to the commencement of this litigation, received one or more telephone
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`solicitation calls on their cellular telephone advertising Sirius XM’s satellite radio service
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`through an automated telephone dialing system without providing prior express consent to
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`receive such phone calls.
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`(ii) The Written Consent Subclass: All persons in the United States and its Territories
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`who, since October 16, 2013, received one or more telephone solicitation calls on their cellular
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`telephone advertising Sirius XM’s satellite radio service through an automated telephone dialing
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`system without providing prior express written consent to receive such phone calls.
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`(iii) The Do-Not-Call Class: All persons in the United States and its Territories who,
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`within four years prior to the commencement of this litigation, received one or more telephone
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`solicitation calls on their telephone advertising Sirius XM’s satellite radio service more than 31
`
`days after registering their telephone number with the National Do-Not-Call Registry and who
`
`6
`
`Fraunhofer Ex 2015-6
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 7 of 11 PageID #:87
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`did not have a prior established business relationship with Defendants and did not provide
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`Defendants prior express written consent to receive such calls..
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`30.
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`Plaintiff will fairly and adequately represent and protect the interests of the other
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`members of the Classes. Plaintiff has retained counsel with substantial experience in prosecuting
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`complex litigation and class actions. Plaintiff and his counsel are committed to vigorously
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`prosecuting this action on behalf of the other members of the Classes, and have the financial
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`resources to do so. Neither Plaintiff nor his counsel has any interest adverse to those of the other
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`members of the Classes.
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`31.
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`Absent a class action, most members of the Classes would find the cost of
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`litigating their claims to be prohibitive and would have no effective remedy. The class treatment
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`of common questions of law and fact is also superior to multiple individual actions or piecemeal
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`litigation in that it conserves the resources of the courts and the litigants, and promotes
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`consistency and efficiency of adjudication.
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`32.
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`Defendants have acted and failed to act on grounds generally applicable to the
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`Plaintiff and the other members of the Classes, requiring the Court’s imposition of uniform relief
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`to ensure compatible standards of conduct toward the members of the Classes, and making
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`injunctive or corresponding declaratory relief appropriate for the Classes as a whole.
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`33.
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`The factual and legal bases of Defendants’ liability to Plaintiff and to the other
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`members of the Classes are the same, resulting in injury to Plaintiff and to all of the other
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`members of the Classes. Plaintiff and the other members of the Classes have all suffered harm
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`and damages as a result of Defendants’ unlawful and wrongful conduct.
`
`7
`
`Fraunhofer Ex 2015-7
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 8 of 11 PageID #:88
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`34.
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`Upon information and belief, there are hundreds, if not thousands, of members of
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`the Classes such that joinder of all members is impracticable.
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`35.
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`There are many questions of law and fact common to the claims of Plaintiff and
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`the other members of the Classes, and those questions predominate over any questions that may
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`affect individual members of the Classes. Common questions for the Classes include, but are not
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`limited to, the following:
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`(a)
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`Did Defendants place automated telephone calls marketing Sirius XM’s satellite
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`radio service?
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`(b) Were the calls marketing Sirius XM’s satellite radio service placed using an
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`automatic telephone dialing system?
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`(c)
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`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
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`radio service using an automatic telephone dialing system to persons who did not
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`previously provide Defendants with prior express consent to receive such calls on
`
`their respective cellular telephone numbers?
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`(d)
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`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
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`services using an automatic telephone dialing system after October 16, 2013 to
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`persons who did not previously provide Defendants with prior express written
`
`consent to receive such calls on their respective cellular telephone numbers?
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`(e)
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`Did the unauthorized calls made by Defendants using an ATDS violate the
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`TCPA?
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`(f)
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`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
`
`services to persons whose telephone numbers were registered with the National
`
`
`
`8
`
`Fraunhofer Ex 2015-8
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 9 of 11 PageID #:89
`
`Do-Not-Call Registry and who did not have a prior established relationship with
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`Defendants and did not provide Defendants with prior express written consent to
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`receive such calls?
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` (g) Was Defendants’ conduct in violation of the TCPA willful such that the members
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`of the Classes are entitled to treble damages?
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` (h)
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`Should Defendants be enjoined from continuing to engage in such conduct?
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`COUNT I
` Violation of the Telephone Consumer Protection Act (47 U.S.C. 227, et seq.)
`on behalf of the Called Party Class and Written Consent Subclass
`
`
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`36.
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`Plaintiff incorporates by reference the foregoing allegations as if fully set forth
`
`herein.
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`37.
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`Defendants made unauthorized telephone solicitation calls without prior express
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`consent using an automatic telephone dialing system to the cellular telephone numbers of
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`Plaintiff and the other members of the Called Party Class. Each such automated call was made
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`using equipment that had the capacity at the time the calls were placed to store or produce
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`telephone numbers to be called using a random or sequential number generator and to dial such
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`numbers.
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`38.
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`Defendants made unauthorized telephone solicitation calls after October 16, 2013
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`without prior express written consent using an automatic telephone dialing system to the cellular
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`telephone numbers of Plaintiff and the other members of the Written Consent Subclass. Each
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`such automated call was made using equipment that had the capacity at the time the calls were
`
`placed to store or produce telephone numbers to be called using a random or sequential number
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`generator and to dial such numbers.
`
`
`
`9
`
`Fraunhofer Ex 2015-9
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 10 of 11 PageID #:90
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`39.
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`Defendants’ conduct violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii).
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`40.
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`As a result of Defendants’ illegal conduct, the members of the Called Party Class
`
`and Written Consent Subclass have had their privacy rights violated, have suffered statutory and
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`actual damages, and, under 47 U.S.C. § 227(b)(3)(B), are each entitled, inter alia, to a minimum
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`of $500.00 in damages for each such violation of the TCPA.
`
`COUNT II
` Violation of the Telephone Consumer Protection Act (47 U.S.C. 227, et seq.)
`on behalf of the Do-Not-Call Class
`
`
`
`41.
`
`Plaintiff incorporates by reference the foregoing allegations as if fully set forth
`
`herein.
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`42.
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`Defendants made telephone solicitation calls to the telephone numbers of Plaintiff
`
`and the other members of the Do-Not-Call Class.
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`43.
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`Each such call was placed more than 31 days after Plaintiff and the other
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`members of the Do-Not-Call Class had registered their respective phone numbers with the
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`National Do-Not-Call Registry.
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`44.
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`Plaintiff and the other members of the Do-Not-Call Class never had an established
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`business relationship with Defendants prior to receiving the calls.
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`45.
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`Plaintiff and the other members of the Do-Not-Call Class never gave prior express
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`written consent to Defendants to receive telephone solicitation calls.
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`46.
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`Defendants’ conduct violated the TCPA, 47 U.S.C. § 227(c)(5) and its
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`implementing regulations 47 C.F.R. 64.1200(c)(2) and 47 C.F.R. 64.1200(e).
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`47.
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`As a result of Defendants’ illegal conduct, the members of the Do-Not-Call Class
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`have had their privacy rights violated, have suffered statutory and actual damages, and, under 47
`
`
`
`10
`
`Fraunhofer Ex 2015-10
`Sirius XM v Fraunhofer, IPR2018-00682
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 11 of 11 PageID #:91
`
`U.S.C. § 227(c)(5)(B), are each entitled, inter alia, to a minimum of $500.00 in damages for each
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`such violation of the TCPA.
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`REQUEST FOR RELIEF
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`Plaintiff, on behalf of himself and the Classes, requests the following relief:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
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`An order certifying the Classes as defined above;
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`An award of statutory damages;
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`An injunction requiring Defendants to cease all unauthorized automated telephone
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`activities;
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`An award of reasonable attorney’s fees and expenses of litigation; and
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`Such further and other relief as the Court deems just or equitable.
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`Plaintiff requests trial by jury of all claims that can be so tried.
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`JURY DEMAND
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`Dated: April 1, 2015
`
`YEFIM ELIKMAN, individually and on behalf of
`classes of similarly situated individuals
`
`By: /s/ Eugene Y. Turin
`One of Plaintiff’s Attorneys
`
`Myles McGuire
`Evan M. Meyers
`Eugene Y. Turin
`MCGUIRE LAW, P.C.
`161 North Clark Street, 47th Fl.
`Chicago, Illinois 60601
`Tel: (312) 216-5179
`Fax: (312) 275-7895
`mmcguire@mcgpc.com
`emeyers@mcgpc.com
`eturin@mcgpc.com
`
`11
`
`Fraunhofer Ex 2015-11
`Sirius XM v Fraunhofer, IPR2018-00682
`
`