Case 4:13-cv-00003-AWA-LRL Document 1 Filed 01/04/13 Page 1 of 20 PageID# 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`NEWPORT NEWS DIVISION
`
`FILED
`
`FRANCIS W. HOOKER, JR.,
`For himself and on behalf of all
`similarly situated individuals,
`
`Plaintiff,
`
`v>
`SIRIUS XM RADIO, INC.,
`
`Defendant.
`
`JAN - 4 2013
`CCs
`cle«k7u.s. district court
`norfolk, va
`
`CASE NO.: _Ji- 13^^3
`
`CLASS COMPLAINT
`COMES NOW Plaintiff, Francis W. Hooker, Jr. ("Hooker" or "Plaintiff), on behalfof
`himselfand all similarly situated individuals, and alleges the following claims against Sirius XM
`Radio, Inc. ("Sirius XM" or"Defendant"):
`
`I. INTRODUCTION
`This action is brought for violations ofthe Telephone Consumer Protection Act of
`1-
`1991,47 U.S.C. §227, et seq. ("TCPA" or "the Act"), arising out ofseveral telephone
`solicitation calls made by or on behalfofDefendant to Plaintiffs cell phone number, including
`calls after 9:00 p.m., using an automatic telephone dialing system.
`
`II. SUBJECT MATTER JURISDICTION AND VENUE
`This court has original jurisdiction ofthis civil action as one arising under the
`2.
`laws ofthe United States. See 28 U.S.C. §133Jand Mims v. Arrow Fin. Serv., LLC, 565 U.S.
`, 132 S. Ct. 740, 181 L. Ed.2d 881 (2012).
`3.
`Venue is proper in this Court under 28 U.S.C. §1391(b) because Defendant
`victimized Plaintiffon his cell phone line in the City of Hampton, Virginia where Plaintiff lives
`and works.
`
`4.
`
`Venue is also proper in this Court under 28 U.S.C. § 1391(b) as Defendant
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`regularly does business in the district and division, is subject to this Court's personal jurisdiction
`
`with respect to this civil action in the district and, as such, "resides" in the district.
`
`5.
`
`Plaintiff maintains all of the documents relevant to this dispute at his home in
`
`Hampton, Virginia.
`
`III. PARTIES AND PERSONAL JURISDICTION
`
`6.
`
`Plaintiff Hooker is an individual and natural person, and an Air Force Airman
`
`First Class stationed at Langley Air Force Base in Hampton, Virginia.
`
`7.
`
`Defendant Sirius XM is a Delaware corporation with its principle place of
`
`business located at 1221 Avenue of the Americas, New York, NY 10020.
`
`8.
`
`At all times pertinent, Defendant was and is in the business of providing radio
`
`programming for a fee.
`
`9.
`
`Defendant transacts business throughout the United States, including in Virginia
`
`and specifically in this district and division.
`
`10.
`
`In addition to transacting business in Virginia, Defendant contracts to supply
`
`services or things in Virginia, including in this district and division.
`
`11.
`
`Defendant regularly does or solicits business, or engages in other persistent
`
`courses of conduct, or derives substantial revenue from goods used or consumed or services
`
`rendered in the Commonwealth of Virginia, including in this district and division.
`
`12.
`
`In addition, through its acts in sending or causing to be sent to Plaintiff
`
`unsolicited text messages using an autodialer, Defendant caused tortious injury in the nature of
`
`an invasion of Plaintiffs privacy rights in this Commonwealth, either by its acts in this
`
`Commonwealth or, alternatively, by acts outside the Commonwealth while regularly doing or
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`soliciting business or engaging in a persistent course of conduct and deriving substantial revenue
`
`from goods used or consumed or services rendered in this Commonwealth.
`
`13.
`
`Personal jurisdiction may be exercised over Defendant pursuant to Va. Code §
`
`8.01 -328.1 .A. 1, A.2, A.3, and A.4.
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`14.
`
`Plaintiff intends to serve Defendant through the Virginia Secretary of the
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`Commonwealth.
`
`15.
`
`At all times pertinent, Defendant was and is engaged in interstate commerce, and
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`Defendant used and is using instrumentalities of interstate commerce, including telephone lines,
`
`satellites, cell phone towers, and the mail, in the course of its activities set forth herein.
`
`IV. GENERAL OVERVIEW OF THE TCPA
`
`16.
`
`In 1991, Congress enacted the TCPA in response to a growing number of
`
`consumer complaints regarding certain telemarketing practices.
`
`17.
`
`The TCPA regulates, among other things, the use of automated telephone dialing
`
`systems or "autodialers" and the use of artificial or prerecorded voices in telephone calls, both as
`
`to telemarketing and non-telemarketing calls. Specifically, the plain language of § 227(b)(1)(A)
`
`prohibits the use of autodialers or artificial or prerecorded voices to make any non-emergency
`
`call to a cellular or wireless phone number in theabsence of prior express consent of the called
`
`party.
`
`18.
`
`According to findings by the Federal Communications Commission ("FCC"), the
`
`agency Congress vested with authorityto issueregulations implementing the TCPA, such calls
`
`are prohibited because, as Congress found, calls made using an autodialeror an artificial or
`
`prerecorded voice are a greater nuisance and invasion of privacy than live calls, and such calls
`
`can be costly and inconvenient. The FCC also recognized that wireless customers are charged
`
`for incoming calls whether they pay in advance or after the minutes are used.
`
`19.
`
`Under the TCPA and pursuant to the FCC's January 2000 Declaratory Ruling, the
`
`burden is on Defendant to demonstrate that Plaintiff and the other members of the classes and
`
`sub-classes which Plaintiff seeks torepresent provided prior express consent within the meaning
`
`of the Act.
`
`20.
`
`In 47 U.S.C. § 227(c), Congress directed the FCC to prescribe rules and
`
`regulations to protect residential telephone subscribers' privacy rights to avoid receiving
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`telephone solicitations to which they object.
`
`Pursuant to this Congressional directive, the FCC has adopted rules and
`21.
`regulations prohibiting any person or entity from initiating any telephone solicitation to any
`residential telephone subscriber before 8:00 a.m. orafter 9:00 p.m.(local time atthe called
`
`party's location) as set forth in 47 C.F.R. § 64.1200(c).
`
`Pursuant to 47 C.F.R. §64.1200(e), this prohibition against telephone
`22.
`solicitations initiated before 8:00 a.m. or after 9:00 p.m. is also applicable to any person or entity
`initiating telephone solicitations to any wireless telephone number.
`
`V. FACTS AS TO NAMED PLAINTIFF
`
`23.
`
`On or about August 19, 2011, Plaintiffand his wife, Alexandra Rae Hooker,
`
`purchased a 2012 Hyundai Elantra four door sedan.
`
`As part of the purchase the dealership provided Plaintiffwith three months of
`24.
`Defendant's satellite radio programming at no charge.
`25.
`Approximately halfway through the three monthly complimentary trial period,
`Plaintiff received the first autodialed call made by or on behalf ofDefendant (as used in this
`section, "Defendant" shall refer to Sirius XM and/or its agent(s) and/or anyone acting on
`Defendant's behalf) to Plaintiffs cellular phone.
`26.
`Defendant urged Plaintiff to extend his complimentary subscription into apaid
`continuing subscription.
`
`Not only did Plaintiffdecline Defendant's unsolicited offer, but he demanded that
`27.
`Defendant never call him again on his cell phone number orotherwise.
`
`Plaintiffcould tell that the call was placed by an autodialer because at first there
`28.
`was no one on the phone, but several seconds after he answered, a representative ofDefendant
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`initiated a conversation with Plaintiff.
`
`The next night Defendant placed asecond autodialed call to Plaintiffs cell phone
`29.
`number. Plaintiff again declined to extend his subscription and told the representative of
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`Defendant not to call again.
`
`30.
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`The next night Defendant placed yet another autodialed call to Plaintiffs cell
`
`phone number.
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`31.
`
`Plaintiffagain told Defendant he did not want to extend his subscription and not
`
`to call again.
`
`In response, Defendant's representative said that it would take at least ten days to
`32.
`remove Plaintiff from the list of individuals that Defendant was soliciting.
`
`33.
`
`Thereafter, the Defendant continued to place a number of autodialed calls to
`
`Plaintiffs cell phone number.
`
`Upon receiving the third autodialed call, Plaintiff demanded to speak to a
`34.
`supervisor. After holding for a considerable period oftime, the call was disconnected through
`no fault ofPlaintiffwithout a supervisor coming to the phone.
`
`Immediately after the third autodialed call was disconnected, Plaintiff called the
`35.
`Defendant's number back and eventually spoke to asupervisor. The supervisor acknowledged
`that the calls to Plaintiff were being made by acomputer using an autodialer. The supervisor
`also informed Plaintiffthat the contact information used to call Plaintiffhad been obtained by
`Defendant from the motor vehicle dealer from which Plaintiffand his wife had purchased their
`
`new vehicle.
`
`At no time did Plaintiffprovide Defendant with his cell phone number, nor did he
`36.
`authorize the automobile dealership to provide Defendant with his cell phone number.
`37.
`At no time prior to his receipt ofthe autodialed calls did Plaintiff have any
`communication with Defendant, written, oral or electronic, whether initiated by Plaintiffor
`
`Defendant.
`
`The calls were made not only without Plaintiffs consent, but (as to all but the
`38.
`first call) after Plaintiff told Defendant never to call his cell phone again.
`39.
`Plaintiff answered at least three calls and on each occasion told Defendant to stop
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`calling to no avail.
`
`40.
`
`The cell phone in question and the cell phone number called belonged to Plaintiff.
`
`Each ofthe calls made by Defendant to Plaintiffs cell phone number was made
`41.
`using an automatic telephone dialing system as defined by the TCPA in 47 U.S.C. §227(a)(1)
`(hereinafter "autodialer") in that the equipment used by Defendant had the capacity to store or
`produce telephone numbers to be called, using a random or sequential number generator, and to
`
`dial such numbers. By using such equipment, Defendant was able to make calls to the wireless
`
`telephone numbers of the members of the classes and subclasses which Plaintiffseeks to
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`represent automatically without human intervention.
`
`42.
`
`None of the calls made by Defendant to Plaintiffs cell phone number were made
`
`for an emergency purpose.
`
`43.
`
`None ofthe calls made by Defendant to Plaintiffs cell phone number were made
`
`with Plaintiffs prior express consent.
`
`Plaintiff expressly disavows and denies providing any authority to the automobile
`44.
`dealership to give his cell phone number to Defendant oranyone else.
`
`Alternatively, in the event that Plaintiff(either directly or through the automobile
`45.
`dealership purportedly acting on his behalf) provided to Defendant prior express consent to call
`his cell phone number using an autodialer, any such consent was revoked by Plaintiff prior to all
`but the first of the autodialed calls that were made by Defendant.
`
`Each ofthe calls made by Defendant to Plaintiffs cell phone number was a
`46.
`"telephone solicitation" in that each call was initiated for the purpose ofencouraging the
`purchase or rental ofDefendant's goods or services, specifically the purchase ofasubscription
`for Defendant's satellite radio programming.
`
`47.
`
`At least the first three telephone solicitation calls were initiated by Defendant
`
`after 9:00 p.m. local time at Plaintiffs location.
`
`48.
`
`At no time did Plaintiff provide his prior express invitation or permission that
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`Defendant initiate a call ormessage to his phone for the purpose ofencouraging the purchase or
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`rental of Defendant's goods or services.
`
`49.
`
`At the time Defendant initiated its telephone solicitation calls to Plaintiff, Plaintiff
`
`did not have an established business relationship with Defendant as that term is defined 47
`
`C.F.R. §64.1200(f)(4).
`
`50.
`Specifically, Plaintiffhad not had any prior voluntary two-way communication
`between himself and Defendant on the basis ofany inquiry or application regarding products or
`
`services offered by Defendant within the three (3) months immediately preceding the dates ofthe
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`telephone solicitation calls from Defendant
`
`51.
`
`Likewise, Plaintiff had not had any prior voluntary two-way communication
`
`between himself and Defendant on the basis of any purchase or transaction with Defendant
`
`within the eighteen (18) months immediately preceding the dates of the calls from Defendant.
`
`52.
`The only thing which Plaintiff did was to purchase a new motor vehicle from a
`dealer which provided three months ofSirius XM Radio programing free ofcharge.
`
`53.
`
`All communications pertaining to the purchase of the new motor vehicle with the
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`three month's of free programing were between Plaintiffand the motorvehicle dealer.
`
`54.
`
`At no time did the motor vehicle dealer purport to be communicating with
`
`Plaintiff as Defendant's agent or otherwise on Defendant's behalf.
`
`Alternatively, any established business relationship which Plaintiff may have had
`55.
`with Defendant was terminated for telephone solicitation purposes when, during the first call,
`Plaintifftold Defendant that he was not interested in purchasing asubscription for its services
`and instructed Defendant not to call anymore.
`
`After the first call, Defendant initiated at least two additional calls after 9:00 p.m.
`56.
`local time encouraging Plaintiffto purchase a subscription for Defendant's satellite radio
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`programming.
`
`57.
`
`Plaintiff isentitled to recover statutory damages and obtain injunctive relief as
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`concerns Defendant's autodialed calls as provided in 47 U.S.C. § 227(b)(3).
`
`Plaintiff is entitled to recover statutory damages and obtain injunctive reliefas
`58.
`concerns Defendant's telephone solicitation calls initiated between 9:00 p.m. and 8:00 a.m., local
`time as provided in47 U.S.C. § 227(c)(5).
`
`Plaintiff is entitled to recover separate statutory penalties pursuant to both 47
`59.
`U.S.C. §227(b)(3) and §227(c)(5), notwithstanding that both sections were violated by the same
`call. Chai-vat v. NMP, LLC, 656 F.3d 440 (6,h Cir. 2011).
`
`VI. CLAIM FOR RELIEF
`
`COUNT ONE
`
`Telephone Consumer Protection Act. 47 U.S.C. SS 227n»MttfAMiin and 2Y1(Yi\(%\
`
`Automatic Telephone Dialing System
`
`60.
`
`Plaintiff realleges and incorporates paragraphs 1through 59 as though fully set
`
`forth herein.
`
`The "Autodialed Class." Pursuant to Rule 23 of the Federal Rules of Civil
`61.
`Procedure, Plaintiff brings this action for himself and on behalf ofa class ("the Autodialed
`Class") of similarly situated individuals initially defined as follows:
`
`All natural persons residing in the United States (including all territories and other
`political subdivisions of the United States) (a.) who were the recipients ofone or more
`telephone calls to their wireless phone numbers; (b.) made by or on behalfofDefendant;
`(c.) using an automatic telephone dialing system as defined by the TCPA; (d.) within four
`years next preceding the filing of this action and during its pendency. Excluded from the
`class definition are any employees, officers, directors ofDefendant, and attorney
`appearing in this case, and anyjudge assigned to hear this action.
`
`The "First Autodialed Sub-Class." Pursuant to Rule 23 of the Federal Rules of
`62.
`Civil Procedure, Plaintiffalso brings this action for himself and on behalfofanother putative
`sub-class ("the First Autodialed Sub-Class") ofsimilarly situated individuals initially defined as
`
`follows:
`
`All natural persons residing in the United States (including all territories and other
`political subdivisions ofthe United States) (a.) who were the recipients ofone ormore
`telephone calls to their wireless phone numbers; (b.) made by oron behalfofDefendant;
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`(c.) using an automatic telephone dialing system as defined by the TCPA; (d.) within four
`years next preceding the filing ofthis action and during its pendency; and (e.) where
`Defendant or persons acting on its behalfcontinued to call such persons' wireless
`numbers using an autodialer after being instructed to stop calling. Excluded from the
`class definition are any employees, officers, directors ofDefendant, and attorney
`appearing inthis case, and anyjudge assigned to hear this action.
`
`Numerosity. Fed. R. Civ. P. 23(a)(1). Upon information and belief, Plaintiff
`63.
`alleges that the members ofthe Autodialed Class and ofthe First Autodialed Sub-Class (herein
`referred to in Count 1as the "Class" and "Sub-Class") are so numerous that joinder ofall is
`
`impractical. The names andaddresses of the Class and Sub-Class members are identifiable
`through documents maintained by Defendant, and the Class and Sub-Class members may be
`notified ofthe pendency of this action bypublished and/or mailed notice.
`
`64.
`
`Existence and Predominance of Common Questions of Law and Fact. Fed. R.
`
`Civ. P. 23(a)(2). Common questions of law and fact exist as to all Class and Sub-Class
`
`members. These questions predominate over the questions affecting only individual members.
`These common legal and factual questions include, among other things:
`
`(a) Whether the calls made by or on behalfofDefendant to the wireless phone
`
`numbers ofthe Class and Sub-Class members were made using an autodialer?
`(b) Whether the calls made by or on behalfofDefendant to the wireless phone
`numbers ofthe Class and Sub-Class members were made for emergency
`
`purposes?
`
`(c) Whether the Class and Sub-Class members provided prior express consent to
`
`Defendant to make or have made on its behalfeach of the calls to their wireless
`
`phone numbers using an autodialer?
`
`(d) Whether Defendant's conduct violated 47 U.S.C. §227(b)(1)(A)?
`(e) Whether Defendant willfully or knowingly violated 47 U.S.C. §227(b)(1)(A)?
`(0
`Whether Plaintiffand the Class and Sub-Class members are entitled to a
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`permanent injunction enjoining Defendant from making or having made on its
`behalf calls to wireless phone numbers using an autodialer without the prior
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`express consent of the called party?
`
`Typicality. Fed. R. Civ. P. 23(a)(3). Plaintiffs claims are typical ofthe claims of
`65.
`each Class and Sub-Class member. Plaintiffwould only seek individual or actual damages if
`
`class certification is denied. In addition, Plaintiffis entitled to relief under the same causes of
`
`action and upon the same facts as the other members of the Class and Sub-Class.
`
`66.
`
`Adequacy. Fed. R. Civ. P. 23(a)(4). Plaintiff is an adequate representative ofthe
`
`Class and Sub-Class because his interests coincide with, and are not antagonistic to, the interest
`
`ofthe members ofthe Class and Sub-Classes he seeks to represent; he has retained counsel
`competent and experienced in such litigation; and he intends to prosecute this action vigorously.
`
`Plaintiff and his Counsel will fairly and adequately protect the interests of members of the Class
`
`and Sub-Class.
`
`67.
`
`Superiority. Fed. R. Civ. P. 23(b)(3) Questions of law and fact common to the
`
`Class and Sub-Class members predominate over questions affecting only individual members,
`
`and a class action is superior to other available methods for fair and efficient adjudication ofthe
`
`controversy. Liability will be determined based on a common setof facts and legal theories.
`Willfulness will be determined based on Defendant's conduct and knowledge, not upon the
`effect ofDefendant's conduct on the Class and Sub-Class members. The statutory damages
`
`sought byeach member are such that individual prosecution would prove burdensome and
`
`expensive given the complex and extensive litigation necessitated by Defendant's conduct. It
`would be virtually impossible for the members ofthe Class and Sub-Classes individually to
`redress effectively the wrongs done to them, as the TCPA has no attorney's fee shifting
`
`provision. Even if the members of the Class and Sub-Class themselves could afford such
`
`individual litigation, it would be an unnecessary burden on the courts. Furthermore,
`
`individualized litigation presents a potential for inconsistent orcontradictory judgments and
`increases the delay and expense to all parties and to the court system presented by the complex
`
`legal and factual issues raised by Defendant's conduct. By contrast, the class action device will
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`result in substantial benefits to the litigants and the Court by allowing the Court to resolve
`
`numerous individual claims based upon a single set of proof injustone case.
`
`Class certification is appropriate because Defendant has acted on grounds
`68.
`generally applicable to the Class and Sub-Class, making appropriate equitable injunctive relief
`with respect to Plaintiff and the Class and Sub-Class members. Fed. R. Civ. P. 23(b)(2).
`
`By virtue ofthe foregoing, Defendant violated 47 U.S.C. §227(b)(l)(A)(iii) as to
`69.
`Plaintiffand the members ofthe Class and Sub-Class by calling, on one or more occasions, their
`wireless numbers using an automatic telephone dialing system without their prior express
`
`consent, or alternatively by making such calls after any prior express consent was revoked.
`
`70.
`
`Pursuant to 47 U.S.C. § 227(b)(3), Plaintiffand each Class and Sub-Class
`
`member is entitled to recover from Defendant S500.00 in statutory damages for each such
`
`violation. In the event that Defendant is found to have knowingly orwillfully violated the
`TCPA, this Court may, in its discretion, increase the amount ofstatutory damages to not more
`
`that $1,500.00 for each such violation.
`
`71.
`
`Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff, on behalfof himselfand the Class
`
`and Sub-Class members, also seeks injunctive relief prohibiting Defendant's violations of the
`
`TCPA in the future.
`
`COUNT TWO
`
`Telephone Consumer Protection Act. 47 U.S.C. §8 227(c)(5)
`and 47 C.F.R. 8 64.1200(c) and (e)
`
`Telephone Solicitation Calls to Residential and Wireless Telephone Numbers
`72.
`Plaintiffrealleges and incorporates paragraphs 1through 59 as though fully set
`
`forth herein.
`
`73.
`
`The "TelemarketedClass." Pursuant to Rule 23 of the Federal Rules of Civil
`
`Procedure, Plaintiff brings this action for himself and on behalfofa class ("the Telemarketed
`
`Class") of similarly situated individuals initially defined as follows:
`
`All natural persons residing in the United States (including all territories and other
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`political subdivisions of the United States) (a.) who were the recipients of more than one
`telephone solicitation call within any 12-month period; (b.) initiated by or on behalfof
`Defendant between 9:00 p.m. and 8:00 a.m., local time at the called party's location; (c.)
`within four years next preceding the filing of this action and during its pendency.
`Excluded from the class definition are any employees, officers, directors of Defendant,
`and attorney appearing in this case, and anyjudge assigned to hear this action.
`
`74.
`
`The "First Telemarketed Sub-Class." Pursuant to Rule 23 of the Federal Rules of
`
`Civil Procedure, Plaintiffalso brings this action for himselfand on behalfof a putative sub-class
`
`("theFirst Telemarketed Sub-Class") of similarly situated individuals initially defined as
`
`follows:
`
`All natural persons residing in the United States (including all territories and other
`political subdivisions of the United States) (a.) who were the recipients of more than one
`telephone solicitation call within any 12-month period; (b.) initiated by or on behalfof
`Defendant between 9:00 p.m. and 8:00 a.m., local time at the called party's location; (c.)
`within four years next preceding the filing of this action and during its pendency; and (d.)
`where Defendant and/or persons acting on its behalfcontinued to initiate telephone
`solicitation calls to the persons' residential or wireless phone numbers between 9:00 p.m.
`and 8:00 a.m., local time at the called party's location, after being instructed to stop
`calling. Excluded from the class definition are any employees, officers, directors of
`Defendant, and attorney appearing in this case, and anyjudge assigned to hear this action
`
`75.
`
`Numerosity. Fed. R. Civ. P. 23(a)(1). Upon information and belief, Plaintiff
`
`alleges that the members of the Telemarketed Class and of the First Telemarketed Sub-Class
`
`(herein referred to in Count 2 as the "Class" and "Sub-Class") are so numerous that joinder of all
`
`is impractical. The names and addresses of the Class and Sub-Class members are identifiable
`
`through documents maintained by Defendant, and the Class and Sub-Class members may be
`
`notifiedof the pendency of this action by published and/or mailed notice.
`
`76.
`
`Existence and Predominance of Common Questions of Law and Fact. Fed. R.
`
`Civ. P. 23(a)(2). Common questions of law and fact exist as to all Class and Sub-Class
`
`members. These questions predominate over the questions affecting only individual members.
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`These common legal and factual questions include, among other things:
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`(a)
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`Whether the calls made by or on behalf of Defendant to the residential or wireless
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`phone numbers of the Class and Sub-Class members were telephone solicitations?
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`(b) Whether the calls made by or on behalf of Defendant to the cell phone numbers of
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`the Class and Sub-Class members were initiated between 9:00 p.m. and 8:00 a.m.,
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`local time at the called party's location?
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`(c) Whether the Class and Sub-Class members provided prior express invitation or
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`permission to Defendant to initiate or have initiated on its behalf each of the
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`telephone solicitation calls to their residential or wireless phone numbers?
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`(d)
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`Whether the Class and Sub-Class members had an established business
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`relationship with Defendant at the time of the solicitation calls?
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`(e) Whether Defendant's conduct violated 47 U.S.C. § 227(c) and 47 C.F.R. §
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`64.1200(c) and (c)?
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`(f) Whether Defendant willfully or knowingly violated 47 U.S.C. § 227(c) and 47
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`C.F.R. § 64.1200(c) and (e)?
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`(g)
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`Whether Plaintiff and the Class and Sub-Class members are entitled to a
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`permanent injunction enjoining Defendant from initiating or having initiated on
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`itsbehalftelephone solicitation calls to residential and wireless phone numbers of
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`the Class and Sub-Class members between 9:00 p.m. and 8:00 a.m., local time at
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`the called party's location?
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`77.
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`Typicality. Fed. R. Civ. P. 23(a)(3). Plaintiffs claims are typical of the claims of
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`each Class and Sub-Class member. Plaintiff would only seek individual oractual damages if
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`class certification is denied. In addition, Plaintiff is entitled to relief under the same causes of
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`action and upon the same facts as the other members of the Class and Sub-Class.
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`78.
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`Adequacy. Fed. R. Civ. P. 23(a)(4). Plaintiff is an adequate representative of the
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`Class and Sub-Class because his interests coincide with, and are not antagonistic to, the interest
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`of the members of the Class and Sub-Class he seeks to represent; he has retained counsel
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`competent and experienced in such litigation; and he intends to prosecute this action vigorously.
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`Plaintiffand his Counsel will fairly and adequately protect the interests of members of the Class
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`and Sub-Class.
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`79.
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`Superiority. Fed. R. Civ. P. 23(b)(3) Questions of law and fact common to the
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`Class and Sub-Class members predominate over questions affecting only individual members,
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`and a class action is superior to other available methods for fair andefficient adjudication of the
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`controversy. Liability will be determined based on a common set of facts and legal theories.
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`Willfulness will bedetermined based on Defendant's conduct and knowledge, not upon the
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`effect of Defendant's conduct on the Class and Sub-Class members. The statutory damages
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`sought by each member are such that individual prosecution would prove burdensome and
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`expensive given the complex and extensive litigation necessitated by Defendant's conduct. It
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`would be virtually impossible for the members of the Class and Sub-Class individually to redress
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`effectively the wrongs done to them, as the TCPA has no attorney's fee shifting provision. Even
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`if the members of the Class and Sub-Classes themselves could afford such individual litigation, it
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`would be an unnecessary burden on the courts. Furthermore, individualized litigation presents a
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`potential for inconsistent or contradictory judgments and increases the delay and expense to all
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`parties and to the court system presented by the complex legal and factual issues raised by
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`Defendant's conduct. By contrast, the class action device will result in substantial benefits to the
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`litigants and the Court by allowing the Court to resolve numerous individual claims based upon a
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`single set of proof in just one case.
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`80.
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`Class certification is appropriate because Defendant has acted on grounds
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`generally applicable to the Class and Sub-Class, making appropriate equitable injunctive relief
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`with respect to Plaintiffand the Class and Sub-Class members. Fed. R. Civ. P. 23(b)(2).
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`81.
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`Byvirtue of the foregoing, Defendant violated 47 U.S.C. § 227(c) and 47 C.F.R. §
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`64.1200(c) and (e)as to Plaintiff and the Class and Sub-Class by initiating, on more than one
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`occasion, a telephone solicitation call to the residential or wireless phone numbers of Plaintiff
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`and the members of the Class and Sub-Class without the prior express invitation or permission of
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`the Class and Sub-Class members, and without there being an established business relationship
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`with the Class and Sub-Class members, or alternatively by initiating, on more than oneoccasion,
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`such a call after any prior express invitation or permission was revoked and any established
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`business relationship was terminated by Plaintiff and the members of the Class and each Sub-
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`Class.
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`82.
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`Pursuant to 47 U.S.C.A. §227(c)(5), Plaintiff and each Class and Sub-Class
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`member is entitled to recover from Defendant $500.00 in statutory damages for each such
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`violation. In the event that Defendant is found to have knowingly or willfully violated the
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`TCPA, this Court may, in its discretion, increase the amount of statutory damages to not more
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`that $1,500.00 for each such violation.
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`83.
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`Pursuant to 47 U.S.C. § 227(c)(5)(A), Plaintiff, on behalf of himself and the Class
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`and Sub-Class members, also seeks injunctive relief prohibiting Defendant's violations of the
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`TCPA in the future.
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`VII. DEMAND FOR PRESERVATION
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`84.
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`Plaintiff also specifically demands that Defendant retain and preserve all records
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`related to the allegations in this Complaint. Specifically, Plaintiffs demand for preservation
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`includes, but is not limited to, the following documents and information:
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`(a)
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`All documents evidencing all phone numbers, including spoofed numbers, used
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`by Defendant and/or persons acting on its behalf in making autodialed calls to
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`wireless phone numbers or in making telephone solicitation calls to residential or
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`wireless phone numbers, each within the last four years;
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`(b)
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`All documents evidencing the wireless telephone numbers t