Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 1 of 7 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
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`ANTHONY PARKER, individually and on
`behalf of classes of similarly situated individuals,
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`Plaintiff,
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`v.
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`SIRIUS XM RADIO, INC., a Delaware
`corporation,
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`Defendant.
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`Case No. ____________________
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`Class Action
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`Jury Trial Demanded
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`CLASS ACTION COMPLAINT
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`Plaintiff Anthony Parker (“Plaintiff”) brings this class action complaint against Defendant
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`Sirius XM Radio, Inc., a Delaware corporation (“Defendant” or “Sirius XM”) to obtain redress for
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`all persons injured by Defendant’s unauthorized telephone solicitation calls using an automatic
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`telephone dialing system (“ATDS”), and to stop Defendant’s unlawful telephone solicitation
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`practices. Plaintiff’s allegations below are made upon personal knowledge as to himself and his
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`own acts and experiences, and as to all other matters, upon information and belief, including
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`investigation conducted by his attorneys.
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`NATURE OF THE CASE
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`1.
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`Defendant, working with its agents, placed unsolicited automated calls to the
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`cellular telephones of thousands of consumers nationwide as part of an unlawful effort to market
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`its satellite radio subscription services.
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`2.
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`By placing unauthorized automated telephone calls using an ATDS (“robocalls”)
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`to the cellular telephones of individuals throughout the nation, Defendant violated federal law.
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`Fraunhofer Ex 2018-1
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

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`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 2 of 7 PageID 2
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`3.
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`Defendant has violated the statutory rights of the called parties, and has caused
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`actual harm to such call recipients by effectuating these unauthorized calls, because the called
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`parties experienced the aggravation and invasion of privacy that necessarily accompanies
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`unsolicited telephone solicitation calls and also because the recipients sometimes have to pay their
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`cellular phone providers for receiving the calls or incur a usage deduction on their plans.
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`4.
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`To redress these injuries, Plaintiff, on behalf of himself and a national class and
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`subclass, brings suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the
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`“TCPA”), which protects consumers’ privacy rights to be free from receiving unsolicited
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`automated telephone calls.
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`5.
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`On behalf of the class and subclass, Plaintiff prays for an injunction requiring that
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`Defendant cease all unauthorized automated telephone calls, and an award of statutory damages
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`to the members of the class and subclass, together with costs and reasonable attorneys’ fees.
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`PARTIES
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`6.
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`7.
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`Plaintiff is a natural person, domiciled in the State of Florida.
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`Defendant Sirius XM Radio, Inc. is a nationwide provider of a paid subscription
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`satellite radio service. Sirius XM is a Delaware corporation with its principal place of business
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`located in New York. Sirius XM conducts business in this District, and conducts business
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`elsewhere throughout the United States.
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`JURISDICTION
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`8.
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`This Court has federal question subject matter jurisdiction under 28 U.S.C. § 1331,
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`as the action arises under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.
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`Fraunhofer Ex 2018-2
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

`

`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 3 of 7 PageID 3
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`VENUE
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`9.
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`Venue is proper in this district under 28 U.S.C. § 1391(b), because Defendant
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`conducts business in this District, including the telemarketing activity at issue herein. Moreover,
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`a substantial part of the events or omissions giving rise to the asserted claims occurred in this
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`District.
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`CONDUCT COMPLAINED OF
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`10.
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`Defendant engaged in the mass transmission of unsolicited robocalls to cellular
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`phones nationwide as part of an effort to promote its satellite radio service.
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`11.
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`In an apparent effort to sell Defendant’s satellite radio subscription service to
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`Plaintiff, Defendant began placing robocalls to Plaintiff’s cellular telephone beginning in or about
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`August 2014.
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`12.
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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 321-234-1090, a phone number associated with Defendant’s automated calling
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`operation that markets Defendant’s satellite radio service.
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`13.
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`These automated solicitation calls, including the calls made to Plaintiff, were placed
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`en masse to a list of numbers using an ATDS and with “predictive dialing” technology, which
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`automatically places calls without human intervention until the called party answers the call, at
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`which time an automatic dialer attempts to connect the called party with a human representative.
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`14.
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`Defendant placed these unwanted and unsolicited robocalls to Plaintiff’s cellular
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`telephone two to three times a week, every week, over the past several months preceding the filing
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`of the instant complaint.
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`15.
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`Plaintiff has never been a Sirius XM subscriber and at no time did Plaintiff provide
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`Defendant with consent, including any written consent, to place any telephone calls, including any
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`Fraunhofer Ex 2018-3
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

`

`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 4 of 7 PageID 4
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`calls made through an ATDS, to his cellular telephone number.
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`CLASS ACTION ALLEGATIONS
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`16.
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`Plaintiff brings this action pursuant to Rules 23(b)(2) and 23(b)(3) of the Federal
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`Rules of Civil Procedure on behalf of himself as well as a national class (the “Called Party Class”)
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`with one subclass (the “Written Consent Subclass”) as defined below:
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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 filing of this lawsuit, received one or more telephone solicitation calls on
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`their cellular telephone advertising Sirius XM’s satellite radio service through an automated
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`telephone dialing system without providing prior express consent to receive such phone calls.
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` (ii) The Written Consent Subclass: All persons in the United States and its Territories who,
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`since October 16, 2013, received one or more telephone solicitation calls on their cellular telephone
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`advertising Sirius XM’s satellite radio service through an automated telephone dialing system
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`without providing prior express written consent to receive such phone calls.
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`17.
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`Plaintiff will fairly and adequately represent and protect the interests of all members
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`of the Class and Subclass. Plaintiff has retained counsel with significant 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 Class and Subclass, and possess the
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`financial resources to do so. Plaintiff does not have any interests adverse to those of the other
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`members of the Class and Subclass, and Plaintiff’s counsel also has no interests adverse to the
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`Class and Subclass members.
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`18.
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`If this suit were not to proceed as a class action, most members of the Class and
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`Subclass would be unable to obtain an effective remedy because the cost of litigating their claims
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`would be prohibitive. Class treatment of common questions of law and fact is superior to multiple
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`Fraunhofer Ex 2018-4
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

`

`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 5 of 7 PageID 5
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`individual actions or piecemeal litigation because it conserves the resources of the courts and the
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`litigants, while promoting consistency and efficiency of adjudication.
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`19.
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`Defendant has acted and failed to act on grounds generally applicable to the
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`Plaintiff and the other members of the Class and Subclass, requiring the Court’s imposition of
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`uniform relief to ensure compatible standards of conduct toward the members of the Class and
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`Subclass, and making injunctive or corresponding declaratory relief appropriate for the Class and
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`Subclass as a whole.
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`20.
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`Defendant’s liability to Plaintiff and to the other members of the Class and Subclass
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`is premised on the same factual and legal bases, causing injury to Plaintiff and to all of the other
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`members of the Class and Subclass. Plaintiff and the other members of the Class and Subclass
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`have all suffered harm and damages as a result of Defendant’s unlawful and wrongful conduct.
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`21.
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`Upon information and belief, there are hundreds, if not thousands, of members of
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`both the Class and Subclass such that joinder of all members is impracticable.
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`22. Many questions of law and fact are common to the claims of Plaintiff and the other
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`members of the Class and Subclass, and those questions predominate over any questions that could
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`affect individual members of the Class and Subclass. Common questions for the Class and
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`Subclass include, but are not limited to, the following:
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`(a)
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`Did Defendant market its satellite radio service by placing automated
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`telephone calls?
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`(b) Were the calls placed using an ATDS?
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`(c)
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`Did Defendant place telephone solicitation calls marketing its satellite radio
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`service using an ATDS to consumers who had not provided Defendant with prior express
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`consent to receive such calls on their respective cellular telephone numbers?
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`Fraunhofer Ex 2018-5
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

`

`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 6 of 7 PageID 6
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`(d)
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`Did Defendant place telephone solicitation calls marketing its satellite radio
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`services using an ATDS after October 16, 2013 to persons who did not previously provide
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`Defendant with prior express written consent to receive such calls on their cellular
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`telephone numbers?
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`(e) Were the unauthorized calls made by Defendant using an ATDS in violation
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`the TCPA?
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`(f) Was Defendant’s conduct in violation of the TCPA willful such that the
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`members of the Class and Subclass are entitled to treble damages?
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`(g)
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`Should Defendant be enjoined from continuing to engage in such conduct?
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`COUNT ONE
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`Violation of the Telephone Consumer Protection Act (47 U.S.C. § 227)
`on behalf of the Called Party Class and the Written Consent Subclass
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`23.
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`The foregoing allegations in Paragraphs 1 through 22 are incorporated by reference
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`as if fully set forth herein.
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`24.
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`Defendant used an ATDS to make unsolicited telephone calls without prior express
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`consent to the cellular telephone numbers of Plaintiff and the other members of the Called Party
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`Class. The equipment used to make each such call had the capacity to store or produce telephone
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`numbers to be called using a random or sequential number generator and to dial such numbers
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`and/or to dial numbers from a call list.
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`25.
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`Defendant used an ATDS to make unsolicited telephone calls after October 16,
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`2013 without prior express written consent to the cellular telephone numbers of Plaintiff and the
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`other members of the Written Consent Subclass. The equipment used to make each such call had
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`the capacity to store or produce telephone numbers to be called using a random or sequential
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`number generator and to dial such numbers and/or to dial numbers from a call list.
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`Fraunhofer Ex 2018-6
`Sirius XM v Fraunhofer, IPR2018-00690
`
`

`

`Case 8:15-cv-01710-JSM-EAJ Document 1 Filed 07/22/15 Page 7 of 7 PageID 7
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`26.
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`By engaging in such conduct Defendant violated the TCPA, 47 U.S.C.
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`§227(b)(1)(A)(iii).
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`27.
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`Defendant’s illegal conduct violated the Class and Subclass members’ privacy
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`rights and resulted in statutory and actual damages, and, under 47 U.S.C. § 227(b)(3)(B), the Class
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`and Subclass members 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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`WHEREFORE, Plaintiff Tony Parker, on behalf of himself and the Class and Subclass,
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`requests the following relief:
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`A.
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`B.
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`C.
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`D.
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`E.
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`An order certifying the Class and Subclass as defined above;
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`An award of statutory damages;
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`An injunction requiring Defendant to cease all unauthorized prerecorded telephone
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`activities;
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`An award of reasonable attorneys’ 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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`JURY DEMAND
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`Plaintiff requests trial by jury of all claims that can be so tried.
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`Dated: July 20, 2015
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`TONY PARKER, individually and on behalf of
`classes of similarly situated individuals
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`/s/ David P. Healy_________________
`David P. Healy (FL. Bar No. 0940410)
`DUDLEY, SELLERS & HEALY PL
`SunTrust Financial Center
`3522 Thomasville Road, Suite 301
`Tallahassee, Florida 32300
`Tel: (850) 222-5400
`Fax: (850) 222-7339
`dhealy@davidhealylaw.com
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`Counsel for Plaintiff Parker, individually and on
`behalf of all others similarly situated
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`Fraunhofer Ex 2018-7
`Sirius XM v Fraunhofer, IPR2018-00690
`
`