12.  An SMS message is a text message call directed to a wireless device  through the use of the telephone number assigned to the device. When an SMS  message call is made, the recipient’s cell phone rings or vibrates, alerting him or her  that a call is being received.   13  Unlike other forms of advertising, text message calls cost recipients  money and/or data, because cell phone users frequently pay their wireless service  providers either for each text message call received or for a text message plan that  includes a number of messages, regardless of whether or not the message is  authorized. Likewise, cellphone owners pay for their data, which may suffer a reduction  in available memory by virtue of unauthorized text messages. Additionally, unsolicited  text messages like those at issue in this Complaint are annoying, harassing, and violate  the consumer’s right to privacy.   15.  For example, on December 18, 2014 at 8:04 a.m., Plaintiff’s cell phone  (registered with the phone number ending in the last four digits 8209) rang, indicating  that a text call was received.   16.  The body of the text message, received from the number 801-590-3279,  stated:   Happy Holidays from Big City Burrito! New Holiday Gift Cards are Here!  Buy $25 or more before 12/31 & receive a FREE Burrito Coupon for  your next visit   17.  Five minutes later, at 8:09 a.m. on December 18, 2014, Plaintiff Scott  wrote back:   Please stop spamming me with these silly texts. I will never patronize  your business because of them.   18.  Almost instantaneously, Plaintiff’s cell phone rang again, indicating that a  text call was received. It was another message from Big City Burrito, this time thanking  him for the message. The message read:  Thanks for the message! We hope you enjoy our new loyalty program  powered by FavoriteEats. Text STOP to unsubscribe.    19.  It did not stop there—Plaintiff received at least one text message call in  January 2015 despite the fact that he unambiguously told Big City Burrito on December  18, 2014 that he did not wish to receive any more messages. On January 27, 2015,  Plaintiff received a text message call from the number 801-396-9629 (a different  number than the December text message calls) that read:   Big City Burrito! Get ANY Reg Burrito & 21oz Drink for ONLY $6!  Breakfast Burritos Served ALL Day! Valid 1/27 Only w/Text @ 136th/I-  21.  At no time did Plaintiff consent to the receipt of the above-referenced  wireless spam text messages from Big City Burrito. Moreover, Plaintiff clearly revoked  consent to receiving additional text calls on December 18, 2014 when he responded to  Big City Burrito’s wireless spam by telling them to stop sending him the texts.   22.  On January 13, 2015, Plaintiff’s counsel sent a letter via electronic mail  and U.S. mail to Big City Burrito regarding the text message calls Plaintiff had received,  specifically asking Big City Burrito to explain how it had obtained Plaintiff’s phone  number or consent to send him text messages. (See January 13, 2015 Letter, attached  as Exhibit A.) Neither Plaintiff nor his counsel received any response.  V.  24.  Members of the Class and Subclass are so numerous that joinder of all  members is impracticable. While the exact number of Class and Subclass members are  unknown to Plaintiff at this time and can only be ascertained through appropriate  discovery, Big City Burrito sent unsolicited text calls to hundreds if not thousands of  persons. Members of the Class and Subclass can readily be identified from Big City  Burrito’s records, and all Class members can be notified of the pendency of this action  by mail and publication, using forms of notice similar to those customarily used in  consumer class action lawsuits.   26.  Plaintiff’s claims are typical of the claims of the other members of the  Class. Plaintiff and the Class members all received unauthorized text message calls to  their cell phones. As such, Plaintiff and the Class members have suffered similar harm  as a result of substantially similar conduct.    27.  Plaintiff has retained counsel competent and experienced in class and  consumer litigation and intends to vigorously prosecute this action. The interests of the  Class will be fairly and adequately protected by Plaintiff and his counsel. Plaintiff is a  member of the proposed class and has no interests that are contrary to or in conflict  with those of the Class that Plaintiff seeks to represent.    28.  Big City Burrito has acted or refused to act on grounds generally  applicable to the Class as a whole making declaratory and injunctive relief appropriate.  Specifically, Big City Burrito has placed text calls to cellphones in the same way, using  the same equipment, and failed to first obtain prior express consent in the same way.    30.  Given the limited resources of Class members, the complexity of the  issues involved in this action, and the size of individual Class members’ claims, few, if  any, Class members could afford to seek legal redress individually for Big City Burrito’s  actions. When Big City Burrito’s liability has been adjudicated, claims of all members of  the Class can readily be determined by the Court. The class action will cause an orderly  and expeditious administration of the Class claims, economies of time, effort and  expense will be fostered, and uniformity of decisions will be ensured. Without a class  action, the Class and Subclass members will continue to suffer damages and  Defendants’ wrongful conduct will continue without a real remedy or a deterrent. Plaintiff  knows of no difficulty that will be encountered in the management of this action that  would preclude its maintenance as a class action. Much of the information needed for  administrative purposes relative to the identity of the Class and calculation of damages  are available from Defendant through its computerized records and databases.  31.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   33.  These text calls were made en masse and without the prior express  consent of the Plaintiff and the other members of the Class to receive such wireless  spam.   34.  Big City Burrito has therefore violated the TCPA. As a result of Big City  Burrito’s conduct, the members of the Class suffered actual damages by having to pay  their respective wireless carriers for the text messages and lost data and, under section  227(b)(3)(B), are each entitled to a minimum of $500.00 for each violation of such act  plus costs and reasonable attorneys’ fees.  35.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   37.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   38.  Big City Burrito contacted Plaintiff after Plaintiff had sent a message telling  Big City Burrito to stop sending him text messages.   39.  Big City Burrito failed to program its text messaging platform to accept  customer responses containing instructions to stop. By doing so, Big City Burrito  violated the TCPA with respect to the Plaintiff and the Opt Out Subclass members,  which requires businesses to honor opt out requests.     40.  As a result of Big City Burrito’s conduct, the members of the Opt Out  Subclass suffered actual damages by having to pay their respective wireless carriers for  the text messages and lost data and, under section 227(b)(3)(B), are each entitled to a  minimum of $500.00 for each violation of such act plus costs and reasonable attorneys’  fees.  Violation of 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Opt Out Subclass)   Violation of 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Class)   Willful Violation of 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Class)  