26.  After receiving the April 28th text message which provided that Plaintiff could “Reply  1 if interested or 3 if not,” Plaintiff responded with “3”, to opt-out of receiving any text messages from  Defendant.    27.  Instead of opting Plaintiff out of receiving future messages, Defendant sent him at least  ten text messages following his opt out request, including two text messages on April 28, 2018 and  additional text messages on June 21, 2018, June 28, 2018, July 19, 2018, July 20, 2018 and August 4,  2018.   29.  Specifically, Defendant offered Plaintiff limited time offers and credits for its services.   30.  Plaintiff received the subject text messages within this judicial district and, therefore,  Defendant’s violation of the TCPA occurred within this district.     31.  Upon information and belief, Defendant caused similar text messages to be sent to  individuals residing within this judicial district.     32.  At no point in time did Plaintiff provide Defendant with his express consent to be  contacted by text messages using an ATDS.     33.  Plaintiff is the subscriber and sole user of the 1175 Number and is financially  responsible for phone service to the 1175 Number.   34.  To send the text messages, Defendant used a messaging platform (the “Platform”) that  permitted Defendant to transmit thousands of automated text messages without any human  involvement.     35.  The Platform has the capacity to store telephone numbers, which capacity was in fact  utilized by Defendant.   36.  The Platform has the capacity to generate sequential numbers, which capacity was in  fact utilized by Defendant.   37.  The Platform has the capacity to dial numbers in sequential order, which capacity was  in fact utilized by Defendant.     38.  The Platform has the capacity to dial numbers from a list of numbers, which capacity  was in fact utilized by Defendant.   40.  The Platform has the capacity to schedule the time and date for future transmission of  text messages, which occurs without any human involvement.   41.  Additionally, the Platform has an auto-reply function that results in the transmission of  text messages to individual’s cellular telephones automatically from the system, and with no human  intervention, in response to a keyword (e.g. “3”) being sent by a consumer, which function was also  utilized by Defendant on April 28, 2018, as shown below:   42.  To transmit the text messages at issue, Defendant uploaded a list of telephone numbers  which are stored indefinitely by the Platform.    43.  Defendant then created the content of the text messages, selected the telephone numbers  to transmit the messages to, and selected a date and time for transmission.    44.  In making these selections, Defendant was simply creating a set of instructions that were  subsequently executed automatically (i.e. with no human intervention), by the Platform.     46.  The above execution of Defendant’s instructions occurred seamlessly, with no human  intervention, and almost instantaneously.  Indeed, the Platform is capable of transmitting thousands of  text messages following the above steps in minutes, if not less.     47.  Further, the Platform “throttles” the transmission of the text messages depending on  feedback it receives from the mobile carrier networks.  In other words, the platform controls how  quickly messages are transmitted depending on network congestion.  The platform performs this  throttling function automatically and does not allow a human to control the function.   49.  Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion  of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.  Defendant’s  text message also inconvenienced Plaintiff and caused disruption to his daily life.    50.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  himself and all others similarly situated.   52.  Defendant and its employees or agents are excluded from the Class. Plaintiff does not  know the number of members in the Class but believes the Class members number in the several  thousands, if not more.  55.  There are numerous questions of law and fact common to the Class which predominate  over any questions affecting only individual members of the Class.  Among the questions of law and  fact common to the Class are:  (1) Whether Defendant made non-emergency calls to Plaintiff and Class members’  cellular telephones using an ATDS;  (2) Whether Defendant can meet their burden of showing that they obtained prior  express written consent to make such calls;  (3) Whether Defendant’s conduct was knowing and willful;  (4) Whether Defendant is liable for damages, and the amount of such damages; and  (5) Whether Defendant should be enjoined from such conduct in the future.   61.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    62.  It is a violation of the TCPA to make “any call (other than a call made for  emergency purposes or made with the prior express consent of the called party) using any  automatic telephone dialing system … to any telephone number assigned to a … cellular telephone  service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    63.  Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic  telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff  and the other members of the putative Class without their prior express consent   64.  These calls were made without regard to whether Defendant had first obtained  express permission from the called party to make such calls. In fact, Defendant did not have prior  express consent to call the cell phones of Plaintiff and the other members of the putative Class  when its calls were made.    PROPOSED CLASS   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)  