(Against the Sales Defendants)   (Against Bioceutica)   (Against the Sales Defendants)   29.  Plaintiff brings this class action for Defendants’ violations of the TCPA and GBL  399-p on behalf of himself and all others similarly situated under rule 23(a) and 23(b)(1)- 23(b)(3) of the Federal Rules of Civil Procedure.   30.  Plaintiff seek to represent two classes of individuals (“the Classes”) defined as  follows:  Class A:  All persons in the United States from four years prior to the date of the filing of  the instant Complaint through on or about June 2012, who did not have an established business  relationship with Defendants, whose cellular telephone or residential telephone lines the Sales  Defendants called, using an automatic telephone dialing system which was also an automatic  dialing-announcing device, without the consent of the persons’ called, which calls contained a  prerecorded message identical or substantially similar to the prerecorded message the Sales  Defendants left for Plaintiff in this case on or about April 28, 2011.    Class B: All persons in New York State, from three years prior to the date of the filing of  the instant Complaint through on or about June 2012, whom the Sales Defendants called, using  an automatic telephone dialing system which was also an automatic dialing-announcing device,   which calls contained a prerecorded message identical or substantially similar to the prerecorded  message the Sales Defendants left for Plaintiff in this case on or about April 28, 2011.    31.   Numerosity: The Classes are so numerous that joinder of all individual members  in one action would be impracticable. The disposition of the individual claims of the respective  class members through this class action will benefit both the parties and this Court.    32.  Upon information and belief each of the Classes contains at a minimum thousands  of members.  8   33.  Upon information and belief, the Classes’ size and the identities of the individual  members thereof are ascertainable through Defendants’ records, including, but not limited to  Defendants’ call records.   34.  Members of the Classes may be notified of the pendency of this action by  techniques and forms commonly used in class actions, such as by published notice, e-mail notice,  website notice, fax notice, first class mail, or combinations thereof, or by other methods suitable  to the Classes and deemed necessary and/or appropriate by the Court.    35.  Typicality:  Plaintiff’s claims are typical of the claims of the members of the  Classes.  The claims of the Plaintiff and members of the Classes are based on the same legal  theories and arise from the same unlawful conduct.   36.  Defendanst placed a telephone call to Plaintiff and each of the members of Class  A, using an automatic telephone dialing system which was also an automatic dialing-announcing  device, without the consent of the person called, which call contained a prerecorded message  identical or substantially similar to the prerecorded message the Sales Defendants left for  Plaintiff in this case on or about April 28, 2011.   37.  Defendants placed a telephone call to Plaintiff and each of the members of Class  B, using an automatic telephone dialing system which was also an automatic dialing-announcing  device, which call contained a prerecorded message identical or substantially similar to the  prerecorded message the Sales Defendants left for Plaintiff in this case on or about April 28,  2011.   38.  Common Questions of Fact and Law:  There is a well-defined community of  common questions of fact and law affecting the Plaintiff and members of the Classes.   39.  The questions of fact and law common to Plaintiff and Class A predominate over  9  questions which may affect individual members and include the following:  (a) Whether Defendants’ conduct of placing a call to Plaintiff and each of the members of  the Class A using an automatic telephone dialing system which was also an automatic  dialing-announcing device, without the consent of the person called, which call contained  a prerecorded message identical or substantially similar to the prerecorded message the  Sales Defendants left for Plaintiff in this case, violated the TCPA (47 U.S.C §§  227(b)(1)(A)(iii), 227(b)(1)(B)) and/or the regulations promulgated thereunder;   (b) Whether Plaintiff and the members of Class A are entitled to statutory damages under  the TCPA (47 U.S.C. § 227(b)(3)) for Defendants’ acts and conduct;   (c) Whether Defendants’ acts in violation of the TCPA were willful and/or knowing such  that Plaintiff and class A are entitled to treble statutory damages; and  (d) Whether Plaintiff and members of the Class A are entitled to a permanent injunction  enjoining Defendants from continuing to violate the TCPA.   40.  The questions of fact and law common to Plaintiff and Class B predominate over  questions which may affect individual members and include the following:  (a) Whether Defendants’ conduct of placing a call to Plaintiff and each of the members of  the Class B using an automatic telephone dialing system which was also an automatic  dialing-announcing device, which call contained a prerecorded message identical or  substantially similar to the prerecorded message the Sales Defendants left for Plaintiff in  this case, violated GBL § 399-p(3)(a);    (b) Whether Plaintiff and the members of Class B are entitled to statutory damages under  GBL § 399-p(9) for Defendants’ acts and conduct;   (c) Whether Plaintiff and members of the Class B are entitled to a permanent injunction  10  under GBL § 399-p(9) enjoining Defendant from continuing to violate GBL 399-p; and  (d) Whether Plaintiff and the members of Class B are entitled to the costs and attorneys’  fees under GBL § 399-p(9).   41.  Adequacy of Representation:  Plaintiff is an adequate representative of the  Classes because Plaintiff’s interests do not conflict with the interests of the members of the  Classes. Plaintiff will fairly, adequately and vigorously represent and protect the interests of the  members of the Classes and has no interests antagonistic to the members of the Classes.  Plaintiff  has retained counsel who is competent and experienced in litigation in the federal courts and  class action litigation.   42.   Superiority:  A class action is superior to other available means for the fair and  efficient adjudication of the claims of the Classes. While the aggregate damages which may be  awarded to the members of the Classes are likely to be substantial, the damages suffered by  individual members of the Classes are relatively small. As a result, the expense and burden of  individual litigation makes it economically infeasible and procedurally impracticable for each  member of the Classes to individually seek redress for the wrongs done to them. Plaintiff does  not know of any other litigation concerning this controversy already commenced against  Defendants by any member of the Classes. The likelihood of the individual members of the  Classes prosecuting separate claims is remote. Individualized litigation would also present the  potential for varying, inconsistent or contradictory judgments, and would increase the delay and  expense to all parties and the court system resulting from multiple trials of the same factual  issues. In contrast, the conduct of this matter as a class action presents fewer management  difficulties, conserves the resources of the parties and the court system, and would protect the  rights of each member of the Classes. Plaintiff knows of no difficulty to be encountered in the  11  management of this action that would preclude its maintenance as a class action.   43.   Injunctive Relief:  Defendants have acted on grounds generally applicable to  Plaintiff and members of the Classes A and B, thereby making appropriate final injunctive relief  with respect to Plaintiff and Classes A and B.  44.  Plaintiff repeats each and every allegation contained in all of the above  paragraphs and incorporates such allegations by reference.   45.  By Defendants’ above-described conduct Defendants committed over 3,000  violations of the TCPA against Plaintiff and Class A.   46.  Accordingly, Plaintiff and Class A are entitled to statutory damages under 47  U.S.C. § 227(b)(3) greater than $1,500,000.   47.  Should the court determine that the Defendants’ above-described conduct was  willful and/or knowing, Plaintiffs and the members of class A are entitled to statutory damages  of more than $4,500,000.   48.  In addition, Plaintiff and Class A are entitled to an injunction against Defendants  ordering Defendants to cease their violations of the TCPA.  49.  Plaintiff repeats each and every allegation contained in all of the above  paragraphs and incorporates such allegations by reference.   50.  By Defendants’ above-described conduct Defendants committed over 1000  violations of GBL 399-p(3)(a) against Plaintiff and Class B.  12   51.  Accordingly, Plaintiff and Class B are entitled to over $50,000 in statutory  damages provided under GBL § 399-p(9), plus attorney’s fees and costs of this action.   52.  In addition, Plaintiff and Class B are entitled to an injunction against Defendants  ordering Defendants to cease its violations of the GBL § 399-p(3)(a).  53.  Plaintiff repeats each and every allegation contained in all of the above  paragraphs and incorporates such allegations by reference.    54.  Upon information and belief, on or about June 2012, Bioceutica purchased and/or  otherwise acquired TTN.  Upon information and belief, as part of that purchase and/or  acquisition, Bioceutica agreed to assume all of the TTN’s liabilities, whether known or unknown.    55.  In the alternative, upon information and belief, and or about June 2012,  Bioceutica intended to absorb and continue the operation of TTN through a de facto merger, in  which TTN transferred all of its assets to Bioceutica, payment was made by Bioceutica’s issuing  membership in its LLC directly to TTN’s members, and in exhange for their ownership TTN,  Bieoceutica agreed to assume all of TNN’s debts and liabilities.  In the alternaitve, Bioceutica ia  mere continuation of the business of TTN.   56.  Bioceutica is the successor to TNN and the Sales Defendants’ liabilities.   Accordingly, Bioceutica is liable for the Sales Defendants’ committing: (a) over 3,000 violations  the TCPA against Plaintiff and Class A (First Claim for Relief) and (b) over 1000 violations of  GBL 399-p(3)(a) against Plaintiff and Class B (Second Claim for Relief).   57.  As to its successor liability for the First Claim for Relief, Bioceutica is liable to  Plaintiff and Class A are entitled to statutory damages under 47 U.S.C. § 227(b)(3) greater than  13  $1,500,000.   58.  Should the court determine that the Sales Defendants’ violation of the TCPA was  willful and/or knowing, Bioceutica is liable to Plaintiffs and the members of class A for   statutory damages of more than $4,500,000.   59.  As to its successor liability for the Second Claim for Relief, Bioceutica is liable to  Plaintiff and Class B for over $50,000 in statutory damages provided under GBL § 399-p(9),  plus attorney’s fees and costs of this action.   60.  Plaintiff and the Classes are entitled to an injunction against Bioceutica ordering  Bioceutica  to cease its violations of the TCPA and GBL § 399-p(3)(a). 