13.  Defendants sent advertisements by facsimile to Plaintiff and a class of  similarly-situated persons. Whether Defendants did so directly or with the  assistance of a third party (yet unknown to Plaintiff), Defendants are directly liable  for violating the TCPA.   14.  Plaintiff has received at least one of Defendants’ advertisements by  facsimile. A true and correct copy of the fax received in or around June 2016 is  attached as Exhibit A. Plaintiff intends to discover the number of other Defendants’  advertisements sent to Plaintiff by fax.  4   15.  Exhibit A is a one-page document Defendants sent by facsimile,  advertising a DexCom Continuous Glucose Monitoring system.    16.  The fax advertises the commercial availability or quality of property,  goods, or services. The fax provides information about the availability and features  of the Continuous Glucose Monitoring system offered for sale by DexCom, and  website for contacting DexCom to purchase the glycemic management system.     17.  Exhibit A includes DexCom’s name and website address.    18.  LDM  Group  sends  faxes  to  pharmacies  nationwide  under  PharmacistCARE. LDM promotes PharmacistCARE as a way to drive revenue for  healthcare marketing.   19.  Exhibit A does not include a compliant mandatory opt-out notice  required by 47 C.F.R. § 64.1200 (a) (4).   20.  Plaintiff did not expressly invite or give permission to anyone to send  Exhibit A or any other advertisement from DexCom to Plaintiff’s fax machine.   21.  On information and belief, Defendants sent advertisements by  facsimile to Plaintiff and more than 39 other persons in violation of the TCPA.    22.  Plaintiff and the other class members owe no obligation to protect their  fax machines from Defendants. Their fax machines are ready to send and receive  their urgent communications, or private communications about patients’ medical  needs, not to receive Defendants’ unlawful advertisements.   23.  Plaintiff brings this action as a class action on behalf of itself and all  5  others similarly situated as members of a class, initially defined as follows:  Each person that was sent one or more telephone facsimile messages  labeled PharmacistCARE promoting the commercial availability or  quality of property, goods, or services offered by “DexCom,” but not  stating that the fax recipient may make a request to the sender not to  send any future ads and that failure to comply, within 30 days, with  such a request is unlawful, or a cost-free fax number, or other cost-free  mechanism to contact “DexCom.”  Plaintiff expressly reserves the right to modify the proposed class definition or  propose subclasses.   24.  Excluded from the class are Defendants, any entity in which  Defendants have a controlling interest, each of Defendants’ officers, directors, legal  representatives, heirs, successors, and assigns, and any Judge assigned to this  action, including his or her immediate family.   25.  On information and belief, Defendants’ fax advertising campaigns  involved other, substantially-similar advertisements also sent without a compliant  opt-out notice required by the TCPA. Plaintiff intends to locate those  advertisements in discovery.   26.  This action is brought and may properly be maintained as a class  action pursuant to Fed. R. Civ. P. 23.  This action satisfies Rule 23 (a)’s numerosity,  commonality, typicality, and adequacy requirements. Additionally, prosecution of  Plaintiff’s claims separately from the putative class’s claims would create a risk of  inconsistent or varying adjudications under Rule 23 (b) (1) (A). Furthermore, the  questions of law or fact that are common in this action predominate over any  individual questions of law or fact making class representation the superior method  to adjudicate this controversy under Rule 23 (b) (3).  6   27.  Numerosity/impracticality of joinder. On information and belief, the  class consists of more than 39 persons and, thus, is so numerous that individual  joinder of each member is impracticable. The precise number of class members and  their identities are unknown to Plaintiff, but will be obtained from Defendants’  records or the records of third parties.   28.  Commonality and predominance. There is a well-defined community of  interest and common questions of law and fact that predominate over any questions  affecting only individual members of the class. These common legal and factual  questions, which do not vary from one class member to another, and which may be  determined without reference to the individual circumstances of any class member,  include, but are not limited to the following:  a.  Whether  Defendants  sent  advertisements  by  facsimile  promoting the commercial availability or quality of property, goods, or  services;   b.  Whether Exhibit A and other yet-to-be-discovered facsimiles  sent by or on behalf of Defendants advertised the commercial availability or  quality of property, goods or services;  c.  The manner and method Defendants used to compile or obtain  the list(s) of fax numbers to which they sent the faxes contained in Exhibit A  and other fax advertisements;   d.  Whether Defendants’ fax advertisements contained opt-out  notices compliant with the TCPA;  7  e.  Whether Plaintiff and the other class members should be  awarded statutory damages;  f.  If the Court finds that Defendant(s) willfully or knowingly  violated the TCPA, whether the Court should exercise its discretion to  increase the amount of the statutory damages award to an amount equal to  not more than 3 times the amount;  g.  Whether the Court should enjoin Defendants from faxing  advertisements in the future; and  h.  Whether Defendants’ conduct as alleged herein constituted  conversion.   29.  Typicality of claims. Plaintiff’s claims are typical of the claims of the  other class members, because Plaintiff and all class members were injured by the  same wrongful practices. Plaintiff and the members of the class received  Defendants’ advertisements by facsimile and those advertisements did not contain  the opt-out notice required by the TCPA. Under the facts of this case, because the  focus is upon Defendants’ conduct, if Plaintiff prevails on its claims, then the other  putative class members will prevail as well.   3.    Private right of action.  A person may, if  otherwise permitted by the laws or rules of court of a  state, bring in an appropriate court of that state:  (A)  An action based on a violation of this  subsection or the regulations prescribed under this  subsection to enjoin such violation,  (B)  An  action  to  recover  for  actual  monetary loss from such a violation, or to receive  $500 in damages for each such violation, whichever  is greater, or  (C)  Both such actions.  47 U.S.C. § 227 (b) (3).   30.  Adequacy of representation. Plaintiff is an adequate representative of  the class because its interests do not conflict with the interests of the class it seeks  to represent. Plaintiff has retained counsel competent and experienced in complex  class action litigation, and TCPA litigation in particular, and Plaintiff intends to  vigorously prosecute this action. Plaintiff and its counsel will fairly and adequately  8  protect the interest of members of the class.   31.  Prosecution of separate claims would yield inconsistent results. Even  though the questions of fact and law in this action are predominantly common to  Plaintiff and the putative class members, separate adjudication of each class  member’s claims would yield inconsistent and varying adjudications. Such  inconsistent rulings would create incompatible standards for Defendants to operate  under if/when class members bring additional lawsuits concerning the same  unsolicited fax advertisements of if Defendants choose to advertise by fax again in  the future.     32.  A class action is the superior method of adjudicating the common  questions of law or fact that predominate over individual questions. A class action is  superior to other available methods for the fair and efficient adjudication of this  lawsuit, because individual litigation of the claims of all class members is  economically unfeasible and procedurally impracticable. The likelihood of individual  class members prosecuting separate claims is remote, and even if every class  member could afford individual litigation, the court system would be unduly  burdened by individual litigation of such cases. Plaintiff knows of no difficulty to be  encountered in the management of this action that would preclude its maintenance  as a class action. Relief concerning Plaintiff’s rights under the laws herein alleged  and with respect to the class would be proper. Plaintiff envisions no difficulty in the  management of this action as a class action.  33.  Plaintiff incorporates the preceding paragraphs as though fully set  forth herein.   34.  Plaintiff brings Count I on behalf of itself and a class of similarly  situated persons against Defendants.   35.  The TCPA prohibits the “use of any telephone facsimile machine,  computer or other device to send an unsolicited advertisement to a telephone  facsimile machine….” 47 U.S.C. § 227 (b) (1).   36.  The TCPA defines “unsolicited advertisement” as “any material  advertising the commercial availability or quality of any property, goods, or services  which is transmitted to any person without that person’s express invitation or  permission.”  47 U.S.C. § 227 (a) (4).   37.  The TCPA provides a private right of action as follows:   38.  The Court, in its discretion, may treble the statutory damages if it  10  determines that a violation was knowing or willful.  47 U.S.C. § 227 (b) (3).   39.  Here, Defendants violated 47 U.S.C. § 227 (b) (1) (C) by sending an  advertisement by facsimile (Exhibit A) to Plaintiff and the other class members  without their prior express invitation or permission.   40.  The TCPA requires that every advertisement sent by facsimile must  include an opt-out notice clearly and conspicuously displayed on the bottom of its  first page. 47 C.F.R. § 64.1200 (a) (4).    41.  Defendants failed to include a clear and conspicuous opt-out notice on  Exhibit A.   42.  Defendants’ purported opt-out notice is in a very small font and buried  below Defendants’ other voluminous disclosures.   43.  Exhibit A does not provide all of the information the TCPA requires for  a compliant opt-out notice.    44.  Defendants violated the TCPA by failing to state on the first page of  each fax advertisement that their failure to comply with an opt-out request within  30 days would be unlawful. Exhibit A.   45.  Defendants failed to provide a domestic telephone number and a fax  number as required by 47 U.S.C. § (b) (2) (D) (iv) and it is not clear from the  purported opt-out notice that the mechanism provided is available 24/7 as required  by 47 U.S.C § 227 (b) (2) (D) (v).   46.  On information and belief, the opt-out phone number belongs to or is  regularly used by LDM.   11   47.  Facsimile advertising imposes burdens on recipients that are distinct  from the burdens imposed by other types of advertising. The required opt-out notice  provides recipients the necessary information to opt-out of future fax transmissions,  including a notice that the sender’s failure to comply with the opt-out request will  be unlawful. 47 C.F.R. § 64.1200 (a) (4).   48.  Defendants’ failure to include a compliant opt-out notice on their fax  advertisements makes irrelevant any express consent or established business  relationship (“EBR”) that otherwise might have justified Defendants’ fax  advertising campaigns. 47 C.F.R. § 64.1200 (a) (4).   49.  The TCPA is a strict liability statute and Defendants are liable to  Plaintiff and the other class members even if their actions were negligent. 47 U.S.C.  § 227 (b) (3).    50.  Even if Defendants did not intend to injure Plaintiff and the other  class members, did not intend to violate their privacy, and did not intend to waste  their valuable time with Defendants’ advertisements, those facts are irrelevant  because the TCPA is a strict liability statute.   51.  If Defendants’ actions were knowing or purposeful, then the Court has  the discretion to increase the statutory damages up to three times the amount. 47  U.S.C. § 227 (b) (3).   52.  DexCom is liable for the fax advertisements at issue because it sent  the faxes; caused the faxes to be sent; participated in the activity giving rise to or  constituting the violation; or the faxes were sent on its behalf or under general  12  principles of vicarious liability, including actual authority, apparent authority and  ratification. DexCom is liable because the fax advertisement promotes DexCom’s  goods or services.   53.  LDM is liable for the fax advertisements at issue because it sent the  faxes; caused the faxes to be sent; participated in the activity giving rise to or  constituting the violation and the faxes were sent on its behalf or under general  principles of vicarious liability, including actual authority, apparent authority and  ratification. LDM is liable because the faxes were sent as part of LDM’s  PharmacistCARE fax scheme.   54.  On information and belief, both DexCom and LDM benefit financially  from the sending of Defendants’ fax advertisements as DexCom’s goods, products, or  services are advertised with the intent to drive revenue and LDM either shares in  that revenue or is paid for its advertising  or promotion services.   55.  Defendants knew or should have known that Plaintiff and the other  class members had not given express invitation or permission for Defendants or  anybody else to fax advertisements about Defendants’ goods, products, or services,  that Plaintiff and the other class members did not have an established business  relationship with Defendants, that Exhibit A is an advertisement, and that Exhibit  A did not display a compliant opt-out notices as required by the TCPA.   56.  Defendants’ actions damaged Plaintiff and the other class members.  Receiving Defendants’ junk faxes caused the recipients to lose paper and toner  consumed in the printing of Defendants’ faxes. Moreover, the subject faxes used the  13  fax machines of Plaintiff and the other class members. The subject faxes cost  Plaintiff time, as Plaintiff and its employees wasted their time receiving, reviewing  and routing Defendants’ illegal faxes. That time otherwise would have been spent  on Plaintiff’s business activities. Defendants’ faxes unlawfully interrupted Plaintiff  and the other class members’ privacy interests in being left alone. Finally, the  injury and property damage sustained by Plaintiff and the other class members  from the sending of unlawful fax advertisements occurred outside Defendants’  premises.  WHEREFORE, Plaintiff, individually and on behalf of all others similarly  situated, demands judgment in its favor and against Defendants, jointly and  severally as follows:  A.  That the Court adjudge and decree that the present case may be  properly maintained as a class action, appoint Plaintiff as the representative of the  class, and appoint Plaintiff’s counsel as counsel for the class;  B.  That the Court award $500.00 in statutory damages for each violation  of the TCPA;  C.  That, if it finds Defendant(s) willfully or knowingly violated the  TCPA’s faxing prohibitions, the Court exercise its discretion to increase the amount  of the statutory damages award to an amount equal to not more than 3 times the  amount (Plaintiff requests trebling);  D.  That the Court enter an injunction prohibiting Defendants from  violating the TCPA; and  14  E.  That the Court award costs and such further relief as the Court may  deem just and proper.  57.  Plaintiff incorporates by reference all preceding paragraphs as though  fully set forth herein.   58.  Plaintiff brings Count II on behalf of itself and a class of similarly  situated persons and against Defendants.   59.  By sending advertisements to their fax machines, Defendants  improperly and unlawfully converted the class’s fax machines to Defendants’ own  use. Where printed (as in Plaintiff’s case), Defendants also improperly and  unlawfully converted the class members’ paper and toner to Defendants’ own use.  Defendants also converted Plaintiff’s time to Defendants’ own use, as they did with  the valuable time of the other class members.    60.  Immediately prior to the sending of the unsolicited faxes, Plaintiff and  the other class members each owned an unqualified and immediate right to  possession of their fax machines, paper, toner, and employee time.   61.  By  sending  them  unsolicited  faxes,  Defendants  permanently  misappropriated the class members’ fax machines, toner, paper, and employee time  to their own use. Such misappropriation was wrongful and without authorization.   62.  Defendants knew or should have known that their misappropriation of  paper, toner, and employee time was wrongful and without authorization.   63.  Plaintiff and the other class members were deprived of the use of the  15  fax machines, paper, toner, and employee time, which could no longer be used for  any other purpose. Plaintiff and each class member thereby suffered damages as a  result of their receipt of unsolicited fax advertisements from Defendants.   64.  Defendants’ unsolicited faxes effectively stole Plaintiff’s employees’  time because persons employed by Plaintiff were involved in receiving, routing, and  reviewing Defendants’ illegal faxes. Defendants knew or should have known  employees’ time is valuable to Plaintiff.  WHEREFORE, Plaintiff, individually and on behalf of all others similarly  situated, demands judgment in its favor and against Defendants, jointly and  severally as follows:  A.  That the Court adjudge and decree that the present case may be  properly maintained as a class action, appoint Plaintiff as the representative of the  class, and appoint Plaintiff’s counsel as counsel for the class;  B.  That the Court award appropriate damages;   C.  That the Court award punitive damages;  D.  That the Court award attorney’s fees;   E.  That the Court award costs of suit; and  F.  That the Court award such further relief as it may deem just and  proper under the circumstances.  16  Respectfully submitted,  CONVERSION   TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227  9  