13.  Plaintiff never provided permission to Defendant to call her wireless telephone  number nor to contact her regarding any goods or services offered by Defendant.   14.  Plaintiff received eight phone calls to her wireless phone from 718-355-9952  between June 9, 2014 and June 20, 2014.  These calls were received by Plaintiff on June 9, 2014  6  at 1:25 p.m., June 9, 2014 at 3:28 p.m., June 10, 2014 at 9:38 a.m., June 10, 2014 at 11:43 a.m.,  June 10, 2014 at 1:45 p.m., June 19 at 1:56 p.m., June 20, 2014 at 4:08 p.m. and June 20, 2014 at  6:28 p.m.     15.  Plaintiff answered the call received from 718-355-9952 on June 20, 2014 at 4:06  p.m. and said “hello” several times but there was no response.  Plaintiff then waited for someone  to answer but there was still no answer and so Plaintiff eventually ended the call.   16.  Plaintiff also answered the call received from 718-355-9952 on June 20, 2014 at  6:28 p.m.  Upon answering this call, Plaintiff said “hello” three times and there was no response.   After saying “hello” three times someone finally came onto the call at the other end and asked  for Plaintiff by name and said he was calling from Verde Energy and that Verde Energy could  save Plaintiff money on her energy bill.     17.  Plaintiff called the phone number 718-355-9952 which answers with a  prerecorded message as follows: “Thank you for calling Verde Energy, we were trying to reach  you for marketing purposes.”   18.  Multiple calls were placed by or on behalf of Defendant to Plaintiff’s wireless  phone.  These calls were placed without Plaintiff’s authorization.  These calls were for marketing  purposes intended to sell goods or services offered by Defendant to Plaintiff.     19.  These calls were also made using an automated telephone dialing system as  indicated by the frequency of the calls, the prerecorded message used when calling back 718- 355-9952, and the delay in the time between Plaintiff answering the phone call and someone on  the other end coming onto the line to speak with Plaintiff.  This demonstrates that a predictive  dialer was used and that these calls were automatically placed by a phone system to Plaintiff and  that the phone system would only connect the call to a live representative after someone actually  7  answered the call – here, Plaintiff.  Once the phone system determined that Plaintiff had actually  answered the call, it then automatically routed the call to what it predicted would be the next  available agent who would then speak with Plaintiff.     20.  The call placed from 718-355-9952 on June 20, 2014 at 4:06 p.m. demonstrates  Defendant used an automatic telephone dialing system since after Plaintiff answered this call and  said “hello” several times there was no response on the other end.  This demonstrates the call  was placed by a predictive dialer which did not have any live agents to which to transfer the call  and hence Plaintiff was essentially left on hold while the telephone system was waiting for a live  agent to become available to take the call.  This is also accounts for the delay that occurred on  the call on June 20, 2104 at 6:28 but this time the telephone system’s predictive feature was able  to correctly predict an agent would be available to speak with Plaintiff, albeit a while after  Plaintiff answered the call rather than immediately.   21.  The fact that nobody was available to speak with Plaintiff immediately upon her  answering these calls also evidences that the calls were not dialed by a human being but rather  dialed automatically by the phone system from a list of phone numbers that included Plaintiff’s  wireless phone number.   22.  The foregoing coupled with the functions typical of predictive dialers used by  telemarketers such as Defendant indicate the phone system that called Plaintiff has, upon  information and belief, the capacity to: generate numbers and dial them without human  intervention; generate numbers from calling lists and dial them without human intervention;  generate numbers randomly and dial them without human intervention; generate numbers  sequentially and dial them without human intervention; store numbers and dial those numbers  from a database of numbers; store numbers and dial those numbers at random; store numbers and  8  dial those numbers sequentially; produce numbers and dial those numbers from a database of  numbers; produce numbers and dial those numbers at random; produce numbers and dial those  numbers sequentially; produce telephone numbers to be called, using a sequential number  generator and to dial such numbers; produce telephone numbers to be called, using a sequential  number generator and to dial such numbers; store telephone numbers to be called, using a  random number generator and to dial such numbers; and store telephone numbers to be called,  using a random number generator and to dial such numbers.   23.  The predictive dialer phone system that called Plaintiff eight times as alleged  above is an automatic telephone dialing system.   24.  Plaintiff has also reviewed numerous online forums containing posts complaining  about Defendant’s harassing telemarketing practices and expressing frustrations nothing appears  to deter Defendant’s illegal and harassing telemarketing practices.  25.  Plaintiff brings this action as a Class Action pursuant to Rule 23 of the Federal  Rules of Civil Procedure for all claims.   26.  Plaintiff brings this class action on behalf of herself and all others persons within  the United States who within the four year period prior to filing this Class Action Complaint (the  “Class Period”) received a telemarketing call by or on behalf of Defendant or by their agents to  any wireless phone using an automatic telephone dialing system.  Excluded from the class  definition are (i) Defendant or any of its employees or agents, or any of their family members, or  (ii) any person from whom Defendant have in their records express written consent signed by  such person permitting Defendant to call that person’s wireless phone to telemarket goods or  services offered by Defendant using an automatic telephone dialing system.  (The “Class”).     9   27.  The members of the Class are so numerous that joinder of all Class members is  impracticable.  While the exact number of Class members is unknown to Plaintiff at this time,  this information is easily ascertainable through discovery of Defendant’s records, and Plaintiff  believes that there are likely hundreds, if not more, individuals in the Class.    28.  Questions of law and fact common to the Class as a whole include, but are not  limited to, the following:  a.  Whether calls were made to wireless phones using an automatic telephone  dialing system by or on behalf of Defendant during the Class Period to sell  goods or services offered by Defendant.  b.  Whether Defendant should be enjoined from making such calls.   29.  Plaintiff’s claim is typical of the claims of the other members of the Class,  because the Plaintiff and all members of the Class were called on their wireless phones by or on  behalf of Defendant seeking to market to them goods or services offered by Defendant without  their prior express written signed consent.   30.  Plaintiff will fairly and adequately represent and protect the interests of the  members of the Class and has retained counsel competent and experienced in class action  litigation.  The interests of Plaintiff are coincident with and not antagonistic to the interests of the  other members of the Class.    31.  Class certification of Plaintiff’s claims is appropriate pursuant to Fed. R.  Civ. P. 23(b)(1) because the prosecution of separate actions by individual Class members would  create a risk of inconsistent or varying adjudications which would establish incompatible  standards of conduct for Defendant.  In addition, Class certification of Plaintiff’s claims is  appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on  10  grounds generally applicable to the Class, making appropriate injunctive relief with respect to  Plaintiff and the Class as a whole. The members of the Class are entitled to injunctive relief to  remedy Defendant’s ongoing statutory violations.    32.  Class certification of Plaintiff’s claims is also appropriate pursuant to Fed. R. Civ.  P. 23(b)(3) because questions of law and fact common to class members predominate over any  questions affecting only individual members, and a class action is superior to other available  methods for fairly adjudicating the controversy.  Moreover, statutory damages for any one  individual plaintiff are not sufficient to induce individual class members to control the  prosecution of separate actions and management of these claims because a single class action is  more desirable and creates fewer difficulties than that presented by individuals’ claims by each  class member.  33. 47 U.S.C. § 227; 47 C.F.R. § 64.1200   34.  Plaintiff hereby repeats and re-alleges the allegations contained in Paragraphs 1  through 32 as if fully set forth herein.   35.  Calls were made by or on behalf of Defendant using an automatic telephone  dialing system to Plaintiff and other Class member’s wireless phones marketing goods or  services offered by Defendant.     36.  Calls were made by or on behalf of Defendant where a live sales representative  was not available to speak with the person answering the call and in which two seconds after the  called person’s completed greeting the phone system did not provide a prerecorded identification  and opt-out message that was limited to disclosing that the call was for “telemarketing purposes”  11  and did not state the name of the business, entity, or individual on whose behalf the call was  placed, and a telephone number for such business, entity, or individual that permits the called  person to make a do-not-call request during regular business hours for the duration of the  telemarketing campaign, and also did not provide an automated, interactive voice- and/or key  press-activated opt-out mechanism that enables the called person to make a do-not-call request  prior to terminating the call, including brief explanatory instructions on how to use such  mechanism.    37.  Plaintiff and other Class members are entitled to an award of $500 for each  violation of 47 U.S.C. § 227 and/or 47 C.F.R. § 64.1200 as well as injunctive relief prohibiting  such conduct in the future.  38.  Plaintiff hereby repeats and re-alleges the allegations contained in Paragraphs 1  through 36 as if fully set forth herein.   39.  Calls were knowingly and/or willfully made by or on behalf of Defendant using  an automatic telephone dialing system to Plaintiff and other Class member’s wireless phones  marketing goods or services offered by Defendant.     40.  Calls were knowingly and/or willfully made by or on behalf of Defendant where a  live sales representative was not available to speak with the person answering the call and in  which two seconds after the called person’s completed greeting the phone system did not provide  a prerecorded identification and opt-out message that was limited to disclosing that the call was  for “telemarketing purposes” and did not state the name of the business, entity, or individual on  whose behalf the call was placed, and a telephone number for such business, entity, or individual  12  that permits the called person to make a do-not-call request during regular business hours for the  duration of the telemarketing campaign, and also did not provide an automated, interactive  voice- and/or key press-activated opt-out mechanism that enables the called person to make a do- not-call request prior to terminating the call, including brief explanatory instructions on how to  use such mechanism.    41.  Plaintiff and other Class members are entitled to an award of $1,500 for each  violation of 47 U.S.C. § 227 or 47 C.F.R. § 64.1200 as well as injunctive relief prohibiting such  conduct in the future.  KNOWING AND/OR WILLFUL VIOLATIONS OF THE   TELEPHONE CONSUMER PROTECTION ACT  47 U.S.C. § 227; 47 C.F.R. § 64.1200   REGARDING CALLS FROM DEFENDANT TO PLAINTIFF   VIOLATIONS OF THE   TELEPHONE CONSUMER PROTECTION ACT  