29. Indra Energy provides energy services to consumers.  31. These telemarketing efforts include the use of automated calls to send prerecorded messages.  32. The company engages in use of this equipment because it allows for thousands of automated calls to be placed at one time, but its sales representatives, who are paid based on sales they complete, or on an hourly basis, only talk to individuals who respond. Therefore, the Defendant shifts the burden of wasted time onto consumers.  33. Plaintiff Metzler is the registered account owner and regular user of the telephone number ending in 3278 (the “3278 Number”).  34. On or about January 13, 2020, Plaintiff received an unsolicited, prerecorded phone call on his cellular telephone number from, or on behalf, of Defendant.  35. The initial call from number 111-111-111 was dropped but immediately after Plaintiff received another call from number 605-381-1440.  36. The January 13, 2020 call stated that Defendant was calling to offer Plaintiff discounted electricity and natural gas.  37. Plaintiff was connected with one of Defendant’s telephone representatives.  38. The phone representative identified he was calling from Indra Energy and advised Plaintiff to go through the verification process with Indra and transferred Plaintiff to get the verification.  40. Further proving that Indra Energy was the source behind the original call to Plaintiff was the phone representing confirming to the Plaintiff that Indra Energy had his information on file.  41. Confirming the calls, the Plaintiff received a “welcome letter” from Indra Energy.  42. The prerecorded calls at issue were transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action.  43. Defendant’s prerecorded calls constitutes telemarketing because they encouraged the future purchase or investment in property, goods, and/or services, i.e., requesting that Plaintiff switch his gas and electric utility over to Defendant.  44. The prerecorded calls Plaintiff received originated from telephone numbers 111- 111-111 and 605-381-1440, which are numbers owned and/or operated by or on behalf of Defendant.  45. Plaintiff received the subject calls within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other prerecorded calls to be sent to individuals residing within this judicial district.  46. At no point in time did Plaintiff provide Defendant with his express consent to be contacted with a prerecorded call.  47. Plaintiff is the subscriber and sole user of the 3278 Number and is financially responsible for phone service to the 3278 Number.  48. Plaintiff has been registered with the national do-not-call registry since 2010.  50. Defendant’s unsolicited prerecorded call caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s prerecorded call also inconvenienced Plaintiff and caused disruption to his work-day as he received the prerecorded messages while at work. See Patriotic Veterans, Inc. v. Zoeller, No. 16- 2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner's time and mental energy, both of which are precious.”).  51. By placing the prerecorded calls as alleged herein, Defendant has caused consumers actual harm in the form of annoyance, nuisance, and invasion of privacy. In addition, the prerecorded call disturbed Plaintiff’s use and enjoyment of his phone, in addition to the wear and tear on the phone’s hardware (including the phone’s battery) and the consumption of memory on Plaintiff’s phone.  52. Defendant’s voice message took up memory on Plaintiff’s cellular phone. The cumulative effect of unsolicited voice messages like Defendant’s poses a real risk of ultimately rendering the phone unusable for voice messaging purposes as a result of the phone’s memory being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text (finding that text message solicitations similar to the voice message sent by Defendant present a “triple threat” of identity theft, unwanted cell phone charges, and slower cell phone performance).  54. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarlysituated.  55. Plaintiff brings this case on behalf of a Class defined as follows: No Consent Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a prerecorded message, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, without emergency purpose and without the recipient’s prior express written consent. Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action (1) were sent a prerecorded message by or on behalf of Defendant; (2) more than one time within any 12-month period; (3) where the person’s telephone number had been listed on the National Do Not Call Registry for at least thirty days; (4) for the purpose of selling Defendant’s products and services; and (5) for whom Defendant claims (a) it did not obtain prior express written consent, or (b) it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff.  56. 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. 59. 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 prerecorded telemarketing calls to Plaintiff’s and Class members’ cellular telephones; (2) Whether Defendant can meet its burden of showing that it 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.  60. The common questions in this case are capable ofhaving commonanswers. If Plaintiff’s claim that Defendant routinely transmits automated or prerecorded calls to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 66. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein.  67. 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 or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii).  68. Defendant – or third parties directed by Defendant – transmitted calls using an artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the putative class.  69. 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.  70. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an artificial or prerecorded voice 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.  71. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that it was using an artificial or prerecorded voice. The violations were therefore willful or knowing.  73. Because Defendant knew or should have known that Plaintiff and the other members of the putative Class had not given prior express consent to receive its prerecorded calls to their cellular telephones the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 74. Plaintiff re-allege and incorporates paragraphs 1-65 as if fully set forth herein.  75. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA.  76. Defendant knew that it did not have prior express consent to transmit artificial or prerecorded voice calls, and knew or should have known that its conduct was a violation of the 79. Plaintiff repeats and realleges the paragraphs 1 through 65 of this Complaint and incorporates them by reference herein.  80. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.”  81. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”2  82. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.”  83. Any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” may bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c).  85. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry Class received more than one telephone call in a 12-month period made by or on behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. § 64.1200.  86. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiffs and the Class)  PROPOSED CLASS  Violation of the TCPA, 47 U.S.C. § 227 (On Behalf of Plaintiff and the Do Not Call Registry Class)  Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) 