10.  The TCPA prohibits companies, such as Realgy Energy, from placing  calls using an artificial or prerecorded voice (“prerecorded calls”) when making calls to  cellular telephones without first obtaining consent.   11.  Realgy Energy has violated, and continues to violate, the TCPA and its  implementing regulations by placing, or having placed on its behalf, prerecorded calls to  cellular telephone subscribers (a) who have not expressly consented to receiving such  calls and/or (b) who have expressly requested not to receive such calls.   12.  As Congress recognized:  4  Many customers are outraged over the proliferation of intrusive, nuisance  calls to their homes from telemarketers…. Banning such automated or  prerecorded telephone calls to the home, except when the receiving party  consents to receiving the call or when such calls are necessary in an  emergency situation affecting the health and safety of the consumer, is the  only effective means of protecting telephone consumers from this  nuisance and privacy invasion.1   13.  Senator Larry Pressler, one of the original drafters of the TCPA, explained  the need for the TCPA by observing that “[u]nlike other communications media, the  telephone commands our instan[t] attention. Junk mail can be thrown away. Television  commercials can be turned off. The telephone demands to be answered.” 137 Cong. Rec.  S18785 (daily ed. Nov. 27, 1991) (statement of Sen. Pressler).   14.  As explained by the Federal Communications Commission (“FCC”)2, the  TCPA requires “prior express written consent for all autodialed or prerecorded  telemarketing calls to wireless numbers and residential lines.” In the Matter of Rules and  Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02- 278, FCC 12-21, 27 FCC Rcd. 1830 ¶ 2 (Feb. 15, 2012).   15.  Yet, in violation of this rule, Defendants fail to obtain any prior express  written consent to place prerecorded calls to consumers’ cellular telephone numbers.   16.  Consumer complaints about Realgy Energy’s invasive and repetitive calls  are legion. As a sample, consumers have complained as follows:  •  Realgy Energy Management owns this number. They have called twice in  as many days, rings three times and hangs up. This smells like a spoof  since Legitimate companies honor the DNC list. The short ring in is a robo  call using a spoofed number give away.3  1 Pub. L. No. 102-243 § 2(6, 12) (1991), codified at 47 U.S.C. § 227.  2 The FCC is the federal agency given the administrative authority to interpret and  enforce the TCPA. 47 U.S.C. § 227(b)(2).  3 https://800notes.com/Phone.aspx/1-877-431-8527  5  •  Realgy Energy.  Relates to electricity deregulation in Illinois.  They want  me to switch to them. But the caller id says “UNAVAILABLE”; and when  I called back on the number, it said it was disconnected. Seems somewhat  legitimate (although I’m on the FTC do-not-call list); but also like it could  be a scam.4  •  Every week at least twice we are getting called from 217-464-4421 and  nothing then the call switches off. I am tried [sic] of it.5  •  They are allegedly a Realgy Energy Services, with offices in Michigan,  Illinois and Indiana.  While it is a 773 number, when you call it back, you  allegedly are talking to someone in Clearwater, Florida. It seems they may  be using a Google Voice number so, if they are caught, they are difficult to  trace. 6   17.  In response to the liability risk associated with the TCPA, numerous  commercially available services exist to help companies that call others using  prerecorded voices, such as Defendants, to identify cellular subscribers and otherwise  ensure that calls are only made to consenting consumers. For instance, companies such as  Infutor, Nextmark List, and Contact Center Compliance advertise their ability to instantly  identify and flag disconnected telephone numbers from cellular telephone number data  lists on a recurring basis (such as weekly or monthly). This type of service can identify  disconnected numbers before they are recycled, thereby alerting mobile marketers that  any consent associated with those telephone numbers has been terminated.   18.  Despite the FCC’s ruling, the industry guidelines, and the commercial  availability of programs that help callers filter out non-consenting numbers, Defendants  fail to take the necessary steps to ensure that their prerecorded calls are placed only to  consenting recipients.  4 https://800notes.com/Phone.aspx/1-217-464-4421  5 Id.  6 https://800notes.com/Phone.aspx/1-773-840-5091/2  6   19.  Rather, in an effort to increase revenue and skirt additional costs,  Defendants simply ignore the law when contacting individuals via prerecorded calls to  their cellular telephones.   20.  Indeed, Realgy Energy has been sued before for alleged TCPA violations.7   21.  Defendants know or should know that their prerecorded calls are placed to  non-consenting cellular telephone subscribers. Ultimately, Defendants are responsible for  verifying telephone number ownership and obtaining consent before placing prerecorded  calls to cellular telephone subscribers.   22.  Defendants were, and are, aware that their unsolicited prerecorded calls  were, and are, unauthorized as they fail to obtain prior express written consent before  placing those calls to consumers. Ultimately, consumers are forced to bear the costs of  receiving these unsolicited prerecorded calls.   23.  By placing the unsolicited prerecorded calls at issue in this Complaint,  Defendants caused Plaintiff and the other members of the Class actual harm and  cognizable legal injury. This includes the aggravation, nuisance, and invasions of privacy  that result from the sending and receipt of such prerecorded calls, a loss of value realized  for the monies consumers paid to their carriers for the receipt of such prerecorded calls,  and a loss of the use and enjoyment of their phones, including wear and tear to the related  data, memory, software, hardware, and battery components, among other harms.   24.  In response to Defendants’ unlawful conduct, Plaintiff filed this action  seeking (a) an injunction requiring Defendants to cease all unsolicited prerecorded calling  7 See Primack v Realgy, LLC, Case. 1:14-cv-03257 (N.D. Ill. filed May 5, 2014).  7  activities and, (b) an award of actual or statutory damages to the members of the Class  under the TCPA, together with costs and reasonable attorneys’ fees.  25.  Plaintiff Lindenbaum is the registered account owner and regular user of a  cellular telephone number 216-xxx-2902.   26.  On November 26, 2019 at 12:13 pm, Plaintiff received an unsolicited, pre- recorded phone call on her cellular telephone from, or on behalf, of Defendants.   27.  The November 26, 2019 call used a pre-recorded voice and stated that  John Doe Corporation was calling to offer Plaintiff energy services.   28.  Plaintiff pressed “1” to speak with a live person and was connected with  one of John Doe Corporation’s telephone representatives.   29.  John Doe Corporation’s phone representative asked Plaintiff for her  billing account number and asked if Plaintiff received any government assistance with  her utility bill and confirmed that Defendant Realgy Energy would be the energy  supplier.   30.  Plaintiff was annoyed and inconvenienced by this unwanted invasion of  her privacy, forcing her to spend time and effort to determine exactly who was attempting  to solicit her and for what, and to get them to stop.   31.  Plaintiff has never provided prior express written consent to Defendants to  receive prerecorded calls to her on the 216-xxx-2902 number.   32.  Defendants failed to obtain prior express written consent that included, as  required by 47 C.F.R. § 64.1200(f)(8)(i) a “clear and conspicuous” disclosure informing  the person signing that:  8  (A) By executing the agreement, such person authorizes the seller to  deliver or cause to be delivered to the signatory telemarketing calls using  an automatic telephone dialing system or an artificial or prerecorded  voice; and  (B) The person is not required to sign the agreement (directly or  indirectly), or agree to enter into such an agreement as a condition of  purchasing any property, goods, or services.   33.  By placing the prerecorded calls as alleged herein, Defendants have  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 her  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.   34.  In order to redress these injuries, Plaintiff, on behalf of herself and the  other members of the Class, brings suit under the Telephone Consumer Protection Act,  47 U.S.C. § 227, et seq., which prohibits unsolicited prerecorded calls to cellular  telephones.   35.  On behalf of the Class, Plaintiff seeks an injunction requiring Defendants  to cease all unsolicited pre-recorded calling activities and an award of actual or statutory  damages to the class members, together with costs and reasonable attorneys’ fees.  57.  Plaintiff brings this action pursuant to Federal Rules of Civil Procedure  23(b)(2) and 23(b)(3) on behalf of herself and all others similarly situated and seeks  certification of the following Class:  Robocall No Consent Class: All persons in the United States who from a  date four years prior to the filing of the initial complaint to the present: (1)  Defendants (or a third person acting on behalf of Defendants) called; (2)  on the person’s cellular telephone number using an artificial or  prerecorded voice; and (3) for whom Defendants lacked prior express  consent to call that cellular telephone number at the time the call was  made.   58.  The following people are excluded from the Class: (1) any Judge or  Magistrate presiding over this action and members of their families; (2) Defendants,  Defendants’ subsidiaries, parents, successors, predecessors, and any entity in which the  Defendants or their parents have a controlling interest, and its current or former  employees, officers and directors; (3) persons who properly execute and file a timely  request for exclusion from the Class; (4) persons whose claims in this matter have been  finally adjudicated on the merits or otherwise released; (5) Plaintiff’s counsel and  Defendants’ counsel; and (6) the legal representatives, successors, and assigns  of any such excluded persons.  13   59.  Plaintiff anticipates the need to amend the definition of the Class  following class discovery, including discovery revealing the manner by which  Defendants claim they obtained prior express consent to place autodialed and/or pre- recorded calls to the Plaintiff.   60.  Numerosity: The exact number of members within the Class is unknown  and not available to Plaintiff at this time, but it is clear that individual joinder is  impracticable. On information and belief, Defendants have placed unsolicited calls to  hundreds or thousands of consumers who fall into the definition of the Class. Members of  the Class can be identified through Defendants’ records.   61.  Typicality: Plaintiff’s claims are typical of the claims of other members of  the Class in that Plaintiff and the members of the Class sustained damages arising out of  Defendants’ uniform wrongful conduct, namely their unauthorized telemarketing calls.  Plaintiff is a member of the Class defined herein, and if Plaintiff is able to recover for the  claims set forth in this Complaint, then the other members of the Class will have a right  to recover as well.   62.  Adequate Representation: Plaintiff will fairly and adequately represent  and protect the interests of the Class and has retained counsel competent and experienced  in complex class actions, including class actions under the TCPA and related statutes.  Plaintiff has no conflicts with, or interests antagonistic to, those of the Class, and  Defendants have no defenses unique to Plaintiff.   63.  Commonality and Predominance: There are many questions of law and  fact common to the claims of Plaintiff and the Class, and those questions predominate  14  over any questions that may affect individual members of the Class. Common questions  for the Class include, but are not necessarily limited to the following:  a) Whether Realgy Energy is liable for the conduct of their third-party vendor;  b) Whether John Doe Corporation made calls with a prerecorded message;  c) Whether Defendants’ conduct constitutes a violation of the TCPA;  d) Whether Defendants utilized an artificial or prerecorded voice to place calls to  members of the Class;  e) Whether members of the Class are entitled to statutory and treble damages based  on the willfulness of Defendants’ conduct;  f) Whether Defendants obtained prior express consent to contact any class members;  g) Whether Defendants’ calls constitute telemarketing or were dual purpose  messages; and  h) To the extent Defendants’ conduct does not constitute telemarketing, whether  Defendants obtained prior express oral consent to contact any class members.   64.  Superiority: This case is also appropriate for class certification because  class proceedings are superior to all other available methods for the fair and efficient  adjudication of this controversy. Joinder of all parties is impracticable, and the damages  suffered by the individual members of the Class will likely be relatively small, especially  given the burden and expense of individual prosecution of the complex litigation  necessitated by Defendants’ actions. Thus, it would be virtually impossible for the  individual members of the Class to obtain effective relief from Defendants’ misconduct.  Even if members of the Class could sustain such individual litigation, it would still not be  preferable to a class action. Individual litigation would increase the delay and expense to  15  all parties due to the complex legal and factual controversies presented in this Complaint.  By contrast, a class action presents far fewer management difficulties and provides the  benefits of single adjudication, economy of scale, and comprehensive supervision by a  single Court. Economies of time, effort and expense will be fostered and uniformity of  decisions ensured.   65.  Adequate notice can be given to the members of the Class directly using  information maintained in Defendants’ records or through notice by publication.  66.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   67.  Defendants and/or their agents placed unsolicited calls to cellular  telephone numbers belonging to Plaintiff and the other members of the Robocall No  Consent Class.   68.  These calls were made without the prior express written consent of the  Plaintiff and the other members of the Robocall No Consent Class to receive such calls.   69.  These calls, including those to Plaintiff, utilized an artificial or  prerecorded voice.   7.  Realgy Energy is a certified supplier in the Ohio Energy Choice Program,  offering electricity and natural gas to consumers in Ohio.   70.  To the extent prior written express consent was required, Defendants  failed to obtain prior written express consent that disclosed to the consumer that agreeing  to receive pre-recorded calls was not a condition of purchase or use of any goods or  service. Neither was oral consent provided.  16   71.  To the extent Realgy Energy’s agent, John Doe Corporation, placed the  calls at issue, Realgy Energy’s agent acted with actual or apparent authority and/or in  accordance with a contract between Realgy Energy and its agent, John Doe Corporation.  Realgy Energy’s agent acted under Realgy Energy’s control and for Realgy Energy’s  benefit and/or with Realgy Energy’s knowledge and approval. Realgy Energy controlled  its agent and knew about, and received the benefits of, the agent’s calling activities.  Realgy Energy ratified the agent’s conduct with respect to the placing of such calls.   72.  Defendants have, therefore, violated 47 U.S.C. § 227(b)(1)(B). As a result  of Defendants’ conduct, Plaintiff and the other members of the Robocall No Consent  Class are each entitled to, under 47 U.S.C. § 227(b)(3)(B), a minimum of $500.00 in  damages for each violation of such act.   73.  In the event that the Court determines that Defendants’ conduct was  willfull and knowing, it may, under 47 U.S.C. § 227(b)(3)(C), treble the amount of  statutory damages recoverable by Plaintiff and the other members of the Robocall No  Consent Class.  8.  In recent years, energy suppliers such as Realgy Energy have turned to  unsolicited telemarketing as a way to increase their customer base. Widespread  telemarketing is a primary method by which Realgy Energy solicits new customers.   9.  John Doe Corporation initiated prerecorded telemarketing calls to the  cellular telephone numbers of Plaintiff and the Class to promote Realgy Energy in  violation of the TCPA. Realgy Energy, or one of Realgy Energy’s vendors, hired John  Doe Corporation to originate new customers and is liable for its illegal telemarketing  conduct.   Telephone Consumer Protection Act  (Violation of 47 U.S.C. § 227)  (On Behalf of Plaintiff and the Robocall No Consent Class)  