12.  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.   13.  Plaintiff has received at least two of Defendants’ advertisements by  facsimile. True and correct copies of the faxes received in October 2015 and January  2016 are attached as Exhibit A and Exhibit B. Plaintiff intends to discover the  number of other Defendants’ advertisements sent to Plaintiff by fax.   15.  Exhibit A and Exhibit B include VM’s name and contact information.    16.  Exhibit A and Exhibit B do not include the mandatory opt-out notice  required by 47 C.F.R. § 64.1200 (a) (4).   17.  Plaintiff did not expressly invite or give permission to anyone to send  Exhibit A and Exhibit B or any other advertisement from Hygenic or VM to  Plaintiff’s fax machine.   18.  On information and belief, Defendants sent advertisements by  facsimile to Plaintiff and more than 39 other persons in violation of the TCPA.    19.  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.   21.  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.   22.  On information and belief, Defendants’ fax advertising campaigns  involved other, substantially-similar advertisements also sent without the opt-out  notice required by the TCPA. Plaintiff intends to locate those advertisements in  discovery.   23.  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).   24.  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.   26.  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.   27.  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  protect the interest of members of the class.   29.  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.  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.  Plaintiff incorporates the preceding paragraphs as though fully set  forth herein.   31.  Plaintiff brings Count I on behalf of itself and a class of similarly  situated persons against Defendants.   33.  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).   34.  The TCPA provides a private right of action as follows:   35.  The Court, in its discretion, may treble the statutory damages if it  determines that a violation was knowing or willful.  47 U.S.C. § 227 (b) (3).   36.  Here, Defendants violated 47 U.S.C. § 227 (b) (1) (C) by sending an  advertisement by facsimile (such as Exhibit A) to Plaintiff and the other class  members without their prior express invitation or permission.   38.  Defendants failed to include a clear and conspicuous opt-out notice on  Exhibit A and Exhibit B.   39.  Exhibit A and Exhibit B do not provide any of the information the  TCPA requires for a compliant opt-out notice. For example, Exhibit A fails to state  on the advertisement’s first page that the recipient may make a request to the  sender not to send any future advertisement by facsimile and that the sender’s  failure to comply within 30 days is unlawful.   40.  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, Exhibit B.    41.  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  stipulated by 47 U.S.C § 227 (b) (2) (D) (v).    42.  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).   44.  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).    45.  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.   46.  If Defendants’ actions were knowing or purposeful, then the Court has  the discretion to increase the statutory damages up to 3 times the amount. 47  U.S.C. § 227 (b) (3).   47.  VM 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, the faxes were sent on its behalf, or under general  principles of vicarious liability, including actual authority, apparent authority and  ratification.   50.  Plaintiff incorporates by reference all preceding paragraphs as though  fully set forth herein.   51.  Plaintiff brings Count II on behalf of itself and a class of similarly  situated persons and against Defendants.   52.  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.    53.  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.   55.  Defendants knew or should have known that their misappropriation of  paper, toner, and employee time was wrongful and without authorization.   56.  Plaintiff and the other class members were deprived of the use of the  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.   CONVERSION   TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227  