16.  On or about October 6, 2020, Plaintiff received a text message on his personal  cellular telephone stating “Hey there!  This is Carvertise – we pay you to advertise on your car…  and you matched with a $300 campaign!  Woohoo!  Learn more here:  https://nxt.to/1gXJjyF.”  A  screenshot of the October 6, 2020 text is attached hereto as Exhibit A.   17.  The text message provides promotional content for Defendant’s products or  services and was sent with the goal of enticing Plaintiff to utilize its products and services and to  contact Defendant to learn more about them.   18.  The Text is impersonal in nature and the message utilizes boilerplate language.   Thus, on information and belief, the Text was sent to recipients en masse.   19.  Based on the foregoing, no human directed the text message to Plaintiff’s cellular  number; rather, Plaintiff’s number was called using a random or sequential number generator with  the capacity to store or produce those numbers. In other words, on information and belief,  Defendant sent or transmitted, or had sent or transmitted on its behalf, the Text to Plaintiff’s  cellular telephone using an automatic telephone dialing system as defined by 47 U.S.C. §  227(b)(1)(A) and the FCC.    1 Information obtained from Defendant’s website, www.carvertise.com, last visited October 7, 2020.  5   20.  Plaintiff never provided his cellular telephone number to Defendant.   21.  Plaintiff never requested, desired, permitted, or otherwise provided his prior  express consent to Defendant to send or transmit the Text or any other texts to his cellular  telephone.   22.  Plaintiff never provided his prior express written consent to Defendant to send or  transmit the Text or any other advertisement or telemarketing to his cellular telephone.     23.  As a result of receiving the Text, Plaintiff incurred expenses to his wireless service,  wasted data storage capacity, suffered the nuisance, waste of time, and aggravation that  accompanies receipt of such unauthorized advertisements, and was subjected to an intrusion upon  his seclusion and invasion of privacy.     24.  On information and belief, Defendant sent the Text, or other text messages, en  masse to a list of thousands of randomly generated cellular telephone numbers using an ATDS.     25.  On information and belief, Defendant sent the Text, or other text messages, to  Plaintiff and the Class members using equipment that had the capacity to store or produce  telephone numbers to be called using a random or sequential number generator, and to dial such  numbers without human intervention.   26.  On information and belief, Plaintiff and the Class members did not provide  Defendant with prior express written consent to receive such text messages and, as a result,  incurred expenses to their wireless services, wasted data storage capacity, suffered the aggravation  that accompanies receipt of such unauthorized advertisements, and were subjected to an intrusion  upon seclusion.    6  27.  Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), Plaintiff brings this class action on  behalf of the following Classes:  Autodialed Class  All individuals in the United States who, within the four years prior  to the filing of the instant Complaint, received one or more texts to  their cellular telephones from Defendant through the use of an  automatic dialing system and who did not provide prior express  consent to receive such text messages.   Autodialed Telemarketing Class  All individuals in the United States who, within the four years prior  to the filing of the instant Complaint, received calls and/or texts  advertising Defendant’s property, goods, or services to their cellular  telephones from Defendant through the use of an automatic dialing  system and who did not provide prior express written consent to  receive such calls/texts.  Excluded from the Classes are the Defendant and its officers, directors, employees, and agents and  members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion  of class certification discovery.   28.  Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon  such information and belief avers, that the number of persons and entities of the Classes is  numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon  such information and belief avers, that the number of Class members is at least forty (40) based on  Defendant’s use of automated and impersonal text message content sent via a telephone number  with an automated message center.   29.  Commonality (Fed. R. Civ. P. 23 (a)(2)):  Common questions of law and fact apply  to the claims of all class members. Common material questions of fact and law include, but are not  limited to, the following:  7  a.  Whether Defendant sent non-emergency text messages to Plaintiff and the  Class members’ cellular telephones using an automatic telephone dialing system;  b.  Whether Defendant had prior express written consent to send its automated  text messages;  c.  Whether Defendant’s conduct was knowing and/or willful;  d.  Whether Defendant is liable for damages, and the amount of such damages;  and;  e.  Whether Defendant should be enjoined from such conduct in the future.   30.  Typicality (Fed. R. Civ. P. 23(a)(3)):  Plaintiff’s claims are typical of the claims of  all Class members. Plaintiff received the same or substantially similar unsolicited text messages  as the other Class members sent by or on behalf of Defendant advertising the availability or quality  of goods and services of the Defendant during the Class Period. Plaintiff is making the same claims  and seeking the same relief for himself and all Class members based upon the same federal statute.  Defendant has acted in the same or in a similar manner with respect to the Plaintiff and all the  Class members by sending Plaintiff and each member of the Class the same or other text messages.   31.  Fair and Adequate Representation (Fed. R. Civ. P. 23(a)(4)):  Plaintiff will fairly  and adequately represent and protect the interests of the class. Plaintiff is interested in this matter,  has no conflicts, and has retained experienced class counsel to represent the class.   32.  Predominance and Superiority (Fed. R. Civ. P. 23(b)(3)):  Common questions of  law and fact predominate over any questions affecting only individual members, and a class action  is superior to other methods for the fair and efficient adjudication of the controversy because:   a.  Proof of Plaintiff’s claims will also prove the claims of the Class without  the need for separate or individualized proceedings;  8  b.  Evidence regarding defenses or any exceptions to liability that Defendant  may assert and attempt to prove will come from Defendant’s records and will not require  individualized or separate inquiries or proceedings;  c.  Defendant has acted and is continuing to act pursuant to common policies  or practices in the same or similar manner with respect to Plaintiff and all Class members;  d.  The amount likely to be recovered by individual Class members does not       support individual litigation. A class action will permit a large number of relatively small  claims involving virtually identical facts and legal issues to be resolved efficiently in one  proceeding based upon common proofs; and  e.  This case is inherently manageable as a class action in that:  i.  Defendant identified persons or entities to receive the unauthorized   text messages and Defendant’s computer and business records will likely enable  Plaintiff to readily identify class members and establish liability and damages;  ii.  Liability and damages can be established for Plaintiff and the Class   with the same common proofs;  iii.  Statutory damages are provided for in the statute and are the same   for Plaintiff and all Class members and can be calculated in the same or a similar  manner;  iv.  A class action will result in an orderly and expeditious   administration of claims and it will foster economics of time, effort, and expense;  v.  A class action will contribute to uniformity of decisions concerning   Defendant’s practices; and  9  vi.  As a practical matter, the claims of the Class are likely to go   unaddressed absent class certification.   Violation of 47 U.S.C. § 227(b)(1)(A)(iii) – ATDS/Telemarketing Calls   33.  As stated, the TCPA prohibits the use of auto-dialers to make any call to a cellular  telephone number in the absence of an emergency or the prior express consent of the person being  called.  47 U.S.C. § 227(b)(1)(A)(iii). The FCC has further clarified that, except for calls made by  tax-exempt nonprofit organizations or health care messages, any telephone call using an automatic  telephone dialing system that includes or introduces an advertisement or constitutes telemarketing  must have prior express written consent as provided at 47 C.F.R. § 64.1200(f)(8) to be compliant  with the TCPA. 47 C.F.R. § 64.1200(a)(2) (emphasis added).    34.  Plaintiff received at least one text from Defendant on October 6, 2020.  The Text is  an advertisement as defined by 47 C.F.R. § 64.1200(f)(1) because it promotes Defendant’s  property, goods, or services.    35.  The Text was an impersonal advertisement from Defendant and sent to Plaintiff’s  cellular telephone.   36.  Plaintiff provided neither his prior express consent nor his prior express written  consent to receive such text.   37.  Based on the foregoing, on information and belief, Defendant sent the same or  substantially similar texts to the Class members en masse without their prior express consent or  prior express written consent.   38.  Defendant sent the Text, or had it made and sent on its behalf, using an automatic  telephone dialing system or device which has the capacity to store or produce telephone numbers  to be called using a random or sequential number generator, and to dial such numbers.  10   39.  Defendant utilized equipment that sent text messages, including the Text here, to  Plaintiff and other Class members simultaneously and without human intervention.   40.  By making such call and sending such text to Plaintiff and the Class, Defendant  violated 47 U.S.C. § 227(b)(1)(A)(iii).   41.  As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,  Plaintiff and Class members were harmed and are each entitled to a minimum of $500.00 in  damages for each violation. To the extent the Court finds that Defendant’s conduct was knowing  or willful, the Court may treble the amount of damages.  Plaintiff and the Class are also entitled to  an injunction against future calls and/or texts by or on behalf of Defendant that utilize an ATDS.  WHEREFORE, Plaintiff, GEORGE KOSTAKIS, individually and on behalf of all others  similarly situated, demands judgment in his favor and against Defendant, CARVERTISE, INC.,  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 the Plaintiff’s  counsel as counsel for the Class;  B.  That the Court award actual monetary loss from such violations or the sum of five  hundred dollars ($500.00) for each violation, whichever is greater, and award treble damages if  the violations were done willfully and/or knowingly;   C.  That the Court award prejudgment interest from the date the Text was sent to the  date the Court enters judgment;  D.  That the Court enjoin the Defendant from additional violations; and  E.  That the Court award costs and such further relief as the Court may deem just and  proper.  11  Respectfully submitted,  GEORGE KOSTAKIS, individually and as the  representative of a class of similarly-situated  persons,  By:  /s/ Ryan M. Kelly  Ryan M. Kelly  