10. Cabela’s is a specialty retailer and is the world’s largest direct marketer, of  hunting, fishing, camping, and related outdoor merchandise.  In 2015, Cabela’s had nearly $4  billion in revenue.   11. At the end of 2015, Cabela’s operated 77 retail stores in 36 states and in six  Canadian provinces.   12. Cabela’s, through a wholly-owned bank subsidiary, World’s Foremost Bank  (“WFB” or “Cabela’s CLUB”), issues and manages the Cabela’s CLUB Visa credit card, a  rewards based credit card program. WFB is a special purpose, FDIC insured, Nebraska state- chartered bank.   13. During 2015, Cabela’s had approximately 1.9 million active credit card accounts.   14. When consumers sign up for a Cabela’s CLUB Visa credit card issued by WFB,  they are presented with disclosures that make it clear that Defendant makes autodialed and  prerecorded calls:  You agree that WFB, its affiliates and agents ("Covered Parties") has  express consent to contact you at any telephone number you provide to  WFB, or from which you call or may be called by WFB (including but not  limited to telephone numbers publically associated with you), and you  further agree that such contacts are not unsolicited. You additionally agree  that the Covered Parties may contact you at those number(s) via text  message, automatic dialer calls, live operator and/or pre-recorded/artificial  voice messages. You agree to be contacted by the Covered Parties via all  of these methods whether or not the phone number is a home phone or  work phone, or whether it connects to any type of mobile/wireless device,  and also regardless of whether you will be charged by your  telecommunications service provider for receipt of the calls/messages at  those phone number(s).  https://www.cabelas.com/assets/instantcredit/regs.html 5  15. Cabela’s also represents how it utilizes autodialed and prerecorded calls when  attempting to collect debts from a Cabela’s CLUB Visa credit card holders:  “Collection and Recoveries. We employ a “cradle to grave” collection  approach whereby a collector will work all delinquency categories. We  classify an account as delinquent when the minimum payment due on the  account is not received by the payment date specified by the statement  cycle. Accounts are placed in collection status with an internal or third  party collector at various stages of delinquency. All delinquent accounts  enter collections no later than 15 days delinquent. We employ an  autodialer, which distributes accounts to collectors. Current account to  collector ratios are as follows:” (emphasis added)  http://www.nasdaq.com/markets/ipos/filing.ashx?filingid=2765524  16. Pursuant to the TCPA, a company must obtain prior express consent before using  an ATDS or a prerecorded message when calling a cellular telephone. See 47 U.S.C. § 227, et  seq. In many instances, Cabela’s calls to consumer’s cellular telephones violate the TCPA  because (1) the telephone owner did not consent to receiving the calls (i.e., the consent, if it was  obtained at all, was obtained from the prior owner of that telephone number) and/or (2) the  current cellular telephone owner has expressly requested not to receive such calls.   17. Indeed, last year, the FCC explicitly held that:  the TCPA requires the consent not of the intended recipient of a  call, but of the current subscriber (or non-subscriber customary  user of the phone) and that caller best practices can facilitate  detection of reassignments before calls. We generally agree with  commenters who oppose granting these requests that there are  solutions in the marketplace to better inform callers of reassigned  wireless numbers; that businesses should institute new or better  safeguards to avoid calling reassigned wireless numbers and facing  TCPA liability; and that the TCPA requires consent from the actual  party who receives a call.  In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of  1991, CG No. 02-278, WC No. 07-135, FCC 15-72 (rel. July 10, 2015), available at  https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order.  6  18. While some Cabela’s customers may elect to receive autodialed and/or  prerecorded calls, anyone in the United States may receive autodialed and/or prerecorded calls  from Cabela’s on their cellular phone even if they do not have any relationship with Cabela’s.   As happened with Plaintiff, Cabela’s places autodialed and prerecorded calls to owners of  recycled cellular numbers (many of whom do not even have a relationship with Cabela’s, such as  a credit card account) who have not consented to receiving such autodialed or prerecorded calls.   For various reasons, cellular telephone subscribers deactivate and relinquish their cellular  telephone numbers. Once deactivated, the cellular telephone carrier reassigns the number to  another subscriber – a practice known as “recycling.”  Recycling times (i.e., the time between  deactivation and reassignment) vary across carriers, generally ranging from thirty (30) days to  six (6) months depending on location and demand. During the recycling period, the cellular  telephone number is considered disconnected.   19. In some instances, the prior owner of a recycled telephone number may have  consented to receiving autodialed and/or prerecorded calls from Cabela’s. But, even if the prior  owner consented, that consent does not transfer to the new recycled cellular number’s owner.    20. The mobile marketing industry is acutely aware of cellular number recycling and,  in particular, the risk associated with placing autodialed and/or prerecorded calls to non- consenting recycled numbers. To help mobile marketers navigate regulatory compliance, the  Mobile Marketing Association (“MMA”) publishes guidelines based on accepted industry  practices for all mobile marketers.  In its October 2012 U.S. Consumer Best Practices for  Messaging, the MMA recommends that mobile marketers, such as Cabela’s, “have appropriate  and effective systems and processes for managing deactivation and recycled number information.  These systems and processes should be designed to ensure that mobile content programs  7 subscribed to by previous holders of a specific phone number do not continue to be delivered or  billed to a subsequent holder of that number when it is reassigned.”  The MMA further advises  mobile marketers to “process deactivation information within three business days of receipt.”1  21. In response to the liability risk associated with recycled numbers, numerous  commercially available services exist to help mobile marketers, such as Cabela’s, identify  recycled numbers and non-consenting cellular subscribers in real-time. For instance, companies  such as Neustar2 Experian3, Early Warning4, Idiology5, and Infutor6 advertise their abilities to  instantly identify and flag disconnected telephone numbers from cellular telephone number data  lists on a recurring basis (such as weekly or monthly) or on a real-time basis. 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. In addition, these  services help telemarketers and debt collectors ensure that companies are: (1) identifying the  current phone type: landline or wireless before they call, (2) verifying in real-time the current  owner of a phone number to avoid calling a recycled phone number, (3) updating and appending  accurate address and phone information, and (4) identifying active phone numbers.     22. Despite industry guidelines, commercially available resources and the obvious  lack of consent associated with recycled numbers, Cabela’s fails to take the necessary steps to  insure that its autodialed and/or prerecorded calls are placed only to consenting recipients.  1The MMA is a global trade organization that issues codes of conduct, best practices, guidelines,  rules and instructions for companies engaged in mobile marketing.  Its U.S. Consumer Best  Practices for Messaging are based on accepted industry practices, common wireless carrier  policies and regulatory guidance. With over 800 members, the MMA is the preeminent source  for mobile marketing information and expertise  2 https://www.neustar.biz/services/tcpa-compliance  3 http://www.experian.com/assets/consumer-information/white-papers/Flyer-TCPA-110215.pdf  4 https://www.earlywarning.com/pdf/mnv-tcpa-infographic.pdf  5 https://www.idology.com/TCPA_number_verification  6 http://www.infutor.com/industry-data-solutions/tcpa-compliance/  8  23. To that end, Cabela’s simply treats the new recycled cellular telephone number  owner as if he or she were the previous owner. That is, if the previous owner gave consent to  receive Cabela’s autodialed and/or prerecorded calls, Cabela’s continues to treat that consent as  the consent of the new (unassociated) owner. New owners are then forced to incur the cost and  bother of receiving Cabela’s autodialed and/or prerecorded calls.  Notably, new owners are  provided no express means to contact Cabela’s to make the autodialed and/or prerecorded calls  stop. Sometimes, the autodialed and/or prerecorded calls do not even identify “Cabela’s” as the  sender or maker of the calls, and consumers, having no prior relationship with Cabela’s, may be  completely unaware that the autodialed and/or prerecorded calls are coming from Cabela’s. And,  as evidenced by numerous complaints on internet message boards, Cabela’s often disregards  consumers’ “stop” requests.   24. Cabela’s knows, or consciously disregards the fact, that its autodialed and/or  prerecorded calls are placed to non-consenting, recycled cellular number subscribers. Indeed,  Cabela’s has received numerous consumer complaints alerting it to this very fact and requesting  that the autodialed and/or prerecorded calls stop. Ultimately, Cabela’s is responsible for  verifying cellular telephone number ownership and obtaining consent before placing autodialed  and/or prerecorded calls to cellular telephone subscribers. Even with prior cellular subscriber  consent, Cabela’s is liable under the TCPA for placing autodialed and/or prerecorded calls to  cellular numbers reassigned to new subscribers without the new subscriber’s consent. See Soppet  v. Enhanced Recovery Co., LLC, 679 F.3d 637, 641 (7th Cir. 2012) (under the TCPA, “[c]onsent  to call a given number must come from its current subscriber,” not its prior subscriber); Breslow  v. Wells Fargo, 2014 WL 2565984 (11th Cir. 2014) (consent from “called party” means consent  from the person subscribing to the called number at the time the call was made, not the former  9 subscriber); In the Matter of Rules and Regulations Implementing the Telephone Consumer  Protection Act of 1991, Report and Order, ¶ 123, 18 FCC Rcd. 14014, 2003 WL 21517853  (2003) (“we reject proposals to create a good faith exception for inadvertent autodialed or  prerecorded calls to wireless numbers…”)   25. Given the multitude of readily available commercially feasible resources to  identify such consumers, Cabela’s had ready means to identify those consumers or obtain their  consent before placing autodialed and/or prerecorded calls.   26. Cabela’s also places autodialed and/or prerecorded calls to cellular subscribers  who have expressly “opted-out” or requested not to receive its autodialed and/or prerecorded  calls. Notably, many of these cellular subscribers never consented to receiving Cabela’s  autodialed and/or prerecorded calls in the first place. But, even with prior consent, Cabela’s is  required to honor each stop-request as a termination of any prior consent. Accordingly, any  autodialed or prerecorded calls made to a cellular subscriber after receiving an express stop  request is done without express consent.   27. Cabela’s simply ignores statutory duties and accepted industry guidelines.  Instead, Cabela’s makes it notoriously difficult for consumers to opt-out or unsubscribe from  autodialed and/or prerecorded calls.   28. Despite receiving numerous express stop requests from cellular subscribers,  Cabela’s continues to place autodialed and/or prerecorded calls to these subscribers, sometimes  for months afterwards.   29. Cabela’s knows, or consciously disregards the fact, that its autodialed and/or  prerecorded calls to these cellular subscribers are unauthorized.   30. The following sample of consumer complaints regarding autodialed and/or  10 prerecorded calls evidences Cabela’s practice of disregarding recycled numbers and placing  autodialed and/or prerecorded calls to non-consenting (and often non-Cabela’s customer) cellular  telephone owners:  • Called and when answered dead air....then disconnect. -   http://whocallsme.com/Phone-Number.aspx/8773386191  • Keep receiving these infuriating messages. They then hang up the phone. -  http://callercheck.org/phonenumber/8773386191  • The person said they were calling about our Cabela’s VISA card. They would not  tell the spouse what it was in regards to but asked my name, which I didn’t give  them. They have been calling our number several times a day. -  http://findwhocallsyou.com/1-877-338-6191  • This number will call back to back to back. - http://findwhocallsyou.com/1-877- 338-6191  • Calls 20-30 times a day! Hangs up, never leaves a message! -  http://www.smallercaller.com/numbers/1-877-338-6191  31. Plaintiff Franklin Eldridge is the subscriber to and customary user of a personal  cellular telephone number.   32. In or around February 2016, Plaintiff obtained a new cellular telephone number  from Cricket Wireless. Shortly after obtaining his new cell phone number, Plaintiff began  receiving autodialed and prerecorded calls to his cellular telephone number from Cabela’s, in an  attempt to collect an alleged outstanding debt owed by an unknown third party named “Jonathon  Reed,” presumably a prior owner of Plaintiff’s cellular telephone number.   33. Plaintiff Eldridge has received (and continues to receive) approximately 5-10 autodialed  and/or prerecorded calls on his cellular telephone number each week, all seeking to collect an  outstanding debt allegedly owed by the prior owner of Plaintiff’s cellular telephone number.  Below is a partial log of the calls that Plaintiff has received from Defendant from 877-338-6191  11 and 800-707-1374:   (Figure 1.)   34. In some cases when Plaintiff answers Cabela’s calls, he hears a pre-recorded  message, and other times the calls are silent and then disconnects, which often signifies that the  call was made using an autodialing system without human intervention. Other times, Plaintiff  noticed a pause and then an agent came onto the line to speak, instead of a mere hang-up.    35. Plaintiff is not a Cabela’s customer and never provided his consent for Cabela’s to  contact him. He did not express an interest in receiving information about Cabela’s to any person  or entity, including Defendant.  12  36. Plaintiff did not provide his phone number to Defendant or any third-party  operating on its behalf, let alone provide his consent to receive autodialed and/or prerecorded  calls from Cabela’s.   37. Defendant, or others acting on its behalf, placed these autodialed and/or  prerecorded calls to Plaintiff and thousands of members of the putative Classes using equipment  having the capacity to store or produce telephone numbers to be called and to dial such numbers,  en masse, simultaneously and without human intervention.   37. Plaintiff incorporates the foregoing allegations as if fully set forth herein.   38. Starting in February 2016, Plaintiff has repeatedly asked Defendant to stop calling  him, but Defendant has continued to place autodialed and prerecorded calls to Plaintiff, including  as recently as July 19, 2016, despite Plaintiff’s requests for them to stop calling and his advising  them, on no fewer than three separate occasions, that he was not the person they were seeking  and to stop calling him.  38. Defendant made unsolicited and unwanted telemarketing calls to telephone  numbers belonging to Plaintiffs and the other members of the Autodialed No Consent Class— without their prior express written consent—in an effort to sell its products and services.   39. Defendant failed to provide any of the language required to obtained prior express  written consent under the TCPA, including a disclosure that the consumer was consenting to  being called with an autodialer or that providing his or her cellphone number wasn’t a  requirement of purchase.   39. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2)  and 23(b)(3) on behalf of himself and the four classes defined as follows:   Autodialed No Consent Class: All persons in the United States from the last four  years to the present who (1) Cabela’s (or a third person acting on behalf of  Cabela’s) called using an ATDS, (2) on the person’s cellular telephone number,  (3) for the purpose of selling Defendant’s products and services, and (4) for whom  Defendant claims it obtained prior express consent in the same manner as  Defendant claims it supposedly obtained prior express consent to call the Plaintiff.  Pre-recorded No Consent Class: All persons in the United States from the last  four years to the present who (1) Cabela’s (or a third person acting on behalf of  Cabela’s) called, (2) on the person’s cellular telephone, (3) using a pre-recorded  voice, and (4) for whom Defendant claims it obtained prior express consent in the  same manner as Defendant claims it supposedly obtained prior express consent to  call the Plaintiff.  Autodialed Stop Class: All persons in the United States from the last four years  to the present who (1) Cabela’s (or a third person acting on behalf of Cabela’s)  13 called using an ATDS, (2) on the person’s cellular telephone number, (3) after the  person informed Cabela’s that s/he no longer wished to receive calls from  Cabela’s, and (4) for whom Defendant claims it obtained prior express consent in  the same manner as Defendant claims it supposedly obtained prior express  consent to call the Plaintiff.  Pre-recorded Stop Class: All persons in the United States from the last four  years to the present who (1) Cabela’s (or a third person acting on behalf of  Cabela’s) called, (2) on the person’s cellular telephone, (3) used a pre-recorded  voice, (4) after the person informed Cabela’s that s/he no longer wished to receive  calls from Cabela’s, and (5) for whom Defendant claims it obtained prior express  consent in the same manner as Defendant claims it supposedly obtained prior  express consent to call the Plaintiff.   40. The following people are excluded from the Classes: (1) any Judge or Magistrate  presiding over this action and members of their families; (2) Defendant, Defendant’s  subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its  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 Classes; (4)  persons whose claims in this matter have been finally adjudicated on the merits or otherwise  released; (5) Plaintiff’s counsel and Defendant’s counsel; and (6) the legal representatives,  successors, and assigns of any such excluded persons.   40. Defendant made the telephone calls using equipment that had the capacity to store  or produce telephone numbers to be called using a random or sequential number generator,  and/or receive and store lists of phone numbers, and to dial such numbers, en masse.   41. Defendant utilized equipment that made the telephone calls to Plaintiff and other  members of the Autodialed No Consent Class simultaneously and without human intervention.  16  41. Numerosity: The exact number of members within the Classes is unknown and  not available to Plaintiff at this time, but it is clear that individual joinder is impracticable. On  information and belief, Defendant has made telephone calls to tens of thousands of consumers  who fall into the definition of the Classes. Members of the Classes can be identified through  Defendant’s records.   42. By making unsolicited telephone calls to Plaintiff and members of the Autodialed  No Consent Class’s cellular telephones without prior express consent, and by utilizing an ATDS,  Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii).   42. Typicality: Plaintiff’s claims are typical of the claims of other members of the  Classes, in that Plaintiff and the members of the Classes sustained damages arising out of  Defendant’s uniform wrongful conduct.  14  43. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the  Autodialed No Consent Class suffered actual damages in the form of monies paid to receive the  unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each  entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA.   43. Adequate Representation: Plaintiff will fairly and adequately represent and  protect the interests of the Classes and has retained counsel competent and experienced in  complex class actions. Plaintiff has no interests antagonistic to those of the Classes, and  Defendant has no defenses unique to Plaintiff.   44. Should the Court determine that Defendant’s conduct was willful and knowing,  the Court should, pursuant to section 227(b)(3)(C), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the Autodialed No Consent Class.  44. Commonality and Predominance: There are several questions of law and fact  common to the claims of Plaintiff and the Classes, and those questions predominate over any  questions that may affect individual members of the Classes. Common questions for the Classes  include, but are not necessarily limited to the following:  (a) Whether Defendant used an ATDS;   (b) Whether Defendant’s conduct violated the TCPA;   (c) Whether Defendant continued to call members of the Classes after they  requested to have the calls stopped;  (d) Whether Defendant had prior written express consent to call members of  the Autodialed No Consent Class and the Prerecorded No Consent Class;  (e) Whether Cabela’s had a duty to filter out recycled numbers from its call  list; and  (f) Whether Plaintiff and the members of the Classes are entitled to statutory  and treble damages based on the willfulness of Defendant’s conduct.   45. Plaintiff incorporates the foregoing allegations as if fully set forth herein.   45. 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 Classes will likely be relatively small, especially given the burden and  expense of individual prosecution of the complex litigation necessitated by Defendant’s actions.  15 Thus, it would be virtually impossible for the individual members of the Classes to obtain  effective relief from Defendant’s misconduct. Even if members of the Classes could sustain such  individual litigation, it would still not be preferable to a class action, because individual litigation  would increase the delay and expense to 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.  46. Defendant made unsolicited and unwanted telemarketing calls to telephone  numbers belonging to Plaintiff and the other members of the Pre-recorded No Consent Class on  their cellular telephone in an effort to sell its products and services using a pre-recorded voice as  defined in the TCPA.   47. Defendant made the telephone calls using equipment that had the capacity to store  or produce telephone numbers to be called using a random or sequential number generator,  and/or receive and store lists of phone numbers, and to dial such numbers, en masse.   48. Defendant utilized equipment that made the telephone calls to Plaintiff and other  members of the Pre-recorded No Consent Class simultaneously and without human intervention.   49. By making unsolicited telephone calls to Plaintiff and members of the Pre- 17 recorded No Consent Class’s cellular telephones using a pre-recorded voice, Cabela’s violated  47 U.S.C. § 227(b)(1)(B) by doing so without prior express consent.   50. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the  Pre-recorded No Consent Class suffered actual damages in the form of monies paid to receive  the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each  entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA.   51. In the event that the Court determines that Defendant’s conduct was willful and  knowing, the Court may, pursuant to Section 227(b)(3), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the Pre-recorded No Consent Class.  52. Plaintiff incorporates the foregoing allegations as if fully set forth herein.   53. Defendant made unsolicited and unwanted telemarketing calls to telephone  numbers belonging to Plaintiff and the other members of the Autodialed Stop Class on their  cellular telephone after such persons had informed Defendant that they no longer wished to  receive such calls from Defendant.   54. Defendant made the telephone calls using equipment that had the capacity to store  or produce telephone numbers to be called using a random or sequential number generator,  and/or receive and store lists of phone numbers, and to dial such numbers, en masse.   55. Defendant utilized equipment that made the telephone calls to Plaintiff and other  members of the Autodialed Stop Class simultaneously and without human intervention.   56. By making unsolicited telephone calls to Plaintiff and other members of the  Autodialed Stop Class’s cellular telephones after they requested to no longer receive calls,  18 Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii) by continuing to call them without prior  express consent.   57. As a result of Defendant’s unlawful conduct, Plaintiff and the other members of  the Autodialed Stop Class suffered actual damages in the form of monies paid to receive the  unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each  entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA.   58. Should the Court determine that Defendant’s conduct was willful and knowing,  the Court should, pursuant to section 227(b)(3)(C), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the Autodialed Stop Class.  59. Plaintiff incorporates the foregoing allegations as if fully set forth herein.   60. Defendant made unsolicited and unwanted pre-recorded calls to telephone  numbers belonging to Plaintiff and the other members of the Pre-recorded Stop Class on their  cellular telephone after such persons had informed Defendant that they no longer wished to  receive such calls from Defendant.   61. Defendant made the telephone calls using equipment that had the capacity to play  a pre-recorded voice message and to store or produce telephone numbers to be called using a  random or sequential number generator, and/or receive and store lists of phone numbers, and to  dial such numbers, en masse.   62. Defendant utilized equipment that made the telephone calls to Plaintiff and other  members of the Pre-recorded Stop Class simultaneously and without human intervention.   63. By making unsolicited telephone calls to Plaintiff and other members of the Pre- 19 recorded Stop Class’s cellular telephones using a pre-recorded voice after they requested to no  longer receive such calls, Cabela’s violated 47 U.S.C. § 227(b)(1)(B) by doing so without prior  express consent.   64. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the  Pre-recorded Stop Class suffered actual damages in the form of monies paid to receive the  unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each  entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA.   65. Should the Court determine that Defendant’s conduct was willful and knowing,  the Court may, pursuant to Section 227(b)(3), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the Pre-recorded Stop Class.  Violation of the TCPA, 47 U.S.C. § 227  (On behalf of Plaintiff and the Pre-recorded Stop Class)   Violation of the TCPA, 47 U.S.C. § 227  (On behalf of Plaintiff and the Autodialed No Consent Class)   Violation of the TCPA, 47 U.S.C. § 227  (On behalf of Plaintiff and the Pre-recorded No Consent Class)   Violation of the TCPA, 47 U.S.C. § 227  (On behalf of Plaintiff and the Autodialed Stop Class)  