1.  a statement that the recipient is legally entitled to opt-out of receiving  future faxed advertisements – knowing that he or she has the legal right to request  an opt-out gives impetus for recipients to make such a request, if desired;   14.  Defendants transmitted by telephone facsimile machine the Fax Ads to Plaintiff  on the following dates: June 4, 2015; July 1, 2015, September 23, 2015; October 21, 2015;  November 18, 2015; December 16, 2015; January 21, 2016; and March 18, 2016,     15.  On information and belief, Defendants receive some or all of the revenues from  the sale of the products, goods and services advertised on the Fax Ads, and Defendant profits and  benefits from the sale of the products, goods and services advertised on the Fax Ads.   16.  Plaintiff had not invited or given permission to Defendants to transmit the Fax  Ads to Plaintiff via its office facsimile machine.     17.  On information and belief, Defendants faxed the same and other unsolicited  facsimiles without the required opt out language to Plaintiff and more than 25 other recipients or  sent the same and other advertisements by fax with the required opt-out language but without  first receiving the recipients’ express invitation or permission.    18.  There is no reasonable means for Plaintiff (or any other class member) to avoid  receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent  communications their owners desire to receive.    19.  The Fax Ads did not display a proper opt-out notice as required by 47 C.F.R. §   2.  a statement that the sender must honor a recipient’s opt-out request within  30 days and the sender’s failure to do so is unlawful – thereby encouraging  recipients to opt-out, if they did not want future faxes, by advising them that their  opt-out requests will have legal “teeth”;   20.  In accordance with F. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this  class action pursuant to the JFPA, on behalf of the following class of persons:  All persons who (1) on or after four years prior to the filing of this  action, (2) were sent telephone facsimile messages of material  advertising the commercial availability or quality of any property,  goods, or services by or on behalf of Defendants, and (3) which  Defendants did not have prior express invitation or permission, or  (4) which did not display a proper opt-out notice.  5  Excluded from the Class are the Defendants, their employees, agents and members of the  Judiciary. Plaintiff seeks to certify a class which include but are not limited to the fax  advertisements sent to Plaintiff.  Plaintiff reserves the right to amend the class definition upon  completion of class certification discovery.   21.  Class Size (F. 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 Plaintiff Class 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.   22.  Commonality (F. 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:  a)  Whether the Defendants sent unsolicited fax advertisements;  b)  Whether Defendants’ faxes sent to other persons not the Plaintiff  constitute advertisements;  c)   Whether the Defendants’ faxes advertised the commercial availability or  quality of property, goods, or services;  d)  The manner and method the Defendants used to compile or obtain the list  of fax numbers to which they the Fax Ads, other unsolicited faxed advertisements, or  other advertisements without the required opt-out language;  e)  Whether the Defendants faxed advertisements without first obtaining the  recipient’s prior invitation or permission;  f)  Whether the Defendants sent the Fax Ads knowingly;  g)   Whether the Defendants violated the provisions of 47 U.S.C. § 227 and  6  the regulations promulgated thereunder;  h)  Whether the Fax Ads contain an “opt-out notice” that complies with the  requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder,  and the effect of the failure to comply with such requirements;  i)  Whether the Defendants should be enjoined from faxing advertisements in  the future;  j)  Whether the Plaintiff and the other members of the class are entitled to  statutory damages; and  k)  Whether the Court should award treble damages.   23.  Typicality (F. R. Civ. P. 23 (a) (3)):  The Plaintiff's claims are typical of the  claims of all class members. The Plaintiff received the same faxes or similar as the faxes sent by  or on behalf of the Defendants advertising products, goods and services of the Defendants during  the Class Period. The Plaintiff is making the same claims and seeking the same relief for himself  and all class members based upon the same federal statute. The Defendants have 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 faxes or faxes which did not contain the proper  opt-out language or were sent without prior express invitation or permission.   23.  Common Conduct (F. R. Civ. P. 23 (b) (2)):  Class certification is also appropriate  because the Defendants have acted and refused to act in the same or similar manner with respect  to all class members thereby making injunctive and declaratory relief appropriate.  The Plaintiff  demands such relief as authorized by 47 U.S.C. §227.   24.  Fair and Adequate Representation (F. R. Civ. P. 23 (a) (4)):  The Plaintiff will  fairly and adequately represent and protect the interests of the class. It is interested in this matter,  has no conflicts, and has retained experienced class counsel to represent the class.   24.  Predominance and Superiority (F. 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 the claims of the Plaintiff will also prove the claims of the class without  the need for separate or individualized proceedings;  b)  Evidence regarding defenses or any exceptions to liability that the Defendants  may assert and attempt to prove will come from the Defendants’ records and will not  require individualized or separate inquiries or proceedings;  c)   The Defendants have acted and are continuing to act pursuant to common policies  or practices in the same or similar manner with respect to 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 (1)  proceeding based upon common proofs; and  e)  This case is inherently manageable as a class action in that:  8  (i)  The Defendants identified persons or entities to receive the fax  transmissions and it is believed that the Defendants’ and/or Defendants’ agents’  computer and business records will enable the Plaintiff to readily identify class members  and establish liability and damages;  (ii)  Liability and damages can be established for the Plaintiff and the class  with the same common proofs;  (iii)  Statutory damages are provided for in the statute and are the same for 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 the  Defendants’ practices; and  (vi)  As a practical matter, the claims of the class are likely to go unaddressed  absent class certification.   Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq.   25.  The JFPA makes it unlawful for any person to “use any telephone facsimile  machine, computer or other device to send, to a telephone facsimile machine, an unsolicited  advertisement . . . .”  47 U.S.C. § 227(b)(1)(C).   25.  Need for Consistent Standards and Practical Effect of Adjudication (F. R. Civ. P.  23 (b) (1)):  Class certification is appropriate because the prosecution of individual actions by  class members would: (a) create the risk of inconsistent adjudications that could establish  7  incompatible standards of conduct for the Defendants, and/or (b) as a practical matter,  adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are  not parties.   26.  The JFPA 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 prior express invitation or permission, in writing or otherwise.”  47  U.S.C. § 227(a)(5).   27.  Opt-Out Notice Requirements. The JFPA strengthened the prohibitions against  9  the sending of unsolicited advertisements by requiring, in § (b)(1)(C)(iii) of the Act, that senders  of faxed advertisements place a clear and conspicuous notice on the first page of the transmission  that contains the following among other things (hereinafter collectively the “Opt-Out Notice  Requirements”):   28.  2006 FCC Report and Order. The JFPA, in § (b)(2) of the Act, directed the  FCC to implement regulations regarding the JFPA, including the JFPA’s Opt-Out Notice  Requirements and the FCC did so in its 2006 Report and Order, which in addition provides  among other things:  A.  The definition of, and the requirements for, an established business  relationship for purposes of the first of the three prongs of an exemption to liability under  § (b)(1)(C)(i) of the Act and provides that the lack of an “established business relationship”  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006  Report and Order ¶¶ 8-12 and 17-20);  B.  The required means by which a recipient’s facsimile telephone number  must be obtained for purposes of the second of the three prongs of the exemption under §  (b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements precludes  the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006 Report and  Order ¶¶ 13-16);  C.  The things that must be done in order to comply with the Opt-Out Notice  Requirements for the purposes of the third of the three prongs of the exemption under §  (b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006  Report and Order ¶¶ 24-34);  11  D.  The failure of a sender to comply with the Opt-Out Notice Requirements  precludes the sender from claiming that a recipient gave “prior express invitation or permission”  to receive the sender’s fax (See Report and Order ¶ 48);  As a result thereof, a sender of a faxed advertisement who fails to comply with the Opt- Out Notice Requirements has, by definition, transmitted an unsolicited advertisement under the  JFPA. This is because such a sender can neither claim that the recipients of the faxed  advertisement gave “prior express invitation or permission” to receive the fax nor can the sender  claim the exemption from liability contained in § (b)(C)(1) of the Act.   29.  The Fax. Defendants sent the Fax Ads on or about the following dates: June 4,  2015; July 1, 2015, September 23, 2015; October 21, 2015; November 18, 2015; December 16,  2015; January 21, 2016; and March 18, 2016.  These Fax Ads were sent via facsimile  transmission from telephone facsimile machines, computers, or other devices to the telephone  lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax Ads  constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out  Requirements in connection with the Fax Ads. The Fax Ads were transmitted to persons or  entities without their prior express invitation or permission and/or Defendants are precluded from  asserting any prior express invitation or permission or that Defendants had an established  business relationship with Plaintiff and the other members of the Class because of the failure to  comply with the Opt-Out Notice Requirements.  By virtue thereof, Defendants violated the JFPA  and the regulations promulgated thereunder by sending the Fax Ads via facsimile transmission to  Plaintiff and members of the Class.  Plaintiff seeks to certify a class which includes the Fax Ads  and others sent during the four years prior to the filing of this action through the present.   3.  a statement advising the recipient that he or she may opt-out with respect  to all of his or her facsimile telephone numbers and not just the ones that receive a  faxed advertisement from the sender – thereby instructing a recipient on how to  make a valid opt-out request for all of his or her fax machines;   30.  Defendants’ Other Violations. Plaintiff is informed and believes, and upon such  12  information and belief avers, that during the period preceding four years of the filing of this  Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from  telephone facsimile machines, computers, or other devices to telephone facsimile machines of  members of the Plaintiff Class other faxes that constitute advertisements under the JFPA that  were transmitted to persons or entities without their prior express invitation or permission  (and/or that Defendants are precluded from asserting any prior express invitation or permission  or that Defendants had an established business relationship because of the failure to comply with  the Opt-Out Notice Requirements in connection with such transmissions). By virtue thereof,  Defendants violated the JFPA and the regulations promulgated thereunder.  Plaintiff is informed  and believes, and upon such information and belief avers, that Defendants may be continuing to  send unsolicited advertisements via facsimile transmission in violation of the JFPA and the  regulations promulgated thereunder, and absent intervention by this Court, will do so in the  future.   31.  The TCPA/JFPA provides a private right of action to bring this action on behalf  of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for  statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is  appropriate. Id.   32.  The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff  and the other class members even if their actions were only negligent.   33.  The Defendants knew or should have known that (a) the Plaintiff and the other  class members had not given express invitation or permission for the Defendants or anybody else  to fax advertisements about the Defendants’ goods or services; (b) the Plaintiff and the other  class members did not have an established business relationship; (c) Defendants transmitted  13  advertisements; (d) the Fax Ads did not contain the required Opt-Out Notice; and (e)  Defendants’ transmission of advertisements that did not contain the required opt-out notice or  were sent without prior express invitation or permission was unlawful.   34.  The Defendants’ actions caused damages to the Plaintiff and the other class  members. Receiving the Defendants’ junk faxes caused the recipients to lose paper and toner  consumed in the printing of the Defendants’ faxes.  Moreover, the Fax Ads used the Plaintiff's  and the other class members’ telephone lines and fax machine.  The Fax Ads cost the Plaintiff  and the other class members time, as the Plaintiff and the other class members and their  employees wasted their time receiving, reviewing and routing the Defendants’ unauthorized  faxes.  That time otherwise would have been spent on the Plaintiff's and the other class members’  business activities.  The Defendants’ faxes unlawfully interrupted the Plaintiff's and other class  members' privacy interests in being left alone.   WHEREFORE, Plaintiff Spine & Sports Chiropractic, Inc. individually and on behalf of  all others similarly situated, demands judgment in its favor and against Defendants Advantage  Medical Equipment & Supply, Inc., and John Does 1-10, jointly and severally, as follows:  A.  That the Court adjudge and decree that the present case may be properly  maintained as a class action, appoint the 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;   C.  That Court enjoin the Defendants from additional violations; and  D.  That the Court award pre-judgment interest, costs, and such further relief as the  Court may deem just and proper.  14  Respectfully submitted,  4   4.  The opt-out language must be conspicuous.  The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The  requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and  regulations of the Federal Communications Commission (the “FCC”) in ¶ 31 of its 2006 Report  and Order (In the Matter of Rules and Regulations Implementing the Telephone Consumer  Protection Act, Junk Prevention Act of 2005, 21 F.C.C.R. 3787, 2006 WL 901720, which rules  and regulations took effect on August 1, 2006). The requirements of (3) above are contained in  § (b)(2)(E) of the Act and incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii).  10  Compliance with the Opt-Out Notice Requirements is neither difficult nor costly. The Opt-Out  Notice Requirements are important consumer protections bestowed by Congress upon the  owners of the telephone lines and fax machines giving them the right, and means, to stop  unwanted faxed advertisements.    64.1200.  Plaintiff Spine & Sports Chiropractic, Inc. (“Plaintiff”) brings this action on behalf of  itself and all others similarly situated, through its attorneys, and except as to those allegations  pertaining to Plaintiff or its attorneys, which allegations are based upon personal knowledge,  alleges the following upon information and belief against Defendants Advantage Medical  Equipment & Supply, Inc. and John Does 1-10 (“Defendants”): 