27.  Plaintiff Fitzhenry is, and at all times mentioned herein was, a “person” as defined  by 47 U.S.C. § 153(39).     28.  In September of 2014 the Plaintiff received a telephone call to his residential  telephone line that he has had for more than 15 years, (843) 209-XXXX.    29.  When the phone was answered, a pre-recorded message played, that pre-recorded  message was automated and stated   Let the memories begin.  You have been selected for a magical Walt Disney  World area holiday special.  Your claim number is 545.  To take advantage of this  promotion, press 1 now.   31.  The Plaintiff also spoke with a manager named “Amber”, and during their  conversation “Amber” informed the Plaintiff that the company’s legal name was Lily  Management and Marketing Company, LLC, and that USA Vacation Station was “under” Lily  Management.    32.  “Amber” also informed the Plaintiff that the company “represents” Westgate, and  that they book stays for two Westgate properties, Westgate Lakes and Spa and Westgate  Vacation Villas.   33.  USA Vacation Station has a contractual relationship with Westgate that allows  them to both advertise Westgate properties and book vacations at the Westgate properties.     34.  “Amber” also verified that USA Vacation Station sent and managed the pre- recorded message that was delivered to the Plaintiff, informing the Plaintiff that they needed to  have their “tech person” look into the message, because a few people had told her that the  recorded message was hard to understand.   35.  Plaintiff did not provide prior express written consent to receive the pre-recorded  phone call, and has not done business with either of the defendants.   The Defendants’ Marketing Scheme    36.  Westgate relies on a series of third parties (“Westgate Brokers”) to promote its  goods or services.   37.  Westgate maintain interim control over its Brokers’ actions, both as to  telemarketing and other activities.   39.  Four days after the complaint was filed, Westgate stipulated to a judgment and  permanent injunction that included a monetary payment of $900,000.00 and a permanent  injunction.   40.  The permanent injunction prevented Westgate from:  [E]ngaging in, causing other persons to engage in, or assisting other persons to  engage in, violations of the Telemarketing Sales Rule, including but not limited to  initiating any outbound telephone call to a person's telephone number on the  National Do Not Call Registry of persons who do not wish to receive outbound  telephone calls to induce the purchase of goods or services.   41.  Initiating a pre-recorded telemarketing call without a prior express written  permission is a violation of the Telemarketing Sales Rule.   Vicarious Liability Under the FCC’s Order   43.  Under the standards outlined in the FCC’s order and by other Courts interpreting  that Order, Westgate is liable to the Plaintiff under the following theories:  a.  Direct Liability  b.  Actual Authority  c.  Ratification  d.  Apparent Authority  Each is discussed below.  Direct Liability   44.  Westgate actively participated in the telemarketing calls that are the subject of this  case.    45.  The call to the Plaintiff is an example of how. Although USA Vacation Station  made the call and took the Plaintiff’s information, Westgate itself participated in the call by  setting the pricing guidelines and pre-qualifications for the promotion offered to the Plaintiff.    46.  Had the Plaintiff accepted that offer, Westgate would have sold its resort services  to him.    47.  Each call that USA Vacation Station placed, regardless of how “far” the call  recipient permitted the sales pitch to go, was intended by all parties involved to result in sales of  Westgate’ products and services.    Actual Authority    49.  The purpose of Westgate’s Brokers is to serve Westgate by booking vacations for  consumers on behalf of Westgate.    50.  Indeed, USA Vacation Station did this through the pre-recorded telemarketing  alleged in this Complaint.    51.  Westgate also directed the quality, timing, geographic location and volume of  USA Vacation Station’s bookings that it sent to them. In fact, as the Plaintiff was informed, USA  Vacation Station only was allowed by Westgate to book vacations as two of its properties.   52.  Both of these properties were located in the same geographic area as USA  Vacation Station.   Ratification   53.  In the alternative, Westgate repeatedly ratified USA Vacation Station’s illegal  marketing scheme by knowingly accepting the benefits of USA Vacation Station’s activities  when they accepted applications and customers from them.     54.  Since at least January of 2009, Westgate has been on notice of its obligations to  monitor and prevent third parties from violating federal telemarketing law when using  telemarketing to promote its goods and services.   55.  After being aware of the telemarketing practices used by third parties, Westgate  continued to allow USA Vacation Station to telemarket its goods and services using pre-recorded  messages.    57.  Because it accepted the calls’ benefits from USA Vacation Station, including  continued customers, Westgate cannot avoid the burden associated with their ratification.   58.  Vicarious liability for TCPA violations can arise out of ratification. As the FCC  stated:   Restatement (Third) of Agency § 2.03, cmt. c. As commonly understood under modern  agency principles reflected in the Third Restatement, such apparent authority can arise in  multiple ways, and does not require that “a principal’s manifestation must be directed to a  specific third party in a communication made directly to that person. Id., reporter’s note  a. Rather, “a principal may create apparent authority by appointing a person to a  particular position.”  Id. Similarly, “a principal may permit an agent to acquire a  reputation of authority in an area or endeavor by acquiescing in conduct by the agent  under circumstances likely to lead to a reputation.”  Id., cmt. c. And “[r]estrictions on an  agent’s authority that are known only to the principal and the agent do not defeat or  supersede the consequences of apparent authority for the principal’s legal relations” with  others.”  Id. In such circumstances, for example, the presence of contractual terms  purporting to forbid a third-party marketing entity from engaging in unlawful  telemarketing activities would not, by themselves, absolve the seller of vicarious liability.  In re Joint Pet. Filed by Dish Network, LLC, CG Docket No. 11-50, 2013 WL 1934349 *16, ¶  34, fn 102.   59.  Westgate knowingly and actively accepted business that originated through the  illegal telemarketing calls complained of herein.    61.  Westgate gave their agents, including USA Vacation Station, substantial power to  affect their legal relations with third parties, including with the Plaintiff and consumers  generally.    62.  Westgate cloaked their agents with apparent authority to enter into advertising  arrangements on their behalf, including lead generation telemarketing which the Plaintiff  received.   63.  USA Vacation Station transferred customer information for the vacations that  were booked directly to Westgate. Thus, USA Vacation Station has the “ability . . . to enter  consumer information into the seller’s sales or customer systems,” as discussed in the May 2013  FCC Ruling. USA Vacation Station is an apparent agent of Westgate.    64.  By hiring USA Vacation Station to make calls on behalf of its agents to book  vacation, and giving them detailed information regarding the parameters of those bookings,  Westgate “manifest[ed] assent to another person . . . that the agent shall act on the principal’s  behalf and subject to the principal’s control” as described in the Restatement (Third) of Agency.     65.  USA Vacation Station knew that its calls were resulting in sales of the Westgate  products.     66.  The services sold were being completed by Westgate themselves.   68.  Plaintiff bring this action individually and on behalf of all other persons similarly  situated (hereinafter referred to as “the Class”) pursuant to Federal Rule of Civil Procedure 23.   69.  Plaintiff propose the following Class definition, subject to amendment as  appropriate:  All persons within the United States who received a non-emergency telephone  call from USA Vacation Station, placed while acting on behalf of Westgate,  through the use of an artificial or prerecorded voice within the four years prior to  the filing of the Complaint in this action.     Collectively, all these persons will be referred to as “Class members.”  Plaintiff represents, and is  a member of, the Class.     70.  Excluded from the Class are the Defendants, and any entities in which the  Defendants have a controlling interest, the Defendants’ agents and employees, any Judge to  whom this action is assigned and any member of such Judge’s staff and immediate family, and  claims for personal injury, wrongful death and/or emotional distress.   71.  Plaintiff does not know the exact number of members in the Class, but Plaintiff  reasonably believe Class members number, at minimum, in the thousands.   72.  Plaintiff and all members of the Class have been harmed by the acts of the  Defendants.     73.  This Class Action Complaint seeks injunctive relief and money damages.     74.  The joinder of all Class members is impracticable due to the size and relatively  modest value of each individual claim.     75.  Additionally, the disposition of the claims in a class action will provide  substantial benefit to the parties and the Court in avoiding a multiplicity of identical suits.     77.  There are well defined, nearly identical, questions of law and fact affecting all  parties.     78.  The questions of law and fact, referred to above, involving the class claims  predominate over questions which may affect individual Class members.     79.  Such common questions of law and fact include, but are not limited to, the  following:   a.  Whether USA Vacation Station, acting on behalf of Westgate, used an  artificial or prerecorded voice in its non-emergency calls to Class members’ telephones.  b.  Whether the Defendants can meet their burden of showing they obtained  consent (i.e., written consent that is clearly and unmistakably stated), to make such calls;   c.  Whether the Defendants’ conduct was knowing and/or willful;  d.  Whether the Defendants are liable for statutory damages; and  e.  Whether the Defendants should be enjoined from engaging in such  conduct in the future.     80.  Plaintiff will fairly and adequately represent and protect the interests of the Class.    81.  Further, Plaintiff has no interests which are antagonistic to any member of the  Class.   82.  Plaintiff has retained counsel experienced in handling class action claims  involving violations of federal consumer protection statutes, including claims under the TCPA.     83.  A class action is the superior method for the fair and efficient adjudication of this  controversy.     85.  The interest of the Class members in individually pursuing claims against the  Defendants is slight because the statutory damages for an individual action are relatively small,  and are therefore not likely to deter the Defendants from engaging in the same behavior in the  future.    86.  Management of these claims is likely to present significantly fewer difficulties  than are presented in many class claims because the calls at issue are all automated and the Class  members, by definition, did not provide the prior express consent required under the statute to  authorize such calls to their cellular telephones.     87.  Defendants have acted on grounds generally applicable to the Class, thereby  making final injunctive relief and corresponding declaratory relief with respect to the Class as a  whole appropriate.     88.  Moreover, on information and belief, Plaintiff allege that the TCPA violations  complained of herein are substantially likely to continue in the future if an injunction is not  entered.  89.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as  if fully set forth herein.   91.  As a result of the Defendants’ violations of 47 U.S.C. §  227 et seq., Plaintiff and  Class members are entitled to an award of $500 in statutory damages for each and every call in  violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).     92.  Plaintiff and Class members are also entitled to and do seek injunctive relief  prohibiting the Defendants’ violation of the TCPA in the future.   93.  Plaintiff and Class members are also entitled to an award of attorneys’ fees and  costs.   94.  Plaintiff incorporates by reference all other paragraphs of this Complaint as if  fully stated herein.   95.  The foregoing acts and omissions of the Defendants constitute numerous and  multiple knowing and/or willful violations of the TCPA, including but not limited to each of the  above-cited provisions of 47 U.S.C. § 227 et seq.    96.  As a result of the Defendants’ knowing and/or willful violations of 47 U.S.C. §   227 et seq., Plaintiff and each member of the Class is entitled to treble damages of up to $1,500  for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3).   97.  Plaintiff and all Class members are also entitled to and do seek injunctive relief  prohibiting such conduct violating the TCPA by the Defendants in the future.     KNOWING AND/OR WILLFUL VIOLATION OF THE TELEPHONE  CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.  (Against all Defendants)   NEGLIGENT VIOLATION OF THE TELEPHONE CONSUMER PROTECTION ACT  47 U.S.C. §  227 ET SEQ.  (Against all Defendants)  