11.  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.   12.  Plaintiff has received at least one of Defendants’ advertisements by  facsimile. A true and correct copy of the fax received in February 2016 is attached  as Exhibit A. Plaintiff intends to discover the number of other Defendants’  advertisements sent to Plaintiff by fax.   13.  Exhibit A is a one-page document Defendants sent by fax advertising  the eVox system, a clinical tool used to measure cognitive impairment. The fax  advertises the commercial availability or quality of property, goods, or services. The  fax provides information about the eVox system purportedly offered for sale by  Evoke, and methods for contacting Evoke to purchase one of these devices.    15.  Exhibit A does not include the mandatory opt-out notice required by 47  C.F.R. § 64.1200 (a) (4).   16.  Plaintiff did not expressly invite or give permission to anyone to send  Exhibit A or any other advertisement from Evoke to Plaintiff’s fax machine.   17.  On information and belief, Defendants sent advertisements by  facsimile to Plaintiff and more than 39 other persons in violation of the TCPA.    18.  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.   19.  Plaintiff brings this action as a class action on behalf of itself and all  others similarly situated as members of a class, initially defined as follows:  Each person that was sent one or more telephone facsimile messages  promoting the commercial availability or quality of property, goods, or  services offered by “Evoke,” but not stating on its first page that the  recipient may make a request to the sender not to send any future ads  and that failure to comply with such a request within 30 days is  unlawful.  Plaintiff expressly reserves the right to modify the proposed class definition or  propose subclasses.   21.  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.   22.  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).   23.  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.   25.  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.   26.  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.   27.  Prosecution of separate claims would yield inconsistent results. Even  though the questions of fact and law in this action are predominantly common to  Plaintiff and the putative class members, separate adjudication of each class  member’s claims would yield inconsistent and varying adjudications. Such  inconsistent rulings would create incompatible standards for Defendants to operate  under if/when class members bring additional lawsuits concerning the same  unsolicited fax advertisements of if Defendants choose to advertise by fax again in  the future.     29.  Plaintiff incorporates the preceding paragraphs as though fully set  forth herein.   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 brings Count I on behalf of itself and a class of similarly  situated persons against Defendants.   31.  The TCPA prohibits the “use of any telephone facsimile machine,  computer or other device to send an unsolicited advertisement to a telephone  facsimile machine….” 47 U.S.C. § 227 (b) (1).   33.  The TCPA provides a private right of action as follows:   34.  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).   35.  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.   36.  The TCPA requires that every advertisement sent by facsimile must  include an opt-out notice clearly and conspicuously displayed on the bottom of its  first page. 47 C.F.R. § 64.1200 (a) (4).    37.  Defendants failed to include a clear and conspicuous opt-out notice on  Exhibit A.   39.  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.   40.  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).   41.  Defendants’ failure to include a compliant opt-out notice on their fax  advertisements makes irrelevant any express consent or established business  relationship (“EBR”) that otherwise might have justified Defendants’ fax  advertising campaigns. 47 C.F.R. § 64.1200 (a) (4).   42.  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).    44.  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).   45.  Evoke 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.   46.  Defendants knew or should have known that Plaintiff and the other  class members had not given express invitation or permission for Defendants or  anybody else to fax advertisements about Defendants’ goods, products, or services,  that Plaintiff and the other class members did not have an established business  relationship with Defendants, that Exhibit A is an advertisement, and that Exhibit  A did not display a compliant opt-out notices as required by the TCPA.   49.  Plaintiff brings Count II on behalf of itself and a class of similarly  situated persons and against Defendants.   50.  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.    51.  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.   52.  By  sending  them  unsolicited  faxes,  Defendants  permanently  misappropriated the class members’ fax machines, toner, paper, and employee time  to their own use. Such misappropriation was wrongful and without authorization.   53.  Defendants knew or should have known that their misappropriation of  paper, toner, and employee time was wrongful and without authorization.   54.  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  