11.    TracFone is a provider of cellular telephones and cellular telephone services.   12.  According to TracFone’s User Agreement, through its SafeLink brand, Defendant  purports to offer those who meet certain income-based eligibility requirements a cellular  telephone provided by TracFone together with a certain allotment of airtime minutes each month,  4  for up to one year. However, units are deducted from a customer’s account for incoming and  outgoing calls. Once a customer reaches the free monthly allotment of airtime, he must purchase  additional airtime in order for the phone to remain functioning.1   13.  Unfortunately for consumers, Defendant utilized, and continues to utilize, a  sophisticated telephone dialing system to call telephone users, en masse, to promote its services  and products, often times placing calls to consumers on their cellular telephones.   14.  Worse yet, Defendant calls these consumers using a pre-recorded message known  as a “robo-call” to initiate such solicitations. Though inexpensive for Defendant to conduct, these  calls violate the privacy of Defendant’s costumers.    15.  In Defendant’s overzealous marketing attempts, it placed, and continues to place,  phone calls to consumers that never provided prior express written consent to be called, and to  consumers with whom Defendant had no prior dealings or relationship.    16.  Defendant seeks to generate leads for its cellular telephone service, but fails to  appropriately segment its call list between landline and cell phone numbers, causing Defendant  to call cell phone numbers with its auto-dialer and using a pre-recorded message, which is  expressly prohibited by the TCPA.   17.  Defendant further violates the TCPA by making robo-calls to residential landline  telephones without first securing prior express consent.   18.  Defendant, and/or agents acting on its behalf, use a variety of phone numbers to  make these unlawful sales calls to consumers, including (845) 207-3692.   19.  Not surprisingly, Defendant’s practices have led to numerous complaints from  consumers, including complaints from people who, like Plaintiff, received pre-recorded calls  1 https://www.safelinkwireless.com/Enrollment/Safelink/en/NewPublic/terms_conditions.htm  5  from (845) 207-3692:  “Call today from a number I didn’t recognize.  Didn’t answer and there was no message.”  (Ken, Jan. 13, 2016)2  “Call from this number, dead air on message.”  (Guy, Jan. 26, 2016)3  “Call from this number answered & it was dead air.” (Gail, Jan. 29, 2016)4  “Called today.  Did not answer and they left no message.  Now on my block list.” (Buddy  Lats, Feb. 3, 2016)5  “Scam to get ur info to send a fake phone” (Tina, Feb. 24, 2016)6   20.  Defendant knowingly made, and continues to make, telemarketing calls without  the prior express consent of the call recipients and knowingly continues to call them after  requests to for the calls to stop. As such, Defendant not only invaded the personal privacy of  Plaintiff and members of the putative Classes, but also intentionally and repeatedly violated the  21.  On February 15, 2016, Plaintiff Bloch received a telephone call from Defendant  or its agent on his cellular telephone from (845) 207-3692. When Plaintiff answered, he heard a  pre-recorded robo-call message that stated that he could receive a cell phone at little to no cost.     22.  Plaintiff estimates that he has received at least two calls per week from  Defendant, all with the same pre-recorded robo-call message, in the past several months.   23.  On March 10, 2016, Plaintiff received the same pre-recorded call from Defendant  on his residential landline from 718-332-6421.    24.  Bloch did not provide his cellular or landline telephone number to Defendant or  any of its agents, so therefore did not and could not provide any form of consent to be called by  2 http://800notes.com/Phone.aspx/1-845-207-3692  3 http://800notes.com/Phone.aspx/1-845-207-3692  4 http://800notes.com/Phone.aspx/1-845-207-3692  5 http://800notes.com/Phone.aspx/1-845-207-3692  6 http://800notes.com/Phone.aspx/1-845-207-3692  6  Defendant or its agents.    25.  As a result of Defendant’s intrusive calls, which adversely affected Bloch’s right  to privacy and interfered with his use of his phones, Bloch has suffered cognizable harm in the  form of monies paid to his wireless carrier and landline carrier.   26.  Defendant was, and is, aware that the above-described telephone calls were being  made either by Defendant directly, or made on its behalf, and that the telephone calls were being  made to non-consenting consumers.  27.  Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2)  and Rule 23(b)(3) on behalf of himself and the Classes of similarly situated individuals defined  as follows:  Robo-call Cell Class: All persons in the United States who (1) from the last four  years through the present, (2) received one or more telephone calls from  Defendant (or a third-party acting on Defendant’s behalf) on their cellular  telephones, (3) that featured an artificial or pre-recorded voice, and (4) for whom  Defendant claims it obtained prior express consent in the same manner as  Defendant claims it obtained prior express consent to call Plaintiff.  Autodialed Cell Class: All persons in the United States who (1) from the last  four years through the present, (2) Defendant (or a third-party acting on  Defendant’s behalf) called on the person’s cellular telephone number using an  automatic telephone dialing system, (3) for whom Defendant claims it obtained  prior express consent in the same manner as Defendant claims it obtained prior  express consent to call Plaintiff.  Robo-call Landline Class: All persons in the United States who (1) from the last  four years through the present, (2) received one or more telephone calls from  Defendant (or a third-party acting on Defendant’s behalf) on their residential  landline telephone, (3) that featured an artificial or pre-recorded voice, and (4) for  whom Defendant claims it obtained prior express consent in the same manner as  Defendant claims it obtained prior express consent to call Plaintiff.  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,  7  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) the legal  representatives, successors, or assigns of any such excluded persons; and 5) Plaintiff’s counsel  and Defendant’s counsel. Plaintiff anticipates the need to amend the Class definitions following  appropriate discovery.   28.  Numerosity: The exact number of the Classes is unknown and unavailable to  Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and  belief, Defendant has made telephone calls to thousands of consumers who fall into the  definition of the Classes. Members of the Classes can be identified and class membership can be  ascertained objectively through Defendant’s records.   29.  Commonality: There are many questions of law and fact common to the claims  of Plaintiff and the Classes, and those questions go to the heart of the case and 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’s conduct violated the TCPA;  (b)  whether Defendant and/or its agents made calls featuring an artificial or  pre-recorded voice to residential landline and wireless telephone numbers;  (c)  whether Defendant and/or its agents systematically made phone calls to  persons who did not previously provide Defendant and/or its agents with  their prior express written consent to receive such phone calls;  (d)  whether Defendant used an ATDS to call cellphone numbers; and  8  (e)   whether Class members are entitled to treble damages based on the  willfulness of Defendant’s conduct.   30.  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 and unsolicited telephone calls.   31.  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.   32.  Conduct Applicable to the Classes as Wholes: TracFone’s conduct as described  herein was generally the same as applied to the Classes as respective wholes. TracFone called  everyone using an artificial or pre-recorded voice, and called wireless telephone numbers using  and ATDS. Final injunctive relief and corresponding declaratory relief is necessary and  appropriate to ensure consistent adjudications.     33.  Common Issues Predominate: The common issues of fact and law in this case  are go to the heart of and drive the litigation and predominate over any supposed individualized  issues affecting any each class member. The claims in this case may be adjudicated using  common evidence.    34.  Superiority & Manageability: This case is also appropriate for class certification  because a class proceeding is superior to all other available methods for the fair and efficient  adjudication of this controversy due to the impracticality of joinder of all parties. The damages  suffered by the individual members of the Class will likely be relatively small, especially given  the burden and expense of individual prosecution of the complex litigation necessitated by  9  Defendant’s actions. 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  proceeding because individual litigation of the complex legal and factual controversies in this  Complaint would increase the delay and expense to all parties. 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 also fostered, and uniformity of decisions rendered will be ensured.  35.  Plaintiff incorporates by reference the foregoing allegations as if fully set forth  herein.   36.  Defendant and/or its agents made unsolicited and unwanted telephone calls to the  cellular telephone numbers belonging to Plaintiff and the other members of the Robo-call Cell  Class without their prior express consent for the purpose of soliciting its cellular telephone  service.    37.  Defendant and/or its agents made unsolicited telemarketing calls to cellular  telephone numbers belonging to Plaintiff and the other members of the Robo-call Cell Class  using a prerecorded or artificial voice, more commonly referred to as a “robo-call.”   38.  The Defendant’s calls promoted Defendant’s good or services.   39.  By making, or having made on its behalf, unsolicited robo-calls utilizing an  artificial or prerecorded voice to Plaintiff’s and the Robo-call Cell Class’s telephones without  prior express written consent, Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii). As a result of  10  Defendant’s unlawful conduct, Plaintiff and the other members of the Robo-call Cell Class  suffered actual damages in the form of monies paid to receive unsolicited calls and, under section  227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in statutory damages for each  violation of the TCPA.   40.  In the event that the Court determine that Defendant’s misconduct was willful and  knowing, the Court may, pursuant to section 227(b)(3)(C), treble the amount of statutory  damages recoverable by Plaintiff and the other members of the Robo-call Cell Class.  41.  Plaintiff incorporates by reference the foregoing allegations as if fully set forth  herein.   42.  Defendant made unsolicited telephone calls to cellular telephone numbers  belonging to Plaintiff and the other members of the Autodialed Cell Class without their prior  express written consent to receive such calls.    43.  Defendant made, or had made on its behalf, such 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 to dial such numbers.    44.  Defendant, and/or its agents, utilized equipment that made such telephone calls to  Plaintiff and other members of the Autodialed Cell Class simultaneously and without human  intervention. The telephone dialing equipment utilized by Defendant, also known as a “predictive  dialer,” dialed numbers from a list, or dialed numbers from a database of telephone numbers, in  an automatic and systematic manner.     45.  By making, or having made on its behalf, the unsolicited telephone calls to  11  Plaintiff’s and the Autodialed Cell Class’s cellular telephones without prior written express  consent, and by utilizing an automatic telephone dialing system, Defendant has violated 47  U.S.C. § 227(b)(1)(A)(iii).   46.  As a result of Defendant’s unlawful conduct, Plaintiff and the members of the  Autodialed Cell 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.   47.  Should the Court determine that Defendant’s conduct was willful and knowing,  the Court may, pursuant to section 227(b)(3)(C), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the autodialed Class.   48.  Plaintiff incorporates by reference the foregoing allegations as if fully set forth  herein.   49.  Defendant and/or its agents made unsolicited and unwanted telephone calls to the  residential landline telephone numbers belonging to Plaintiff and the other members of the Robo- call Landline Class without their prior written express consent for the commercial purpose of  soliciting its cellular telephone service.   50.  Defendant and/or its agents made unsolicited telephone calls to residential  telephone numbers belonging to Plaintiff and the other members of the Robo-call Landline Class  using a prerecorded or artificial voice, more commonly referred to as a “robo-call.”   51.  47 U.S.C. § 227(b)(1)(B) makes it unlawful “to initiate any telephone call to any  residential telephone line using an artificial or prerecorded voice to deliver a message without the  12  prior express consent of the called party, unless the call is initiated for emergency purposes or is  exempted by rule or order by the Commission under paragraph (2)(B)”.   52.  By making, or having made on its behalf, unsolicited robo-calls to Plaintiff’s and  the Robo-call Landline Class’s residential telephone lines without prior express written consent,  Defendant violated 47 U.S.C. § 227(b)(1)(B).    53.  Moreover, Defendant’s calls are not made for emergency purposes and are not  exempted by rule or order under paragraph (2)(B) of the Act.   54.  As a result of Defendant’s illegal conduct, Plaintiff and the other members of the  Robo-call Landline Class suffered actual damages in the form of monies paid to receive  unsolicited calls and, under section 227(b)(3)(B), are each entitled to, inter alia, a minimum of  $500 in statutory damages for each violation of the TCPA.   55.  Should the Court determine that Defendant’s conduct was willful and knowing,  the Court may, pursuant to section 227(b)(3)(C), treble the amount of statutory damages  recoverable by Plaintiff and the other members of the Class.  Violation of the TCPA, 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Robo-call Landline Class)   Violation of the TCPA, 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Autodialed Cell Class)   Violation of the TCPA, 47 U.S.C. § 227 et seq.  (On behalf of Plaintiff and the Robo-call Cell Class)  