10.  On or about November 15, 2019, Defendant sent an unsolicited facsimile to  Plaintiff using a telephone facsimile machine, computer, or other device.  See Exhibit A.   Plaintiff received the Fax on a traditional stand-alone fax machine.   12.  The Fax advertises the commercial availability or quality of Defendant’s new  healthy lifestyle program, Mutually Well by Mutual of Omaha.     13.  Defendant created or made Exhibit A, or directed a third party to do so, and  Exhibit A was sent by or on behalf of Defendant with Defendant’s full knowledge and  authorization.   14.  Defendant receives some or all of the revenues from the sale of the services  advertised on Exhibit A, and Defendant profits and benefits from the sale of said services  advertised on Exhibit A.   15.  Plaintiff did not give Defendant “prior express invitation or permission” to send  the fax.    16.  On information and belief, Defendant faxed the same and other unsolicited  facsimile advertisements without the required opt-out language to Plaintiff and at least 40 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 and without having an  established business relationship as defined by the TCPA and its regulations.    18.  Defendant’s facsimile attached as Exhibit A does not display a proper opt-out  notice as required by 47 C.F.R. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4).  19.  In accordance with Fed. R. Civ. P. 23(b)(3), Plaintiff brings this class action  pursuant to the TCPA, 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 Defendant, (3) from whom  Defendant did not obtain “prior express invitation or permission”  to send fax advertisements, or (4) with whom Defendant did not  have an established business relationship, or (5) where the fax  advertisements did not include an opt-out notice compliant with 47  C.F.R. § 64.1200(a)(4)(iii).  Excluded from the Class are Defendant, its employees, agents and members of the Judiciary.  Plaintiff seeks to certify a class which includes, but is not limited to, the fax advertisement sent  to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class  certification discovery.   20.  Class Size (Fed. 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.   23.  Fair and Adequate Representation (Fed. R. Civ. P. 23 (a) (4)):  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.   25.  The TCPA 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).   26.  The TCPA 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).   29.  The Fax. Defendant sent the Fax on or about November 15, 2019, 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 constituted  an advertisement under the Act and the regulations implementing the Act.  Defendant failed to  comply with the Opt-Out Requirements in connection with the Fax. The Fax was transmitted to  persons or entities without their prior express invitation or permission and/or Defendant is  precluded from asserting any prior express invitation or permission or that Defendant had an  established business relationship with Plaintiff and other members of the class, because of the  failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendant violated  the TCPA and the regulations promulgated thereunder by sending the Fax via facsimile  transmission to Plaintiff and members of the Class.  Plaintiff seeks to certify a class which  includes this Fax and all others sent during the four years prior to the filing of this case through  the present.   31.  The TCPA provides a private right of action to bring this action on behalf of  Plaintiff and the Plaintiff Class to redress Defendant’s 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 TCPA is a strict liability statute, so Defendant is liable to Plaintiff and the  other class members even if its actions were only negligent.   33.  Defendant knew or should have known that (a) Plaintiff and the other class  members had not given prior express invitation or permission for Defendant or anybody else to  send faxes advertising the commercial availability or quality of Defendant’s new healthy lifestyle  program; (b) Plaintiff and the other class members did not have an established business  relationship; (c) Defendant transmitted advertisements;  (d) the Fax did not contain the required  Opt-Out Notice; and (e) Defendant’s transmission of advertisements that did not contain the  required opt-out notice or were sent without prior express invitation or permission was unlawful.  