10.  Great American Power has violated, and continues to violate, the TCPA  and its implementing regulations by placing, or having placed on its behalf, prerecorded  calls to residential telephone subscribers (a) who have not expressly consented to  receiving such calls and/or (b) who have expressly requested not to receive such calls.   11.  As Congress recognized:  Many customers are outraged over the proliferation of intrusive, nuisance  calls to their homes from telemarketers…. Banning such automated or  prerecorded telephone calls to the home, except when the receiving party  consents to receiving the call or when such calls are necessary in an  emergency situation affecting the health and safety of the consumer, is the  only effective means of protecting telephone consumers from this  nuisance and privacy invasion.1   12.  Senator Larry Pressler, one of the original drafters of the TCPA, explained  the need for the TCPA by observing that “[u]nlike other communications media, the  telephone commands our instan[t] attention. Junk mail can be thrown away. Television  1 Pub. L. No. 102-243 § 2(6, 12) (1991), codified at 47 U.S.C. § 227.  4  commercials can be turned off. The telephone demands to be answered.” 137 Cong. Rec.  S18785 (daily ed. Nov. 27, 1991) (statement of Sen. Pressler).   13.  As explained by the Federal Communications Commission (“FCC”)2, the  TCPA requires “prior express written consent for all autodialed or prerecorded  telemarketing calls to wireless numbers and residential lines.” In the Matter of Rules and  Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02- 278, FCC 12-21, 27 FCC Rcd. 1830 ¶ 2 (Feb. 15, 2012).   14.  Yet, in violation of this rule, Defendant fails to obtain any prior express  written consent to place prerecorded calls to consumers’ residential telephone numbers.   15.  In response to the liability risk associated with the TCPA, numerous  commercially available services exist to help companies that call others using  prerecorded voices, such as Defendant, to identify residential subscribers and otherwise  ensure that calls are only made to consenting consumers. For instance, companies such as  Infutor, Nextmark List, and Contact Center Compliance advertise their ability to instantly  identify and flag disconnected telephone numbers from residential telephone number data  lists on a recurring basis (such as weekly or monthly). This type of service can identify  disconnected numbers before they are recycled, thereby alerting mobile marketers that  any consent associated with those telephone numbers has been terminated.   16.  Despite the FCC’s ruling, the industry guidelines, and the commercial  availability of programs that help callers filter out non-consenting numbers, Defendant  2 The FCC is the federal agency given the administrative authority to interpret and  enforce the TCPA. 47 U.S.C. § 227(b)(2).  5  fails to take the necessary steps to ensure that its prerecorded calls are placed only to  consenting recipients.   17.  Rather, to increase revenue and skirt additional costs, Defendant simply  ignores the law when contacting individuals via prerecorded calls to their residential  telephones.   18.  Indeed, Great American Power has already been sued multiple times for  alleged TCPA violations,3 and has entered into a number of settlements with state  regulators regarding allegedly misleading or deceptive marketing practices.4   19.  Great American Power’s marketing practices have long been under  scrutiny. Since 2013, Great American Power has entered into at least three settlements  regarding sales and marketing practices with the Pennsylvania Public Utility Commission  alone.5   20.  Defendant knows or should know that its prerecorded calls are placed to  non-consenting residential telephone subscribers. Ultimately, Defendant is responsible  for verifying telephone number ownership and obtaining consent before placing  prerecorded calls to residential telephone subscribers.  3 See Frey v. Great American Power, LLC et ano., No. 1:19-cv-02450 (N.D. Ga. filed  May 29, 2019); Lechuga v. Great American Power, LLC, No. 1:19-cv-05989 (N.D. Ill.  filed Sept. 6, 2019).  4 See e.g. “PUC Fines Great American Power LLC $10,000 for Violations Regarding  Marketing Practices” available at  http://www.puc.pa.gov/about_puc/press_releases.aspx?ShowPR=3235; “PUC Approves  Settlement with Great American Power LLC; Directs Revisions to Electric Supplier’s  Marketing and Sales Practices” available at  http://www.puc.pa.gov/about_puc/press_releases.aspx?ShowPR=3846  5 Id. See also “PUC Approves Settlement Agreement with Great American Power LLC  Concerning Company’s Sales and Marketing Practices” available at  http://www.puc.pa.gov/about_puc/press_releases.aspx?ShowPR=4239  6   21.  Defendant was, and is, aware that its unsolicited prerecorded calls were,  and are, unauthorized as it fails to obtain prior express written consent before placing  those calls to consumers. Ultimately, consumers are forced to bear the costs of receiving  these unsolicited prerecorded calls.   22.  By placing the unsolicited prerecorded calls at issue in this Complaint,  Defendant caused Plaintiff and the other members of the Class actual harm and  cognizable legal injury. This includes the aggravation, nuisance, and invasions of privacy  that result from the sending and receipt of such prerecorded calls, a loss of value realized  for the monies consumers paid to their carriers for the receipt of such prerecorded calls,  and a loss of the use and enjoyment of their phones, including wear and tear to the related  data, memory, software, hardware, and battery components, among other harms.   23.  In response to Defendant’s unlawful conduct, Plaintiff filed this action  seeking (a) an injunction requiring Defendant to cease all unsolicited prerecorded calling  activities and, (b) an award of actual or statutory damages to the members of the Class  under the TCPA, together with costs and reasonable attorneys’ fees.  24.  Plaintiff Savett is the registered account owner and regular user of a voice  over internet protocol (VoIP) telephone number 610-xxx-4550.   25.  On October 4, 2019 at 6:26 pm, Plaintiff received an unsolicited, pre- recorded phone call on his VoIP telephone number from, or on behalf, of Defendant.   26.  The October 4, 2019 call used a pre-recorded voice and stated that New  Wave was calling to offer Plaintiff discounted electricity and natural gas.  7   27.  Plaintiff pressed “1” to speak with a live person and was connected with  one of New Wave’s telephone representatives.   28.  New Wave’s phone representative asked Plaintiff for his electricity billing  account number, asked if Plaintiff received any government assistance with his electric  bill, confirmed that Great American Power would be the electricity supplier, and  provided Great American Power’s customer service phone number.   29.  Plaintiff has never provided prior express written consent to Defendant to  receive prerecorded calls to him on the 610-xxx-4550 number.   30.  Defendant failed to obtain prior express written consent that included, as  required by 47 C.F.R. § 64.1200(f)(8)(i) a “clear and conspicuous” disclosure informing  the person signing that:  (A) By executing the agreement, such person authorizes the seller to  deliver or cause to be delivered to the signatory telemarketing calls using  an automatic telephone dialing system or an artificial or prerecorded  voice; and  (B) The person is not required to sign the agreement (directly or  indirectly), or agree to enter into such an agreement as a condition of  purchasing any property, goods, or services.   31.  By placing the prerecorded calls as alleged herein, Defendant has caused  consumers actual harm in the form of annoyance, nuisance, and invasion of privacy. In  addition, the prerecorded call disturbed Plaintiff’s use and enjoyment of his phone, in  addition to the wear and tear on the phone’s hardware (including the phone’s battery) and  the consumption of memory on Plaintiff’s phone.   32.  In order to redress these injuries, Plaintiff, on behalf of himself and the  other members of the Class, brings suit under the Telephone Consumer Protection Act,  8  47 U.S.C. § 227, et seq., which prohibits unsolicited prerecorded calls to residential  telephones.   33.  On behalf of the Class, Plaintiff seeks an injunction requiring Defendants  to cease all unsolicited pre-recorded calling activities and an award of actual or statutory  damages to the class members, together with costs and reasonable attorneys’ fees.  55.  Plaintiff brings this action pursuant to Federal Rules of Civil Procedure  23(b)(2) and 23(b)(3) on behalf of himself and all others similarly situated and seeks  certification of the following Class:  12  Robocall No Consent Class: All persons in the United States who from a  date four years prior to the filing of the initial complaint to the present: (1)  Defendants (or a third person acting on behalf of Defendants) called; (2)  on the person’s residential telephone number using an artificial or  prerecorded voice; and (3) for whom Defendants lacked prior express  consent to call that residential telephone number at the time the call was  made.   56.  The following people are excluded from the Class: (1) any Judge or  Magistrate presiding over this action and members of their families; (2) Defendant,  Defendant’s subsidiaries, 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 Class; (4) persons whose claims in this matter have been finally  adjudicated on the merits or otherwise released; (5) Plaintiff’s counsel and Defendant’s  counsel; and (6) the legal representatives, successors, and assigns of any such excluded  persons.   57.  Plaintiff anticipates the need to amend the definition of the Class  following class discovery, including discovery revealing the manner by which Defendant  claims it obtained prior express consent to place autodialed and/or pre-recorded calls to  the Plaintiff.   58.  Numerosity: The exact number of members within the Class is unknown  and not available to Plaintiff at this time, but it is clear that individual joinder is  impracticable. On information and belief, Defendant has placed unsolicited calls to  hundreds or thousands of consumers who fall into the definition of the Class. Members of  the Class can be identified through Defendants’ records.  13   59.  Typicality: Plaintiff’s claims are typical of the claims of other members of  the Class in that Plaintiff and the members of the Class sustained damages arising out of  Defendant’s uniform wrongful conduct, namely its unauthorized telemarketing calls.  Plaintiff is a member of the Class defined herein, and if Plaintiff is able to recover for the  claims set forth in this Complaint, then the other members of the Class will have a right  to recover as well.   6.  Great American Power is a certified supplier in the Ohio Energy Choice  Program, offering electricity and natural gas to consumers in Ohio.   60.  Adequate Representation: Plaintiff will fairly and adequately represent  and protect the interests of the Class and has retained counsel competent and experienced  in complex class actions, including class actions under the TCPA and related statutes.  Plaintiff has no conflicts with, or interests antagonistic to, those of the Class, and  Defendant has no defenses unique to Plaintiff.   61.  Commonality and Predominance: There are many questions of law and  fact common to the claims of Plaintiff and the Class, and those questions predominate  over any questions that may affect individual members of the Class. Common questions  for the Class include, but are not necessarily limited to the following:  a) Whether Great American Power is liable for the conduct of its third-party vendor;  b) Whether Defendant made calls, or had calls made on its behalf and for its benefit,  with a prerecorded message;  c) Whether Defendant’s conduct constitutes a violation of the TCPA;  d) Whether Defendant utilized an artificial or prerecorded voice to place calls to  members of the Class;  e) Whether members of the Class are entitled to statutory and treble damages based  on the willfulness of Defendant’s conduct;  14  f) Whether Defendant obtained prior express consent to contact any class members;  g) Whether Defendant’s calls constitute telemarketing or were dual purpose  messages; and  h) To the extent Defendant’s conduct does not constitute telemarketing, whether  Defendant obtained prior express oral consent to contact any class members.   62.  Superiority: This case is also appropriate for class certification because  class proceedings are superior to all other available methods for the fair and efficient  adjudication of this controversy. Joinder of all parties is impracticable, and 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 Defendant’s actions. Thus, it would be virtually impossible for the  individual members of the Class to obtain effective relief from Defendant’s misconduct.  Even if members of the Class could sustain such individual litigation, it would still not be  preferable to a class action. Individual litigation would increase the delay and expense to  all parties due to the complex legal and factual controversies presented in this Complaint.  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 fostered and uniformity of  decisions ensured.   63.  Adequate notice can be given to the members of the Class directly using  information maintained in Defendant’s records or through notice by publication.  15  64.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   65.  Defendant and/or its agents placed unsolicited calls to residential  telephone numbers belonging to Plaintiff and the other members of the Robocall No  Consent Class.   66.  These calls were made without the prior express written consent of the  Plaintiff and the other members of the Robocall No Consent Class to receive such calls.   67.  These calls, including those to Plaintiff, utilized an artificial or  prerecorded voice.   68.  To the extent prior written express consent was required, Defendant failed  to obtain prior written express consent that disclosed to the consumer that agreeing to  receive pre-recorded calls was not a condition of purchase or use of any goods or service.  Neither was oral consent provided.   69.  To the extent Great American Power’s agent, New Wave, placed the calls  at issue, Great American Power’s agent acted with actual or apparent authority and/or in  accordance with a contract between Great American Power and its agent, New Wave.  Great American Power’s agent acted under Great American Power’s control and for Great  American Power’s benefit and/or with Great American Power’s knowledge and approval.  Great American Power controlled its agent and knew about, and received the benefits of,  the agent’s calling activities. Great American Power ratified the agent’s conduct with  respect to the placing of such calls.  16   7.  In recent years, energy suppliers such as Great American Power have  turned to unsolicited telemarketing to increase their customer bases. Widespread  3  telemarketing is a primary method by which Great American Power solicits new  customers.   70.  Defendant has, therefore, violated 47 U.S.C. § 227(b)(1)(B). As a result of  Defendant’s conduct, Plaintiff and the other members of the Robocall No Consent Class  are each entitled to, under 47 U.S.C. § 227(b)(3)(B), a minimum of $500.00 in damages  for each violation of such act.   71.  In the event that the Court determines that Defendant’s conduct was wilful  and knowing, it may, under 47 U.S.C. § 227(b)(3)(C), treble the amount of statutory  damages recoverable by Plaintiff and the other members of the Robocall No Consent  Class.  8.  In pursuit of this goal, a company called New Wave Power, LLC (“New  Wave”) initiated prerecorded telemarketing calls to the residential telephone numbers of  Plaintiff and the Class to promote Great American Power in violation of the TCPA. Great  American Power hired New Wave to originate new customers and is liable for its illegal  telemarketing conduct.   9.  The TCPA prohibits companies, such as Great American Power, from  placing calls using an artificial or prerecorded voice (“prerecorded calls”) when making  calls to residential telephones without first obtaining consent.   Telephone Consumer Protection Act  (Violation of 47 U.S.C. § 227)  (On Behalf of Plaintiff and the Robocall No Consent Class)  