20.  Plaintiff brings this class action on behalf of itself and all others similarly  situated under rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil Procedure.   21.  Plaintiff seeks to represent three classes (the “Classes”) of individuals,  each defined as follows:  6  Class A:  All persons from four years prior to the date of the filing of the  instant Complaint through the date of the filing of the instant Complaint to whom  Defendant sent or caused to be sent at least one solicited or unsolicited facsimile  advertisement advertising the commercial availability or quality of any property,  goods, or services which did not contain an opt-out notice.  Class B:  All persons from four years prior to the date of the filing of the  instant Complaint through the date of the filing of the instant Complaint to whom  Defendant sent or caused to be sent at least one unsolicited facsimile  advertisement advertising the commercial availability or quality of any property,  goods, or services which did not contain an opt-out notice.  Class C:  All persons in the State of New York to whom, from three years  prior to the date of the filing of the instant Complaint through the date of the filing  of the instant Complaint, Defendant sent or caused to be sent at least one  facsimile advertisement without having obtained express invitation or permission  to do so and/or which did not contain an opt-out notice.   22.  Numerosity: The Classes are so numerous that joinder of all individual  members in one action would be impracticable.  The disposition of the individual claims  of the respective class members through this class action will benefit the parties and this  Court.  Upon information and belief there are, at a minimum, thousands of class members  of Classes A, B and C.  Upon information and belief, the Classes’ sizes and the identities  of the individual members thereof are ascertainable through Defendant’s records,  including Defendant’s fax and marketing records.   23.  Members of the Classes may be notified of the pendency of this action by  techniques and forms commonly used in class actions, such as by published notice,   7  e-mail notice, website notice, fax notice, first class mail, or combinations thereof, or by  other methods suitable to the Classes and deemed necessary and/or appropriate by the  Court.   24.  Typicality:  Plaintiff’s claims are typical of the claims of the members of  Class A because the claims of Plaintiff and members of Class A are based on the same  legal theories and arise from the same unlawful conduct.  Among other things, Plaintiff  and members of Class A were sent or caused to be sent by Defendant at least one fax  advertisement advertising the commercial availability or quality of any property, goods,  or services which did not contain an opt-out notice.   25.  Plaintiff’s claims are typical of the claims of the members of Class B  because the claims of Plaintiff and members of Class B are based on the same legal  theories and arise from the same unlawful conduct.  Among other things, Plaintiff and the  members of Class B were sent or caused to be sent by Defendant, without Plaintiff’s or  the Class B members’ express permission or invitation, at least one fax advertisement  advertising the commercial availability or quality of any property, goods, or services  which did not contain an opt-out notice.    26.  Plaintiff’s claims are typical of the claims of the members of Class C  because the claims of Plaintiff and members of Class C are based on the same legal  theories and arise from the same unlawful conduct.  Among other things, Plaintiff and  members of Class C were sent or caused to be sent by Defendant, without Plaintiff’s or  the Class C members’ express permission or invitation, at least one fax advertisement  advertising the commercial availability or quality of any property, goods, or services  which did not contain an opt-out notice.    27.  Common Questions of Fact and Law:  There is a well-defined community  8  of common questions of fact and law affecting the Plaintiff and members of the Classes.   28.  The questions of fact and law common to Plaintiff and Class A  predominate over questions that may affect individual members, and include:  (a)  Whether Defendant’s sending and/or causing to be sent to Plaintiff and  the members of Class A, by facsimile, computer or other device, fax  advertisements advertising the commercial availability or quality of any property,  goods or services which did not contain opt-out notices violated 47 U.S.C. §  227(b) and the regulations thereunder;  (b)  Whether Defendant’s sending and/or causing to be sent such fax  advertisements was knowing or willful;  (c)  Whether Plaintiff and the members of Class A are entitled to statutory  damages, triple damages and costs for Defendant’s conduct;   (d) Whether Plaintiff and members of Class A are entitled to multiple  statutory damages per fax advertisement Defendant sent or caused to be sent to  them because each fax advertisement contains multiple violations of the TCPA  and the regulations promulgated thereunder;  and   (e)  Whether Plaintiff and members of Class A are entitled to a permanent  injunction enjoining Defendant from continuing to engage in its unlawful  conduct.   29.  The questions of fact and law common to Plaintiff and Class B  predominate over questions that may affect individual members, and include:  (a) Whether Defendant’s sending and/or causing to be sent to Plaintiff and  the members of Class B, without Plaintiff’s or the Class B members’ express  invitation or permission, by facsimile, computer or other device, fax  9  advertisements advertising the commercial availability or quality of any property,  goods, or services which did not contain opt out notices violated 47 U.S.C. §  227(b) and the regulations thereunder;  (b) Whether Defendant’s sending and/or causing to be sent to Plaintiff and  the members of Class B such unsolicited fax advertisements was knowing or  willful;  (c) Whether Plaintiff and the members of Class B are entitled to statutory  damages, triple damages and costs for Defendant’s conduct;   (d) Whether Plaintiff and members of Class B are entitled to multiple  statutory damages per fax advertisement Defendant sent or caused to be sent to  them because each fax advertisement contains multiple violations of the TCPA  and the regulations promulgated thereunder; and   (e) Whether Plaintiff and members of Class B are entitled to a permanent  injunction enjoining Defendant from continuing to engage in its unlawful  conduct.   30.  The questions of fact and law common to Plaintiff and Class C  predominate over questions that may affect individual members, and include:  (a) Whether Defendant’s sending and/or causing to be sent to Plaintiff and  the members of Class C, without Plaintiff’s and Class C’s express invitation or  permission, by facsimile, computer or other device, fax advertisements  advertising the commercial availability or quality of any property, goods, or  services, violated GBL § 396-aa; and  (b) Whether Plaintiff and the members of Class C are entitled to statutory  damages for Defendant’s conduct; and  10  (c) Whether Plaintiff and members of Class C are entitled to multiple  statutory damages per fax advertisement Defendant sent or cause to be sent to  them because each fax advertisement contains multiple violations of GBL 396-aa.   31.  Adequacy of Representation:  Plaintiff is an adequate representative of the  Classes because its interests do not conflict with the interests of the members of the  Classes.  Plaintiff will fairly, adequately and vigorously represent and protect the interests  of the members of the Classes and has no interests antagonistic to the members of the  Classes.  Plaintiff has retained counsel who is competent and experienced in litigation in  the federal courts, class action litigation, and TCPA cases.   32.  Superiority:  A class action is superior to other available means for the fair  and efficient adjudication of the Classes’ claims.  While the aggregate damages that may  be awarded to the members of the Classes are likely to be substantial, the damages  suffered by individual members of the Classes are relatively small.  The expense and  burden of individual litigation makes it economically infeasible and procedurally  impracticable for each member of the Classes to individually seek redress for the wrongs  done to them.  The likelihood of the individual Class members’ prosecuting separate  claims is remote.  Plaintiff is unaware of any other litigation concerning this controversy  already commenced against Defendant by any member of the Classes.   33.  Individualized litigation also would present the potential for varying,  inconsistent or contradictory judgments, and would increase the delay and expense to all  parties and the court system resulting from multiple trials of the same factual issues.  The  conduct of this matter as a class action presents fewer management difficulties, conserves  the resources of the parties and the court system, and would protect the rights of each  member of the Classes.  Plaintiff knows of no difficulty to be encountered in the  11  management of this action that would preclude its maintenance as a class action.   34.  Injunctive Relief:  Defendant has acted on grounds generally applicable to  the members of Classes A and B, thereby making appropriate final injunctive relief with  respect to Classes A and B.  35.   Plaintiff repeats and realleges each and every allegation contained in  paragraphs 1-34.   36.  By the conduct described above, Defendant committed more than five  thousand (5,000) violations of 47 U.S.C. § 227(b) against Plaintiff and the members of  Class A, to wit: the fax advertisements Defendant sent and/or caused to be sent to  Plaintiff and the members of Class A were either (a) unsolicited and did not contain   notices satisfying the requirements of the TCPA and regulations thereunder, or (b)  solicited and did not contain notices satisfying the requirements of the TCPA and  regulations thereunder.   37.  Plaintiff and the members of Class A are entitled to statutory damages  under 47 U.S.C. § 227(b) in an amount greater than two million, five hundred thousand  dollars ($2,500,000).   38.  If it is found that Defendant willfully and/or knowingly sent and/or caused  to be sent fax advertisements that did not contain notices satisfying the requirements of  the TCPA and regulations thereunder to Plaintiff and the members of Class A, Plaintiff  requests that the Court increase the damage award against Defendant to three times the  amount available under 47 U.S.C. § 227(b)(3)(B), as authorized by 47 U.S.C. §  227(b)(3).  12  39.  Plaintiff repeats and realleges each and every allegation contained in  paragraphs 1-34.   40.  By the conduct described above, Defendant committed more than five  thousand (5,000) violations of 47 U.S.C. § 227(b) against Plaintiff and the members of  Class B, to wit:  the fax advertisements Defendant sent and/or caused to be sent to  Plaintiff and the members of Class B were unsolicited and did not contain notices  satisfying the requirements of the TCPA and regulations thereunder.   41.  Plaintiff and the members of Class B are entitled to statutory damages  under 47 U.S.C. § 227(b) in an amount greater than two million, five hundred thousand  dollars ($2,500,000).   42.  If it is found that Defendant willfully and/or knowingly sent and/or caused  to be sent unsolicited fax advertisements that did not contain notices satisfying the  requirements of the TCPA and regulations thereunder to Plaintiff and the members of  Class B, Plaintiff requests that the Court increase the damage award against Defendant to  three times the amount available under 47 U.S.C. § 227(b)(3)(B), as authorized by 47  U.S.C. § 227(b)(3).  43.  Plaintiff repeats and realleges each and every allegation contained in  paragraphs 1-34.   44.  Defendant committed thousands of violations of 47 U.S.C. § 227(b).   45.  Under 47 U.S.C. § 227(b)(3)(A), Plaintiff and the members of Classes A  and B are entitled to an injunction against Defendant, prohibiting Defendant from  committing further violations of the TCPA and regulations thereunder.   13  FOURTH CLAIM FOR VIOLATION OF GBL § 396-aa   46.  Plaintiff repeats and realleges each and every allegation contained in  paragraphs 1-34.   47.  By the conduct described above, Defendant committed numerous  violations of GBL § 396-aa against Plaintiff and the members of Class C, to wit: the fax  advertisements Defendant sent and/or caused to be sent to Plaintiff and the members of  Class C were unsolicited and/or did not contain notices satisfying the requirements of  GBL § 396-aa.   48.  Pursuant to GBL § 396-aa, Plaintiff and the members of Class C are  entitled to statutory damages in an amount to be determined at trial. 