10.  The TCPA prohibits companies, such as LifeEnergy, from placing calls using an  artificial or prerecorded voice (“prerecorded calls”) when making calls to cellular telephones  without first obtaining consent.   11.  LifeEnergy has violated, and continues to violate, the TCPA and its implementing  regulations by placing, or having placed on its behalf, prerecorded calls to cellular telephone  subscribers (a) who have not expressly consented to receiving such calls and/or (b) who have  expressly requested not to receive such calls.  2 On September 30, 2019, LifeEnergy filed an application with the Public Utility Commission of  Ohio to stop offering electric service in Ohio. According to its application, “LifeEnergy is  ceasing operations because it entered into as [sic] asset sale of its customer contracts with NRG  Retail, Inc. on June 7, 2019.”  See http://dis.puc.state.oh.us/TiffToPDf/A1001001A19J01A92046J00202.pdf.  Effective December 29, 2019, LifeEnergy ceased offering electric services in Ohio.  See http://dis.puc.state.oh.us/TiffToPDf/A1001001A19L30B45024I00048.pdf  4   12.  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.3   13.  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 commercials can be  turned off. The telephone demands to be answered.” 137 Cong. Rec. S18785 (daily ed. Nov. 27,  1991) (statement of Sen. Pressler).   14.  As explained by the Federal Communications Commission (“FCC”)4, 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).   15.  Yet, in violation of this rule, Defendants fail to obtain any prior express written  consent to place prerecorded calls to consumers’ cellular telephone numbers.   16.  Consumer complaints about LifeEnergy’s invasive and repetitive calls are legion.  As a sample, consumers have complained as follows:  •  “The scam is being run by Life Energy. If you give them your account number (as  seen on you [sic] electric bill), you will be ‘slammed,’ that is they will change  your electric provider to Life Energy. They lie about this, claiming that want to  show you your ‘savings.’”5  3 Pub. L. No. 102-243 § 2(6, 12) (1991), codified at 47 U.S.C. § 227.  4 The FCC is the federal agency given the administrative authority to interpret and enforce the  TCPA. 47 U.S.C. § 227(b)(2).  5 https://800notes.com/Phone.aspx/1-866-311-9541  5  •  “actually a fishing call from Life Energy out of Texas wanting to switch your  energy provider.”6  •  “These calls are actually coming from Lifeenergy LLC,, a licensed electric  supplier by the PUC (PA Utility Commission). Regardless of whether they're  allowed to make an initial marketing call, the tactics of their robocalls are  questionable, specifically, not identifying their company name, and intentionally  garbling any customer name.”7  •  “I finally picked up after two calls with no message. They said they were from  Life Energy.”8  •  “A rep stated he can save us money on our energy bill. His company, Life Energy  is who he is working for. I said that I couldn't talk now but would call back. He  said to ask for Miss Lucas. A lot of talk in the background as this is a call center  for "scammers.”9  •  “Caller ID indicated Life Energy. Said he was calling regarding our electric bill.  Asked him if this was regarding actual bill or rates. He just kept saying its  regarding "electric utility" and would not answer question. Life Energy is not our  electric provider. So sick of these phony callers pretending to be your electric or  gas company.”10   17.  In response to the liability risk associated with the TCPA, numerous  commercially available services exist to help companies, such as Defendants, that call others  using prerecorded voices, identify cellular 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 cellular 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.  6 https://800notes.com/Phone.aspx/1-440-209-5683/2  7 https://800notes.com/Phone.aspx/1-855-314-9868/2  8 https://800notes.com/Phone.aspx/1-223-456-7890  9 https://800notes.com/Phone.aspx/1-855-314-9869  10 https://800notes.com/Phone.aspx/1-330-346-3412  6   18.  Despite the FCC’s ruling, the industry guidelines, and the commercial availability  of programs that help callers filter out non-consenting numbers, Defendants fail to take the  necessary steps to ensure that their prerecorded calls are placed only to consenting recipients.   19.  Rather, in an effort to increase revenue and skirt additional costs, Defendants  simply ignore the law when contacting individuals via prerecorded calls to their cellular  telephones.   20.  Indeed, LifeEnergy has been sued at least twice for alleged TCPA violations.11   21.  LifeEnergy’s marketing practices have long been under scrutiny. In 2019,  LifeEnergy entered into a settlement with Pennsylvania’s Attorney General after it placed illegal  calls with pre-recorded messages.12 Under the settlement, LifeEnergy agreed to stop their  unlawful practices and pay civil penalties and costs.13 Since 2018, LifeEnergy has been under  investigation for various compliance failures with regard to marketing practices in Illinois.14   22.  Defendants know or should know that their prerecorded calls are placed to non- consenting cellular telephone subscribers. Ultimately, Defendants are responsible for verifying  telephone number ownership and obtaining consent before placing prerecorded calls to cellular  telephone subscribers.  11 See e.g. Heffelfinger v. LifeEnergy, LLC, Case No. 5:16-cv-05259 (E.D. Pa. filed Oct.5, 2016);  Lechuga v. LifeEnergy, LLC, Case No. 1:19-cv-02180 (N.D. Ill. filed March 29, 2019).  12 See Pennsylvania Office Of Attorney General’s “Do Not Call Report for Fiscal Year 2018- 2019” at Page 7, available at  www.reppickett.com/Display/SiteFiles/401/OtherDocuments/2019/DNCReportToLegislature201 8-19.pdf  13 See https://www.inquirer.com/business/robocalls-pennsylvania-attorney-general-josh-shapiro- 20190625.html  14 See Illinois Commerce Commission v. LifeEnergy, LLC, Docket No. 18-1540  Investigation of Compliance with 83 Ill. Admin. Code 412, Obligations of Retail Electric  Suppliers, available at https://www.icc.illinois.gov/docket/P2018-1540  7   23.  Defendants were, and are, aware that their unsolicited prerecorded calls were, and  are, unauthorized as they fail 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.   24.  By placing the unsolicited prerecorded calls at issue in this Complaint,  Defendants 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.   25.  In response to Defendants’ unlawful conduct, Plaintiff filed this action seeking (a)  an injunction requiring Defendants 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.  26.  Plaintiff Rogers is the registered account owner and regular user of a cellular  telephone number 216-xxx-8687.   27.  On January 14, 2019 at approximately 6:39 pm, Plaintiff received an unsolicited,  pre-recorded phone call on his cellular telephone.   28.  The January 14, 2019 call used a pre-recorded voice and stated that John Doe  Corporation was calling to offer Plaintiff discounted electricity.  8   29.  Plaintiff pressed “1” to speak with a live person and was connected with one of  John Doe Corporation’s telephone representatives.   30.  John Doe Corporation’s phone representative asked Plaintiff for his electricity  billing account number and stated that Defendant LifeEnergy would be the supplier.   31.  John Doe Corporation’s phone representative gave Plaintiff Defendant  LifeEnergy’s toll-free number, 844-662-1222, as a call back number for any customer service  related issues.   32.  Plaintiff has never provided prior express written consent to Defendants to receive  prerecorded calls to him on the 216-xxx-8687 number.   33.  Defendants 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.   34.  By placing the prerecorded calls as alleged herein, Defendants have 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.  9   35.  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, 47 U.S.C. §  227, et seq., which prohibits unsolicited prerecorded calls to cellular telephones.   36.  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.  58.  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:  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  cellular telephone number using an artificial or prerecorded voice; and (3) for  whom Defendants lacked prior express consent to call that cellular telephone  number at the time the call was made.   59.  The following people are excluded from the Class: (1) any Judge or Magistrate  presiding over this action and members of their families; (2) Defendants, Defendants’  subsidiaries, parents, successors, predecessors, and any entity in which the Defendants or their  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)  13  persons whose claims in this matter have been finally adjudicated on the merits or otherwise  released; (5) Plaintiff’s counsel and Defendants’ counsel; and (6) the legal representatives,  successors, and assigns of any such excluded persons.   60.  Plaintiff anticipates the need to amend the definition of the Class following class  discovery, including discovery revealing the manner by which Defendants claim they obtained  prior express consent to place artificial and/or pre-recorded voice calls to the Plaintiff.   61.  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, Defendants have 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.   62.  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 Defendants’  uniform wrongful conduct, namely their 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.   63.  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 Defendants have no defenses  unique to Plaintiff.   64.  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  14  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 LifeEnergy is liable for the conduct of their third-party vendor;  b) Whether John Doe Corporation made calls with a prerecorded message;  c) Whether Defendants’ conduct constitutes a violation of the TCPA;  d) Whether Defendants 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 Defendants’ conduct;  f) Whether Defendants obtained prior express consent to contact any class members;  g) Whether Defendants’ calls constitute telemarketing or were dual purpose messages; and  h) To the extent Defendants’ conduct does not constitute telemarketing, whether Defendants  obtained prior express oral consent to contact any class members.   65.  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 Defendants’ actions.  Thus, it would be virtually impossible for the individual members of the Class to obtain effective  relief from Defendants’ 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  15  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.   66.  Adequate notice can be given to the members of the Class directly using  information maintained in Defendants’ records or through notice by publication.  67.  Plaintiff incorporates by reference the foregoing allegations as if fully set forth  herein.   68.  Defendants and/or their agents placed unsolicited calls to cellular telephone  numbers belonging to Plaintiff and the other members of the Robocall No Consent Class.   69.  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.   7.  LifeEnergy is a certified supplier in the Ohio Energy Choice Program, offering  electricity2 and natural gas to consumers in Ohio.   70.  These calls, including those to Plaintiff, utilized an artificial or prerecorded voice.   71.  To the extent prior written express consent was required, Defendants 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.   72.  To the extent LifeEnergy’s agent, John Doe Corporation, placed the calls at issue,  LifeEnergy’s agent acted with actual or apparent authority and/or in accordance with a contract  between LifeEnergy and its agent, John Doe Corporation. LifeEnergy’s agent acted under  LifeEnergy’s control and for LifeEnergy’s benefit and/or with LifeEnergy’s knowledge and  approval. LifeEnergy controlled its agent and knew about, and received the benefits of, the  16  agent’s calling activities. LifeEnergy ratified the agent’s conduct with respect to the placing of  such calls.   73.  Defendants have, therefore, violated 47 U.S.C. § 227(b)(1)(B). As a result of  Defendants’ 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.   74.  In the event that the Court determines that Defendants’ conduct was willfull 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 recent years, energy suppliers such LifeEnergy as have turned to unsolicited  telemarketing as a way to increase their customer base. Widespread telemarketing is a primary  method by which LifeEnergy solicits new customers.   9.  John Doe Corporation initiated a prerecorded telemarketing call to the cellular  telephone numbers of Plaintiff and the Class to promote LifeEnergy in violation of the TCPA.  LifeEnergy, or one of LifeEnergy’s vendors, hired John Doe Corporation to originate new  customers and is liable for its illegal telemarketing conduct.   Telephone Consumer Protection Act  (Violation of 47 U.S.C. § 227)  (On Behalf of Plaintiff and the Robocall No Consent Class)  