10.  On or November 2, 2005, Defendant transmitted by telephone facsimile machine  an unsolicited fax to Plaintiff.  A copy of the facsimile is attached hereto as Exhibit A.   11.  Defendant created or made Exhibit A which Defendant knew or should have  known is a good or product which Defendant intended to and did in fact distribute to Plaintiff  and the other members of the class.  3  12.  Exhibit A is part of Defendant’s work or operations to market Defendant’s goods  or services which were performed by Defendant and on behalf of Defendant.  Therefore, Exhibit  A constitutes material furnished in connection with Defendant’s work or operations.   13.  Plaintiff had not invited or given permission to Defendant to send the faxes.     14.  On information and belief, Defendant faxed the same and similar unsolicited  facsimiles to Plaintiff and more than 39 other recipients without first receiving the recipients’  express permission or invitation.     15.  There is no reasonable means for Plaintiff (or any other class member) to avoid  receiving unauthorized faxes.  Fax machines are left on and ready to receive the urgent  communications their owners desire to receive.    16.  Defendant’s facsimiles did not display a proper opt out notice as required by 64  18.  Plaintiff incorporate the preceding paragraphs as though fully set forth herein.   19.  In accordance with FRCP 23, Plaintiff brings Count I pursuant to the Telephone  Consumer Protection Act, 47 U.S.C. § 227, on behalf of the following class of persons:  All persons who were successfully sent one or more faxes on  November 2, 2005 or July 10, 2006, from Alco Vending offering a  “full line” of vending machines and stating “Absolutely no charge  to you to have us put in your vending machines.”   Excluded from the Class are the Defendant, its employees, agents and members of the  Judiciary.  4  20.  Commonality [Fed. R. Civ. P. 23 (A) (2):   Common questions of law and fact  apply to the claims of all class members. Common material questions of fact and law include, but  are not limited to, the following:  a)  Whether the Defendant sent unsolicited fax advertisements;  b)   Whether the Defendant’s faxes advertised the commercial availability of property,  goods, or services;  c)  The manner and method the Defendant used to compile or obtain the list of fax  numbers to which it sent Exhibit "A" and other unsolicited faxed advertisements;  d)  Whether the Defendant faxed advertisements without first obtaining the  recipient's prior permission or invitation;  e)  Whether the Defendant sent the faxed advertisements knowingly;  f)   Whether the Defendant violated the provisions of 47 U.S.C. § 227;  g)  Whether the Defendant should be enjoined from faxing advertisements in the  future;  h)  Whether the Plaintiff and the other members of the class are entitled to statutory  damages;   i)  Whether Exhibit A and Defendant’s other advertisements displayed a proper opt  out notice as required by 64 C.F.R. 1200; and  j)  Whether the Court should award treble damages.   21.  Typicality [Fed R. Civ. P. 23 (A) (3):   The Plaintiff’s claims are typical of the  claims of all class members. The Plaintiff received a fax sent on behalf of the Defendant  advertising goods and services of the Defendant during the Class Period. The Plaintiff are  making the same claims and seeking the same relief for themselves and all class members based  5 upon the federal statute. The Defendant has acted the same or in a similar manner with respect to  the Plaintiff and all the class members.    22.  Fair and Adequate Representation [Fed. R. Civ. P. 23 (A) (4):   The Plaintiff will  fairly and adequately represent and protect the interests of the class. They are interested in this  matter, have no conflicts and have retained experienced class counsel to represent the class.   23.  Need for Consistent Standards and Practical Effect of Adjudication [Fed R. Civ.  P. 23 (B) (1):   Class certification is appropriate because the prosecution of individual actions by  class members would: a) create the risk of inconsistent adjudications that could establish  incompatible standards of conduct for the Defendant, and/or b) as a practical matter, adjudication  of the Plaintiff’s claims will be dispositive of the interests of class members who are not parties.   24.  Common Conduct [Fed. R. Civ. P. 23 (B) (2):   Class certification is also  appropriate because the Defendant has acted and refused to act in the same or similar manner  with respect to all class members thereby making injunctive and declaratory relief appropriate.  The Plaintiff demand such relief as authorized by 47 U.S.C. §227.   25.  Predominance and Superiority [Fed. R. Civ. P. 23 (B) (3):   Common questions of  law and fact predominate and a class action is superior to other methods of adjudication:  a)  Proof of the claims of the Plaintiff will also prove the claims of the class without  the need for separate or individualized proceedings;  b)  Evidence regarding defenses or any exceptions to liability that the Defendant may  assert and prove will come from the Defendant’s records and will not require  individualized or separate inquiries or proceedings;  c)   The Defendant has acted and is continuing to act pursuant to common policies or  practices in the same or similar manner with respect to all class members;  6 d) The amount likely to be recovered by individual class members does not support  protested individual litigation. A class action will permit a large number of relatively  small claims involving virtually identical facts and legal issues to be resolved efficiently  in one (1) proceeding based upon common proofs;  e)  This case is inherently managed as a class action in that:  (i)  The Defendant identified persons or entities to receive the fax  transmissions and it is believed that the Defendant’s computer and business records will  enable the Plaintiff to readily identify class members and establish liability and  damages;  (ii)  Liability and damages can be established for the Plaintiff and the class  with the same common proofs;  (iii)  Statutory damages are provided for in the statute and are the same for all  class members and can be calculated in the same or a similar manner;  (iv)  A class action will result in an orderly and expeditious administration of  claims and it will foster economics of time, effort and expense:  (v)  A class action will contribute to uniformity of decisions concerning the  Defendant’s practices; and  (vi)  As a practical matter, the claims of the class are likely to go unaddressed  absent class certification.    26.  The TCPA makes unlawful the "use of any telephone facsimile machine,  computer or other device to send an unsolicited advertisement to a telephone facsimile  machine…" 47 U.S.C. § 227.  7  27.  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 express invitation or permission." 47 U.S.C. § 227 (a) (4).   28.  The TCPA provides:  "3. Private right of action.   A person may, if otherwise permitted by the laws or  rules of court of a state, bring in an appropriate court of that state:  (A)  An action based on a violation of this subsection or the regulations  prescribed under this subsection to enjoin such violation;  (B)  An action to recover actual monetary loss from such a violation, or to  receive $500 in damages for each such violation, whichever is greater, or  (C)  Both such actions."   29.  The TCPA is a strict liability statute, so the Defendant is liable to the Plaintiff and  the other class members even if its actions were only negligent.   30.  The Defendant knew or should have known that a) the Plaintiff and the other class  members had not given express invitation or permission for the Defendant or anybody else to fax  advertisements about the Defendant’s goods or services; b) that the Plaintiff and the other class  members did not have an established business relationship; c) that Exhibit "A" is an  advertisement; and d) that the opt out notice did not comply with 64 C.F.R. 1200.   31.  The Defendant’s actions caused damages to the Plaintiff and the other class  members. Receiving the Defendant’s junk faxes caused the recipients to lose paper and toner  consumed in the printing of the Defendant’s faxes. Moreover, the Defendant’s faxes used the  Plaintiff’s fax machines. The Defendant’s faxes cost the Plaintiff time, as the Plaintiff and their  employees wasted their time receiving, reviewing and routing the Defendant’s illegal faxes. That  8 time otherwise would have been spent on the Plaintiff’s business activities.  The Defendant’s  faxes unlawfully interrupted the Plaintiff’s and other class members' privacy interests in being  left alone.  Finally, the injury and property damage sustained by Plaintiff and the other class  members from the sending of Exhibit A occurred outside of Defendant’s premises.   32.  The Defendant violated 47 U.S.C. § 227, et seq., by transmitting Exhibit "A" to  the Plaintiff and the other members of the class without obtaining their prior express permission  or invitation.  WHEREFORE, Plaintiff, THE SIDING AND INSULATION CO. a/k/a THE  ALUMINUM SIDING & INSULATION CO., INC., individually and on behalf of all others  similarly situated, demands judgment in its favor and against Defendant, ALCO VENDING,  INC., as follows:  A.  That the Court adjudge and decree that the present case may be properly  maintained as a class action, appoint the Plaintiff as the representatives of the class and appoint  the Plaintiff’s counsel as counsel for the class;  B.  That the Court award actual monetary loss from such violations or the sum of five  hundred dollars ($500.00) for each violation, whichever is greater;   C.  That Court enjoin the Defendant from additional violations; and  D.  That the Court award costs and such further relief as the Court may deem just and  proper.  33.  Plaintiff incorporate paragraphs 3 and 4, 6 through 15, and 17 as though fully set  forth herein.  9  34.  In accordance with FRCP 23, Plaintiff brings Count II for conversion under the  common law for the following class of persons:  All persons who on or after June 15, 2005 were sent telephone  facsimile messages by or on behalf of Defendant.   35.  A class action is proper in that:  (a)  On information and belief the class consists of forty or more persons and  is so numerous that joinder of all members is impracticable.   (b)  There are questions of fact or law common to the class predominating over  all questions affecting only individual class members, including:  (i)  Whether Defendant engaged in a pattern of sending unsolicited  faxes;  (ii)  The manner and method Defendant used to compile or obtain the  list of fax numbers to which it sent Exhibit A and other unsolicited faxes; and  (iii)  Whether Defendant committed the tort of conversion.   36.  Plaintiff will fairly and adequately protect the interests of the other class  members.  Plaintiff has retained counsel who is experienced in handling class actions and claims  involving unlawful business practices.  Neither Plaintiff nor Plaintiff’s counsel have any interests  adverse or in conflict with the class.   37  A class action is an appropriate method for adjudicating this controversy fairly  and efficiently.  The interest of the individual class members in individually controlling the  prosecution of separate claims is small and individual actions are not economically feasible.   38.  By sending Plaintiff and the other class members unsolicited faxes, Defendant  improperly converted their fax machines, toner and paper to its own use.  Defendant also  converted Plaintiff’s employees’ time to Defendant’s own use.   10  39.  Immediately prior to the sending of the unsolicited faxes, Plaintiff and the other  class members owned an unqualified and immediate right to possession of their fax machines,  paper, toner, and employee time.   40.  By sending the unsolicited faxes, Defendant permanently misappropriated the  class members’ fax machines, toner, paper, and employee time to Defendant’s own use.  Such  misappropriation was wrongful and without authorization.     41.  Defendant knew or should have known that its misappropriation of paper, toner,  and employee time was wrongful and without authorization.     42.  Plaintiff and the other class members were deprived of the use of the fax  machines, paper, toner, and employee time, which could no longer be used for any other purpose.   Plaintiff and each class member thereby suffered damages as a result of their receipt of  unsolicited faxes from Defendant.     43.  Each of Defendant’s unsolicited faxes effectively stole Plaintiff’s employees’  time because multiple persons employed by Plaintiff were involved in receiving, routing, and  reviewing Defendant’s unauthorized faxes.  Defendant knew or should have known employees’  time is valuable to Plaintiff.      44.  Defendant’s actions caused damages to Plaintiff and the other members of the  class because their receipt of Defendant’s unsolicited faxes caused them to lose paper and toner  as a result.  Defendant’s actions prevented Plaintiff’s fax machines from being used for  Plaintiff’s business purposes during the time Defendant was using Plaintiff’s fax machines for  Defendant’s unauthorized purpose.  Defendant’s actions also cost Plaintiff employee time, as  Plaintiff’s employees used their time receiving, routing, and reviewing Defendant’s unauthorized  faxes, and that time otherwise would have been spent on Plaintiff’s business activities.    11 WHEREFORE, Plaintiff, THE SIDING AND INSULATION CO. a/k/a THE  ALUMINUM SIDING & INSULATION CO., INC., individually and on behalf of all others  similarly situated, demands judgment in its favor and against Defendant, ALCO VENDING,  INC., as follows:  A.  That the Court adjudge and decree that the present case may be properly  maintained as a class action, appoint Plaintiff as the representatives of the class, and appoint  Plaintiff’s counsel as counsel for the class;  B.  That the Court award appropriate damages;   C.  That the Court award costs of suit; and  D.  Awarding such further relief as the Court may deem just and proper, but in any  event, not more than $75,000.00 to any individual class member.    Respectfully submitted,  THE SIDING AND INSULATION CO. a/k/a THE  CONVERSION   TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227  