25.  On or about October 29, 2018, Defendant caused a call with a prerecorded message to  be transmitted to Plaintiff’s cellular telephone number ending in 6868 (the “6868 Number”).   26.  Because Plaintiff did not answer her telephone after it rang, a voicemail containing  a prerecorded message was left on Plaintiff’s phone.   27.  The following is a transcript of the October 29, 2018, voicemail that was left in  Plaintiff’s voicemail box:  Hello, this is a courtesy call from MedXM, a Quest Diagnostics  company regarding your annual wellness visit. This is a preventative  benefit that you are entitled to at no copay. Please call 888-306-0615  at your earliest convenience to schedule your appointment. That  number again is 888-306-0615. Please view our website at  MedXM1.com. Thank you and have a great day.    28.  On or about November 1, 2018, Defendant caused another call with a prerecorded  message to be transmitted to Plaintiff’s cellular 6868 Number.   29.  Again, because Plaintiff did not answer her telephone after it rang, a voicemail  containing a prerecorded message was left on Plaintiff’s phone.    30.  The following is a transcript of the November 1, 2018, voicemail that was left in  Plaintiff’s voicemail box:   Hello, this is a courtesy call from MedXM, a Quest Diagnostics  company, on behalf of your health insurance regarding your annual  wellness visit. This is a preventative benefit that you are entitled to  at no copay. Please call 888-246-7722 to schedule an appointment.  Thank you and have a great day.   31.  Additionally, Defendant caused multiple voicemails with the exact or substantially  identical message to be transmitted to Plaintiff’s cellular phone throughout the 2018 calendar year.    32.  The prerecorded calls at issue, which were left as a voicemail, were transmitted to  Plaintiff’s cellular telephone, and within the time frame relevant to this action.   33.  When Plaintiff listened to the voicemails, she was easily able to determine that it  was a prerecorded message. Rahn v. Bank of Am., No. 1:15-CV-4485-ODE-JSA, 2016 U.S. Dist.  LEXIS 186171, at *10-11 (N.D. Ga. June 23, 2016) (“When one receives a call, it is a clear-cut  fact, easily discernible to any lay person, whether or not the recipient is speaking to a live human  being, or is instead being subjected to a prerecorded message.”).   34.  Defendant’s prerecorded calls constitute telemarketing because they encourage the  future purchase or investment in property, goods, and/or services, i.e., requesting that Plaintiff  contact Defendant to schedule a visit so Defendant could sell Plaintiff medical diagnostic services.   35.  The prerecorded calls Plaintiff received originated from telephone numbers 330- 294-5664 and 216-588-9068, telephone numbers owned and/or operated by or on behalf of  Defendant.   36.  Plaintiff received the subject calls with a prerecorded voice within this judicial  district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon  information and belief, Defendant caused other prerecorded messages to be sent to individuals  residing within this judicial district.   37.  At no point in time did Plaintiff provide Defendant with her express consent to be  contacted with a prerecorded call.   38.  Plaintiff is the subscriber and sole user of the 6868 Number and is financially  responsible for phone service to the 6868 Number.   39.  Plaintiff has been registered with the national do-not-call registry since April 18,  2008.   40.  Defendant’s unsolicited prerecorded calls caused Plaintiff actual harm, including  invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.  See Patriotic Veterans, Inc. v. Zoeller, No. 16- 2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017)  (“Every call uses some of the phone owner's time and mental energy, both of which are precious.”).   41.  Defendant’s unsolicited voice messages caused Plaintiff actual harm.  Specifically,  Plaintiff estimates that she has wasted fifteen minutes reviewing all of Defendant’s unwanted  messages.  Each time, Plaintiff had to stop what she was doing to either retrieve her phone and/or  look down at the phone to review the message.    42.  Furthermore, Defendant’s voice messages took up memory on Plaintiff’s cellular  phone. The cumulative effect of unsolicited voice messages like Defendant’s poses a real risk of  ultimately rendering the phone unusable for voice messaging purposes as a result of the phone’s  memory being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text  (finding that text message solicitations, much like the voice messages sent by Defendant present a “triple  threat” of identity theft, unwanted cell phone charges, and slower cell phone performance).   43.  Defendant’s voice messages also can slow cell phone performance by taking up space  on the recipient phone’s memory. See https://www.consumer.ftc.gov/articles/0350-text-message- spam#text (finding that spam text messages can slow cell phone performance by taking up phone  memory space).  44.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  herself and all others similarly situated.   45.  Plaintiff brings this case on behalf of a Class defined as follows:  No Consent Class: All persons within the United States who, within the  four years prior to the filing of this Complaint, were sent a call using an  artificial or prerecorded voice, from Defendant or anyone on Defendant’s  behalf, to said person’s cellular telephone number, without emergency  purpose and without the recipient’s prior express written consent.  Do Not Call Registry Class: All persons in the United States who from four  years prior to the filing of this action (1) were sent a call by or on behalf of  Defendant; (2) more than one time within any 12-month period; (3) where  the person’s telephone number had been listed on the National Do Not Call  Registry for at least thirty days; (4) for the purpose of selling Defendant’s  products and services; and (5) for whom Defendant claims (a) it did not  obtain prior express written consent, or (b) it obtained prior express  written consent in the same manner as Defendant claims it supposedly  obtained prior express written consent to call the Plaintiff.   46.  Defendant and its employees or agents are excluded from the Class. Plaintiff does not  know the number of members in the Class, but believes the Class members number in the several  thousands, if not more.  49.  There are numerous questions of law and fact common to the Class which predominate  over any questions affecting only individual members of the Class.  Among the questions of law and  fact common to the Class are:  (1) Whether Defendant made non-emergency prerecorded telemarketing calls to  Plaintiff’s and Class members’ cellular telephones;  (2) Whether Defendant can meet its burden of showing that it obtained prior express  written consent to make such calls;  (3) Whether Defendant’s conduct was knowing and willful;  (4) Whether Defendant is liable for damages, and the amount of such damages; and  (5) Whether Defendant should be enjoined from such conduct in the future.   50.  The common questions in this case are capable of having common answers. If Plaintiff’s  claim that Defendant routinely transmits prerecorded messages to telephone numbers assigned to  cellular telephone services is accurate, Plaintiff and the Class members will have identical claims  capable of being efficiently adjudicated and administered in this case.  56.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    57.  It is a violation of the TCPA to make “any call (other than a call made for  emergency purposes or made with the prior express consent of the called party) using any  automatic telephone dialing system or an artificial or prerecorded voice … to any telephone  number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    58.  Defendant – or third parties directed by Defendant – transmitted calls using an  artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the  putative class.     59.  These calls were made without regard to whether Defendant had first obtained  express permission from the called party to make such calls. In fact, Defendant did not have prior  express consent to call the cell phones of Plaintiff and the other members of the putative Class  when its calls were made.    60.  Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an  artificial or prerecorded voice to make non-emergency telephone calls to the cell phones of  Plaintiff and the other members of the putative Class without their prior express consent.    61.  Defendant knew that it did not have prior express consent to make these calls, and  knew or should have known that it was using an artificial or prerecorded voice. The violations  were therefore willful or knowing.    62.  As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,  Plaintiff and the other members of the putative Class were harmed and are each entitled to a  minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an  injunction against future calls. Id.    63.  Because Defendant knew or should have known that Plaintiff and the other  members of the putative Class had not given prior express consent to receive its prerecorded calls  to their cellular telephones the Court should treble the amount of statutory damages available to  Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA.   64.  Plaintiff re-allege and incorporates paragraphs 1-55 as if fully set forth herein.   65.  At all times relevant, Defendant knew or should have known that its conduct as  alleged herein violated the TCPA.   66.  Defendant knew that it did not have prior express consent to transmit artificial or  prerecorded voice calls, and knew or should have known that its conduct was a violation of the  69.  Plaintiff repeats and realleges the paragraphs 1 through 55 of this Complaint and  incorporates them by reference herein.   70.  The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o  person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has  registered his or her telephone number on the national do-not-call registry of persons who do not wish  to receive telephone solicitations that is maintained by the federal government.”   71.  47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person  or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”1   72.  47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call  for telemarketing purposes to a residential telephone subscriber unless such person or entity has  instituted procedures for maintaining a list of persons who request not to receive telemarketing calls  made by or on behalf of that person or entity.”   73.  Any “person who has received more than one telephone call within any 12-month  period by or on behalf of the same entity in violation of the regulations prescribed under this subsection  may” may bring a private action based on a violation of said regulations, which were promulgated to  protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they  object.  47 U.S.C. § 227(c).   74.  Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated,  telephone solicitations to telephone subscribers such as Plaintiff and the Do Not Call Registry Class  members who registered their respective telephone numbers on the National Do Not Call Registry, a  listing of persons who do not wish to receive telephone solicitations that is maintained by the federal  government.    75.  Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry  Class received more than one telephone call in a 12-month period made by or on behalf of Defendant  in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged  herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47  1 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278,  Report and Order, 18 FCC Rcd 14014 (2003) Available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-03- 153A1.pdf  U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R.  § 64.1200.   76.  To the extent Defendant’s misconduct is determined to be willful and knowing, the  Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by  the members of the Do Not Call Registry Class.  WHEREFORE, Plaintiff, Debora Less, on behalf of herself and the other members of the  Class, pray for the following relief:   a. A declaration that Defendant’s practices described herein violate the Telephone  Consumer Protection Act, 47 U.S.C. § 227;   b. An injunction prohibiting Defendant from using an artificial or prerecorded voice to  contact telephone numbers assigned to cellular telephones without the prior express permission of  the called party;   c. An award of actual and statutory damages; and   d. Such further and other relief the Court deems reasonable and just.  Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiffs and the Class)   PROPOSED CLASS   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)   Violation of the TCPA, 47 U.S.C. § 227  (On Behalf of Plaintiff and the Do Not Call Registry Class)  