1. � Whether Defendant’s conduct as alleged herein constituted  conversion.   20. This action is brought and may properly be maintained as a class  action pursuant to Fed. R. Civ. P. 23. This action satisfies the numerosity,  commonality, typicality, adequacy requirements under Rule 23 (a). Additionally,  prosecution of Plaintiffs claims separately from the putative class’s claims would  create a risk of inconsistent or varying adjudications under Rule 23 (b) (1) (A).  Furthermore, the questions of law or fact that are common in this action  predominate over any individual questions of law or fact making class  representation the superior method to adjudicate this controversy under Rule 23 (b)  (3).   21. Plaintiff brings this action as a class action on behalf of itself and all  others similarly situated as members of the Class, initially defined as follows:  All persons who were sent one or more telephone facsimile  messages on or after four years prior to the filing of this  action, that (1) advertised the commercial availability of  property, goods, or services offered by "BMW Bank of  North America", and (2) that did not contain an opt -out  notice that complied with federal law.   22. Excluded from the Class are Defendants, any entity in which  Defendants have a controlling interest, any officers or directors of Defendants, the  legal representatives, heirs, successors, and assigns of Defendants, and any Judge  assigned to this action, and his or her family.   25. Typicality of claims: Plaintiffs claims are typical of the claims of the  Class because Plaintiff and all Class members were injured by the same wrongful  practices. Plaintiff and the members of the Class are all individuals who received  fax advertisements from Defendants that were unsolicited and/or did not contain  the proper opt -out clause under the TCPA. Under the facts of this case, because the  focus of the conduct is upon Defendants’ conduct, if Plaintiff prevails on its claims,  then the putative Class members must necessarily prevail as well.   27. Prosecution of Separate Claims Would Yield Inconsistent Results:  Even though the questions of fact and law in this action are predominately common  to Plaintiff and the putative Class members, separate adjudication of each Class  member’s claims would yield inconsistent and varying adjudications. Such  inconsistent rulings would create incompatible standards for Defendants to operate  under if/when Class members bring additional lawsuits concerning the same  unsolicited fax advertisements of if Defendants choose to advertise by fax again in  the future.   29. Plaintiff incorporates the preceding paragraphs as though fully set  forth herein.   30. Plaintiff brings Count I on behalf of itself and a class of similarly  situated persons.   31. The TCPA prohibits 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 (b) (1).   32. 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).   33. The TCPA provides:   48. � Plaintiff incorporates paragraphs 1 through 28 as though fully set  forth herein.   49. Plaintiff brings Count II on behalf of itself and a class of similarly  situated persons.   50. By sending Plaintiff and the other Class members unsolicited faxes,  Defendants improperly and unlawfully converted their fax machines, toner and  paper to their own use. Defendants also converted Plaintiffs employees’ time to  their own use.   51. 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.   52. By sending the unsolicited faxes, Defendants permanently  misappropriated the Class members’ fax machines, toner, paper, and employee time  to their own use. Such misappropriation was wrongful and without authorization.   53. Defendants knew or should have known that its misappropriation of  paper, toner, and employee time was wrongful and without authorization.   54. Plaintiff and the other Class members were deprived of the use of their  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 fax advertisements from Defendants.   TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 227  