10.  The TCPA prohibits companies, such as Palmer, from placing calls using  an artificial or prerecorded voice (“prerecorded calls”) when making calls to cellular  telephones without first obtaining consent.   11.  Palmer 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.   12.  As Congress recognized:  Many customers are outraged over the proliferation of intrusive, nuisance  calls to their homes from telemarketers…. Banning such automated or  4  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.1   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”)2, 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.  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 cellular telephone numbers from calling lists on a recurring basis (such as  1 Pub. L. No. 102-243 § 2(6, 12) (1991), codified at 47 U.S.C. § 227.  2 The FCC is the federal agency given the administrative authority to interpret and  enforce the TCPA. 47 U.S.C. § 227(b)(2).  5  weekly or monthly). This type of service can even identify disconnected numbers before  they are recycled, thereby alerting mobile marketers that any consent associated with  those telephone numbers has been terminated.   17.  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.   18.  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.   19.  Indeed, in 2015, Palmer was sued for alleged TCPA violations, and in  2017, settled that action with their co-defendants for $650,000. See Mey v. Got Warranty,  Inc., No. 5:15-cv-00101, ECF 139-1 Filed 04/05/17 (N.D. W. Va.). As part of that  settlement, Palmer agreed to injunctive relief, specifically, that Palmer  will require that any entity placing calls on its behalf and any reseller join  and comply with the standards of conduct adopted by the Vehicle  Protection Association (“VPA”). NCWC and Palmer will maintain  evidence of this membership.  Mey v. Got Warranty, Inc., No. 5:15-cv-00101, Class Action Settlement  Agreement, ECF 139-1 at ⁋ 2.2, Filed 04/05/17 (N.D. W. Va.).   20.  The Vehicle Protection Assocation, or VPA is a not-for-profit trade  association representing the firms that are active in the automotive service contract  industry, such as Palmer. The organization is committed to advocating regulatory  compliance among member companies, educating consumers on their rights, protecting  6  consumers, and otherwise ensuring the integrity of the automotive service contract  industry.   21.  In 2013, the VPA enacted “Standards of Conduct” which govern the  practices of automotive service contract marketers and plan administrators.3   22.  The VPA’s Standards of Conduct, which Palmer agreed would be binding  on John Doe Corporation and any other telemarketers acting on its behalf, prohibit the  use of prerecorded messages in telemarketing. The prohibition couldn’t be plainer, stating  “Marketers shall not use prerecorded sales messages at any point during the sales  process.” 4 (emphasis added).   23.  Furthermore, Palmer, and any telemarketer acting on behalf of Palmer,  would be required under the VPA’s Standards of Conduct to:  contractually [require] consumer data to be obtained in a lawful manner  and [obtain] executed affidavits or other documentation from list providers  and/or lead generators indicating that the consumer data being provided  was obtained in a lawful manner. Marketers must ensure that a third party  vendor who sends them transfer calls or leads obtained through outbound  telemarketing complies with all of the VPA Standards for telemarketing  found in Section 11.5   24.  The “Outbound Telemarketing” Section of VPA’s Standards of Conduct,  specifically requires any telemarketer acting on behalf of Palmer, such as John Doe  Corporation, to:  not conduct any outbound telemarketing unless they have obtained a  Subscription Account Number (SAN) by registering with the Federal  Trade Commission and scrub all outbound telemarketing calls against the  National DNC Registry or they are exempt from these requirements.6  3 http://www.vpainfo.org/Consumers-Standards-of-Conduct  4 Id. at ⁋ 11.6.  5 Id. at ⁋ 9.5.  6 Id. at ⁋ 11.1.1.  7   25.  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.   26.  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.   27.  Telemarketers can easily and inexpensively avoid calling consumers who  are registered on the National Do Not Call Registry by “scrubbing” their call lists against  the National Do Not Call Registry database. The scrubbing process identifies those  numbers on the National Do Not Call Registry, allowing telemarketers to remove those  numbers and ensure that no calls are placed to consumers whom opt-out of telemarketing  calls.   28.  To avoid violating the TCPA by calling registered numbers, telemarketers  must scrub their call lists against the Registry at least once every thirty-one days. See 16  C.F.R. § 310.4(b)(3)(iv).   29.  There are numerous third-party services that will additionally scrub the  call lists for a telemarketer to segment out landline and cellular telephone numbers, since  8  the consent standards differ depending on what type of phone a telemarketer is calling.7  Indeed, one service notes that they can:  Instantly verify whether a specific phone number is wireless or wireline to  learn if TCPA regulations apply – and verify the identity of the current  subscriber to determine if they are the same party who provided you with  consent.8   30.  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.   31.  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.  32.  Plaintiff Karon is the registered account owner and regular user of a  cellular telephone number 216-xxx-2594.   33.  The 216-xxx-2594 number has been registered on the National Do Not  Call Registry since October 15, 2007.  7 See e.g. http://www.dncsolution.com/do-not-call.asp;  http://www.donotcallprotection.com/do-not-call-compliance-solutions-1;  http://www.mindwav.com/tcpa_compliance_solution.asp;   8 https://www.neustar.biz/services/tcpa-compliance   9   34.  On October 25, 2018 at 10:08 am, Plaintiff received an unsolicited, pre- recorded phone call on his cellular telephone from 216-467-9439.   35.  The October 25, 2018 call used a pre-recorded voice and stated that they  were calling regarding an extended warranty plan for Plaintiff’s automobile.   36.  Plaintiff pressed “1” to speak with a live operator, solely to determine who  the caller was, and was connected with one of John Doe Corporation’s telephone  representatives.   37.  John Doe Corporation’s phone representative asked Plaintiff for the make  and mileage of his automobile and then transferred him to another phone representative.   38.  The second representative outlined the proposed extended warranty plan’s  features and expressly stated the coverage would be administered by Palmer. The  representative further provided a callback number of 855-495-1914. When calling the  855-495-1914 number, a consumer hears the same automated message that one hears  when calling the toll-free number listed on Palmer’s website, 800-599-9557. Indeed, both  numbers provide the exact same extensions for “customer support” – 500, “claims” –  505, and “payments” – 335, for example.   39.  Plaintiff has never provided prior express written consent to Defendants to  receive prerecorded calls to him on the 216-xxx-2594 number.   40.  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  10  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.   41.  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.   42.  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.   43.  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.  64.  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 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.   65.  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) 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. 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 autodialed and/or pre- recorded calls to the Plaintiff.   66.  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  15  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.   67.  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.   68.  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.   69.  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 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 Palmer 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;  16  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;  h) To the extent Defendants’ conduct does not constitute telemarketing, whether  Defendants obtained prior express oral consent to contact any class members; and  i) Whether Defendants’ conduct was willful such that Plaintiff and the Class are  entitled to treble damages.   7.  Palmer is a nationwide provider of automotive extended protection plans  to consumers.   70.  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 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.  17   71.  Adequate notice can be given to the members of the Class directly using  information maintained in Defendants’ records or through notice by publication.  72.  Plaintiff incorporates by reference the foregoing allegations as if fully set  forth herein.   73.  Defendants and/or their agents placed unsolicited calls to cellular  telephone numbers belonging to Plaintiff and the other members of the Robocall Class.   74.  These calls were made without the prior express written consent of the  Plaintiff and the other members of the Robocall Class to receive such calls.   75.  These calls, including those to Plaintiff, utilized an artificial or  prerecorded voice.   76.  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.   77.  To the extent Palmer’s agent, John Doe Corporation, placed the calls at  issue, Palmer’s agent acted with actual or apparent authority and/or in accordance with a  contract between Palmer and its agent, John Doe Corporation. Palmer’s agent acted under  Palmer’s control and for Palmer’s benefit and/or with Palmer’s knowledge and approval.  Palmer controlled its agent and knew about, and received the benefits of, the agent’s  calling activities. Palmer ratified the agent’s conduct with respect to the placing of such  calls.  18   78.  Defendants have, therefore, violated 47 U.S.C. § 227(b)(1)(A)(iii). As a  result of Defendants’ conduct, Plaintiff and the other members of the Robocall 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.   79.  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 Class.  8.  In recent years, extended protection plan providers, such as Palmer, have  turned to unsolicited telemarketing as a way to increase its customer base. Widespread  telemarketing is a primary method by which Palmer solicits new customers.   9.  John Doe Corporation initiated a prerecorded telemarketing call to the  cellular telephone numbers of Plaintiff and the Class to promote Palmer in violation of  the TCPA. Palmer hired John Doe Corporation to originate new customers and is  vicariously liable for its illegal telemarketing conduct.   Telephone Consumer Protection Act  (Violation of 47 U.S.C. § 227)  (On Behalf of Plaintiff and the Robocall Class)  