26.  Defendant’s text messages were transmitted to Plaintiffs’ cellular telephone, and within  the time frame relevant to this action.     27.  Defendant’s text messages constitute telemarketing because they encouraged the future  purchase or investment in property, goods, or services, i.e., selling Plaintiffs insurance services.    28.  The information contained in the text message advertises Defendant’s various insurance  plans, which Defendant sends to promote its business.   29.  Plaintiffs received the subject texts within this judicial district and, therefore,  Defendant’s violation of the TCPA occurred within this district.  Upon information and belief,  Defendant caused other text messages to be sent to individuals residing within this judicial district.     30.  At no point in time did Plaintiffs provide Defendant with their express written consent  to be contacted using an ATDS.     31.  Plaintiff Catalina Atehortua is the subscriber and sole user of the 6585 Number and is  financially responsible for phone service to the 6585 Number.    32.  Plaintiff Catalina Atehortua has been registered with the national do-not-call registry  since September 12, 2009.    33.  Plaintiff Randal Murallo is the subscriber and sole user of the 6249 Number and is  financially responsible for phone service to the 6249 Number.    35.  The text messages originated from telephone number 974-18, a number which upon  information and belief is owned and operated by Defendant.   36.  The number used by Defendant (974-18) is known as a “short code,” a standard 5-digit  code that enables Defendant to send SMS text messages en masse, while deceiving recipients into  believing that the message was personalized and sent from a telephone number operated by an  individual.     37.  Short codes work as follows:  Private companies known as SMS gateway providers  have contractual arrangements with mobile carriers to transmit two-way SMS traffic.  These SMS  gateway providers send and receive SMS traffic to and from the mobile phone networks' SMS centers,  which are responsible for relaying those messages to the intended mobile phone. This allows for the  transmission of a large number of SMS messages to and from a short code.    38.  Specifically, upon information and belief, Defendant utilized a combination of hardware  and software systems to send the text messages at issue in this case.  The systems utilized by Defendant  have the capacity to store telephone numbers using a random or sequential generator, and to dial such  numbers from a list without human intervention.    40.  Plaintiffs bring this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  themselves and all others similarly situated.   41.  Plaintiffs bring this case on behalf of a Class defined as follows:  No Consent Class: All persons who from four years prior to the  filing of this action (1) were sent a text message by or on behalf  of Defendant, (2) using an automatic telephone dialing system,  (3) for the purpose of soliciting their purchase of a Defendant  membership, and (4) 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.  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 text message 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.   42.  Defendant and its employees or agents are excluded from the Class. Plaintiffs do not  know the number of members in the Class but believes the Class members number in the several  thousands, if not more.  45.  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 calls to Plaintiffs’ and Class  members’ cellular telephones using an ATDS;  (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.   46.  The common questions in this case are capable of having common answers. If Plaintiffs’  claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular  telephone services is accurate, Plaintiffs and the Class members will have identical claims capable of  being efficiently adjudicated and administered in this case.  51.  Plaintiffs re-allege and incorporate the foregoing allegations as if fully set forth  herein.    52.  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 … to any telephone number assigned to a … cellular telephone  service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    54.  These calls were made without regard to whether or not 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 Plaintiffs and the other members of the putative  Class when its calls were made.    55.  Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an  automatic telephone dialing system to make non-emergency telephone calls to the cell phones of  Plaintiffs and the other members of the putative Class without their prior express written consent.   56.  Defendant knew that it did not have prior express consent to make these calls and  knew or should have known that it was using equipment that at constituted an automatic telephone  dialing system. The violations were therefore willful or knowing.    57.  As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,  Plaintiffs 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. Plaintiffs and the class are also entitled to an  injunction against future calls. Id.   58.  Plaintiffs re-allege and incorporate paragraphs 1-50 as if fully set forth herein.   59.  At all times relevant, Defendant knew or should have known that its conduct as  alleged herein violated the TCPA.   60.  Defendant knew that it did not have prior express consent to make these calls and  knew or should have known that its conduct was a violation of the TCPA.   62.  As a result of Defendant’s violations, Plaintiffs and the Class Members are entitled  to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C.  § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).  63.  Plaintiff Catalina Atehortua repeats and realleges the paragraphs 1 through 50 of this  Complaint and incorporates them by reference herein.   64.  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.”   65.  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   66.  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.”   68.  Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated,  telephone solicitations to telephone subscribers such as Plaintiff Catalina Atehortua 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.    69.  Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff Catalina Atehortua 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 Catalina Atehortua and the Do Not Call Registry Class suffered  actual damages and, under section 47 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.   70.  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, Plaintiffs, Catalina Atehortua and Randal Murallo, on behalf of  themselves 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 automatic telephone dialing  system to call and text message 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   Violation of the TCPA, 47 U.S.C. § 227  (On Behalf of Plaintiff Catalina Atehortua and the Do Not Call Registry Class)   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiffs and the Class)  