23.  On or about November 14, 2019 and November 25, 2019, Defendant caused the  following automated text messages to be transmitted to Plaintiff’s cellular telephone ending in 1501  (“1501 Number”):   24.  The 1501 Number has been listed on the National Do Not Call Registry since May 2,  2014.   25.  At the time Plaintiff received these calls and messages she was the subscriber and/or  sole user of the 1501 Number.   26.  The 1501 Number is Plaintiff’s personal cell phone number and not a business phone  number.   27.  Defendant’s text messages and calls constitute telemarketing/advertising because they  promote Defendant’s business, goods, and services.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 6 of 16  PAGEID #: 6 7   28.  At no point in time did Plaintiff provide Defendant with her express written consent to  be contacted by text messages using an ATDS.   29.  The impersonal and generic nature of Defendant’s text message demonstrates that  Defendant utilized an ATDS in transmitting the messages.  The messages include no personal identifiers  and are formatted in a generic manner.   30.  The number used by Defendant (614-662-1814) is known as a “long code,” a standard  10-digit phone number that enabled 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.   31.  Long 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 long code.   32.  Additionally, when Plaintiff replied back with the response “Stop!!”, she received the  following automated message in response from the ATDS Defendant used:  This automated response was sent by the ATDS automatically as an acknowledgment of Plaintiff’s stop  request.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 7 of 16  PAGEID #: 7 8   33.  Upon information and belief, Defendant caused similar text messages to be sent to  individuals residing within this judicial district.   34.  To send the text messages, Defendant used a messaging platform (the “Platform”) that  permitted Defendant to transmit thousands of automated text messages without any human  involvement.   35.  Defendant’s unsolicited text message caused Plaintiff additional harm, including  invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.   Defendant’s call also inconvenienced Plaintiff and caused disruption to her daily life.  36.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  herself and all others similarly situated.   37.  Plaintiff brings this case on behalf of the Classes 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 text message using the same type  of equipment used to send text messages to Plaintiff, from Defendant or anyone on  Defendant’s behalf, to said person’s cellular telephone number for the purpose of  promoting and/or advertising Defendant’s goods and/or services.  DO NOT CALL CLASS:  All persons in the United States who from four years prior  to the filing of this Complaint:  (1) were sent a text message or phone 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 advertising and/or promoting Defendant’s  products and services.   38.  Plaintiff reserves the right to modify the Class definitions as warranted as facts are  learned in further investigation and discovery.   39.  Defendant and its employees or agents are excluded from the Classes.  Plaintiff does  not know the number of members in the Classes but believes the Class Members number in the several  thousands, if not more.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 8 of 16  PAGEID #: 8 9  42.  There are numerous questions of law and fact common to Members of the Classes  which predominate over any questions affecting only individual Members of the Classes.  Among the  questions of law and fact common to the members of the Classes are:  a)  Whether Defendant made non-emergency calls to Plaintiff’s and Class  Members’ cellular telephones using an ATDS;  b)  Whether Defendant can meet its burden of showing that it obtained prior express  written consent to make such calls;  c)  Whether Defendant’s conduct was knowing and willful;  d)  Whether Defendant initiated telemarketing calls to telephone numbers listed on  the National Do Not Call Registry;  e)  Whether Defendant is liable for damages, and the amount of such damages; and  f)  Whether Defendant should be enjoined from such conduct in the future.   43.  The common questions in this case are capable of having common answers.  If  Plaintiff’s claim that Defendant routinely transmits calls 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.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 9 of 16  PAGEID #: 9 10  51.  Plaintiff re-alleges and incorporates 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).   53.  The TCPA defines an “automatic telephone dialing system” (hereinafter “ATDS”) as  “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a  random or sequential number generator; and (B) to dial such numbers.”  Id. at § 227(a)(1).   54.  Defendant – or third parties directed by Defendant – used an ATDS to make non- emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class  defined above.   55.  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 Plaintiff and the other members of the putative Class when its  calls were made.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 11 of 16  PAGEID #: 11 12   56.  Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an ATDS  to make non-emergency telephone calls to the cell phones of Plaintiff and the other Members of the  putative Class without their prior express written consent.   57.  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.   58.  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 Members of the Class are also entitled to an injunction  against future calls.  Id.  59.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein.   60.  It is a violation of the TCPA regulations promulgated by the FCC to “initiate any  telephone call…using an automatic telephone dialing system…To any telephone number assigned to a  paging service, cellular telephone service, specialized mobile radio service, or other radio common  carrier service, or any service for which the called party is charged for the call.”  47 C.F.R.  § 64.1200(a)(1)(iii).   61.  Additionally, it is a violation of the TCPA regulations promulgated by the FCC to  “[i]nitiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or  constitutes telemarketing, using an automatic telephone dialing system…other than a call made with the  prior express written consent of the called party or the prior express consent of the called party when  the call is made …”  47 C.F.R. § 64.1200(a)(2).   62.  Defendant transmitted calls using an automatic telephone dialing system to the  telephone numbers of Plaintiff and members of the putative class without their prior express written  consent.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 12 of 16  PAGEID #: 12 13   63.  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  written consent to call the telephones of Plaintiff and the other members of the putative Class when its  calls were made.   64.  Defendant has, therefore, violated § 64.1200(a) by using an automatic telephone dialing  system to make non-emergency telephone calls to the telephones of Plaintiff and the other Members of  the putative Class without their prior express consent.   65.  Defendant knew that it did not have prior express written consent to make these calls  and knew or should have known that it was using an automatic telephone dialing system.  The violations  were therefore willful or knowing.   66.  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.   67.  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 messages to their 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.  68.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein.   69.  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.”  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 13 of 16  PAGEID #: 13 14   70.  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.”   71.  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.”   72.  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).   73.  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.   74.  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  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.   75.  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.  Case: 2:20-cv-06564-EAS-KAJ Doc #: 1 Filed: 12/28/20 Page: 14 of 16  PAGEID #: 14 15  PROPOSED CLASSES   Violations of 47 C.F.R. § 64.1200  (On Behalf of Plaintiff and the No Consent Class)   Violations of 47 U.S.C. § 227  (On Behalf of Plaintiff and the Do Not Call Registry Class)   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the No Consent Class)  