24.  Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within  the time frame relevant to this action.     25.  Defendant’s text messages constitute telemarketing because they encouraged the future  purchase or investment in property, goods, or services, i.e., selling Plaintiff retirement saving investment  plans.        26.  The information contained in the text message advertises Defendant’s services, which  Defendant sends to promote its business.   27.  Plaintiff 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.     28.  At no point in time did Plaintiff provide Defendant with his express written consent to  be contacted using an ATDS.     29.  Plaintiff is the subscriber and sole user of the 9495 Number and is financially  responsible for phone service to the 9495 Number.    30.  Plaintiff has been registered with the national do-not-call registry since October 21,  2007.   32.  The text messages originated from telephone number 310-00, a number which upon  information and belief is owned and operated by Defendant.   33.  The number used by Defendant (310-00) 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.     34.  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.    35.  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.    37.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  himself and all others similarly situated.   38.  Plaintiff brings 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.   39.  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.  42.  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 Plaintiff’s 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.   43.  The common questions in this case are capable of having common answers. If Plaintiff’s  claim that Defendant routinely transmits text 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.  48.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    49.  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).    51.  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.    52.  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  Plaintiff and the other members of the putative Class without their prior express written consent.   53.  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.    54.  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.   55.  Plaintiff re-allege and incorporate paragraphs 1-47 as if fully set forth herein.   56.  At all times relevant, Defendant knew or should have known that its conduct as  alleged herein violated the TCPA.   57.  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.   59.  As a result of Defendant’s violations, Plaintiff 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).  60.  Plaintiff repeats and realleges the paragraphs 1 through 47 of this Complaint and  incorporates them by reference herein.   61.  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.”   62.  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   63.  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.”   65.  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.    66.  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.   67.  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.  Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)   PROPOSED CLASS   Violation of the TCPA, 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 Class)  