11.  On information and belief, on or about August 12, 2015, Defendants used a  telephone facsimile machine, computer, or other device to send an unsolicited facsimile to  Plaintiff.   A copy of the facsimile is attached hereto as Exhibit A.  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 3 of 14  PAGEID #: 1 4   12.  On information and belief, Defendants receive some or all of the revenues from  the sale of the products, goods and services advertised on Exhibit A, and Defendants profit and  benefit from the sale of the products, goods and services advertised on Exhibit A.   13.  Plaintiff did not give prior express invitation or permission to Defendants to send  the fax.    14.  On information and belief, Defendants faxed the same and other unsolicited  facsimiles without the required opt-out language to Plaintiff and at least 40 other recipients or  sent the same and other advertisements by fax with the required opt-out language but without  first receiving the recipients’ express invitation or permission and without having an established  business relationship as defined by the TCPA and its regulations.    15.  There is no reasonable means for Plaintiff (or any other class member) to avoid  receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent  communications their owners desire to receive.    16.  Defendants’ facsimile attached as Exhibit A does not display a proper opt-out  notice as required by 47 C.F.R. § 64.1200.  17.  In accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this  class action pursuant to the JFPA, on behalf of the following class of persons:  All persons who (1) on or after four years prior to the filing of this  action, (2) were sent telephone facsimile messages of material  advertising the commercial availability or quality of any property,  goods, or services by or on behalf of Defendants, (3) from whom  Defendants did not obtain “prior express invitation or permission”  to send fax advertisements, and (4) with whom Defendants did not  have an established business relationship, and/or (5) which did not  display a proper opt-out notice.  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 4 of 14  PAGEID #: 1 5  Excluded from the Class are the Defendants, their employees, agents and members of the  Judiciary. Plaintiff seeks to certify a class which include but are not limited to the fax  advertisements sent to Plaintiff. Plaintiff reserves the right to amend the class definition upon  completion of class certification discovery.   18.  Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon  such information and belief avers, that the number of persons and entities of the Plaintiff Class is  numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and  upon such information and belief avers, that the number of class members is at least forty.   19.  Commonality (Fed. R. Civ. P. 23 (a) (2)):  Common questions of law and fact  apply to the claims of all class members. Common material questions of fact and law include, but  are not limited to, the following:  (a)  Whether the Defendants sent unsolicited fax advertisements;  (b)  Whether Defendants’ faxes sent to other persons, not the Plaintiff,  constitute advertisements;   (c)   Whether the Defendants’ faxes advertised the commercial availability or  quality of property, goods, or services;  (d)  The manner and method the Defendants used to compile or obtain the list  of fax numbers to which they sent Exhibit A, other unsolicited faxed advertisements or  other advertisements without the required opt-out language;  (e)  Whether the Defendants faxed advertisements without first obtaining the  recipient's prior invitation or permission;  (f)  Whether the Defendants sent the faxed advertisements knowingly;  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 5 of 14  PAGEID #: 1 6  (g)   Whether the Defendants violated the provisions of 47 U.S.C. § 227 and  the regulations promulgated thereunder;  (h)  Whether the faxes contain an “opt-out notice” that complies with the  requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder,  and the effect of the failure to comply with such requirements;  (i)  Whether the Defendants should be enjoined from faxing advertisements in  the future;  (j)  Whether the Plaintiff and the other members of the class are entitled to  statutory damages; and  (k)  Whether the Court should award treble damages.   20.  Typicality (Fed. R. Civ. P. 23 (a) (3)):  The Plaintiff's claims are typical of the  claims of all class members. The Plaintiff received the same or similar faxes as the faxes sent by  or on behalf of the Defendants advertising products, goods and services of the Defendants during  the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself  and all class members based upon the same federal statute. The Defendants have acted in the  same or in a similar manner with respect to the Plaintiff and all the class members by sending  Plaintiff and each member of the class the same or similar faxes or faxes which did not contain  the proper opt-out language or were sent without prior express invitation or permission.   21.  Fair and Adequate Representation (Fed. R. Civ. P. 23 (a) (4)):  The Plaintiff will  fairly and adequately represent and protect the interests of the class. It is interested in this matter,  has no conflicts, and has retained experienced class counsel to represent the class.   22.  Need for Consistent Standards and Practical Effect of Adjudication (Fed. R. Civ.  P. 23 (b) (1)):  Class certification is appropriate because the prosecution of individual actions by  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 6 of 14  PAGEID #: 1 7  class members would: (a) create the risk of inconsistent adjudications that could establish  incompatible standards of conduct for the Defendants, and/or (b) as a practical matter,  adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are  not parties.   23.  Common Conduct (Fed. R. Civ. P. 23 (b) (2)):  Class certification is also  appropriate because the Defendants have acted and refused to act in the same or similar manner  with respect to all class members thereby making injunctive and declaratory relief appropriate.  The Plaintiff demands such relief as authorized by 47 U.S.C. §227.   24.  Predominance and Superiority (Fed. R. Civ. P. 23 (b) (3)):  Common questions of  law and fact predominate over any questions affecting only individual members, and a class  action is superior to other methods for the fair and efficient adjudication of the controversy  because:   (a)  Proof of the claims of the Plaintiff will also prove the claims of the class  without the need for separate or individualized proceedings;  (b)  Evidence regarding defenses or any exceptions to liability that the  Defendants may assert and attempt to prove will come from the Defendants’ records and  will not require individualized or separate inquiries or proceedings;  (c)   The Defendants have acted and are continuing to act pursuant to common  policies or practices in the same or similar manner with respect to all class members;  (d)   The amount likely to be recovered by individual class members does not  support individual litigation. A class action will permit a large number of relatively small  claims involving virtually identical facts and legal issues to be resolved efficiently in one  proceeding based upon common proofs; and  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 7 of 14  PAGEID #: 1 8  (e)  This case is inherently manageable as a class action in that:  (i)  The Defendants identified persons to receive the fax transmissions  and it is believed that the Defendants’ and/or Defendants’ agents’ computers and  business records will enable the Plaintiff to readily identify class members and  establish liability and damages;  (ii)  Liability and damages can be established for the Plaintiff and the  class with the same common proofs;  (iii)  Statutory damages are provided for in the statute and are the same  for all class members and can be calculated in the same or a similar manner;  (iv)  A class action will result in an orderly and expeditious  administration of claims and it will foster economics of time, effort and expense;  (v)  A class action will contribute to uniformity of decisions  concerning the Defendants’ practices; and  (vi)  As a practical matter, the claims of the class are likely to go  unaddressed absent class certification.   Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq.   25.  The JFPA makes it unlawful for any person to “use any telephone facsimile  machine, computer or other device to send, to a telephone facsimile machine, an unsolicited  advertisement . . . .” 47 U.S.C. § 227(b)(1)(C).   26.  The JFPA 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 prior express invitation or permission, in writing or otherwise.”  47 U.S.C. § 227 (a) (5).  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 8 of 14  PAGEID #: 1 9   27.  Opt-Out Notice Requirements. The JFPA strengthened the prohibitions against  the sending of unsolicited advertisements by requiring, in § (b)(1)(C)(iii) of the Act, that senders  of faxed advertisements place a clear and conspicuous notice on the first page of the transmission  that contains the following among other things (hereinafter collectively the “Opt-Out Notice  Requirements”):  (1)  A statement that the recipient is legally entitled to opt-out of receiving  future faxed advertisements – knowing that he or she has the legal right to request an opt- out gives impetus for recipients to make such a request, if desired;  (2)  A statement that the sender must honor a recipient’s opt-out request within  30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to  opt-out, if they did not want future faxes, by advising them that their opt-out requests will  have legal “teeth”;  (3)  A statement advising the recipient that he or she may opt-out with respect  to all of his or her facsimile telephone numbers and not just the ones that receive a faxed  advertisement from the sender – thereby instructing a recipient on how to make a valid  opt-out request for all of his or her fax machines;  (4)  The opt-out language must be conspicuous.   The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The  requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and  regulations of the Federal Communications Commission (the “FCC”) in ¶ 31 of its 2006 Report  and Order (In the Matter of Rules and Regulations Implementing the Telephone Consumer  Protection Act, Junk Prevention Act of 2005, 21 F.C.C.R. 3787, 2006 WL 901720, which rules  and regulations took effect on August 1, 2006). The requirements of (3) above are contained in  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 9 of 14  PAGEID #: 1 10  § (b)(2)(E) of the Act and incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii).  Compliance with the Opt-Out Notice Requirements is neither difficult nor costly. The Opt-Out  Notice Requirements are important consumer protections bestowed by Congress upon the  owners of the telephone lines and fax machines giving them the right, and means, to stop  unwanted faxed advertisements.    28.  2006 FCC Report and Order. The JFPA, in § (b)(2) of the Act, directed the  FCC to implement regulations regarding the JFPA, including the JFPA’s Opt-Out Notice  Requirements and the FCC did so in its 2006 Report and Order, which in addition provides  among other things:  A.  The definition of, and the requirements for, an established business  relationship for purposes of the first of the three prongs of an exemption to liability under  § (b)(1)(C)(i) of the Act and provides that the lack of an “established business  relationship” precludes the ability to invoke the exemption contained in § (b)(1)(C) of the  Act (See 2006 Report and Order ¶¶ 8-12 and 17-20);  B.  The required means by which a recipient’s facsimile telephone number  must be obtained for purposes of the second of the three prongs of the exemption under §  (b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See  2006 Report and Order ¶¶ 13-16);  C.  The things that must be done in order to comply with the Opt-Out Notice  Requirements for the purposes of the third of the three prongs of the exemption under §  (b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 10 of 14  PAGEID #: 1 11  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See  2006 Report and Order ¶¶ 24-34);  D.  The failure of a sender to comply with the Opt-Out Notice Requirements  precludes the sender from claiming that a recipient gave “prior express invitation or  permission” to receive the sender’s fax (See Report and Order ¶ 48).  As a result thereof, a sender of a faxed advertisement who fails to comply with the Opt- Out Notice Requirements has, by definition, transmitted an unsolicited advertisement under the  JFPA. This is because such a sender can neither claim that the recipients of the faxed  advertisement gave “prior express invitation or permission” to receive the fax nor can the sender  claim the exemption from liability contained in § (b)(C)(1) of the Act.   29.  The Fax. Defendants sent the advertisement on or about August 12, 2015, via  facsimile transmission from telephone facsimile machines, computers, or other devices to the  telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax  constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out  Requirements in connection with the Fax. The Fax was transmitted to persons or entities without  their prior express invitation or permission and/or Defendants are precluded from asserting any  prior express invitation or permission or that Defendants had an established business relationship  with Plaintiff and other members of the class, because of the failure to comply with the Opt-Out  Notice Requirements. By virtue thereof, Defendants violated the JFPA and the regulations  promulgated thereunder by sending the Fax via facsimile transmission to Plaintiff and members  of the Class.  Plaintiff seeks to certify a class which includes this Fax and all others sent during  the four years prior to the filing of this case through the present.  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 11 of 14  PAGEID #: 1 12   30.  Defendants’ Other Violations. Plaintiff is informed and believes, and upon such  information and belief avers, that during the period preceding four years of the filing of this  Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from  telephone facsimile machines, computers, or other devices to telephone facsimile machines of  members of the Plaintiff Class other faxes that constitute advertisements under the JFPA that  were transmitted to persons or entities without their prior express invitation or permission  (and/or that Defendants are precluded from asserting any prior express invitation or permission  or that Defendants had an established business relationship because of the failure to comply with  the Opt-Out Notice Requirements in connection with such transmissions). By virtue thereof,  Defendants violated the JFPA and the regulations promulgated thereunder. Plaintiff is informed  and believes, and upon such information and belief avers, that Defendants may be continuing to  send unsolicited advertisements via facsimile transmission in violation of the JFPA and the  regulations promulgated thereunder, and absent intervention by this Court, will do so in the  future.   31.  The TCPA/JFPA provides a private right of action to bring this action on behalf  of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for  statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is  appropriate. Id.   32.  The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff  and the other class members even if their actions were only negligent.   33.  The Defendants knew or should have known that (a) the Plaintiff and the other  class members had not given prior express invitation or permission for the Defendants or  anybody else to fax advertisements about the Defendants’ products, goods or services; (b) the  Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 12 of 14  PAGEID #: 1 13  Plaintiff and the other class members did not have an established business relationship;  (c) Defendants transmitted advertisements;  (d) the Faxes did not contain the required Opt-Out  Notice; and (e) Defendants’ transmission of advertisements that did not contain the required opt- out notice or were sent without prior express invitation or permission was unlawful.   34.  The Defendants’ actions caused damages to the Plaintiff and the other class  members. Receiving the Defendants’ junk faxes caused Plaintiff and the other recipients to lose  paper and toner consumed in the printing of the Defendants’ faxes. Moreover, the Defendants’  faxes used the Plaintiff's and the other class members’ telephone lines and fax machine. The  Defendants’ faxes cost the Plaintiff and the other class members time, as the Plaintiff and the  other class members and their employees wasted their time receiving, reviewing and routing the  Defendants’ unauthorized faxes. That time otherwise would have been spent on the Plaintiff's  and the other class members’ business activities. The Defendants’ faxes unlawfully interrupted  the Plaintiff's and other class members’ privacy interests in being left alone.   WHEREFORE, Plaintiff, PROGRESSIVE HEALTH AND REHAB CORP., individually  and on behalf of all others similarly situated, demands judgment in its favor and against  Defendants, STRATEGY ANESTHESIA LLC and JOHN DOES 1-5, jointly and severally, as  follows:  A.  That the Court adjudge and decree that the present case may be properly  maintained as a class action, appoint the Plaintiff as the representative of the class, and appoint  the Plaintiff’s counsel as counsel for the class;  B.  That the Court award actual monetary loss from such violations or the sum of five  hundred dollars ($500.00) for each violation, whichever is greater, and that the Court award  treble damages of $1,500.00 if the violations are deemed “willful or knowing”;   Case: 2:16-cv-01151-EAS-KAJ Doc #: 1 Filed: 12/07/16 Page: 13 of 14  PAGEID #: 1 14  C.  That Court enjoin the Defendants from additional violations; and  D.  That the Court award pre-judgment interest, costs, and such further relief as the  Court may deem just and proper.   Respectfully submitted, 