  (Violations of the TCPA "Sales Call"   Prohibition, 47 U.S.C. sec. 227 et seq.)   (Knowing and/or Willful Violations of the TCPA       "Sales Call" Prohibition, 47 U.S.C. sec. 227 et seq.)   12. In or about October 2017, Plaintiff received a  pre-recorded telephone solicitation to purchase a  pharmaceutical medication including an influenza  vaccination ("flu shot") from Telemarketers to Plaintiff's  cellular telephone number (917) 621-5795.  Plaintiff at no  time ever obtained a flu shot from Albertsons.        13. Plaintiff had not provided prior express written  clear and conspicuous consent to receive pre-recorded  telephone solicitations from Telemarketers.  Plaintiff may  have provided his telephone number to Albertsons only as  required for the activation and receipt of an Albertsons'  "Preferred Savings Card" bearing the number 48602055737.   14.  These unsolicited telephone calls were placed for  purposes of selling pharmaceutical medications including  vaccinations at Albertsons retail establishments.   16.  Plaintiff did not provide any one, more, or all  Defendants, nor any agent of Defendants, prior express  written clear and conspicuous consent to cause Plaintiff to  receive pre-recorded telemarketing calls on his telephone  number.    17.  Telemarketers' Sales Call did not provide an  automated, interactive voice- and/or key press-activated  opt-out mechanism at the outset of the Robo-Call for  Plaintiff to immediately terminate the call and prevent  further Robo-Calls.  The telephone Sales Calls violated the  TCPA in multiple respects.   18.  Upon information and belief, Defendants illegally  harvested Plaintiff's telephone number from, inter alia,  Albertsons' "Preferred Savings Card" registration record,  pharmaceutical medication purchase records, and/or other  impermissible sources.      20.  47 C.F.R. § 64.1200(b)(3) requires “[i]n every  case where the artificial or prerecorded voice telephone  message includes or introduces an advertisement or  constitutes telemarketing and is delivered to a residential  telephone line or any of the lines or telephone numbers  described in paragraphs (a)(1)(i) through (iii), provide an  automated, interactive voice- and/or key press-activated  opt-out mechanism for the called person to make a do-not- call request, including brief explanatory instructions on  how to use such mechanism, within two (2) seconds of  providing the identification information required in  paragraph (b)(1) of this section. When the called person  elects to opt out using such mechanism, the mechanism, must  automatically record the called person's number to the  seller's do-not-call list and immediately terminate the  call. . . .”  (emphases added).   22.  47 C.F.R. § 64.1200(d)(2) states that “No 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. The  procedures instituted must meet the following minimum  standards: (2) Training of personnel engaged in  telemarketing. Personnel engaged in any aspect of  telemarketing must be informed and trained in the existence  and use of the do-not-call list.”   24. Plaintiff brings this action on behalf of himself  and all persons similarly situated pursuant to Rule 23 of  the Federal Rules of Civil Procedure.  This action  satisfies the numerosity, commonality, typicality,  adequacy, predominance and superiority requirements of each  of those provisions.  The Class is defined as follows:  All individuals who within the past four years  received one or more pre-recorded telemarketing  calls to a telephone number (i) without prior  express written clear and conspicuous consent  and/or (ii) without being provided an automated,  interactive voice- and/or key press-activated opt- out mechanism for the called person to immediately  terminate the call at the outset and make a do-not- call request.  Excluded from the Class are:   (1) individuals who both (a) had received a flu  shot from Albertsons during the flu season  immediately preceding when the subject calls were  received and (b) had not yet received a flu shot  from Albertsons during the flu season in which the  subject calls were received; (2) employees of the  Defendants, including their officers or directors;  (3) Defendants' affiliates, subsidiaries, or co- conspirators; and (4) the Court to which this case  is assigned.   26. Plaintiff's claims are typical of, and not  antagonistic to, the claims of the other Class members  because Plaintiff was injured by Defendants' practices and  by asserting his claims, Plaintiff will also advance the  claims of all members of the Class who were damaged by the  same wrongful conduct of Defendants and their co- conspirators as alleged herein, and the relief sought is  common to the Class.   28.  These common questions and others predominate  over questions, if any, that affect only individual members  of the Class.   29.  The claims of the representative Plaintiff are  typical of the claims of the Class.  There are no material  conflicts with any other member of the Class that would  make class certification inappropriate.  Plaintiff and  counsel will fairly and adequately represent the interests  of the Class.   31.  Prosecution of separate actions by individual  Class members would create the risk of inconsistent or  varying adjudications, establishing incompatible standards  of conduct for the Defendants, and would magnify the delay  and expense to all parties and to the court system  resulting from multiple trials of the same factual issues.   32.  Injunctive relief is appropriate as to the Class  as a whole because Defendants have acted or refused to act  on grounds generally applicable to the Class.   33.  Whatever difficulties may exist in the management  of the class action will be greatly outweighed by the  benefits of the class action procedure, including, but not  limited to, providing Class members with a method for the  redress of claims that may otherwise not warrant individual  litigation.  34. Plaintiff incorporates and realleges, as though  fully set forth herein, each of the paragraphs above.   36.  Pursuant to 47 U.S.C. sec. 227(c)(5)(A),  Plaintiff seeks injunctive relief prohibiting such conduct  in the future.   37. Plaintiff incorporates and realleges, as though  fully set forth herein, each of the paragraphs above.   38.  As a result of Defendants', and Defendants'  agents, knowing and/or willful violations of the TCPA,  Plaintiff seeks for himself and each Class Member treble  damages, as provided by statute, up to $1,500.00 for each  and every violation, pursuant to 47 U.S.C. sec. 227(c)(5).   39.  Treble damages are particularly appropriate where  other pharmacies already settled similar TCPA claims.    