DISTRICT OF MASSACHUSETTS ADAM RUSSELL ... OF MASSACHUSETTS ADAM RUSSELL, individually and on behalf of all others similarly situated, Plaintiff, v. 29 PRIME, INC., OC LISTING, INC.,

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ADAM RUSSELL, individually and on behalf of all others similarly situated,

Plaintiff,

v.

29 PRIME, INC., OC LISTING, INC., LOCAL ZOOM, RUSSELL WALLACE and TONY REDMAN,

Defendants

C.A. 1:13-cv-12814-NMG

LEAVE TO FILE GRANTED ON

SEPTEMBER 3, 2014

FIRST AMENDED CLASS ACTION COMPLAINT

Plaintiff, Adam Russell (“Plaintiff”), individually and on behalf of all others similarly

situated, through his undersigned counsel, complains against Defendants, 29 Prime, Inc. (“29

Prime”), OC Listing, Inc., (“OC Listing”), Local Zoom, sometimes also referred to as Local

Zoom, Inc. (“Local Zoom”), Russell Wallace (“Wallace”) and Tony Redman (“Redman”)

(“Defendants”), as follows based upon the investigation of his counsel and otherwise upon

information and belief, except as to allegations specifically pertaining to himself, which are

based upon his personal knowledge:

I. NATURE OF ACTION

1. In a misguided effort to enhance its revenue, Defendants engage in an obnoxious

and illegal form of marketing: sending out a deluge of automatically dialed calls and pre-

recorded messages or “Robocalls” to the cellular telephones of consumers throughout

Massachusetts and the nation.

Case 1:13-cv-12814-NMG Document 45 Filed 09/04/14 Page 1 of 21

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2. Robocalls are a nuisance of national concern; the Federal Trade Commission

(“FTC”) receives 150,000 such complaints each month.1 Freedom of Information Act (“FOIA”)

requests to the FTC and the Federal Communications Commission (“FCC”) produced 100 pages

and 220 pages of complaints, respectively, concerning robocalls from the Defendants, their

affiliates and alter egos, and the phone numbers referenced in this Complaint. Copies of

complaints produced in response to FOIA requests by the FTC and the FCC are attached hereto

as Exhibits A and B, respectively.

3. By effectuating these unauthorized calls (hereinafter, “robocalls” or “wireless

spam”), Defendants have violated consumers’ statutory rights and have caused consumers actual

harm, not only because consumers were subjected to the aggravation that necessarily

accompanies wireless spam, but also because consumers frequently have to pay their cell phone

service providers for the receipt of such wireless spam.

4. In order to redress these injuries, Plaintiff, on behalf of himself, a nationwide

Class of similarly situated individuals, and a Massachusetts Subclass, brings action under the

Telephone Consumer Protection Act, 47 U.S.C. § 227(“47 U.S.C. § 227”) (the “TCPA”), which

prohibits unsolicited automatically dialed calls to cell phones, and the use of pre-recorded

messages, the Massachusetts Telemarketing Solicitation Act, G.L. c. 159C et seq, which

prohibits inter alia, causing the receipt of more than one unsolicited telephonic sales call within a

12-month period, and the Massachusetts Consumer Protection Act, G.L. c. 93A, which prohibits

unfair or deceptive acts or practices.

5. On behalf of the Class and Subclass, Plaintiff seeks an award of statutory and

actual damages to the class members and an injunction requiring Defendant to cease all wireless

spam activities, together with costs and reasonable attorneys’ fees.

II. JURISDICTION AND VENUE

6. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331, because this is a civil action arising under the laws of the United States.

1 Hey Rachel.The FTC is going DEF CON. http://www.business.ftc.gov/blog/2014/06/hey-rachel-ftc-going-def-con?utm_source=govdelivery, accessed 6/23/14.


http://www.business.ftc.gov/blog/2014/06/hey-rachel-ftc-going-def-con?utm_source=govdelivery

http://www.business.ftc.gov/blog/2014/06/hey-rachel-ftc-going-def-con?utm_source=govdelivery

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7. This Court has personal jurisdiction over Defendants pursuant to G.L. c. 223A, §

3(a) because: a) Defendants regularly transact and have transacted business in the

Commonwealth of Massachusetts by selling products and services to Massachusetts customers;

b) Defendants have committed torts within the Commonwealth of Massachusetts; c) Defendants

solicit business within the Commonwealth of Massachusetts; and d) the acts or conduct that are

the subject matter of this action arose from Defendants’ transaction of business in Massachusetts.

8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a) because a

substantial part of the events giving rise to the claim occurred in this District including, inter

alia, the receipt of the robocalls that are the subject of this complaint by Plaintiff and other class

members located in this District.

III. PARTIES

9. Plaintiff, Adam Russell, is a natural person residing in Middlesex County,

Massachusetts. Plaintiff is the primary user of the cellular telephone to which Defendants placed

calls using an ATDS without his express consent and is a member of the class defined herein.

10. Defendant, 29 Prime, is a corporation organized under the laws of Nevada with its

principal place of business at 9701 Jeronimo Road., Irvine, California 92618.

11. Defendant, Local Zoom is a Subchapter S corporation organized under the laws of

California with its principal place of business at 23272 Mill Creek Dr., Suite 310 Laguna Hills,

CA 92653.

12. Defendant, OC Listing is a corporation organized under the laws of California

with its principal place of business at 9701 Jeronimo Rd. Irvine, CA 92618.

13. Defendant, Russell Wallace is a resident of the state of California and is a co-

founder, part owner and Chief Executive Officer (“CEO”) of Defendant 29 Prime. Wallace is

one of five owners of 29 Prime, all of whom are employed by 29 Prime, and Wallace is the


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largest percentage owner of 29 Prime. Wallace is also CEO of Defendant OC Listing and is a

part owner of Defendant Local Zoom.

14. Defendant Tony Redman is a resident of the State of California and is a co-

founder, part owner and Chief Operating Officer (“COO”) of Defendant 29 Prime. Redman is

also a co-founder and COO of Defendant OC Listing.

15. The nature of each of the Defendants is to place calls to telephones throughout the

United States to solicit unsuspecting customers for search engine optimization services, making

deceptive offers and claims about their ability to improve Google rankings.

IV. FACTUAL BACKGROUND

16. In 1991, Congress enacted the Telephone Consumer Protection Act, 47 U.S.C. §

227, in response to a growing number of consumer complaints regarding certain telemarketing

practices including, inter alia, telemarketing calls made automatically.

17. The TCPA regulates, among other things, the use of automatic telephone dialing

equipment, or “autodialers.” Specifically, the plain language of Section 227(b)(1)(A)(iii)

prohibits the use of autodialers to make a call to any wireless number in the absence of an

emergency or the prior express consent of the called party.

18. According to findings by the Federal Communication Commission (“FCC”), the

agency Congress vested with authority to issue regulations implementing the TCPA, such calls

are prohibited because, as Congress found, automatic telephone calls are a greater nuisance and

invasion of privacy than unique, individually placed calls, and such calls can be costly and

inconvenient. The FCC also recognized that wireless customers are charged for incoming calls

whether they pay in advance or after the minutes are used.

19. It is a violation of the TCPA to call a person’s cellular telephone using an

automatic telephone dialing system (“ATDS”) or prerecorded or artificial voice message. 47

U.S.C. § 227(b)(1)(a)(iii) (2010). The only exceptions to this prohibition are in the case of an


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emergency or with the prior express consent of the called party.

20. The TCPA places responsibility for violations not only on businesses that place

the unlawful calls, but also on businesses on whose behalf the calls are made. 47 U.S.C. § 227

(c)(5) (2010).

21. In recent years, businesses have increasingly looked to technologies through

which to place calls in large volume at low cost. Using a predictive dialer, or ATDS, computer

software enables the caller to dial a list of telephone numbers and connects answered dials to

people making calls, often referred to as agents. Predictive dialers use statistical algorithms to

minimize the time that agents spend waiting between conversations, while minimizing the

occurrence of someone answering when no agent is available. This provides savings and

efficiency to the caller but annoyance to the user of the cellular phone to which such calls are

placed.

22. Unlike calls placed to wirelines, calls made to wireless numbers can actually cost

its recipients money, because cell phone users must frequently pay their respective wireless

service providers either for each call they receive or incur a usage allocation deduction to their

calling plan, regardless of whether or not the call is authorized.

23. Plaintiff never gave his cellular number to Defendants and had done no business

with Defendants.

24. Over the course of an extended period beginning in at least 2011, Defendants

made mass solicitations to Plaintiff and other Class members using an ATDS system in an effort

to sell its search engine optimization and other website support services. In the process,

Defendants made thousands of calls per day to the cellular telephones used by Plaintiff and other

Class members throughout the Commonwealth of Massachusetts and the United States.

25. The nature of the calls, their frequency, content and similarity make it clear that


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Defendants are using an ATDS.2 Defendants placed multiple automatic calls to Plaintiff’s

cellular telephone with the commercial purpose of offering him products or services sold by

Defendants.

26. For example, Defendants robocalled Plaintiff on:

• June 5, 2013, at 3:57 p.m., from (206) 397-1615 • June 12, 2013 at 4:00 p.m. from (206) 397-1615 • June 12, 2013 at 4:49 p.m. from (206) 397-1615 • June 26, 2013 at 5:56 p.m. from (206) 397-1159

27. On some of the calls that Plaintiff answered, he encountered a long period of

silence, or “dead air,” and nothing else. This is typical of calls initiated using an ATDS:

Abandoned Calls. Predictive dialers initiate phone calls while telemarketers are talking to other consumers and these dialers frequently disconnect those calls when a telemarketer is unavailable to take the next call. In attempting to ‘‘predict’’ the average time it takes for a consumer to answer the phone and when a telemarketer will be free to take the next call, predictive dialers may either ‘‘hang-up’’ on consumers or keep the consumer on hold until connecting the call to a sales representative, resulting in what has been referred to as ‘‘dead air.’’ Dead-air calls are abandoned calls. (Federal Communications Commission, 47 CFR Part 64, [CG Docket No. 02–278; FCC 12–21] Telephone Consumer Protection Act of 1991) 28. On the calls made to Plaintiff that were not dead air calls, Defendants used an

artificial or prerecorded voice to introduce them. The calls began with a generic, non-

personalized sales pitch to Plaintiff. For example, the call from (206) 397-1159 that Plaintiff

answered on June 26, 2013 was introduced by a recorded voice that said “You have not

updated your free Google listing.”

29. There are numerous entries on the Internet sites set up to collect and share

complaints about obnoxious telemarketing calls. Examples of such entries about (206) 397-1615

include:

• "Was another ilegal (sic) robo call. one of those google local search scams." • "2-3 times daily the number 206-397-1615 calls my phone and either plays an

automated telemarketing message or hangs up." • "The usual illegal pre-recorded message for Google placement scam."

2 See Exhibit B at p. 88 (“Rep told me they dont (sic) dial us, their automated system does.”).


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• "They are also driving me insane, to the point that I'm about to call the Better Business Bureau and complain about harassment. I get a minimum of 4 calls a week and want it to STOP." (http://800notes.com/Phone.aspx/1-206-397-1615, last accessed 10/29/13)

30. These and other comments are indicative of Defendants’ practices as an

aggressive robocalling operation.

31. The numbers from which the above-described calls were made were from

telephone numbers owned by or otherwise assigned to Defendants, or “spoofed” by Defendants.

32. There have been many calls from Defendants to Plaintiff which caused his

telephone to ring, but which he did not pick up, and thus do not appear on his call records.

33. Defendants placed at least thousands of similar calls, using the same methods, to

the cellular phones of other class members throughout Massachusetts and the United States. See

Exhibits A and B. Defendants also: a) placed frequent, repeated calls to the same recipients; b)

called phone numbers that had been registered with the National Do Not Call Registry; c) called

after recipients requested that they stop calling; and d) made it extremely difficult, if not

impossible, for recipients to have their telephone numbers removed from the call lists in order to

avoid receiving future calls from Defendants. Id.

34. Many of the robocalls made by Defendants are made under other names, which

are alter egos or aliases of 29 Prime and/or OC Listing, such as Reliable Places (or

reliableplaces.com), Relevant Ads (or relevantads.com), SEM Marketing, 29SEM, HotSpot

SEM, 29 Live, 29Maps, 29Search and Locallistings.com. Id. Reliable Places is simply another

name for 29 Prime, and the street address listed for Reliable Places is the same as for 29 Prime

and OC Listing, 9701 Jeronimo Road, Irvine, CA 92618. Also, entry of the web address

www.reliableplaces.com leads directly to the 29 Prime website, www.29prime.com. Finally,

many of the calls to Class members are identified as being from “Google 411,” though none of

the Defendants have any connection to Google. See Exhibits A and B.


http://www.reliableplaces.com/

http://www.29prime.com/

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35. To the extent that any of the robocalls are made by 29 Prime’s and OCListing’s

“authorized sales partners,” or “authorized resellers,” those calls were authorized and directed by

Defendants, and it is the same as if Defendants placed those calls themselves. In addition,

certain of the authorized sales partners are affiliates or alter egos of 29 Prime, such as OC Listing

and Local Zoom (owned in part by Wallace), and one of the authorized sales partners, Thomas

Thomen, is a part owner of 29 Prime.

36. Defendants OC Listing and Local Zoom are each separately liable for the conduct

alleged herein, i.e., the placing of robocalls to Class members in violation of the TCPA. OC

Listing hires the personnel to make the robocalls on behalf of 29 Prime and directs the dialing of

these calls. Local Zoom has also made such calls to Class members, and as a 29 Prime

“authorized sales partner” or authorized reseller,” is authorized and directed, pursuant to written

agreements, to make such calls.

37. Alternatively, OC Listing is liable as an alter ego of 29 Prime for the conduct

alleged herein, and is part of a single business enterprise with 29 Prime. These two companies

operate with integrated resources in pursuit of a single business purpose, and may be deemed to

be a single business enterprise, despite their purportedly separate corporate status. OC Listing

has the same office address and occupies the same office premises as 29 Prime. Defendants

Wallace and Redman, the CEO and COO, respectively, of 29 Prime, hold the same executive

positions with OC Listing. Wallace and Redman, part owners and co-founders of 29 Prime, are

also part owners and co-founders of OC Listing, and the majority owner of OC Listing, Janie

McCartney, is Tony Redman’s sister. OC Listing, however, is completely controlled by Wallace

and Redman. Further, OC Listing is authorized to use, and uses the brand name “29 Prime,” and

enters into “reseller agreements” with 29 Prime authorized sales partners. See 29 Prime Reseller

Agreement between OC Listing (“which is currently using the brand name 29 Prime”) and

Farbod Javaherchi and Local Zoom, Inc., a copy of which is attached hereto as Exhibit C.


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38. Alternatively, Local Zoom is liable as an alter ego of 29 Prime for the conduct

alleged herein, and is part of a single business enterprise with 29 Prime and OC Listing. Local

Zoom operates with integrated resources with 29 Prime and OC Listing in pursuit of a single

business purpose, and the three companies may be deemed to be a single business enterprise,

despite their purportedly separate corporate status. Local Zoom and its principal, Farbod

Javaherchi (“Javaherchi”) are identified as 29 Prime authorized resellers, having entered into a

29 Prime/OC Listing Reseller Agreement. See Exhibit C. Wallace is part owner of Local Zoom,

together with Javaherchi, and Wallace and Javaherchi are partners in that business.

39. Wallace and Redman, co-founders of 29 Prime and OC Listing, directed and

controlled the operations of 29 Prime and OC Listing, both through their ownership positions

(Wallace being the largest percentage owner of 29 Prime) and their executive positions with both

companies (where they hold the same executive positions in each company). In particular,

Wallace and Redman directed and controlled the acts and conduct that are the subject of this

action, i.e., the robocalls to Plaintiff and Class members.3 Wallace and Redman each signed 29

Prime Reseller Agreements and other agreements as CEO and COO, respectively, on behalf of

both 29 Prime and OC Listing, specifically authorizing the conduct alleged herein that violates

the TCPA. Wallace also signed an affidavit in support of 29 Prime’s motion to dismiss this

action on jurisdictional and venue grounds,4 an in the affidavit, referenced his ownership interest

in 29 Prime, but did not reference his position as CEO. He signed the affidavit not as CEO of 29

Prime, but merely as “affiant.”

40. Wallace and Redman exercise such dominance and control over 29 Prime and OC

Listing that 29 Prime and OC Listing are actually alter egos of Wallace and Redman. There is

3 See Exhibit B at p. 144 (complaint identifying Russell Wallace as owner/operator of “multiple websites” responsible for robocalls); p. 145 (complaint identifies 29 Prime as “owned by telemarketer Russell Wallace”); at 147 (“Russell Wallace/29 Prime has been running this “Google Listing” scam for several months . . . it looks like [Wallace] has run the scam under various company names.”). 4 See Affidavit of Russell Wallace in Support of Defendant’s Joint Motion to Dismiss Re FRCP Rule 12(b)(2) for Lack of Personal Jurisdiction and Re FRCP Rule 12(b)(3) for Improper Venue (Dkt. No. 9-1).


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such a unity of ownership and interest among Wallace, Redman, 29 Prime and OC Listing, that

the separate personalities of the two corporations and the two individuals no longer exist.

41. Due to the serious undercapitalization of 29 Prime and OC Listing, particularly in

view of the potential liability these companies face in this action and other actions, treating the

acts and conduct alleged herein as the acts and conduct only of the corporate defendants would

create an inequitable result and would deprive Plaintiff and Class members of a meaningful

recovery. Accordingly, for the purposes of this action, the corporate form should be disregarded,

and Wallace and Redman are liable for the acts and conduct alleged herein to the same extent as

29 Prime and OC Listing.

V. CLASS ACTION ALLEGATIONS

42. This action satisfies the prerequisites for maintenance as a class action set forth in

Fed. R. Civ. P. 23(a), as set forth below

Class Definition. Plaintiff brings this action individually and on behalf of the following

class and subclass of similarly situated persons, of which Plaintiff is a member:

All persons in the United States and its Territories to whom Defendants, or their affiliated companies or agents thereof made one or more non-emergency calls to cellular telephones used by them without their express consent (the “Class”).

Excluded from the Class are Defendants and any of their officers, directors,employees or family

members, Class counsel, and the presiding judge. Plaintiff also brings this action on behalf of a

subclass, as follows:

All persons in Massachusetts to whom Defendants or their affiliated companies or Agents thereof made one or more non-emergency calls to cellular telephones used by them without their express consent (“the Massachusetts Subclass” or “Subclass”).

40. Numerosity. The members of the Class and Subclass are so numerous and

geographically dispersed throughout the United States (and Massachusetts) such that joinder of

all members is impracticable. Plaintiff believes that there are at least several thousand persons in


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the Class and at least several hundred members of the Subclass. The exact number and identity

of Class and Subclass members is unknown to Plaintiff at this time and can only be ascertained

from information and records in the possession, custody or control of Defendants.

41. Commonality. There are questions of law or fact common to the Class and

Subclass including, inter alia, the following:

a. Whether the telephone calls described herein were placed by Defendants

or by someone on acting on their behalf;

b. Whether the telephone calls described herein were made using an ATDS;

c. Whether Defendants maintain records of the consent of Plaintiff or other

Class and Subclass members to receive the telephone calls described herein;

d. Whether the above-described records, if any, constitute express consent

with the meaning of the TCPA;

e. Whether the telephone calls described herein are exempt from the

provisions of the TCPA;

f. The number of telephone calls made to Plaintiff and other Class and

Subclass members and the statutory measure of damages;

g. Whether the conduct of Defendants alleged herein was knowing or willful

within the meaning of the statute; and

h. whether Plaintiff and the members of the Class and Subclass are entitled to

damages, equitable, injunctive and other relief sought herein.

42. Typicality. The claims of Plaintiff are typical of the claims of the Class and

Subclass alleged herein. Plaintiff and other members of the Class and Subclass are all persons to

whom Defendants, or their affiliated companies or agents thereof made one or more non-

emergency calls to cellular telephones used by them without their express consent.


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43. Adequacy. Plaintiff will fairly and adequately protect the interests of the Class

and Subclass. Plaintiff has retained counsel who are competent and experienced in the

prosecution of complex and class action litigation. The interests of Plaintiff are aligned with,

and not antagonistic to, those of the Class and Subclass.

44. Fed. R. Civ. P. 23(b)(2) Requirements. The prerequisites to maintaining a class

action for injunctive and equitable relief pursuant to Fed. R. Civ. P. 23(b)(2) exist, as Defendants

have acted or have refused to act on grounds generally applicable to the Class and Subclass

thereby making appropriate final injunctive and equitable relief with respect to the Class and

Subclass as a whole.

45. Defendants’ alleged uniform common course of conduct makes declaratory relief

with respect to the Class and Subclass as a whole appropriate.

46. Fed. R. Civ. P. 23(b)(3) Requirements. This case satisfies the prerequisites of

Fed. R. Civ. P. 23(b)(3). The common questions of law and fact enumerated above predominate

over questions affecting only individual members of the Class and Subclass, and a class action is

the superior method for fair and efficient adjudication of the controversy.

47. The likelihood that individual members of the Class or Subclass will prosecute

separate actions is remote due to the extensive time and considerable expense necessary to

conduct such litigation, especially in view of the relatively modest amount of monetary relief at

issue for individual Class members.

48. This action will be prosecuted in a fashion to ensure the Court’s able management

of this case as a class action on behalf of the Class and Subclass.

VI. CAUSES OF ACTION

COUNT I

(Violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227)

49. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as


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if fully set forth herein.

50. At all times relevant, Plaintiff was a natural person residing in the Commonwealth

of Massachusetts. Plaintiff is, and at all times relevant hereto was, a “person” as defined by 47

U.S.C. § 153(10).

51. Defendants are, and at all times relevant hereto were “persons,” as defined by 47

U.S.C. § 153(10).

52. Notwithstanding the fact that they did not give their express consent to be called,

Defendants repeatedly made non-emergency telephone calls to the cellular telephones used by

Plaintiff and other Class members.

53. The calls made by Defendants to the cellular telephones used by Plaintiff and the

Class were made using an “automatic telephone dialing system,” or “ATDS,” as defined by 47

U.S.C. § 227(a)(1), as such calls were made by a machine with the capacity to store, produce and

dial random telephone numbers.

54. Direct evidence of Defendants’ use of an ATDS is within the sole possession of

Defendants at this stage, and will therefore only come to light once discovery has been

undertaken. Nonetheless, a reasonable inference can be drawn that the calls described herein

were delivered by an ATDS based on the generic content of the calls, the impersonal advertising

content of the message delivered by Defendants who had no reason to contact Plaintiff, and the

existence of similar calls received by Class members See Exhibits A and B.

55. The telephone numbers to which Defendants placed calls using an “automatic

telephone dialing system” were assigned to a cellular telephone service as specified in 47 U.S.C.

§ 227(b)(1)(A)(iii).

56. The complained of calls had a commercial purpose and, thus, constituted calls not

made for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i).

57. Plaintiff and Class members did not provide “express consent,” allowing


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Defendants to place telephone calls to Plaintiff’s and Class members’ cellular phones or make

calls placed by an “automatic telephone dialing system,” within the meaning of 47 U.S.C. §

227(b)(1)(A).

58. Defendants did not make telephone calls to Plaintiff’s and Class members’

cellular phones “for emergency purposes” as described in 47 U.S.C. § 227(b)(1)(A).

59. Defendants’ placement of calls to Plaintiff’s and Class members’ cellular

telephones, done using an “automatic telephone dialing system,” for non-emergency purposes

and, in the absence of Plaintiff’s and Class members’ prior express consent, violated 47 U.S.C.

§227(b)(1)(A).

60. The foregoing acts and omissions of Defendants constitute numerous and multiple

negligent violations of the TCPA, including but not limited to each of the above cited provisions

of 47 U.S.C. § 227.

61. As a result of Defendants’ negligent violations of 47 U.S.C. § 227, Plaintiff and

Class members are entitled to an award of $500.00 in statutory damages for each and every call

in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).

62. Plaintiff and Class members are also entitled to and do seek injunctive relief

prohibiting Defendants’ violation of the TCPA in the future and to prevent any further such calls

being placed to their cellular telephones.

63. Plaintiff and Class members are also entitled to an award of attorneys’ fees and

costs.

COUNT II

(Willful or Knowing Violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227)

64. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as

if fully set forth herein.


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65. At all times relevant, Plaintiff was a natural person residing in the Commonwealth

of Massachusetts. Plaintiff is, and at all times relevant hereto was, a “person” as defined by 47

U.S.C. § 153(10).

66. Defendants are, and at all times relevant hereto were “persons”, as defined by 47

U.S.C. § 153(10).

67. Notwithstanding the fact that they did not give their express consent to be called,

Defendants repeatedly made non-emergency telephone calls to the cellular telephones used by

Plaintiff and other Class members.

68. The calls made by Defendants to the cellular telephones used by Plaintiff and the

Class were made using an “automatic telephone dialing system,” or “ATDS,” as defined by 47

U.S.C. § 227(a)(1), as such messages were made by a machine with the capacity to store and

produce random telephone numbers.

69. Direct evidence of Defendants’ use of an ATDS is within the sole possession of

Defendants at this stage, and will therefore only come to light once discovery has been

undertaken. Nonetheless, a reasonable inference can be drawn that the calls described herein

were delivered by an ATDS based on the generic content of the calls, the impersonal advertising

content of the message delivered by Defendants who had no reason to contact Plaintiff, and the

existence of similar calls received by other Class members.

70. The telephone numbers to which Defendants placed calls using an “automatic

telephone dialing system” were assigned to a cellular telephone service as specified in 47 U.S.C.

§ 227(b)(1)(A)(iii).

71. The complained of calls had a commercial purpose and, thus, constituted calls not

made for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i).

72. Plaintiff and Class members did not provide “express consent” allowing

Defendants to place telephone calls to Plaintiff’s and Class members’ cellular phones or calls


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placed by an “automatic telephone dialing system,” within the meaning of 47 U.S.C. §

227(b)(1)(A).

73. Defendants did not make telephone calls to Plaintiff’s or Class members’ cellular

phones “for emergency purposes” as described in 47 U.S.C. § 227(b)(1)(A).

74. Defendants’ placement of calls to Plaintiff’s and Class members’ cellular

telephones, using an “automatic telephone dialing system,” for non-emergency purposes and, in

the absence of Plaintiff’s and Class members’ prior express consent, violated 47 U.S.C.

§227(b)(1)(A).

75. The foregoing acts of Defendants were willful and knowing violations of the

provisions of 47 U.S.C. § 227.

76. As a result of Defendants’ willful and knowing violations of 47 U.S.C. § 227,

Plaintiff and Class members are entitled to an award of $1,500.00 in statutory damages for each

and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).

77. Plaintiff and Class members are also entitled to and do seek injunctive relief

prohibiting Defendants’ violation of the TCPA in the future.

78. Plaintiff and Class members are also entitled to an award of attorneys’ fees and

costs.

COUNT III

(Violation of the Massachusetts Telemarketing Solicitation Act G.L. c. 159C et seq.: On behalf of Plaintiff and the Massachusetts Subclass)

79. The Massachusetts Telemarketing Solicitation Act, G.L. c. 159C § 3(iv) expressly

forbids “the use of a recorded message device.”

80. Defendants’ placing of calls to Plaintiff’s and other Subclass members’ cellular

telephones was done using a “recorded message device.”

81. Pursuant to G.L. c. 159C § 5(A)(a):


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A telephone solicitor shall disclose all of the following information within the first minute of a telephonic sales call and before requesting, accepting or arranging for payment by a consumer: (i) that the purpose of the telephone call is to make a sale or solicit funds; (ii) the correct name of the telemarketing company that employs the individual telemarketer who is making the call; (iii) the correct name of the ultimate seller whose goods or services are being offered by means of the telemarketing call; and (iv) a complete and accurate description of the goods or services being offered including, but not limited to, the retail market value of the goods or services.

82. Defendant made no such disclosures when placing calls to Plaintiff and other

Subclass members.

83. G.L. c. 159C §8(B) provides a private cause of action and damages:

(b) A person who has received more than 1 unsolicited telephonic sales call within a 12-month period by or on behalf of the same person or entity in violation of this chapter may: (i) bring an action to enjoin the violation; (2) bring an action to recover for actual monetary loss from such knowing violation or to receive not more than $5,000 in damages for such knowing violation, whichever is greater; or (iii) bring both such actions.

84. Defendants placed more than one unsolicited telephonic sales call within a 12

month period to Plaintiff and also placed numerous such calls to other Subclass members.

COUNT IV

(Violation of M.G.L. c. 93A, § 2: On behalf of Plaintiff and the Massachusetts Subclass)

85. Plaintiff incorporates by reference the foregoing allegations as if fully set forth

herein.

86. At all relevant times Defendants were engaged in commerce for purposes of

M.G.L., c. 93A.

87. M.G.L., c. 93A, § 2 provides that “[u]nfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.”

M.G.L., c. 93A, § 9 permits any consumer injured by a violation of c. 93A, § 2 to bring a civil


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action, including a class action, for damages and injunctive relief.

88. As alleged more fully herein, Defendants have violated c. 93A, § 2 by sending out

en masse unsolicited robocalls and recorded messages to Plaintiff and other Massachusetts

Subclass members. This conduct is unfair because it is harassing and annoying and invades the

privacy of Plaintiff and Subclass members and because it causes them to incur costs for receiving

calls, and it is deceptive because the calls contain misleading sales pitches, and are made to

appear as though they are from and/or created by an entity other than the actual business sending

out the calls.

89. Defendant’s conduct also violates the TCPA and as such, constitutes unfair and

deceptive conduct in violation of c. 93A, § 2.

90. The unfair and deceptive acts and practices of Defendant, as described above,

present a serious threat to Plaintiff and members of the Massachusetts Subclass.

91. Plaintiff has not made a written demand for relief, as the demand requirement set

forth in c. 93A, § 9(3) does not apply to Defendants. The demand requirement does not apply

here, because, on information and belief, Defendants do not maintain places of business, nor do

they keep assets within the Commonwealth of Massachusetts.

92. Based on the foregoing, Plaintiff and the other members of the Massachusetts

Subclass are entitled to all remedies available under c. 93A, § 9, including, but not limited to,

actual or statutory damages, whichever is greater, multiple damages, injunctive relief and

attorneys’ fees and costs.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and the Class and Subclass, prays for the

following relief:

A. An order certifying the Class and Subclass as defined above;


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B. An award of actual or statutory damages;

C. An award of multiple damages

D. An injunction requiring Defendant to cease all wireless spam, robocalls, recorded

messaging, and too-frequent unsolicited telephonic sales calls;

E. Disgorgement of Defendant’s ill-gotten gains;

F. An award of reasonable attorneys’ fees and costs; and

G. Such further and other relief the Court deems reasonable and just.

VIII. JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.

Dated: September 4, 2014 Respectfully submitted,

PASTOR LAW OFFICE, LLP

/s/ David Pastor__ _______ David Pastor (BBO #391000) 63 Atlantic Avenue, 3d Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701 [email protected]


mailto:[email protected]

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MILBERG LLP Leigh Smith (BBO #645835) One Pennsylvania Plaza New York, New York 10119 Telephone: (212) 594-5300 Facsimile: (212) 868-1229 [email protected]

LEONARD LAW OFFICE, LLP Preston W. Leonard (BBO #680991) 63 Atlantic Avenue Boston, MA 02110 Telephone: (617) 329-1295 [email protected]

SWEETNAM LLC William M. Sweetnam Admitted Pro hac vice 582 Oakwood Avenue, Suite 200 Lake Forest, Illinois 60045 Telephone: (847) 559-9040 [email protected] Counsel for Plaintiff and the Class





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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent

electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)

and paper copies will be sent to those indicated as non-registered participants on September 4,

2014.

/s/ David Pastor_____________________

David Pastor


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