Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 1 of 8
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`RACHEL E. KAUFMAN (CAL BAR NO. 259353)
`KAUFMAN P.A.
`400 NW 26th Street
`Miami, FL 33127
`Telephone: (305) 469-5881
`rachel@kaufmanpa.com
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`Attorney for Plaintiff and the Putative Class
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`MARK AUSSIEKER, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`WORTH UNLIMITED LLC D/B/A
`UNITED FINANCIAL FREEDOM, a
`Utah corporation,
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`Defendant.
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`CLASS ACTION
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`JURY TRIAL DEMAND
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`1.
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`As the Supreme Court explained at the end of its term this year, “Americans
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`passionately disagree about many things. But they are largely united in their disdain for
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`robocalls. The Federal Government receives a staggering number of complaints about
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`robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of
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`complaints. For nearly 30 years, the people’s representatives in Congress have been fighting
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`back. As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA,
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 2 of 8
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`generally prohibits robocalls to cell phones and home phones.” Barr v. Am. Ass'n of Political
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`Consultants, No. 19-631, 2020 U.S. LEXIS 3544, at *5 (July 6, 2020).
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`2.
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`Plaintiff alleges that Worth Unlimited made prerecorded voice telemarketing calls
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`to the Plaintiff and other putative class members without their consent.
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`3.
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`Because prerecorded voice marketing campaigns generally place calls to hundreds
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`of thousands or even millions of potential customers en masse, the Plaintiff brings this action on
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`behalf of a proposed nationwide class of other persons who received illegal robocalls from or on
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`behalf of the Defendant.
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`4.
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`A class action is the best means of obtaining redress for the Defendant’s wide-
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`scale illegal telemarketing and is consistent both with the private right of action afforded by the
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`TCPA and the fairness and efficiency goals of Rule 23 of the Federal Rules of Civil Procedure.
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`Parties
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`5. Plaintiff, Mark Aussieker, resides in California in this District.
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`6. Defendant Worth Unlimited is a Utah limited liability company that makes
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`telemarketing calls into this District, as it did with the Plaintiff.
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`Jurisdiction & Venue
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`7. The Court has federal question subject matter jurisdiction over these TCPA claims.
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`8. The Court has personal jurisdiction over the Defendant because it engaged in
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`telemarketing conduct into this District.
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`9. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events or
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`omissions giving rise to the claim occurred in this District, as the robocalls were made into this
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`District.
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 3 of 8
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`TCPA Background
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`10. The TCPA makes it unlawful “to make any call (other than a call made for
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`emergency purposes or made with the prior express consent of the called party) using an
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`automatic telephone dialing system or an artificial or prerecorded voice … to any telephone
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`number assigned to a … cellular telephone service.” See 47 U.S.C. § 227(b)(1)(A)(iii). The
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`TCPA provides a private cause of action to persons who receive calls in violation of 47 U.S.C.
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`§ 227(b)(1)(A). See 47 U.S.C. § 227(b)(3).
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`11. According to findings by the Federal Communication Commission (“FCC”), the
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`agency Congress vested with authority to issue regulations implementing the TCPA, such calls
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`are prohibited because, as Congress found, automated or prerecorded telephone calls are a
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`greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly
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`and inconvenient.
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`12. The FCC also recognized that “wireless customers are charged for incoming calls
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`whether they pay in advance or after the minutes are used.” In re Rules and Regulations
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`Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order,
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`18 F.C.C. Rcd. 14014, 14115 ¶ 165 (2003).
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`13. While “prior express consent” is required for all automated and prerecorded calls, in
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`2013, the FCC required “prior express written consent” for all such telemarketing calls to
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`wireless numbers and residential lines. Specifically, it ordered that:
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`[A] consumer’s written consent to receive telemarketing robocalls must be signed
`and be sufficient to show that the consumer: (1) received “clear and conspicuous
`disclosure” of the consequences of providing the requested consent, i.e., that the
`consumer will receive future calls that deliver prerecorded messages by or on behalf
`of a specific seller; and (2) having received this information, agrees unambiguously
`to receive such calls at a telephone number the consumer designates.[] In addition,
`the written agreement must be obtained “without requiring, directly or indirectly,
`that the agreement be executed as a condition of purchasing any good or service.[]”
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 4 of 8
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`In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
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`27 F.C.C. Rcd. 1830, 1844 (2012) (footnotes omitted).
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`14. “Telemarketing” is defined as “the initiation of a telephone call or message for the
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`purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,
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`which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12).
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`15. Encouraging people to hold telemarketers accountable on behalf on their fellow
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`Americans, the TCPA provides a private cause of action to persons who receive such calls. 47
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`U.S.C. § 227(b)(3).
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`Factual Allegations
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`16. Worth Unlimited offers debt relief services.
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`17. In order to sell its products and services, Worth Unlimited relies on telemarketing.
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`18. One of the telemarketing strategies used by Defendant involves the use of
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`prerecorded messages to solicit potential customers to use its services.
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`19. While such automated technology may save time and money for Worth Unlimited’s
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`telemarketing efforts, it violates the privacy rights of the Plaintiff and putative class.
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`Calls to Plaintiff Aussieker
`Plaintiff is a “person” as defined by 47 U.S.C. § 153(39).
`20.
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`21. Mr. Aussieker’s telephone number, 916-705-XXXX is registered to a cellular
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`telephone service.
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`22. Worth Unlimited called Mr. Aussieker on his cellular telephone with a pre-recorded
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`message on June 4, 2020.
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`23. The purpose of the calls was to sell Worth Unlimited’s debt relief services to Mr.
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`Aussieker in exchange for a fee.
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`24. Confirming that Worth Unlimited made the call and was offering its services, Mr.
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`Aussieker responded to the prerecorded voice’s questions to be transferred to a live person.
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 5 of 8
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`25. Once transferred, Mr. Aussieker feigned interest in Defendant’s products and
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`received a confirmatory e-mail and text message with a recorded video.
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`26. Following the video, a Mr. James Townliand contacted the Plaintiff to further solicit
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`Worth Unlimited’s services.
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`27. Defendant’s calls invaded Plaintiff’s privacy and intruded upon his right to seclusion.
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`The calls frustrated and upset Plaintiff by interrupting his daily life and wasting his time.
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`28. Plaintiff did not provide prior express written consent to receive Defendant’s calls
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`prior to the receipt of the calls.
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`Class Action Allegations
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`29. As authorized by Rule 23(b)(2) and/or (b)(3) of the Federal Rules of Civil Procedure,
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`Plaintiff brings this action on behalf of a class of all other persons or entities similarly situated
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`throughout the United States.
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`30. The Class of persons Plaintiff proposes to represent is tentatively defined as:
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`Robocall Class: All persons within the United States to whom: (a)
`Defendant and/or a third party acting on their behalf, made one or more non-
`emergency telephone calls; (b) to their cellular or residential landline
`telephone number; (c) using an artificial or prerecorded voice; and (d) at any
`time in the period that begins four years before the date of the filing of this
`Complaint to trial.
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`31. Excluded from the Class are counsel, the Defendant, and any entities in which the
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`Defendant has a controlling interest, the Defendant’s agents and employees, any judge to whom
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`this action is assigned, and any member of such judge’s staff and immediate family.
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`32. The Class as defined above is identifiable through phone records and phone number
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`databases.
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`33. The potential Class members is likely to number at least in the thousands. Individual
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`joinder of these persons is impracticable.
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`34. The Plaintiff Aussieker is a member of the Robocall Class.
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 6 of 8
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`35. There are questions of law and fact common to Plaintiff and to the proposed Class,
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`including but not limited to the following:
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`a. Whether Defendant violated the TCPA by using artificial and/or prerecorded
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`calls to contact putative class members’ cellular telephones or residential landlines;
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`b. Whether Defendant placed calls without obtaining the recipients’ prior
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`express consent for the calls;
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`c. Whether the Plaintiff and the class members are entitled to statutory damages
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`because of Defendant’s actions.
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`36. The Plaintiff’s claims are typical of the claims of class members because he received
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`the same type of telephone contact as others in alleged violation of a single federal statute.
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`37. The Plaintiff is an adequate representative of the Class because his interests do not
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`conflict with the interests of the Class, he will fairly and adequately protect the interests of the
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`Class, and counsel skilled and experienced in class actions, including TCPA class actions,
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`represents him.
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`38. Common questions of law and fact predominate over questions affecting only
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`individual class members, and a class action is the superior method for fair and efficient
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`adjudication of the controversy. The only individual question concerns identification of class
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`members, which will be ascertainable from records maintained by Defendant and/or their agents.
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`39. The likelihood that individual members of the class will prosecute separate actions is
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`remote due to the time and expense necessary to prosecute an individual case.
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`40. The Plaintiff is not aware of any litigation concerning this controversy already
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`commenced by others who meet the criteria for the entire Class’s membership described above.
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 7 of 8
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`LEGAL CLAIMS
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`First Claim for Relief
`Violation of the TCPA’s Automated Call provisions
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`41. The Plaintiff incorporates the allegations from all previous paragraphs as if fully set
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`forth herein.
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`42. Defendant’s call was made without the prior express consent, or the prior express
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`written consent, of the called parties. 47 C.F.R. § 64.1200(a)(2); 47 C.F.R. § 64.1200(f)(8).
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`43. The Defendant violated the TCPA by (a) using a prerecorded voice to make calls to
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`cellular and residential landline telephone numbers without the required consent, or (b) by the
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`fact that others made those calls on its behalf. See 47 U.S.C. § 227(b).
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`44. The Defendant’s violations were willful and/or knowing.
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`45. The TCPA also authorizes injunctive relief, and the Plaintiff seeks injunctive relief
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`prohibiting Defendant from calling telephone numbers using an automatic telephone dialing
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`system or a prerecorded voice, absent an emergency circumstance.
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`Relief Sought
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`WHEREFORE, for himself and all class members, Plaintiff requests the following relief:
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`A.
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`Injunctive relief prohibiting Defendant from calling telephone numbers using a
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`prerecorded voice absent an emergency circumstance.
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`B.
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`Because of Defendant’s violations of the TCPA, Plaintiff seeks for himself and
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`the other putative Class members $500 in statutory damages per violation or—where such
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`regulations were willfully or knowingly violated—up to $1,500 per violation, pursuant to 47
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`U.S.C. § 227(b)(3).
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`C.
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`An order certifying this action to be a proper class action under Federal Rule of
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`Civil Procedure 23, establishing any appropriate class the Court deems appropriate, finding that
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`Case 2:20-cv-01848-TLN-AC Document 1 Filed 09/14/20 Page 8 of 8
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`Plaintiff is a proper representative of the Class, and appointing the lawyers and law firms
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`representing Plaintiff as counsel for the Class.
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`D.
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`Such other relief as the Court deems just and proper.
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`Plaintiff requests a jury trial as to all claims of the complaint so triable.
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`Dated: September 14, 2020
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`Respectfully submitted,
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`MARK AUSSIEKER, individually and on behalf
`of those similarly situated individuals
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`By: /s/ Rachel E. Kaufman
`Rachel E. Kaufman (Cal Bar no. 259353)
`rachel@kaufmanpa.com
`KAUFMAN P.A.
`400 NW 26th Street
`Miami, FL 33127
`Telephone: (305) 469-5881
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`Attorney for the Plaintiff and the putative Class
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