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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
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`ADVANCED INTERVENTIONAL PAIN &
`DIAGNOSTICS OF WESTERN
`ARKANSAS, LLC, on behalf of itself and
`all others similarly situated,
`Plaintiff,
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`v.
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`MODERNIZING MEDICINE, INC.,
`Defendant.
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`
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`Case No.:
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`CLASS ACTION COMPLAINT
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`Jury Trial Demanded
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`CLASS ACTION COMPLAINT
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`Plaintiff Advanced Interventional Pain & Diagnostics of Western Arkansas, LLC
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`(“AIPD” or “Plaintiff”), on behalf of itself and all others similarly situated, brings this Complaint
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`against Modernizing Medicine, Inc. (“Modernizing Medicine”), for violations of the Telephone
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`Consumer Protection Act. Plaintiff seeks certification of its claims against Defendant as a class
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`action. In support, Plaintiff states as follows:
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`INTRODUCTION
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`1.
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`This case challenges Defendant’s policy and practice of faxing unsolicited
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`advertisements. In or around June 2018, Defendant faxed an unsolicited and unwanted
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`advertisement to Plaintiff which is attached as Exhibit A.
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`2.
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`Congress enacted the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
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`227, to regulate the fast-growing expansion of the telemarketing industry. As is pertinent here,
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`the TCPA and its implementing regulations prohibit persons within the United States from
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`sending advertisements via fax.
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 2 of 10
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`3.
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`Junk faxes disrupt recipients’ peace; drain recipients’ paper, ink, and toner; and
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`cause recipients tangible damages. Junk faxes also cause recipients to waste valuable time
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`retrieving and discerning the purpose of the faxes; prevent fax machines from receiving and
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`sending authorized faxes; and cause undue wear and tear on recipients’ fax machines. Plaintiff
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`offers medical services and must use its fax machine to receive communications about patients,
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`including vital information such as prescriptions and insurance information. That purpose is
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`impeded when Plaintiff’s fax machine is invaded by junk faxes. As recognized by Congress in
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`enacting the TCPA, junk faxes are a significant problem interfering with modern commerce. As
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`discussed below, this is particularly true for healthcare providers like Plaintiff, which still rely
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`significantly on faxes to communicate vital information about patients such as prescriptions and
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`insurance information.
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`4.
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`Plaintiff is an interventional pain medicine clinic that provides pain management
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`for patients in northwest Arkansas. As a medical provider, Plaintiff relies upon fax machines to
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`operate and provide services to its patients. Plaintiff estimates that it receives thousands of
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`unwanted and unsolicited faxes each year. Plaintiff must wade through dozens of unsolicited
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`faxes from companies selling their products to find vital incoming faxes, such as medical
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`documents and insurance authorizations. It was this harm that Congress recognized in passing
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`the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).1
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`1 “Unsolicited advertising is beginning to clog fax lines, restricting the owners’ ability to use
`their machines for the purposes they originally bought them for and generating operating costs
`the users can't control. Unlike junk mail, which can be discarded, or solicitation phone calls,
`which can be refused or hung up, junk fax ties up the recipient’s line until it has been received
`and printed. The recipient’s machine is unavailable for business and he or she incurs the high
`cost for supplies before knowing whether the message is either wanted or needed.” 135 Cong.
`Rec. E 1462 (May 2, 1989, statement of Rep. Edward Markey, 101 Cong). Representative
`Markey further testified: “To quote an article from the Washington Post, ‘receiving junk fax is
`like getting junk mail with postage due.’ Succinctly put, using a facsimile machine to send
`2
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 3 of 10
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`5.
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`The TCPA provides a private right of action and statutory damages of $500 per
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`violation, which may be trebled when the violation is willing or knowing.
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`6.
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`On behalf of itself and all others similarly situated, Plaintiff brings this case under
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`the TCPA to recover declaratory relief, damages for violations of the TCPA, and an injunction
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`prohibiting Defendant from future TCPA violations.
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`JURISDICTION AND VENUE
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`7.
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`This Court has personal jurisdiction over Defendant, as Defendant’s headquarters
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`is located in this district.
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`8.
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`This Court has subject matter jurisdiction over Plaintiff’s TCPA claim pursuant to
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`28 U.S.C. § 1331.
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`9.
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`Venue is proper in this court as substantial acts giving rise to the cause of action
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`asserted herein occurred in this venue, and Defendant is headquartered in this District.
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`PARTIES
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`10.
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`11.
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`Plaintiff is a pain management clinic located in Fort Smith, Arkansas.
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`Defendant is a corporation formed under the laws of the State of Delaware and
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`has its corporate headquarters in Boca Raton, Florida. In part, Defendant’s business is providing
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`electronic health records (EHR) systems to medical clinics. On its website, Defendant states
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`“Modernizing Medicine and its affiliated companies help physicians save time in their medical
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`practices while improving both quality of care and business outcomes.”2
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`FACTS
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`unsolicited advertising not only shifts costs from the advertiser to the recipient, but keeps an
`important business machine from being used for its intended purpose.” 136 Cong. R. H 5818
`(July 30, 1990), 101st Cong. 2nd Sess., statement of Rep. Markey, p. 5.
`2 About Modernizing Medicine, https://www.modmed.com/company/ (last accessed November
`24, 2020).
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`3
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 4 of 10
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`12.
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`On or around June 18, 2018, Defendant sent an unsolicited advertisement to
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`Plaintiff’s facsimile machine located at its office in Fort Smith, Sebastian County, Arkansas. The
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`advertisement provides the like, kind, and quality of Defendant’s product, “modmed EMA,”3 and
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`describes how it would benefit Plaintiff to do business with Defendant. The fax touts the “key
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`benefits of modmed EMA” and describes Defendant’s product as “Intelligent. Intuitive.
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`Impressive.” According to the fax, users of Defendant’s product can “conveniently scribe notes
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`without tedious typing.” Other benefits of Defendant’s product listed in the fax are that its
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`interface technology “has increased efficiency”; its “organized structured data streamlines
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`workflow”; and that its “intuitive functionality saves time” for doctors.
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`13.
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`The fax includes a cover page from Defendant’s employee Anthony Kim sending
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`the fax to “Dear Staff and Members of AIPD.” Mr. Kim’s title is listed on the fax as Regional
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`Sales Consultant.
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`14.
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`15.
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`A copy of this facsimile is attached hereto and marked as Exhibit A.
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`Defendant did not have Plaintiff’s prior express invitation or permission to send
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`advertisements to Plaintiff’s fax machine.
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`CLASS ALLEGATIONS
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`16.
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`In accordance with Fed. R. Civ. P. 23, Plaintiff brings this action on behalf of the
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`following class of persons (the “Class”):
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`All persons and entities who held telephone numbers that received
`one or more telephone facsimile transmissions that promoted the
`commercial availability or quality of property, goods, or services
`offered by Modernizing Medicine, Inc.
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`3 The fax identifies the product as “a pain medicine-specific EHR system with adaptive
`learning.” Exhibit A, at 2.
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`4
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 5 of 10
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`17.
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`Plaintiff reserves the right to modify or amend the definition of the proposed
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`Class before the Court determines whether certification is proper, as more information is gleaned
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`in discovery.
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`18.
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`Excluded from the Class are Defendant; any parent, subsidiary, affiliate, or
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`controlled person of Defendant; as well as the officers, directors, agents, servants, or employees
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`of Defendant and the immediate family members of any such person. Also excluded are any
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`judge who may preside over this case and any attorneys representing Plaintiff or the Class.
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`19.
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`Numerosity. The Members of the Class are so numerous that joinder is
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`impractical. Upon information and belief, Defendant has sent illegal fax advertisements to
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`hundreds if not thousands of other recipients.
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`20.
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`Commonality. Common questions of law and fact apply to the claims of all Class
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`Members and include (but are not limited to) the following:
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`(a) Whether Defendant sent faxes advertising the commercial availability of
`property, goods, or services;
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`(b)
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`The manner and method Defendant used to compile or obtain the list of
`fax numbers to which it sent Exhibit A as well as other fax
`advertisements;
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`(c) Whether Defendant faxed advertisements without first obtaining the
`recipient’s prior express permission or invitation;
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`(d) Whether Defendant sent the fax advertisements knowingly or willfully;
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`(e) Whether Defendant violated 47 U.S.C. § 227;
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`(f) Whether Plaintiff and the other Class Members are entitled to actual
`and/or statutory damages;
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`(g) Whether the Court should award treble damages; and
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`(h) Whether Plaintiff and the other Class Members are entitled to declaratory,
`injunctive, and/or other equitable relief.
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`5
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 6 of 10
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`21.
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`Typicality. Plaintiff’s claims are typical of the claims of all Class Members.
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`Plaintiff received an unsolicited fax advertisement from Defendant during the Class Period.
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`Plaintiff makes the same claims that it makes for the Class Members and seeks the same relief
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`that it seeks for the Class Members. Defendant has acted in the same manner toward Plaintiff and
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`all Class Members.
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`22.
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`Fair and Adequate Representation. Plaintiff will fairly and adequately represent
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`and protect the interests of the Class. It is interested in this matter, has no conflicts, and has
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`retained experienced class counsel to represent the Class. Counsel for Plaintiff has agreed,
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`consistent with the Florida Rules of Professional Conduct, specifically Rule 4-1.8(e), to advance
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`the court costs and expenses of litigation on its behalf, repayment of which is contingent on the
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`outcome of this litigation.
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`23.
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`Predominance and Superiority. For the following reasons, common questions of
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`law and fact predominate and a class action is superior to other methods of adjudication:
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`(a)
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`(b)
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`Proof of Plaintiff’s claims will also prove the claims of the Class without
`the need for separate or individualized proceedings;
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`Evidence regarding defenses or any exceptions to liability that Defendant
`may assert will come from Defendant’s records and will not require
`individualized or separate inquiries or proceedings;
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`(c) Defendant has acted and continues to act pursuant to common policies or
`practices in the same or similar manner with respect to all Class Members;
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`(d)
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`The amount likely to be recovered by individual Members of the Class
`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 on common
`proof;
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`(e)
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`This case is inherently well-suited to class treatment in that:
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`(i)
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`Defendant identified persons or entities to receive its fax
`transmissions, and it is believed that Defendant’s computer and
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`6
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 7 of 10
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`business records will enable Plaintiff to readily identify Class
`Members and establish liability and damages;
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`Common proof can establish Defendant’s liability and the damages
`owed to Plaintiff and the Class;
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`Statutory damages are provided for in the statutes and are the same
`for all Class Members and can be calculated in the same or a
`similar manner;
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`(ii)
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`(iii)
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`in an orderly and expeditious
`(iv) A class action will result
`administration of claims, and it will foster economies of time,
`effort, and expense;
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`(v)
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`to uniformity of decisions
`A class action will contribute
`concerning Defendant’s practices; and
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`(vi) As a practical matter, the claims of the Class are likely to go
`unaddressed absent class certification.
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`CLAIM FOR RELIEF
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`COUNT I
`Violations of the Telephone Consumer Protection Act
`47 U.S.C. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4)
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`Plaintiff hereby incorporates by reference each of the preceding paragraphs as
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`24.
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`though fully set forth herein.
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`25.
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`The TCPA provides strict liability for sending fax advertisements in a manner that
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`does not comply with the statute. Recipients of fax advertisements have a private right of action
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`to seek an injunction or damages for violations of the TCPA and its implementing regulations. 47
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`U.S.C. § 227(b)(3).
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`26.
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`The TCPA makes it unlawful to send any “unsolicited advertisement” via fax
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`unless certain conditions are present. 47 U.S.C. § 227(b)(1)(C). “Unsolicited advertisement” is
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`defined as “any material advertising the commercial availability or quality of any property,
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`goods, or services which is transmitted to any person without that person’s prior express
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`invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5).
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`7
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 8 of 10
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`27.
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`Unsolicited faxes are illegal if the sender and recipient do not have an
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`“established business relationship.” 47 U.S.C. § 227(b)(1)(C)(i). “Established business
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`relationship” is defined as “a prior or existing relationship formed by a voluntary two-way
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`communication between a person or entity and a business or residential subscriber with or
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`without an exchange of consideration, on the basis of an inquiry, application, purchase or
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`transaction by the business or residential subscriber regarding products or services offered by
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`such person or entity, which relationship has not been previously terminated by either party.” 47
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`U.S.C. § 227(a)(2); 47 C.F.R. § 64.1200(f)(6).
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`28.
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`Regardless of whether the sender and recipient have an established business
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`relationship, a faxed advertisement is illegal unless it includes an opt-out notice on its first page
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`that complies with the TCPA’s requirements. See 47 U.S.C. § 227(b)(1)(C)(iii); 47 C.F.R. §
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`64.1200(a)(4)(iv). To comply with the law, an opt-out notice must (1) inform the recipient that
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`the recipient may opt out of receiving future faxes by contacting the sender; (2) provide both a
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`domestic telephone number and a facsimile machine number—one of which must be cost-free—
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`that the recipient may contact to opt out of future faxes; and (3) inform the recipient that the
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`sender’s failure to comply with an opt-out request within thirty days is a violation of law. See 47
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`U.S.C. § 227(b)(2)(D); 47 CFR § 64.1200(a)(4)(iii).
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`29.
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`Defendant faxed an unsolicited advertisement to Plaintiff in violation of 47 U.S.C.
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`§ 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4).
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`30.
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`Defendant knew or should have known (a) that Plaintiff had not given express
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`invitation or permission for Defendant to fax advertisements about its products; and (b) that
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`Exhibit A is an advertisement.
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`8
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 9 of 10
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`31.
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`Defendant’s actions caused actual damage to Plaintiff and the Class Members.
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`Defendant’s junk faxes caused Plaintiff and the Class Members to lose paper, toner, and ink
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`consumed in the printing of Defendant’s faxes through Plaintiff’s and the Class Members’ fax
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`machines. Defendant’s faxes cost Plaintiff and the Class Members time that otherwise would
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`have been spent on Plaintiff’s and the Class Members’ business activities.
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`32.
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`In addition to statutory damages (and the trebling thereof), Plaintiff and the Class
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`are entitled to declaratory and injunctive relief under the TCPA.
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`REQUEST FOR RELIEF
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`WHEREFORE Plaintiff, individually and on behalf of all others similarly situated,
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`respectfully requests that this Court:
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`a)
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`b)
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`c)
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`Determine that this action may be maintained as a class action under
`F.R.C.P. 23;
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`Declare Defendant’s conduct to be unlawful under the TCPA;
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`Award damages under the TCPA for each violation in the amount of
`actual monetary loss or $500, whichever is greater, and treble those
`damages;
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`d)
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`Enjoin Defendant from additional violations;
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`e)
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`f)
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`Award Plaintiff and the Class their attorney’s fees and costs;
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`Grant such other legal and equitable relief as the Court may deem
`appropriate, including costs and attorney’s fees.
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`JURY DEMAND
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`Plaintiff and the Members of the Class hereby request a trial by jury.
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`Date: December 9, 2020
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`By:
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`9
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`Respectfully submitted,
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`KU & MUSSMAN, P.A.
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` /s/ Brian T. Ku
`Louis I. Mussman (Fla. # 597155)
`Brian T. Ku (Fla. # 610461)
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`Case 9:20-cv-82238-DMM Document 1 Entered on FLSD Docket 12/09/2020 Page 10 of 10
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`18501 Pines Blvd., Suite 209-A
`Pembroke Pines, FL 33029
`Tel: (305) 891-1322
`Fax: (954) 686-3976
`louis@kumussman.com
`brian@kumussman.com
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`and
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`Randall K. Pulliam (pro hac forthcoming)
`rpulliam@cbplaw.com
`CARNEY BATES & PULLIAM, PLLC
`519 West 7th St.
`Little Rock, AR 72201
`Telephone: (501) 312-8500
`Facsimile: (501) 312-8505
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`Attorneys for Plaintiff
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