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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`Civil Action No.
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`CLASS ACTION COMPLAINT
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`Jury Trial Demanded
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`TYLER BAKER, on behalf of himself and
`others similarly situated,
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`Plaintiff,
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`v.
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`ABBVIE INC.,
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`Defendant.
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`Nature of the Action
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`1.
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`Tyler Baker (“Plaintiff”) brings this class action lawsuit against AbbVie Inc.
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`(“Defendant”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and its
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`implementing regulations.
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`2.
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`Upon information and good faith belief, Defendant routinely and systematically
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`violated 47 C.F.R. pt. 64.1200(c) and, in turn, 47 U.S.C. § 227(c)(5), by delivering more than one
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`advertisement or marketing text message to residential or cellular telephone numbers registered
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`with the National Do-Not-Call Registry (“DNC Registry”) without the prior express invitation or
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`permission required by the TCPA.
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`Parties
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`3.
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`4.
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`Plaintiff is a natural person who at all relevant times resided in Underhill, Vermont.
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`Defendant is incorporated under the laws of Delaware but maintains its corporate
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`headquarters in North Chicago, Illinois.
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`1
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 2 of 12 PageID #:2
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`5.
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`Defendant is a global biopharmaceutical company that acquired Allergan plc
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`(“Allergan”) in May 2020.1
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`6.
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`Through the Allergan acquisition, Defendant acquired Allergan’s portfolio of
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`therapeutics, including “RESTASIS” branded eye drops for treatment of Chronic Dry Eye.2
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`Jurisdiction and Venue
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`This Court has subject matter jurisdiction under 47 U.S.C. § 227(c)(5) and 28
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`7.
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`U.S.C. § 1331.
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`8.
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`Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b) as Defendant
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`maintains its corporate headquarters in this district.
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`Factual Allegations
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`9.
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`Plaintiff is, and has been at all times relevant to this action, the regular and sole user
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`of his cellular telephone number—(802)-XXX-2723.
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`10.
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`Plaintiff uses, and at all times relevant to this action used, his cellular telephone as
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`his personal residential telephone number.
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`11.
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`In 2003, the Federal Communications Commission (“FCC”) ruled that cellular
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`telephone numbers that are placed on the DNC Registry are presumed to be residential. In Re Rules
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`& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14039
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`(2003).
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`12.
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`Plaintiff registered his cellular telephone number with the DNC Registry on or
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`about November 4, 2004.
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`1
`https://news.abbvie.com/news/press-releases/abbvie-completes-transformative-
`acquisition-allergan.htm (last visited Dec. 29, 2020).
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`https://www.restasis.com/ (last visited Dec. 29, 2020).
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 3 of 12 PageID #:3
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`13.
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`On November 22, 2020, Plaintiff received the following four text messages on his
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`cellular telephone from short code 72428:
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`14.
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`The next day, on November 23, 2020, Plaintiff received a similar text message from
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`short code 72428:
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 4 of 12 PageID #:4
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`15.
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`Before texting “Stop” to remove himself from Defendant’s marketing list, Plaintiff
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`received at least five text messages in all.
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`16.
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`All of Defendant’s text messages to Plaintiff advertised savings on RESTASIS
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`(Cyclosporine Opthalmic Emulsion), one of Defendant’s eye care products.
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`17.
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`Several of Defendant’s text messages include a hyperlink that redirects to
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`https://www.restasis.com/getting-started, which further advertises Defendant’s RESTASIS eye
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`care product.
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`18.
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`The 72428 short code is a dedicated, vanity short code, registered to “Restasis
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`Alerts” since March 2, 2017.3
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`3
`See https://usshortcodedirectory.com/search/?shortcode-number=72428 (last visited Dec.
`29, 2020).
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 5 of 12 PageID #:5
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`19.
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`“A short code is a number with fewer digits than a phone number to which a text
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`message can be sent. The five-or six-digit numbers are often promoted in traditional and digital
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`advertising. Companies use these codes to bring customers into the branded experience through
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`voting, surveys, sweepstakes, coupon offers, information updates, loyalty programs and alerts.”4
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`20.
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`“A dedicated short code is an SMS short code that is used and paid for exclusively
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`by one brand. A dedicated short code is different from a shared short code, because a shared short
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`code is used and paid for by multiple brands.”5
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`21.
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`“A vanity short code, is a 5-6 digit phone number that is specifically selected by a
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`brand, rather than selected at random by the Common Short Code Administration (CSCA).”6
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`22.
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`Plaintiff did not give Defendant prior express consent to send text messages to his
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`cellular telephone number.
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`23.
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`Plaintiff did not give Defendant prior express written consent to send text messages
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`to his cellular telephone number.
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`24.
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`Upon information and good faith belief, and in light of the nature and character of
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`the text messages at issue—standardized, impersonal, and consistent in structure and format—the
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`advertisement and marketing text messages at issue were sent by Defendant using an automatic
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`telephone dialing system.
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`25.
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`The text messages at issue were sent for non-emergency purposes.
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`https://usshortcodes.com/faqs (last visited Dec. 29, 2020).
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`https://usshortcodedirectory.com/faq/what-is-a-dedicated-short-code/ (last visited Dec. 29,
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`https://usshortcodedirectory.com/faq/what-is-a-vanity-short-code/ (last visited Dec. 29,
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`5
`2020).
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`2020).
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 6 of 12 PageID #:6
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`26.
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`Upon information and good faith belief, the text messages at issue were sent
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`voluntarily.
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`27.
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`The purpose of the text messages at issue was to advertise and to market
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`Defendant’s business and products.
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`28.
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`Plaintiff did not give Defendant prior express invitation or permission to send
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`advertisement or marketing text messages to his cellular telephone number.
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`29.
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`Plaintiff suffered actual harm as a result of the text messages at issue in that he
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`suffered an invasion of privacy, an intrusion into his life, and a private nuisance.
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`30.
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`Upon information and good faith belief, Defendant sends advertising or marketing
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`text messages, absent prior express consent or prior express written consent, to telephone numbers
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`on the DNC Registry.
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`31.
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`Upon information and good faith belief, Defendant knew, or should have known,
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`that Plaintiff registered his cellular telephone number with the DNC Registry.
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`Class Action Allegations
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`32.
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`Plaintiff brings this action under Federal Rule of Civil Procedure 23, and as a
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`representative of the following class:
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`All persons throughout the United States (1) to whom AbbVie Inc. delivered, or
`caused to be delivered, more than one text message within a 12-month period,
`promoting AbbVie Inc.’s goods or services, (2) where the person’s residential or
`cellular telephone number had been registered with the National Do Not Call
`Registry for at least thirty days before AbbVie Inc. delivered, or caused to be
`delivered, at least two of the text messages within the 12-month period, (3) from
`four years prior to the filing of this complaint through the date of class certification.
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`33.
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`Excluded from the class is Defendant, its officers and directors, members of their
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`immediate families and their legal representatives, heirs, successors, or assigns, any entity in which
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 7 of 12 PageID #:7
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`Defendant has or had a controlling interest, and any member of the class(es) certified in Weisbein
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`v. Allergan, Inc., No. 8:20-cv-00801-FMO-ADS (C.D. Cal.).
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`34.
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`Upon information and belief, the members of the class are so numerous that joinder
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`of all of them is impracticable.
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`35.
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`The exact number of class members is unknown to Plaintiff at this time and can
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`only be determined through appropriate discovery.
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`36.
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`37.
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`The class is ascertainable because it is defined by reference to objective criteria.
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`In addition, the members of the proposed class are identifiable in that, upon
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`information and belief, their telephone numbers, names, and addresses can be identified in business
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`records maintained by Defendant and by third parties, including class members.
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`38.
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`39.
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`Plaintiff’s claims are typical of the claims of the members of the class.
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`To be sure, as it did for all members of the class, Defendant delivered solicitation
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`text messages to Plaintiff’s telephone number more than thirty days after Plaintiff registered his
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`telephone number with the DNC Registry.
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`40.
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`Plaintiff’s claims, and the claims of the members of the class, originate from the
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`same conduct, practice, and procedure on the part of Defendant.
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`41.
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`Plaintiff’s claims are based on the same theories as are the claims of the members
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`of the class.
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`42.
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`43.
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`44.
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`Plaintiff suffered the same injuries as the members of the class.
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`Plaintiff will fairly and adequately protect the interests of the members of the class.
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`Plaintiff’s interests in this matter are not directly or irrevocably antagonistic to the
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`interests of the members of the class.
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`45.
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`Plaintiff will vigorously pursue the claims of the members of the class.
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 8 of 12 PageID #:8
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`Plaintiff has retained counsel experienced and competent in class action litigation.
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`Plaintiff’s counsel will assert, protect, and otherwise represent the members of the
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`46.
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`47.
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`class.
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`48.
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`The questions of law and fact common to the members of the class predominate
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`over questions that may affect individual members of the class.
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`49.
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`Among the issues of law and fact common to the class:
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`a. Defendant’s conduct, pattern, and practice as it pertains to delivering
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`advertisement and telemarketing text messages;
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`b. Defendant’s practice of delivering text messages, for solicitation purposes, to
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`telephone numbers already registered on the DNC Registry for more than thirty
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`days;
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`c. Defendant’s violations of the TCPA; and
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`d. the availability of statutory penalties.
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`50.
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`A class action is superior to all other available methods for the fair and efficient
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`adjudication of this matter.
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`51.
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`If brought and prosecuted individually, the claims of the members of the class
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`would require proof of the same material and substantive facts.
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`52.
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`The pursuit of separate actions by individual members of the class would, as a
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`practical matter, be dispositive of the interests of other members of the class, and could
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`substantially impair or impede their ability to protect their interests.
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`53.
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`The pursuit of separate actions by individual members of the class could create a
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`risk of inconsistent or varying adjudications, which might establish incompatible standards of
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`conduct for Defendant.
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 9 of 12 PageID #:9
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`54.
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`These varying adjudications and incompatible standards of conduct, in connection
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`with presentation of the same essential facts, proof, and legal theories, could also create and allow
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`the existence of inconsistent and incompatible rights within the class.
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`55.
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`The damages suffered by the individual members of the class may be relatively
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`small, thus, the expense and burden to litigate each of their claims individually make it difficult
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`for the members of the class to redress the wrongs done to them.
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`56.
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`The pursuit of Plaintiff’s claims, and the claims of the members of the class, in one
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`forum will achieve efficiency and promote judicial economy.
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`57.
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`There will be no extraordinary difficulty in the management of this action as a class
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`action.
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`58.
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`Defendant acted or refused to act on grounds generally applicable to the members
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`of the class, making final declaratory or injunctive relief appropriate.
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`Count I: Violations of 47 U.S.C. § 227(c)(5)
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`59.
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`Plaintiff repeats and re-alleges each and every factual allegation contained in
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`paragraphs 1 through 58.
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`60.
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`A text message is a “call” as defined by the TCPA. See, e.g., Duran v. La Boom
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`Disco, Inc., 955 F.3d 279, 280 n.4 (2d Cir. 2020) (“It is undisputed that ‘[a] text message to a
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`cellular telephone . . . qualifies as a ‘call’ within the compass of [the TCPA].’”) (internal citation
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`omitted); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).
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`61.
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`The TCPA’s implementing regulation, 47 C.F.R. pt. 64.1200(c), provides that “[n]o
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`person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber
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`who has registered his or her telephone number on the national do-not-call registry of persons who
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`do not wish to receive telephone solicitations that is maintained by the federal government.”
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 10 of 12 PageID #:10
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`62.
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`Part 64.1200(e) provides that parts 64.1200(c) and (d) “are applicable to any person
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`or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”
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`63.
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`Any “person who has received more than one telephone call within any 12-month
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`period by or on behalf of the same entity in violation of the regulations prescribed under this
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`subsection may” may bring a private action based on a violation of those regulations, which were
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`promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone
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`solicitations to which they object. 47 U.S.C. § 227(c).
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`64.
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`Defendant violated 47 C.F.R. pt. 64.1200(c) by initiating, or causing to be initiated,
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`telephone solicitations to telephone subscribers such as Plaintiff and the class members who
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`registered their respective cellular or residential telephone numbers with the DNC Registry, which
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`is a listing, maintained by the federal government, of persons who do not wish to receive telephone
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`solicitations.
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`65.
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`Defendant violated 47 U.S.C. § 227(c)(5) because it delivered, or caused to be
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`delivered, to Plaintiff and members of the class, more than one solicitation call or text message in
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`a 12-month period in violation of 47 C.F.R. pt. 64.1200.
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`66.
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`As a result of Defendant’s violations of 47 U.S.C. § 227(c)(5) and 47 C.F.R. pt.
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`64.1200, Plaintiff, and the members of the class, are entitled to damages in an amount to be proven
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`at trial.
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`Prayer for Relief
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`WHEREFORE, Plaintiff respectfully prays for relief and judgment as follows:
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`A. Determining that this action is a proper class action, designating Plaintiff as class
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`representative under Rule 23 of the Federal Rules of Civil Procedure, and designating
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`Plaintiff’s counsel as class counsel;
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 11 of 12 PageID #:11
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`B. Adjudging and declaring that Defendant violated 47 U.S.C. § 227(c)(5);
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`C. Enjoining Defendant from continuing its violative behavior, including continuing to
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`deliver solicitation text messages to telephone numbers registered with the DNC
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`Registry for at least thirty days;
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`D. Awarding Plaintiff and the members of the class damages under 47 U.S.C. §
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`227(c)(5)(B);
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`E. Awarding Plaintiff and the members of the class treble damages under 47 U.S.C. §
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`227(c)(5)(C);
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`F. Awarding Plaintiff and the class reasonable attorneys’ fees, costs, and expenses under
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`Rule 23 of the Federal Rules of Civil Procedure;
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`G. Awarding Plaintiff and members of the class any pre-judgment and post-judgment
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`interest as may be allowed under the law; and
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`H. Awarding such other and further relief as the Court may deem just and proper.
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`TRIAL BY JURY
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`Plaintiff is entitled to and hereby demands a trial by jury.
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`Dated: January 5, 2021
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`Respectfully submitted,
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`/s/ Aaron D. Radbil
`Aaron D. Radbil
`Greenwald Davidson Radbil PLLC
`401 Congress Avenue, Suite 1540
`Austin, TX 78701
`Tel: (512) 322-3912
`aradbil@gdrlawfirm.com
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`Jesse S. Johnson*
`Greenwald Davidson Radbil PLLC
`7601 N. Federal Highway, Suite A-230
`Boca Raton, FL 33487
`Tel: (561) 826-5477
`jjohnson@gdrlawfirm.com
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`Case: 1:21-cv-00069 Document #: 1 Filed: 01/05/21 Page 12 of 12 PageID #:12
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`Counsel for Plaintiff and the proposed class
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`*to seek admission pro hac vice
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