Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 1 of 9 PageID #:1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`individually, and on
`LISA PINEDA,
`behalf of all others similarly situated,
`
`Plaintiff,
`
`v.
`
`AETNA BETTER HEALTH OF ILLINOIS
`INC.,
`
`Defendant.
`
`Case No. 1:21-cv-00462
`
`CLASS ACTION COMPLAINT
`
`NOW COMES LISA PINEDA, individually, and on behalf of all others similarly situated,
`
`through her undersigned counsel, complaining of Defendant, AETNA BETTER HEALTH OF
`
`ILLINOIS INC., as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action seeking redress for violations of the Telephone Consumer
`
`Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
`
`2.
`
`“The primary purpose of the TCPA was to protect individuals from the harassment,
`
`invasion of privacy, inconvenience, nuisance, and other harms associated with unsolicited,
`
`automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th Cir. 2018) citing Telephone
`
`Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991).
`
`3.
`
`As the Supreme Court recently observed, “Americans passionately disagree about
`
`many things. But they are largely united in their disdain for robocalls.” Barr v. Am. Ass’n of
`
`Political Consultants, 140 S. Ct. 2335, 2343 (2020).
`
`1
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`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`individually, and on
`LISA PINEDA,
`behalf of all others similarly situated,
`
`Plaintiff,
`
`v.
`
`AETNA BETTER HEALTH OF ILLINOIS
`INC.,
`
`Defendant.
`
`Case No. 1:21-cv-00462
`
`CLASS ACTION COMPLAINT
`
`NOW COMES LISA PINEDA, individually, and on behalf of all others similarly situated,
`
`through her undersigned counsel, complaining of Defendant, AETNA BETTER HEALTH OF
`
`ILLINOIS INC., as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action seeking redress for violations of the Telephone Consumer
`
`Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
`
`2.
`
`“The primary purpose of the TCPA was to protect individuals from the harassment,
`
`invasion of privacy, inconvenience, nuisance, and other harms associated with unsolicited,
`
`automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th Cir. 2018) citing Telephone
`
`Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991).
`
`3.
`
`As the Supreme Court recently observed, “Americans passionately disagree about
`
`many things. But they are largely united in their disdain for robocalls.” Barr v. Am. Ass’n of
`
`Political Consultants, 140 S. Ct. 2335, 2343 (2020).
`
`1
`
`
`
`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 2 of 9 PageID #:2
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`JURISDICTION AND VENUE
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
`
`Venue in this district is proper under 28 U.S.C. § 1391(b)(2).
`
`PARTIES
`
`LISA PINEDA (“Plaintiff”) is a natural person, over 18-years-of-age, who at all
`
`3.
`
`4.
`
`6.
`
`times relevant resided in Illinois.
`
`7.
`
`8.
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`Plaintiff is a “person” as defined by 47 U.S.C. § 153(39).
`
`AETNA BETTER HEALTH OF ILLINOIS INC. (“Defendant”) is a corporation
`
`organized and existing under the laws of Illinois.
`
`9.
`
`Defendant maintains its headquarters and principal place of business in Chicago,
`
`Illinois.
`
`10.
`
`Defendant is a prominent health insurance provider that provides health insurance
`
`to consumers in Illinois.
`
`11.
`
`Defendant is a “person” as defined by 47 U.S.C. § 153(39).
`
`FACTUAL ALLEGATIONS
`
`12.
`
`At all times relevant, Plaintiff was the sole operator, possessor, and subscriber of
`
`the cellular telephone number ending in 6379.
`
`13.
`
`At all times relevant, Plaintiff’s number ending in 6379 was assigned to a cellular
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`telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii).
`
`14.
`
`At all times relevant, Plaintiff was financially responsible for her cellular telephone
`
`equipment and services.
`
`15.
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`At no point in time did Plaintiff have an account or any other form of business
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`relationship with Defendant.
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`2
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 3 of 9 PageID #:3
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`16.
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`On December 21, 2020, Plaintiff received a text message from Defendant. The text
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`message depicted as follows:
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`17.
`
`Plaintiff was perplexed by the text message as Defendant was not Plaintiff’s health
`
`insurance provider.
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`18.
`
`On December 23, 2020 and December 28, 2020, Defendant sent Plaintiff additional
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`text messages, including a text message that stated: “Did you know you can still get free rides to
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`and from doctor visits with Aetna Better Health of Illinois?”
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`19.
`
`On December 28, 2020, frustrated with Defendant’s text messages, Plaintiff
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`responded “Stop.”
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`20.
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`Defendant replied with the following text message: “Messages about Branding
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`have been stopped. Other important health and benefit messages still may be sent.”
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`21.
`
`Despite Plaintiff’s unambiguous request that Defendant cease its text messages,
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`Defendant continued sending unwanted text messages to Plaintiff.
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`22.
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`Specifically, on January 14, 2021, Plaintiff received another generic text message
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`from Defendant.
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`23.
`
`Plaintiff has never provided her phone number to Defendant or otherwise consented
`
`to receiving text messages form Defendant.
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`3
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 4 of 9 PageID #:4
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`DAMAGES
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`Plaintiff significantly values her privacy and solitude.
`
`In light of the fact that Plaintiff has no business relationship with Defendant,
`
`24.
`
`25.
`
`Defendant’s text messages were highly intrusive and were a nuisance.
`
`26. Moreover, Defendant’s text messages were especially troubling considering they
`
`continued after Plaintiff requested that the text messages cease.
`
`27.
`
`Defendant’s text messages invaded Plaintiff’s privacy and have caused Plaintiff
`
`actual harm, including but not limited to, aggravation that accompanies unsolicited phone calls/text
`
`messages, increased risk of personal injury resulting from the distraction caused by the text
`
`messages, wear and tear to Plaintiff’s cellular phone, loss of battery charge, loss of concentration,
`
`nuisance, the per-kilowatt electricity costs required to recharge Plaintiff’s cellular telephone as a
`
`result of increased usage of Plaintiff’s telephone services, and wasting Plaintiff’s time.
`
`28.
`
`Concerned with Defendant’s invasive practices, Defendant retained counsel to
`
`compel Defendant to cease its unlawful conduct.
`
`CLASS ALLEGATIONS
`
`29.
`
`All paragraphs of this Complaint are expressly adopted and incorporated herein as
`
`though fully set forth herein.
`
`30.
`
`Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3)
`
`individually, and on behalf of all others similarly situated (“Putative Class”) defined as follows:
`
`TCPA Class
`
`All persons residing in the State of Illinois: (a) whom do not have an existing health
`insurance account with Defendant; (b) to whom Defendant or a third party acting
`on Defendant’s behalf, placed a text message to his/her cellular phone number; (c)
`using an automatic telephone dialing system; (d) without his/her consent; (e) at any
`
`4
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 5 of 9 PageID #:5
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`time in the period that begins four years before the date of the filing of the original
`complaint through the date of class certification.
`
`31.
`
`The following individuals are excluded from the Putative Class: (1) any Judge or
`
`Magistrate Judge presiding over this action and members of their families; (2) Defendant,
`
`Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which Defendant or
`
`their parents have a controlling interest and their current or former employees, officers and
`
`directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for
`
`exclusion from the Putative Class; (5) the legal representatives, successors or assigns of any such
`
`excluded persons; and (6) persons whose claims against Defendant have been fully and finally
`
`adjudicated and/or released.
`
`A.
`
`Numerosity
`
`32.
`
`Upon information and belief, the members of the Putative Class are so numerous
`
`that joinder of them is impracticable.
`
`33.
`
`The exact number of the members of the Putative Class is unknown to Plaintiff at
`
`this time, and can only be determined through targeted discovery.
`
`34.
`
`The members of the Putative Class are ascertainable because the Class is defined
`
`by reference to objective criteria.
`
`35.
`
`The members of the Putative Class are identifiable in that their names, addresses,
`
`and telephone numbers can be identified in business records maintained by Defendant.
`
`B.
`
`Commonality and Predominance
`
`36.
`
`There are many questions of law and fact common to the claims of Plaintiff and the
`
`Putative Class.
`
`5
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 6 of 9 PageID #:6
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`37.
`
`Those questions predominate over any questions that may affect individual
`
`members of the Putative Class.
`
`C.
`
`Typicality
`
`38.
`
`Plaintiff’s claims are typical of members of the Putative Class because Plaintiff and
`
`members of the Putative Class are entitled to damages as a result of Defendant’s conduct.
`
`D.
`
`Superiority and Manageability
`
`39.
`
`This case is also appropriate for class certification as class proceedings are superior
`
`to all other available methods for the efficient and fair adjudication of this controversy.
`
`40.
`
`The damages suffered by the individual members of the Putative Class will likely
`
`be relatively small, especially given the burden and expense required for individual prosecution.
`
`41.
`
`By contrast, a class action provides the benefits of single adjudication, economies
`
`of scale, and comprehensive supervision by a single court.
`
`42.
`
`Economies of effort, expense, and time will be fostered and uniformity of decisions
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`ensured.
`
`E.
`
`Adequate Representation
`
`43.
`
`Plaintiff will adequately and fairly represent and protect the interests of the Putative
`
`Class.
`
`44.
`
`Plaintiff has retained competent and experienced counsel in consumer class action
`
`litigation.
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`6
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 7 of 9 PageID #:7
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`CLAIMS FOR RELIEF
`
`COUNT I:
`Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.)
`(On behalf of Plaintiff and the Members of the TCPA Class)
`
`45.
`
`All paragraphs of this Complaint are expressly adopted and incorporated herein as
`
`though fully set forth herein.
`
`46.
`
`The TCPA prohibits text messages to a cellular phone using an automatic telephone
`
`system (“ATDS”) without the consent of the recipient. 47 U.S.C. §227(b)(1)(A).
`
`47.
`
`The TCPA defines ATDS as “equipment which has the capacity—(A) to store or
`
`produce telephone numbers to be called, using a random or sequential number generator; and (B)
`
`to dial such numbers.” 47 U.S.C. § 227(a)(1).
`
`48.
`
`Upon information and belief, based on the generic non-personal nature of
`
`Defendant’s text messages, Defendant used an ATDS to place text messages to Plaintiff’s cellular
`
`phone number.
`
`49.
`
`Upon information and belief, based on the fact that Plaintiff has no existing
`
`business relationship with Defendant, Defendant used a random or sequential number generator to
`
`generate Plaintiff’s number and send the promotional text messages referenced above.
`
`50.
`
`In the alternative, the system used by Defendant to send the text messages has the
`
`capacity to randomly or sequentially generate numbers and dial those numbers.
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`51.
`
`Defendant violated the TCPA by placing multiple text messages to Plaintiff’s
`
`cellular telephone, utilizing an ATDS, without Plaintiff’s consent. See 47 U.S.C. § 227
`
`(b)(1)(A)(iii).
`
`52.
`
`As pled above, Plaintiff does not have an existing business relationship with
`
`Defendant, and thus never consented to receive any text messages from Defendant.
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`7
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 8 of 9 PageID #:8
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`53. Moreover, Plaintiff requested that Defendant cease its text messages, therefore
`
`revoking any prior consent that Defendant may have believed it had.
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`54.
`
`As pled above, Plaintiff was harmed by Defendant’s text messages to her cellular
`
`phone.
`
`55.
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`Upon information and belief, Defendant does not have policies and procedures to
`
`ensure compliance with the TCPA.
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`56.
`
`Upon information and belief, Defendant knew its text messages to non-customers
`
`such as Plaintiff were in violation of the TCPA, yet continued to employ them to promote its
`
`services, at the expense of Plaintiff and similarly situated consumers.
`
`WHEREFORE, Plaintiff, on behalf of herself and the members of the Putative Class,
`
`requests the following relief:
`
`A.
`
`an order granting certification of the Putative Class, including the designation of
`
`Plaintiff as the named representative, and the appointment of the undersigned as
`
`Class Counsel;
`
`B.
`
`C.
`
`a judgment finding that Defendant violated 47 U.S.C. § 227 (b)(1)(A)(iii);
`
`an order enjoining Defendant from placing further violating text messages to
`
`Plaintiff and similarly situated consumers;
`
`D.
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`an award of $500.00 in damages to Plaintiff and the members of the Putative Class
`
`for each such violation;
`
`E.
`
`F.
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`an award of treble damages up to $1,500.00 to Plaintiff and the members of the
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`Putative Class for each such violation; and
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`an award of such other relief as this Court deems just and proper.
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`8
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`Case: 1:21-cv-00462 Document #: 1 Filed: 01/27/21 Page 9 of 9 PageID #:9
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`DEMAND FOR JURY TRIAL
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury.
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`Date: January 27, 2021
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`Respectfully submitted,
`
`LISA PINEDA
`
`By: /s/ Mohammed O. Badwan
`
`Mohammed O. Badwan, Esq.
`Victor T. Metroff, Esq.
`Counsel for Plaintiff
`Sulaiman Law Group, Ltd
`2500 S Highland Ave, Suite 200
`Lombard, IL 60148
`Telephone: (630) 575-8180
`mbadwan@sulaimanlaw.com
`vmetroff@sulaimanlaw.com
`
`9
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