`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`
`
`DAN L. BOGER, on behalf of himself and
`others similarly situated,
`
`
`Plaintiff,
`
`
`v.
`
`
`
`
`
`
`
`
`Case No.
`
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`__
`
`CITRIX SYSTEMS, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`CLASS ACTION COMPLAINT
`
`Preliminary Statement
`
`1.
`
`Plaintiff, Dan L. Boger (“Mr. Boger”) (“Plaintiff”) brings this action to enforce
`
`the consumer-privacy provisions of the Telephone Consumer Protection Act (“TCPA”), 47
`
`U.S.C. § 227, a federal statute enacted in 1991 in response to widespread public outrage about
`
`the proliferation of intrusive, nuisance telemarketing practices. See Mims v. Arrow Fin. Servs.,
`
`LLC, 132 S. Ct. 740, 745 (2012).
`
`2.
`
`In violation of the TCPA, Citrix Systems, Inc. (“Citrix”) (“Defendant”) initiated
`
`automated telemarketing calls to Mr. Boger and other putative class members without their prior
`
`express written consent.
`
`3.
`
`Also in violation of the TCPA, Citrix failed to maintain adequate procedures to
`
`maintain an internal Citrix do not call list.
`
`4.
`
`Because telemarketing campaigns generally place calls to hundreds of thousands
`
`or even millions of potential customers en masse, the Plaintiff brings this action on behalf of
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 2 of 12
`
`proposed nationwide classes of other persons who received illegal telemarketing calls from or on
`
`behalf of the Defendant.
`
`5.
`
`A class action is the best means of obtaining redress for the Defendant’s wide
`
`scale illegal telemarketing and is consistent both with the private right of action afforded by the
`
`TCPA and the fairness and efficiency goals of Rule 23 of the Federal Rules of Civil Procedure.
`
`Parties
`
`6.
`
`7.
`
`Plaintiff Dan Boger is a resident of the state of Maryland and this District.
`
`Defendant Citrix Systems, Inc. is a corporation organized in Delaware with its
`
`principal place of business in Florida, and conducts business in this District, including through
`
`the making of telemarketing calls, as it did with the Plaintiff.
`
`Jurisdiction & Venue
`
`8.
`
`The Court has federal question subject matter jurisdiction over these TCPA
`
`claims. Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012).
`
`9.
`
`Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of
`
`the events or omissions giving rise to the claim occurred in this District as the telemarketing calls
`
`that gave rise to the Plaintiff’s claims occurred here.
`
`The Telephone Consumer Protection Act
`
`10.
`
`In 1991, Congress enacted the TCPA to regulate the explosive growth of the
`
`telemarketing industry. In so doing, Congress recognized that “[u]nrestricted telemarketing …
`
`can be an intrusive invasion of privacy [.]” Telephone Consumer Protection Act of 1991, Pub. L.
`
`No. 102-243, § 2(5) (1991) (codified at 47 U.S.C. § 227).
`
`
`
`
`
`
`
`2
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 3 of 12
`
`The TCPA Prohibits Automated Telemarketing Calls
`
`11.
`
`The TCPA makes it unlawful “to make any call (other than a call made for
`
`emergency purposes or made with the prior express consent of the called party) using an
`
`automatic telephone dialing system or an artificial or prerecorded voice … to any telephone
`
`number assigned to a … cellular telephone service.” See 47 U.S.C. § 227(b)(1)(A)(iii). The
`
`TCPA provides a private cause of action to persons who receive calls in violation of 47 U.S.C. §
`
`227(b)(1)(A). See 47 U.S.C. § 227(b)(3).
`
`12. According to findings by the Federal Communication Commission (“FCC”), the
`
`agency Congress vested with authority to issue regulations implementing the TCPA, such calls
`
`are prohibited because, as Congress found, automated or prerecorded telephone calls are a
`
`greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly
`
`and inconvenient.
`
`13.
`
`The FCC also recognized that “wireless customers are charged for incoming calls
`
`whether they pay in advance or after the minutes are used.” In re Rules and Regulations
`
`Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order,
`
`18 F.C.C. Rcd. 14014, 14115 ¶ 165 (2003).
`
`14.
`
`In 2013, the FCC required prior express written consent for all autodialed or
`
`prerecorded telemarketing calls (“robocalls”) to wireless numbers and residential lines.
`
`Specifically, it ordered that:
`
`[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
`
`
`
`3
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 4 of 12
`
`be obtained “without requiring, directly or indirectly, that the
`agreement be executed as a condition of purchasing any good or
`service.[]
`
`In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
`
`27 F.C.C. Rcd. 1830, 1844 (2012) (footnotes omitted).
`
`The TCPA’s Internal Do Not Call List Requirements
`
`15.
`
`The TCPA implementing regulations prohibit any company from initiating any
`
`telemarketing call unless the company has implemented internal procedures for maintaining a list
`
`of persons who request not to be called by the entity. 47 C.F.R. 64.1200(d). Such internal
`
`procedures must meet certain minimum requirements to allow the entity to initiate telemarketing
`
`calls. 47 C.F.R. 64.1200(d)(1)-(6).
`
`16.
`
`This includes the requirements that:
`
`
`
`“Persons or entities making calls for telemarketing purposes must have a written
`
`policy, available upon demand, for maintaining a do-not-call list” (47 C.F.R.
`
`64.1200(d)(1));
`
`
`
`
`
`“Personnel engaged in any aspect of telemarketing must be informed and trained
`
`in the existence and use of the do-not-call list” (47 C.F.R. 64.1200(d)(2));
`
`Persons or entities making telemarketing calls must honor do-not-call requests
`
`within a reasonable time, not to exceed thirty days, from the date such request is
`
`made (47 C.F.R. 64.1200(d)(3));
`
`
`
`“A person or entity making calls for telemarketing purposes must maintain a
`
`record of a consumer’s request not to receive further telemarketing calls. A do-
`
`not-call request must be honored for 5 years from the time the request is made.”
`
`(47 C.F.R. 64.1200(d)(6)).
`
`
`
`4
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 5 of 12
`
`17.
`
`Pursuant to 47 C.F.R. 64.1200(e), the rules set forth above in 47 C.F.R.
`
`64.1200(d) are “applicable to any person or entity making telephone solicitations or
`
`telemarketing calls to wireless telephone numbers….”
`
`Factual Allegations
`
`18.
`
`19.
`
`Citrix sells software and related products and services for workplace productivity.
`
`To generate business through sales, Citrix relies on telemarketing.
`
`20. One of the telemarketing strategies used by Citrix involves the use of an
`
`automatic telephone dialing system (“ATDS”) to solicit customers through the use of a
`
`predictive dialer.
`
`21. Citrix engages in use of this equipment because it allows for thousands of
`
`automated calls to be placed at one time, but its telemarketing representatives, who are paid by
`
`the hour, only talk to individuals who pick up the telephone.
`
`22.
`
`Through this method, Citrix shifts the burden of wasted time to the consumers it
`
`calls with unsolicited messages.
`
`Calls to Mr. Boger
`
`23. Mr. Boger is, and at all times mentioned herein was, a “person” as defined by
`
`47 U.S.C. § 153(39).
`
`24. Mr. Boger’s telephone number, (703) 328-XXXX, is assigned to a cellular
`
`telephone service.
`
`25. Mr. Boger received five automated calls from Citrix to that number.
`
`26.
`
`On September 4 and 10, 2015, Citrix placed automated calls to Mr. Boger’s
`
`cellular telephone number, (703) 328-XXXX. The caller each time was “Dillon” at “Citrix” and
`
`on each call he proceeded to promote Citrix products and services.
`
`
`
`5
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 6 of 12
`
`27.
`
`On December 14, 2015, Citrix placed another automated call to Mr. Boger’s
`
`cellular telephone number, (703) 328-XXXX. The caller was “Adam” at “Citrix” and he
`
`proceeded to promote Citrix products and services.
`
`28.
`
`On May 3, 2016, Citrix placed another automated call to Mr. Boger’s cellular
`
`telephone number, (703) 328-XXXX. The caller was “Jason” at “Citrix,” calling from the caller
`
`ID (919) 948-1567. Mr. Boger explicitly told the caller to add him to their Do Not Call list and
`
`asked for a manager. He spoke with Trevor Jones, Vertical Manager, and asked why he was still
`
`receiving calls from Citrix even though he had previously told it to stop calling him. Mr. Jones’
`
`response was that maybe Mr. Boger spoke with someone on a different team.
`
`29.
`
`Even after speaking with a manager on the May 3, 2016 call, Citrix continued to
`
`make automated calls to Mr. Boger’s cellular telephone number, (703) 328-XXX. Mr. Boger
`
`received such a call from an unidentified female representative of “Citrix” on May 25, 2016 from
`
`the caller ID 919-948-1773.
`
`30.
`
`On the May 25, 2016 call, Mr. Boger told the caller that he had previously and
`
`repeatedly requested to be placed on Citrix’s Do Not Call list and, again, asked for a manager.
`
`31. Mr. Boger spoke with Sam Schlunz, manager of the Sales Team. Mr. Schlunz
`
`told Mr. Boger that Citrix has multiple Do Not Call lists and that he would place him on their Do
`
`Not Call list.
`
`32.
`
`Plaintiff then sent correspondence to Citrix on June 16, 2016 asking it for any
`
`evidence it may have of his consent to call him, which he asserted did not exist.
`
`33.
`
`Brian Benfer, Senior Manager at Citrix, responded via email. He confirmed that
`
`all of the call dates Plaintiff referenced were accurate, but provided no evidence of Plaintiff’s
`
`consent to the calls. He further confirmed that while Citrix’s notes in its database stated that
`
`
`
`6
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 7 of 12
`
`Plaintiff had requested twice to be added to Citrix’s Do Not Call list prior to his request on May
`
`25, 2016, his number had not been added to Citrix’s Do Not Call list.
`
`34.
`
`Plaintiff alleged in his correspondence to Citrix that an ATDS was used to place
`
`the calls to him. He had noticed that there was a distinctive pause before sales representatives
`
`came onto the line that was indicative of use of a predictive dialer. Rather than make any
`
`attempt to refute Plaintiff’s allegation that an ATDS was used, Citrix informed him that it did not
`
`intend to call cellular phones, as using an ATDS to call cellular phones is prohibited by the
`
`TCPA. Citrix told him “its not clear right now how a cell phone got through.”
`
`35.
`
`Plaintiff and the other call recipients were harmed by these calls. They were
`
`temporarily deprived of legitimate use of their phones because the phone line was tied up, they
`
`were charged for the calls, and their privacy was improperly invaded.
`
`36. Moreover, these calls injured Plaintiff because they were frustrating, obnoxious,
`
`annoying, were a nuisance, and disturbed the solitude of Plaintiff and the class members.
`
`Class Action Allegations
`
`As authorized by Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings
`
`37.
`
`this action on behalf of classes of all other persons or entities similarly situated throughout the
`
`United States.
`
`38.
`
`The classes of persons Plaintiff proposes to represent is tentatively defined as:
`
`Class 1
`
`All persons within the United States to whom: (a) Defendant and/or a third party
`acting on its behalf, made one or more non-emergency telephone calls; (b)
`promoting Defendant’s products or services; (c) to their cellular telephone
`number; (d) using an automatic telephone dialing system or an artificial or
`prerecorded voice; and (e) at any time in the period that begins four years before
`the date of the filing of this Complaint to trial.
`
`Class 2
`
`
`
`7
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 8 of 12
`
`All natural persons within the United States to whom: (a) Defendant and/or a third
`party acting on their behalf, made two or more calls in a twelve-month period; (b)
`which constitute telemarketing; (c) at any time in the period that begins four years
`before the date of the filing of this Complaint to trial.
`
`39.
`
`Excluded from the classes are counsel, the Defendant, and any entities in which
`
`
`
`the Defendant has a controlling interest, the Defendant’s agents and employees, any judge to
`
`whom this action is assigned, and any member of such judge’s staff and immediate family.
`
`40.
`
`The classes as defined above are identifiable through phone records and phone
`
`number databases.
`
`41.
`
`The potential class members number at least in the thousands. Individual joinder
`
`of these persons is impracticable.
`
`42.
`
`43.
`
`Plaintiff is a member of the classes.
`
`There are questions of law and fact common to Plaintiff and to the proposed
`
`classes, including but not limited to the following;
`
`a. Whether Defendant used an ATDS to send telemarketing calls;
`
`b. Whether Defendant violated the TCPA by failing to implement adequate
`
`procedures to maintain an internal do-not-call list;
`
`c. Whether Defendant placed calls without obtaining the recipients’ prior
`
`express invitation or permission for the call;
`
`d. Whether Defendant’s TCPA violations were negligent, willful, or knowing
`
`e. Whether the Plaintiff and the class members are entitled to statutory damages
`
`as a result of Defendant’s actions.
`
`44.
`
`Plaintiff’s claims are based on the same facts and legal theories as class members,
`
`and therefore are typical of the claims of class members.
`
`
`
`8
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 9 of 12
`
`45.
`
`Plaintiff is an adequate representative of the classes because his interests do not
`
`conflict with the interests of the classes, he will fairly and adequately protect the interests of the
`
`classes, and he is represented by counsel skilled and experienced in class actions, including
`
`TCPA class actions.
`
`46.
`
`The actions of the Defendant are generally applicable to the classes as a whole
`
`and to Plaintiff.
`
`47.
`
`Common questions of law and fact predominate over questions affecting only
`
`individual class members, and a class action is the superior method for fair and efficient
`
`adjudication of the controversy. The only individual question concerns identification of class
`
`members, which will be ascertainable from records maintained by Defendant and/or its agents.
`
`48.
`
`The likelihood that individual members of the classes will prosecute separate
`
`actions is remote due to the time and expense necessary to prosecute an individual case.
`
`49.
`
`Plaintiff is not aware of any litigation concerning this controversy already
`
`commenced by others who meet the criteria for class membership described above.
`
`
`
`50.
`
`forth herein.
`
`Legal Claims
`
`Count One:
`Violation of the TCPA’s provisions
`prohibiting autodialer calls to cell phones
`
`Plaintiff incorporates the allegations from all previous paragraphs as if fully set
`
`51.
`
`The Defendant violated the TCPA by (a) initiating a telephone call using an
`
`automated dialing system or prerecorded voice to telephone numbers assigned to a cellular
`
`telephone service, or (b) by the fact that others caused the initiation of those calls on its behalf.
`
`See 47 C.F.R. 64.1200(a)(1)(iii); 47 U.S.C. § 227(b)(1).
`
`
`
`9
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 10 of 12
`
`52.
`
`The Defendant’s violations were negligent and/or knowing.
`
`
`
`Count Two:
`Violation of the TCPA’s Do Not Call provisions
`
`Plaintiff incorporates the allegations from all previous paragraphs as if fully set
`
`53.
`
`forth herein.
`
`54.
`
`The foregoing acts and omissions of the Defendant constitute violations of the
`
`FCC’s regulations implementing subsection 227(c) of the TCPA which prohibit anyone from
`
`making any call for telemarketing purposes to any residential or wireless telephone subscriber
`
`unless the caller has implemented the required minimum procedures for maintaining a list of
`
`persons who do not want to receive calls made by or on behalf of such person or entity. 47
`
`C.F.R. 64.1200(d).
`
`55.
`
`56.
`
`The Defendant failed to maintain an internal do-not-call list;
`
`The Defendant failed to train its personnel as to the existence of and/or use of a
`
`do-not-call list;
`
`57.
`
` The Defendant did not honor do-not-call requests, much less for five years as
`
`required.
`
`58.
`
`The Defendant’s violations were willful and/or knowing.
`
`Count Three:
`Violation of the Maryland Telephone Consumer Protection Act
`
`Plaintiff incorporates the allegations from all previous paragraphs as if fully set
`
`59.
`
`forth herein.
`
`
`
`10
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 11 of 12
`
`60.
`
`The foregoing acts and omissions of the Defendants constitute violations of the
`
`Maryland Telephone Consumer Protection Act, Md. Code Ann. Com. Law §§ 14-3201, et seq.,
`
`(“Maryland TCPA”) which prohibits a person from violating the TCPA.
`
`61. As a result of the Defendant’s violations of the Maryland TCPA, Plaintiff and
`
`members of the classes presumptively are entitled to an award of $500 in damages for each and
`
`every call that violates the statute as well as their attorney fees pursuant to Md. Code Ann. Com.
`
`Law § 14-3202(b)(1).
`
`Relief Sought
`
`WHEREFORE, for himself and all class members, Plaintiff requests the following relief:
`
`A.
`
`B.
`
`C.
`
`D.
`
`That the Court certify the proposed classes;
`
`That the Court appoint Plaintiff as class representative;
`
`That the Court appoint the undersigned counsel as counsel for the classes;
`
`That the Court enter a judgment permanently enjoining the Defendant from
`
`engaging in or relying upon telemarketing, or, alternatively, from engaging in or relying
`
`upon telemarketing that violates the TCPA;
`
`E.
`
`That the Court enter a judgment enjoining Defendant from making telemarketing
`
`calls until it establishes adequate procedures for maintenance of an internal do-not-call
`
`list are in place;
`
`F.
`
`That the Court enter a judgment awarding any other injunctive relief necessary to
`
`ensure the Defendant’s compliance with the TCPA;
`
`G.
`
`That the Court enter a judgment awarding Plaintiffs and all class members
`
`statutory damages of $500 for each violation of the TCPA and $1,500 for each knowing
`
`or willful violation;
`
`
`
`11
`
`
`
`Case 8:19-cv-01234-LKG Document 1 Filed 04/26/19 Page 12 of 12
`
`H.
`
`An award of attorneys’ fees and costs to counsel for Plaintiff and the classes, as
`
`permitted by law;
`
`I.
`
`Such other relief as the Court deems just and proper.
`
`JURY DEMAND
`
`Plaintiff requests a jury trial as to all claims of the complaint so triable.
`
`
`
`
`
`
`
`PLAINTIFF, Dan Boger,
`By his attorneys
`
`
`
`
`____________/s/______________________
`Stephen H. Ring
`STEPHEN H. RING, PC
`9901 Belward Campus Drive, Suite 175
`Rockville, Maryland 20850
`(301) 563-9249
`USDC-MD Attorney No. 00405
`shr@ringlaw.us
`
`Joseph F. Murray
`Jonathan Misny
`MURRAY MURPHY MOUL + BASIL LLP
`1114 Dublin Road
`Columbus, OH 43215
`Telephone: 614.488.0400
`Facsimile: 614.488.0401
`E-mail: tiffany@mmmb.com
`Subject to pro hac vice admission
`
`Anthony Paronich
`PARONICH LAW, P.C.
`350 Lincoln Street, Suite 2400
`Hingham, MA 02043
`Telephone (617) 485-0018
`Facsimile (508) 318-8100
`https://www.paronichlaw.com
`Subject to pro hac vice admission
`
`Attorneys for Plaintiff
`
`
`
`12
`
`