Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`DAVID JAMES FISTER, on behalf of
`themselves and others similarly situated,
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`
`Plaintiff,
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`
`v.
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`MASSCHUSETTS INSTITUTE OF
`TECHNOLOGY, a Massachusetts
`corporation, and EMERITUS INSTITUTE
`OF MANAGEMENT PTE. LTD.
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`Defendants.
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`CIVIL ACTION FILE NO.
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`
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`COMPLAINT – CLASS ACTION
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`
`JURY TRIAL DEMANDED
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`
`
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`Plaintiff DAVID JAMES FISTER (hereinafter referred to as “Plaintiff”), individually and
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`
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`on behalf of all others similarly situated, alleges on personal knowledge, investigation of his
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`counsel, and on information and belief, as follows:
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`NATURE OF ACTION
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`1.
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` “If robocalls were a disease, they would be an epidemic.” Rage Against
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`Robocalls, Consumer Reports (July 28, 2015, 6:00 AM), https://www.consumerreports.
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`org/cro/magazine/ 2015/07/rage-against-robocalls/index.htm. “Robocalls” are the #1 consumer
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`complaint in America today.
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`2.
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` Even as far back as 2012, the Pew Research Center reported 69 percent of
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`cellular users who use text messaging receive unwanted text message spam, with 25 percent of
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`them receiving it on a weekly basis. Jan Lauren Boyles and Lee Rainie, Mobile Phone
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`Problems, Pew Research Center (Aug. 2, 2012), http://www.pewinternet.org/2012/08/02/mobile-
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`phone-problems.
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`

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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 2 of 24
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`3.
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`Robocalls, including text messages, have only increased since the 2012 study.
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`“Robocalls and telemarketing calls are currently the number one source of consumer complaints
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`at the FCC.” Tom Wheeler, Cutting off Robocalls (July 22, 2016), https://www.fcc.gov/news-
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`events/blog/2016/07/22/cutting-robocalls (statement of FCC Chairman).
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`4.
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`“The FTC receives more complaints about unwanted calls than all other
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`complaints combined.” Comment of the Staff of the Federal Trade Commission’s Bureau of
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`Consumer Protection, In re Rules and Regulations Implementing the TCPA of 1991, Notice of
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`Proposed Rulemaking, CG Docket No. 02-278, at p. 2; FCC 16-57 (June 6, 2016), available at
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`https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-bureau-
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`consumer-protection-federal-communications-commission-rules-
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`regulations/160616robocallscomment.pdf.
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`5.
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`This case involves a campaign by Defendants MASSACHUSETTS INSTITUTE
`
`OF TECHNOLOGY (“MIT”) and EMERITUS INSTITUTE OF MANAGEMENT PTE, LTD.
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`(“EMERITUS”) to market educational programs through the use of automated text messages in
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`plain violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (hereinafter
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`referred to as the “TCPA”).
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`6.
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`By using an automated telephone dialing system to send thousands of automated
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`telemarketing text messages without first obtaining the prior express written consent of
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`recipients, the defendants violated the TCPA. By further disregarding wireless telephone users’
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`request that Defendants “Stop” such telemarketing text messages, the defendants further violated
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`the TCPA.
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`2
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 3 of 24
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`7.
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`Plaintiff David Fister is, and at all times mentioned herein was, an individual
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`PARTIES
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`citizen of the State of Florida.
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`8.
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`Defendant Massachusetts Institute of Technology (“MIT”) is a corporation
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`organized under the laws of the Commonwealth of Massachusetts with its principal place of
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`business located at 77 Massachusetts Avenue in Cambridge, Massachusetts (02139).
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`9.
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`Defendant Emeritus Institute of Management PTE. LTD. (“EMERITUS”) is a
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`foreign entity with its principal place of business located in Singapore, Singapore and which
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`maintains offices in East Cambridge, Massachusetts.
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`JURISDICTION AND VENUE
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`10.
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`The Court has subject matter jurisdiction pursuant to the Class Action Fairness
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`Act of 2005 (“hereinafter referred to as CAFA”) codified as 28 U.S.C. 1332(d)(2). The matter in
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`controversy exceeds $5,000,000, in the aggregate, exclusive of interest and costs, as each member
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`of the proposed Class of thousands is entitled to up to $1,500.00 in statutory damages for each call
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`that has violated the TCPA. Further, Plaintiff alleges a national class, which will result in at least
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`one Class member from a different state.
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`11.
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`This court has subject matter jurisdiction over Plaintiff’s TCPA claims pursuant
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`to 28 U.S.C. § 1331 because Plaintiff’s TCPA claims arise under the law of the United States,
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`specifically 47 U.S.C. § 227 et seq.
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`12.
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`This Court has personal jurisdiction over MIT because it is located within the
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`Commonwealth of Massachusetts and a substantial part of the wrongful acts alleged in this
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`Complaint were committed in Massachusetts. Similarly, the Court has personal jurisdiction over
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`3
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 4 of 24
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`EMERITUS based upon their office in this District and on their telemarketing conduct designed
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`from this district and made into this district for MIT, their client in this District.
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`13.
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`Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) because Defendant
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`Massachusetts Institute of Technology (“MIT”) is a resident of the Commonwealth of
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`Massachusetts and maintains its principal offices in this District. Venue is also proper in this
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`District under 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the
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`Plaintiff’s claims arose in this District, whereas the services that were promoted in the illegal
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`telemarketing calls that are the subject of this putative class action were provided. Furthermore, the
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`telemarketing campaign was designed in this District.
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`
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`THE TELEPHONE CONSUMER PROTECTION ACT OF 1991 (47 U.S.C. § 227)
`TCPA Background
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`
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`Calls Made Using an “Automated Telephone Dialing System”
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`14.
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`The TCPA regulates, among other things, the use of an automated telephone
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`dialing system (“ATDS”) to make calls or send text messages. See 47 U.S.C. § 227, et seq.; In
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`re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report
`
`and Order, 18 FCC Rcd. 14014, 14115 ¶ 165 (2003).
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`15.
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`Specifically, the TCPA prohibits the use of an automated telephone dialing
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`system to make any telemarketing call or send any telemarketing text message to a wireless
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`number in the absence of an emergency or the prior express written consent of the called party.
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`See 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(2); In the Matter of Rules &
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`4
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 5 of 24
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`Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1831
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`(F.C.C. 2012).
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`16.
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`In 2013, the FCC required prior express consent for all autodialed telemarketing
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`calls including SMS text messages (“robocalls”). Specifically, it ordered that:
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`[A] consumer’s written consent to receive telemarketing robocalls must be signed
`and be sufficient to show that the consumer: (1) received “clear and conspicuous
`disclosure” of the consequences of providing the requested consent i.e., tha the
`consumer will receive future calls that deliver prerecorded messages by or on
`behalf of a specific seller; and (2) having received this information, agrees
`unambiguously to receive such calls at a telephone number the consumer
`designates. [] In addition, the written agreement must be obtained “without
`requiring, directly or indirectly, that the agreement be executed as a condition of
`purchasing any good or service. []”
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`In the Matter of Rule s and Regulations Implementing the Tel. Consumer Prot. Act of 1991, FCC
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`27 FCC Rcd. 1830, 1844 (F.C.C. 2012) (footnotes omitted).
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`17.
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` Furthermore, the applicable FCC Orders clarify that “[c]onsumers have the right
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`to revoke consent, using any reasonable method including orally or in writing. Consumers
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`generally may revoke, for example, by way of a consumer-initiated call, directly or in response
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`to a call initiated or made by a caller, ...”. See In the Matter of Rule s and Regulations
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`Implementing the Telephone Consumer Protection Act of 1991, FCC 15-72, 30 FCC Rcd. 7961 ¶
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`64 (F.C.C. July 10, 2015).
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`18.
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`The FCC also recognized that “wireless customers are charged for incoming calls
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`whether they pay in advance or after the minutes are used.” In re Rules and Regulations
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`Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order,
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`18 FCC Rcd. 14014, 14115 ¶ 165 (F.C.C. 2003).
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`5
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 6 of 24
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`19.
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`The TCPA defines an “automatic telephone dialing system” as “equipment which
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`has the capacity—(A) to store or produce telephone numbers to be called, using a random or
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`sequential number generator; and (B) to dial such numbers.” § 227(a)(1)(A)-(B). The first
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`component of this definition is satisfied when a dialing system has the capacity to call “a given
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`set of numbers” or when “dialing equipment is paired with . . . a database of numbers.” In re
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`Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC
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`Rcd. 14,014, ¶ 133 (2003); see In the Matter of Rules & Regulations Implementing the Tel.
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`Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 566 (F.C.C. 2008) (rejecting argument that a
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`dialing system “meets the definition of autodialer only when it randomly or sequentially
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`generates telephone numbers, not when it dials numbers from customer telephone lists” and
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`reasoning that “the teleservices industry had progressed to the point where dialing lists of
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`numbers was far more cost effective”); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051
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`(9th Cir. 2018) (holding that “equipment that made automatic calls from lists of recipients was . .
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`. covered by the TCPA”).
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`20.
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`“[T]elemarketing means the initiation of a telephone call or message for the
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`purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,
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`which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12).
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`FACTUAL ALLEGATIONS
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`21.
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`Plaintiff FISTER’s telephone number, (530) 643-XXXX, is registered to a cellular
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`telephone service.
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`6
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 7 of 24
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`22.
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`23.
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`Plaintiff FISTER is the subscriber and customary user of said wireless telephone.
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`Plaintiff FISTER engaged in some internet research regarding Defendant MIT’s
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`“Drug and Medical Device Development Program” (“DMDDP”).
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`24.
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`Plaintiff FISTER did not provide EMERITUS or MIT his prior express written
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`consent to receiving telemarketing text messages.
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`25.
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`Thereafter, Defendants EMERITUS and MIT sent Plaintiff FISTER the following
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`SMS Text Messages:
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`(A) On September 2, 2019, Defendants sent Plaintiff FISTER a generic solicitation text
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`message thanking him for his interest in the DMDDP Program.
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`(B) On September 3, 2019, Defendants sent Plaintiff FISTER a generic solicitation text
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`message following up on a telephone conversation between Defendant’s employee or agent
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`Patrick Elloy.
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`(C) On September 4, 2019, Defendants sent Plaintiff FISTER a generic solicitation text
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`message promoting “Live Webinar for MIT xPRO’s D…”
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`(D) On September 7, 2019, Defendants sent Plantiff FISTER a generic text message
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`promoting “MIT xPRO’s Drug and Medical … MIT xPRO’s Drug and Medical Device
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`Development: A Strate…”
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`(E) On September 10, 2019, Defendants sent Plaintiff FISTER a generic text message
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`captioned “Interest in MIT xPRO’s Drug an …” which began “Dear David, My name is Patrick
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`Elloy. I am y….”
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`7
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 8 of 24
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`(F) On September 10, 2019, Defendants sent Plaintiff FISTER a generic text message
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`captioned “Learn from 40+ Industry Exper …” which began “Learn from 40+ Industry Experts
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`on MIT xPRO’s Drug and Medi…”
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`(G) On September 19, 2019, Defendants sent Plaintiff FISTER a generic text message
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`captioned “David – 7 days remaining to en ….” which began “Applications for the Drug and
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`Medical Device Development …” Plaintiff FISTER is informed and believes that the substance
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`of this solicitation text message was substantially similar to the 7 day reminder received on
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`February 19, 2020, and fully described in Paragraph ___ of this Complaint.
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`(H) On September 21, 209, Defendants sent Plaintiff FISTER a solicitation text message
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`captioned “David – 5 days remaining to en…” which began “Applications for the Drug and
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`Medical Device Development ….” Plaintiff FISTER is informed and believes that the substance
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`of this solicitation text message was substantially similar to the other reminders received from
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`Defendants.
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`(I) On September 23, 2019, Defendants sent Plaintiff FISTER a generic solicitation text
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`message captioned “David – 3 days remaining to en…” Plaintiff FISTER is informed and
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`believes that the substance of this solicitation text message was substantially similar to 7 day
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`reminders which are identical (except for variations in the bit.ly links) received on November 7,
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`2019 and February 24, 2020.
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`(J) On September 25, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`captioned “David – 1 day remaining to enr …” Plaintiff FISTER is informed and believes that
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`the substance of this solicitation text message was substantially similar to reminders which are
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`8
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 9 of 24
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`identical (except for different bit.ly references) received on November 13, 2019, and February
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`18, 2020, which are more fully described in Paragraph ___ of this Complaint.
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`(K) On September 30, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`captioned “[Video] MIT’s Michael Cima Ex…” which began “Dear David, Since you expressed
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`interest in the new …”
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`(L) On October 2, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`captioned “David – Last day to enroll for M…” which began “Applications for the Drug and
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`Medical Device Development …”
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`(M) On November 6, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`stating:
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`
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`
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`
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`“Hi David,
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`You are invited to a live information session for the Drug and Medical Device
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`Development: A Strategic Approach (Online) program by MIT xPRO.
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`This session will be conducted on Friday, November 08, 2019 at 10:00 AM ET
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`You may register at:
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`http:/./ bit.ly / 34yYS5J
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`We hope you’ll join us”
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`Plaintiff FISTER is informed and believes that the referenced bit.ly page redirects visitors to an
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`advertisement for the DMDD Program.
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`(N) On November 7, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`stating:
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`9
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 10 of 24
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`“7 days remaining to enroll in the Drug and Medical Device Development
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`Program from MIT xPRO. Flexible payment options available. Apply now at
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`http // bit . ly ….”
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`(O) On November 13, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`stating:
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`“1 day remaining to enroll in the Drug and Medical Device Development program
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`from MIT xPRO. Flexible payment options available. Apply now at http:/./bit.ly
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`/ 2JWccQ6”
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`
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`(P) On November 16, 2019, Defendants sent Plaintiff FISTER a solicitation text message
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`stating:
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`“If you missed out on enrolling in the Drug and Medical Device Development
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`Program from MIT xPRO, there’s still time! Apply now at http : /./ bit . ly./.
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`2JWccQ6”
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`(Q) On November 20, 2019, Defendants sent Plaintiff FISTER a solicitation text
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`message stating:
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`“If you have missed out on applying for the Drug and Medical Device
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`Development program from MIT xPRO, there’s still time! Apply now at http: /./
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`bit.ly. /202NQXf”
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`26.
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`Soon after receiving the afore-described text message on November 20, 2019,
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`Plaintiff FISTER replied “Stop.”
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`10
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 11 of 24
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`27.
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`However, on February 18, 2020, Defendants sent Plaintiff FISTER a solicitation
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`text message stating:
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`
`
`
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`“Hi David,
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`1 day remaining to register for the Artificial Intelligence: Strategies for Leading
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`Business Transformation online program from Kellog Executive Education.
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`Flexible payment options available. Register now at: http:/./bit.ly./.2pP6UiC”
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`28.
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`On February 20, 2020, Defendants sent Plaintiff FISTER a solicitation text
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`message stating:
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`“7 days remaining to enroll in the Drug and Medical Device Development
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`program from MIT xPRO. Flexible payment options available. Apply now at
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`http:/./bit.ly./.2JWccQ6”
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`
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`29.
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`Soon after receiving Defendant’s text message on February 20, 2020, Plaintiff
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`FISTER replied “Stop.”
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`30.
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`In response, Defendants sent Plaintiff FISTER a text message stating: “You have
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`successfully been unsubscribed and will receive no further messages.”
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`31.
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`Plaintiff FISTER does not allege that this text message (which is often referred to
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`as a “single confirmatory message”) is a solicitation, but rather, alleges that this confirmatory
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`message evidences that Defendants knew that Plaintiff FISTER had withdrawn any consent to
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`receive calls made using an ATDS.
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`32.
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`Yet, the texts continued.
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`11
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 12 of 24
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`33.
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`On February 24, 2020, Defendants sent Plaintiff FISTER a solicitation text
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`message stating:
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`“3 days remaining to enroll in the Drug and Medical Device Development
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`program from MIT xPRO. Flexible payment options available. Apply now at
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`http:/./bit.ly./.2JWccQ6.”
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`
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`34.
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`Soon after receiving Defendants’ text message on February 24, 2020, Plaintiff
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`FISTER replied “Stop.”
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`35.
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`Nonetheless, on February 26, 2020, Defendants sent Plaintiff FISTER a
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`solicitation text message stating:
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`“Hi David,
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`Last day to enroll in the Drug and Medical Device Development program from
`
`MIT xPRO. Flexible payment options available. Apply now at
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`http:/./bit.ly/.2JWccQ6”
`
`
`
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`36.
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`On February 29, 2020, Defendants sent Plaintiff FISTER a solicitation text
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`message stating:
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`
`
`
`
`
`
`
`
`
`“Hi David,
`
`“If you missed out on enrolling in the Drug and Medical Device Development
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`program from MIT xPRO, there’s still time! Apply now at:
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`http:/./bit.ly./.2JWccQ6”
`
`12
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 13 of 24
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`37.
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`38.
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`On March 1, 2020, at 13:51, Plaintiff FISTER replied “Stop”.
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`The plain text of the text messages received by Plaintiff (cited in the paragraph
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`above) demonstrates that the messages were sent for the purpose of encouraging the purchase or
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`rental of, or investment in, property, goods, or services as it seeks to have him sign up for MIT’s
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`course in the “Drug and Medical Device Development program,” which is a service. This
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`message therefore qualified as telemarketing. 47 C.F.R. § 64.1200(f)(12).
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`39.
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`Plaintiff FISTER is informed and believes that Defendants sent the text messages
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`described in this complaint using an ATDS. This belief is supported by the generic nature and
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`repetitive content of the text message advertisements. Furthermore, many of the text messages
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`appear to be sent at predetermined times based upon when the programs will begin.
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`40.
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`The dialing system used also has the capacity to store telephone numbers in a
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`database and dial them automatically with no human intervention.
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`41.
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`Loading a list of telephone numbers into the dialing system and pressing a single
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`command does this.
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`42.
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`As an automated dialer, the dialing system can also produce numbers using a
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`sequential number generator and dial them automatically.
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`43.
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`44.
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`45.
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`The dialing system can do this by inputting a straightforward computer command.
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`Following that command, the dialing system will sequentially dial numbers.
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`First, it would dial a number such as (555) 000-0001, then (555) 000-0002, and so
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`on.
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`46.
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`This would be done without any human intervention or further effort.
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`13
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 14 of 24
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`47.
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`As a result, the system that sent text messages to Plaintiff FISTER qualifies as an
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`ATDS pursuant to 47 U.S.C. 227(a)(1)(A).
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`48.
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`49.
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`The calls were not necessitated by an emergency.
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`Plaintiff’s privacy has been violated by the above-described telemarketing
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`robocalls from Defendants. The calls were an annoying, harassing nuisance.
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`50.
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`Plaintiff and all members of the Class, defined below, have been harmed by the
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`acts of Defendants because their privacy has been violated, they were annoyed and harassed,
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`and, in some instances, they were charged for incoming calls. Plaintiff and the Class Members
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`were also harmed by use of their cell phone battery and the intrusion on their cellular telephone
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`that occupied it from receiving legitimate communications.
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`
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`MIT’S LIABILITY FOR THE CONDUCT OF EMERITUS
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`51.
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`The FCC has explained that its “rules generally establish that the party on whose
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`behalf a solicitation is made bears ultimate responsibility for any violations.” In re Rules &
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`Regulations Implementing the TCPA, CG Docket No. 92-90, Memorandum Opinion and Order,
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`10 FCC Rcd. 12391, 12397 (¶ 13) (F.C.C. 1995)
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`52.
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`In their January 4, 2008 ruling, the FCC reiterated that a company on whose
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`behalf a telephone call is made bears the responsibility for any violations. In the Matter of Rules
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`& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 565 ¶ 10
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`(F.C.C. 2008) (specifically recognizing “on behalf of” liability in the context of an autodialed or
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`14
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 15 of 24
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`prerecorded message call sent to a consumer by a third party on another entity’s behalf under 47
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`U.S.C. § 227(b)).
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`53.
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`On May 9 ,2013, the FCC confirmed this principle in a Declaratory Ruling
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`holding that sellers such as MIT may not avoid liability by outsourcing telemarketing:
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`[A]llowing the seller to avoid potential liability by outsourcing its telemarketing
`activities to unsupervised third parties would leave consumers in many cases
`without an effective remedy for telemarketing intrusions. This would particularly
`be so if the telemarketers were judgment proof, unidentifiable, or located outside
`the United States, as is often the case. Even where third-party telemarketers are
`identifiable, solvent, and amenable to judgment, limiting liability to the
`telemarketer that physically places the call would make enforcement in many
`cases substantially more expensive and less efficient, since consumers (or law
`enforcement agencies) would be required to sue each such marketer separately in
`order to obtain effective relief. As the FTC noted, because “[s]ellers may have
`thousands of ‘independent’ marketers, suing one or a few of them is unlikely to
`make a substantive difference for consumer privacy.”
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`May 2013 FCC Ruling,28 FCC Rcd. 6599 (¶ 37) (F.C.C. 2013) (internal citations omitted).
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`54. More specifically, the May 2013 FCC Ruling held that, even in the absence of
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`evidence of a formal contractual relationship between the seller and the telemarket, a seller is
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`liable for telemarketing calls if the telemarketer “has apparent (if not actual) authority” to make
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`the calls. 28 FCC Rcd. at 6586 (¶ 34).
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`55.
`
`The May 2013 FCC Ruling rejected a narrow view of TCPA liability, including
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`the assertion that a seller’s liability requires a finding of formal agency and immediate direction
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`and control over the third-party who placed the telemarketing call. Id. at 6587 n. 107.
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`56.
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`The May 2013 FCC Ruling further clarifies the circumstances under which a
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`telemarketer has apparent authority:
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`[A]pparent authority may be supported by evidence that the seller allows the
`outside sales entity access to information and systems that normally would be
`within the seller’s exclusive control, including: access to detailed information
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 16 of 24
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`regarding the nature and pricing of the seller’s products and services or to the
`seller’s customer information. The ability by the outside sales entity to enter
`customer information into the seller’s sales or customer systems as well as the
`authority to use the seller’s trade name, trademark and service mark may also be
`relevant. It may also be persuasive that the seller approved, wrote or reviewed the
`outside entity’s telemarketing scripts. Finally, a seller would be responsible under
`the TCPA for the authorized conduct of a third-party telemarketer that is
`otherwise authorized to market on the seller’s behalf if the seller knew (or
`reasonably should have known) that the telemarketer was violating the TCPA on
`the seller’s behalf and the seller failed to take effective steps within its power to
`force the telemarketer to cease that conduct.
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`28 CC Rcd. at 6592 (¶ 46).
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`57. MIT is legally responsible for ensuring that EMERITUS complied with the
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`TCPA, even if MIT itself did not make the calls.
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`58. MIT controls the manner and means by which EMERITUS engages in the
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`telemarketing.
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`59. MIT provides the telephone numbers to Emeritus to send the text message
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`advertisements.
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`60. MIT also reviews and approves the content of the automated texts.
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`61. MIT also dictates when and how often the text messages are sent by EMERITUS.
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`62. MIT also dictates the specific programs that EMERITUS is allowed to promote
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`through the text messages.
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`63. MIT knowingly and actively accepted business that originated through the illegal
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`telemarketing calls from EMERITUS.
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`64.
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`Defendants MIT had the ability to prevent unauthorized texts in violation of the
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`TCPA by barring EMERITUS from using automated calling/texting operations, but did not do
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`so.
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 17 of 24
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`CLASS ACTION ALLEGATIONS
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`65.
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`Plaintiff incorporates by reference all other paragraphs of this Complaint as if
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`fully stated herein.
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`66.
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`Plaintiff brings this action on behalf of himself and the following classes (the
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`“Classes”) pursuant to Federal Rule of Civil Procedure 23.
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`67.
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`Plaintiff proposes the following Class definitions, subject to amendment as
`
`appropriate:
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`Robotexting Class (EMERITUS): All persons in the United States who, within
`four years prior to the commencement of this litigation until the class is certified,
`received one or more telemarketing texts on their cellular telephone from or on
`behalf of EMERITUS, sent via the same system(s) that EMERITUS or its agents
`used to send the text messages it sent to Plaintiff Fister.
`
`Revocation Class (EMERITUS): All persons in the United States who, within
`four years prior to the commencement of this litigation until the class is certified,
`received one or more telemarketing texts on their cellular telephone from or on
`behalf of EMERITUS, sent via the same system(s) that EMERITUS or its agents
`used to send the text messages it sent to Plaintiff Fister after the recipient sent
`EMERITUS at least one message stating “stop”.
`
`Robotexting Class (MIT SUBCLASS): All persons in the United States who,
`within four years prior to the commencement of this litigation until the class is
`certified, received one or more telemarketing texts on their cellular telephone from
`or on behalf of EMERITUS for MIT, sent via the same system(s) that EMERITUS
`or its agents used to send the text messages it sent to Plaintiff Fister.
`
`Revocation Class (MIT SUBCLASS): All persons in the United States who,
`within four years prior to the commencement of this litigation until the class is
`certified, received one or more telemarketing texts on their cellular telephone from
`or on behalf of EMERITUS for MIT, sent via the same system(s) that EMERITUS
`or its agents used to send the text messages it sent to Plaintiff Fister after the
`recipient sent EMERITUS at least one message stating “stop”.
`
`
`
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 18 of 24
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`68.
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`Plaintiff FISTER is a member of and will fairly and adequately represent and
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`protect the interests of, these Classes as he has no interests that conflict with any of the class
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`members.
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`69.
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`Excluded from the Classes are counsel, the Defendants, and any entities in which
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`the Defendants have a controlling interest, the Defendants’ agents and employees, any judge to
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`whom this action is assigned, and any member of such judge’s staff and immediate family.
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`70.
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`Plaintiff and all members of the Classes have been harmed by the acts of the
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`Defendant, including, but not limited to, the invasion of their privacy, annoyance, waste of time,
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`the use of their cell phone battery, and the intrusion on their cellular telephone that occupied it
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`from receiving legitimate communications.
`
`71.
`
`72.
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`This Class Action Complaint seeks injunctive relief and money damages.
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`The Classes as defined above are identifiable through the Defendants’ dialer
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`records, other phone records, and phone number databases.
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`73.
`
`Plaintiff does not know the exact number of members in the Classes, but Plaintiff
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`reasonably believes Class members number, at minimum, in the hundreds in each class.
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`74.
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`The joinder of all Class members is impracticable due to the size and relatively
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`modest value of each individual claim.
`
`75.
`
`Additionally, the disposition of the claims in a class action will provide substantial
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`benefit to the parties and the Court in avoiding a multiplicity of identical suits.
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`76.
`
`There are well defined, nearly identical, questions of law and fact affecting all
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`parties. The questions of law and fact, referred to above, involving the class claims predominate
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`over questions which may affect individual Class members.
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`
`
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 19 of 24
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`77.
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`There are numerous questions of law and fact common to Plaintiff and to the
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`proposed Classes, including but not limited to the following:
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`(a) whether Defendant utilized an automatic telephone dialing system to send its
`texts to the members of the Robotext Class;
`
`(b) Whether agents operating on behalf of Defendant utilized an automatic
`telephone dialing system in sending text messages to members of the
`Robotext Class;
`
`(c) whether Defendant systematically made multiple telephone calls to members
`of the National Do Not Call Registry Class;
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`(d) whether Defendant made calls to Plaintiff and members of the Classes without
`first obtaining prior express written consent to make the calls;
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`(e) whether Defendant’s conduct constitutes a violation of the TCPA; and
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`(f) whether members of the Classes are entitled to treble damages based on the
`willfulness of Defendant’s conduct.
`
`
`
`
`
`78.
`
`As a person who received non-emergency telephone calls using an automatic
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`telephone dialing system without his prior express consent within the meaning of the TCPA,
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`Plaintiff asserts claims that are typical of each Class member who also received such phone calls.
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`79.
`
`As a person who received non-emergency telephone calls using an automatic
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`telephone dialing system after he revoked any prior express consent within the meaning of the
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`TCPA by texting “stop”, Plaintiff asserts claims that are typical of each Class member who
`
`received calls after texting “stop” to Defendant(s).
`
`80.
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`Further, Plaintiff will fairly and adequately represent and protect the interests of
`
`the Classes. Plaintiff has no interests which are antagonistic to any member of the Classes.
`
`81.
`
`Plaintiff has retained counsel with substantial experience in prosecuting complex
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`litigation and class actions, and especially TCPA class actions. Plaintiff and his counsel are
`
`
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`Case 1:20-cv-10789-RGS Document 1 Filed 04/22/20 Page 20 of 24
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`committed to vigorously prosecuting this action on behalf of the other members of the Classes,
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`and have the financial resources to do so.
`
`82.
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`Common questions of law and fact predominate over questions affecting only
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`individual class members, and a class action is the superior method for fair and efficient
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`adjudication of the controversy. The only individual question concerns identification of class
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`members, whi