8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 1 of 9 - Page ID # 1
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`Mark L. Javitch (pending pro hac vice admission)
`Javitch Law Office
`480 S. Ellsworth Avenue
`San Mateo, California 94401
`Telephone: (650) 781-8000
`Facsimile: (650) 648-0705
`mark@javitchlawoffice.com
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`Attorney for Plaintiff
`and those similarly situated
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`
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`IN THE UNITED STATES DISTRICT COURT FOR
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`THE DISTRICT OF NEBRASKA
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` Case No.: 8:20-cv-00470
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`CLASS ACTION COMPLAINT
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`Jury Trial Demanded
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`BEN FABRIKANT, individually, and on
`behalf of all others similarly situated,
`Plaintiff,
`v.
`CLEAR LINK TECHNOLOGIES, LLC, a
`Utah limited liability company,
`Defendant.
`
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`CLASS ACTION COMPLAINT
`Plaintiff BEN FABRIKANT (“Plaintiff”) brings this Class Action Complaint and
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`1.
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`Demand for Jury Trial against Defendant CLEAR LINK TECHNOLOGIES, LLC,
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`(“Defendant” or “CLT”) to stop their illegal practice of making illegal robocalls to the cellular
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`and residential telephones of consumers nationwide, and to obtain redress for all persons injured
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`by their conduct. Plaintiff alleges as follows upon personal knowledge as to himself and his own
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`acts and experiences, and, as to all other matters, upon information and belief, including
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`investigation conducted by his attorney.
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 2 of 9 - Page ID # 2
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`NATURE OF THE ACTION
`Defendant CLT is company that markets and sells consumer health plans. As a
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`2.
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`part of their marketing of residential mortgages, CLT sent thousands of artificial or prerecorded
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`voice messages to consumers’ phones nationwide.
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`3.
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`CLT did not obtain express written consent prior to sending these artificial or
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`prerecorded voice messages and, therefore, is in violation of the Telephone Consumer
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`Protection Act (“TCPA”), 47 U.S.C. § 227.
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`4.
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`Congress enacted the TCPA in 1991 to restrict the use of sophisticated
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`telemarketing equipment that could target millions of consumers en masse. Congress found that
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`these calls were not only a nuisance and an invasion of privacy to consumers specifically but
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`were also a threat to interstate commerce generally. See S. Rep. No. 102-178, at 2-3 (1991), as
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`reprinted in 1991 U.S.C.C.A.N. 1968, 1969-71.
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`5.
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`The TCPA targets unauthorized calls exactly like the ones alleged in this case,
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`based on Defendant’s use of technological equipment to spam consumers with its advertising on
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`a grand scale.
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`6.
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`By placing the calls at issue, CLT violated the privacy and statutory rights of
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`Plaintiff and the Class.
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`7.
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`Plaintiff therefore seeks an injunction requiring Defendant to stop its unconsented
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`calling, as well as an award of actual and statutory fines to the Class members, together with
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`costs and reasonable attorneys’ fees.
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 3 of 9 - Page ID # 3
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`PARTIES
`Plaintiff BEN FABRIKANT is a natural person and is a citizen of Omaha,
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`8.
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`Nebraska.
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`9.
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`Defendant CLT is a limited liability company organized and existing under the
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`laws of the state of Delaware with its principal place of business at 5202 W. Douglas Corrigan
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`Way #300 Salt Lake City, Utah 84116.
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`10.
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`CLT’s Registered Agent is Paracorp Incorporatied, 2140 S Dupont Hwy,
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`Camden, DE 19934.
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`JURISDICTION AND VENUE
`This Court has federal subject matter jurisdiction under 28 U.S.C. § 1331, as this
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`11.
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`action arises under the Telephone Consumer Protection Act, 47 U.S.C. § 227, which is a federal
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`statute.
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`12.
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`This Court has specific personal jurisdiction over Defendant CLT because
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`Defendant caused the violating phone calls to be placed to Plaintiff in this District.
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`13.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because the
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`injury substantially occurred in this District.
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`COMMON FACTUAL ALLEGATIONS
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`Defendant CLT sells consumer health plans.
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`CLT caused artificial or prerecorded voice messages to be sent to thousands of
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`14.
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`15.
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`cellular and residential phones numbers.
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`16. When the Class members answered their phones expecting to hear from a real
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`person, Defendant pulled a bait and switch by playing an artificial or prerecorded voice message
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`advertising health plans.
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`17.
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`Unfortunately, CLT failed to obtain consent from Plaintiff and the Class before
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`bombarding them with these illegal voice recordings.
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`FACTS SPECIFIC TO PLAINTIFF
`On May 29, 2020 at 2:21 p.m., Plaintiff received a call on his residential phone
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`18.
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`from a call with the Caller ID appearing as (402) 778-6542.
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`19.
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`The call was from a “spoofed” or fake area code that was designed to trick
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`Plaintiff into answering, because Plaintiff also had the same area code.
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`20. When Plaintiff answered the call, Plaintiff heard an artificial or prerecorded voice
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`message advertising health plans.
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`21.
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`The voice said “stay on the line to hear information about supplemental medical
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`insurance.”
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`22.
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`23.
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`Plaintiff stayed on the line for approximately ten minutes.
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`Plaintiff was connected with a Clearlink representative whose first name and last
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`initial is “Liz B.”
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`24.
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`25.
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`26.
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`Liz B. solicited Plaintiff for a Humana health plan.
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`On the same day, Plaintiff also received an email from Liz B from Clearlink.
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`Plaintiff never consented to receive calls from Defendant. Plaintiff had never
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`heard of Defendant and had no relationship whatsoever with Defendant prior to this interaction.
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`27.
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`Defendant’s calls violated Plaintiff’s statutory rights and caused actual and
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`statutory damages.
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`28.
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`In addition to causing statutory damages, these illegal call(s) caused annoyance,
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`intrusion on privacy and seclusion, and wasted time to Plaintiff.
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 5 of 9 - Page ID # 5
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`CLASS ALLEGATIONS
`Class Definition: Plaintiff brings this action pursuant to Federal Rule of Civil
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`29.
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`Procedure 23(b)(2) and 23(b)(3) on behalf of Plaintiff and a class defined as follows:
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`TCPA Class. All persons in the United States who: (1) from the last 4
`years to present (2) whose cellular or residential telephone were called
`(3) using an artificial or prerecorded voice message; (4) to promote
`Defendant’s products and services;
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`The following people are excluded from the Class: (1) any Judge or Magistrate
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`30.
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`presiding over this action and members of their families; (2) Defendant, Defendant’s
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`subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or their
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`parents have a controlling interest and its current or former employees, officers and directors;
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`(3) persons who properly execute and file a timely request for exclusion from the Class; (4)
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`persons whose claims in this matter have been finally adjudicated on the merits or otherwise
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`released; (5) Plaintiff’s counsel and Defendant’s counsel; and (6) the legal representatives,
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`successors, and assigns of any such excluded persons.
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`31.
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`Numerosity: The exact number of the Class members is unknown and not
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`available to Plaintiff, but it is clear that individual joinder is impracticable. On information and
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`belief, Defendant placed telephone calls to thousands of consumers who fall into the definition
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`of the Class. Members of the Class can be identified through Defendant’s records.
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`32.
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`Typicality: Plaintiff’s claims are typical of the claims of other members of the
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`Class, in that Plaintiff and the Class members sustained damages arising out of Defendant’s
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`uniform wrongful conduct and unsolicited telephone calls.
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`33.
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`Adequate Representation: Plaintiff will fairly and adequately represent and
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`protect the interests of the other members of the Class. Plaintiff’s claims are made in a
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`representative capacity on behalf of the other members of the Class. Plaintiff has no interests
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 6 of 9 - Page ID # 6
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`antagonistic to the interests of the other members of the proposed Class and is subject to no
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`unique defenses. Plaintiff has retained competent counsel to prosecute the case on behalf of
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`Plaintiff and the proposed Class. Plaintiff and his counsel are committed to vigorously
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`prosecuting this action on behalf of the members of the Class and have the financial resources to
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`do so.
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`34.
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`Policies Generally Applicable to the Class: This class action is appropriate for
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`certification because Defendant has acted or refused to act on grounds generally applicable to
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`the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure
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`compatible standards of conduct toward the Class members and making final injunctive relief
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`appropriate with respect to the Class as a whole. Defendant’s practices challenged herein apply
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`to and affect the Class members uniformly, and Plaintiff’s challenge of those practices hinge on
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`Defendant’s conduct with respect to the Class as a whole, not on facts or law applicable only to
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`Plaintiff.
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`35.
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`Commonality and Predominance: There are many questions of law and fact
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`common to the claims of Plaintiff and the Class, and those questions predominate over any
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`questions that may affect individual members of the Class. Common questions for the Class
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`include, but are not necessarily limited to the following:
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`a. Whether Defendant violated the TCPA;
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`b. Whether the calls were placed residential and cellular phones;
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`c. Whether the phone calls used an artificial or prerecorded voices;
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`d. Whether the calls were caused by Defendant;
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`e. Whether the calls promoted Defendant’s products and services;
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`f. Whether Defendant obtained written express consent prior to the calls;
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 7 of 9 - Page ID # 7
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`g. Whether members of the Class are entitled to treble damages based on the
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`knowingness and/or willfulness of Defendant’s conduct.
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`36.
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`Superiority: This case is also appropriate for class certification because class
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`proceedings are superior to all other available methods for the fair and efficient adjudication of
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`this controversy as joinder of all parties is impracticable. The damages suffered by the
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`individual members of the Class will likely be relatively small, especially given the burden and
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`expense of individual prosecution of the complex litigation necessitated by Defendant’s actions.
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`Thus, it would be virtually impossible for the individual members of the Class to obtain
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`effective relief from Defendant’s misconduct. Even if members of the Class could sustain such
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`individual litigation, it would still not be preferable to a class action, because individual
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`litigation would increase the delay and expense to all parties due to the complex legal and
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`factual controversies presented in this Complaint. By contrast, a class action presents far fewer
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`management difficulties and provides the benefits of single adjudication, economy of scale, and
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`comprehensive supervision by a single Court. Economies of time, effort and expense will be
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`fostered, and uniformity of decisions ensured.
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`CAUSE OF ACTION
`Violation of 47 U.S.C. § 227(b)
`(On behalf of Plaintiff and the TCPA Class)
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`Plaintiff incorporates the foregoing allegations as if fully set forth herein.
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`Plaintiff and the Class members received calls to their residential and cellular
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`The calls were not made for an emergency purpose.
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`The calls played a prerecorded voice message as proscribed by 47 U.S.C. §
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`37.
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`38.
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`telephones.
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`39.
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`40.
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`227(b)(1)(A)(iii) and (B).
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 8 of 9 - Page ID # 8
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`41.
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`As a result of its unlawful conduct, Defendant repeatedly invaded Plaintiff’s and
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`the Class’s personal privacy, causing them to suffer damages and, under 47 U.S.C. §
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`227(b)(3)(B), entitling them to recover $500 in civil fines for each violation and an injunction
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`requiring Defendant to stop its illegal calling campaign.
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`42.
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`Defendant made the violating calls “willfully” and/or “knowingly” under 47
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`U.S.C. § 227(b)(3)(C).
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`43.
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`If the Court finds that Defendant willfully and/or knowingly violated this
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`subsection, the court may increase the civil fine from $500 to $1500 per violation under 47
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`U.S.C. § 227(b)(3)(C).
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff BEN FABRIKANT, individually and on behalf of the Class,
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`prays for the following relief:
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`A.
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`An order certifying the Class as defined above, appointing Plaintiff BEN
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`FABRIKANT as the Class representative and appointing his counsel as Class
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`Counsel;
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`B.
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`C.
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`An order declaring that Defendant’s actions, as set out above, violates the TCPA;
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`An order declaring that Defendant’s actions, as set out above, violates the TCPA
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`willfully and knowingly;
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`D.
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`An injunction requiring Defendant to cease all unlawful calls without first
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`obtaining the call recipients’ express consent to receive such calls, and otherwise
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`protecting interests of the Class;
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`E.
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`F.
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`An award of actual damages and/or statutory fines and penalties;
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`An award of reasonable attorneys’ fees and costs; and
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`8:20-cv-00470-JFB-CRZ Doc # 1 Filed: 11/09/20 Page 9 of 9 - Page ID # 9
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`G.
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`Such other and further relief that the Court deems reasonable and just.
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`JURY DEMAND
`Plaintiff requests a trial by jury of all claims that can be so tried.
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`Dated: November 9, 2020
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`Respectfully submitted,
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`BEN FABRIKANT, individually and on
`behalf of all others similarly situated,
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`
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`Mark L. Javitch (pending pro hac vice admission)
`Javitch Law Office
`480 S. Ellsworth Avenue
`San Mateo, California 94401
`Telephone: (650) 781-8000
`Facsimile: (650) 648-0705
`mark@javitchlawoffice.com
`
`Attorneys for Plaintiff and the Putative Class
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`9
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