Case 7:22-cv-01389 Document 1 Filed 02/18/22 Page 1 of 10
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` UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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` Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`JOSHUA EPPS, individually and on behalf of
`all others similarly situated,
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`PEPSICO, INC. and QUAIL MOUNTAIN
`COFFEE & VENDING, d/b/a PEPSI-COLA
`BOTTLING
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`Defendants.
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`Plaintiff Joshua Epps (“Plaintiff”) brings this action against PepsiCo, Inc., (“PepsiCo”)
`and Quail Mountain Coffee & Vending, d/b/a Pepsi-Cola Bottling (“PCB”) (collectively,
`“Defendants”) by and through his attorneys, individually and behalf of all others similarly
`situated (“Class Members”). Plaintiff’s allegations as to his own actions are based on personal
`knowledge. The other allegations are based on his counsel’s investigation, and information and
`belief.
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`INTRODUCTION
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`1.
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`Plaintiff, individually and as a class representative for all others similarly
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`situated, brings this action against Defendants for violations of the Telephone Consumer
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`Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), for unsolicited telemarketing calls made by or
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`on behalf of Defendants using an artificial and/or prerecorded voice. Plaintiff, individually, and
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`for Class Members, seeks an injunction and an award of statutory damages to Class Members
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`under the TCPA, together with costs and reasonable attorneys’ fees.
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`PARTIES
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`2.
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`Plaintiff Joshua Epps was a resident of Klamath Falls, Oregon at all times during
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`the events alleged in the Complaint. At all relevant times Mr. Epps was the user, subscriber,
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`Case 7:22-cv-01389 Document 1 Filed 02/18/22 Page 2 of 10
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`owner and possessor of the cellular telephone number 541-638-XXXX. Mr. Epps never
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`provided Defendants with consent to call him using an artificial or prerecorded voice or
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`otherwise. Despite that, Defendants placed numerous telemarketing calls to Mr. Epps’s cellular
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`phone from the phone number 541-884-1313 using an artificial or prerecorded voice, including
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`but not limited to a call on February 9, 2022. When Mr. Epps answered these calls, he heard a
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`recording saying it was Pepsi calling and then the recorded voice asked whether he would like to
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`restock his supply of Pepsi products. The calls to Mr. Epps’ cellphone from Defendants have
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`been a nuisance and an invasion of his privacy.
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`3.
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`Defendant PepsiCo, Inc. is, and at all relevant times was, a North Carolina
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`corporation with a principal place of business located at 700 Anderson Hill Road, Purchase, New
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`York, 10577
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`4.
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`Defendant Quail Mountain Coffee & Vending is, and at all relevant times was,
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`an Oregon corporation with a principal place of business located at 4033 Miller Avenue,
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`Klamath Falls, Oregon 97603 registered under the name “Quail Mountain, Inc.” Quail Mountain
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`Coffee & Vending does business under the name “Pepsi-Cola Bottling” and identifies itself on its
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`website, kfpepsi.com, as “Southern Oregon’s Pepsi Distributor.”1
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`5.
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`Each of the Defendants acted jointly to perpetrate the acts described herein. At
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`all times relevant to the allegations in this matter, each of these Defendants acted in concert with,
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`with the knowledge and approval of, and/or as the agent of the other Defendant within the course
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`and scope of the agency, regarding the acts and omissions alleged.
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`1 https://kfpepsi.com/
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`JURISDICTION AND VENUE
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`2
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`Case 7:22-cv-01389 Document 1 Filed 02/18/22 Page 3 of 10
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`6.
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`7.
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`The Court has federal subject matter jurisdiction under 28 U.S.C. § 1331.
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`This Court has personal jurisdiction over Defendants because Defendant
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`PepsiCo maintains its headquarters in New York, does business in the State of New York, and
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`because the wrongful acts alleged in this Complaint were committed in or emanated from New
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`York the headquarters of Defendant PepsiCo, Inc.
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`8.
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`Venue is also proper before this Court under 28 U.S.C. § 1391(b)(2) because a
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`substantial part of the events or omissions giving rise to the claim occurred in this District and
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`because Defendant PepsiCo is headquartered in this District.
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`THE TELEPHONE CONSUMER
`PROTECTION ACT OF 1991, 47 U.S.C. § 227 et seq.
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`In 1991, Congress enacted the TCPA in response to a growing number of
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`9.
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`consumer complaints regarding certain telemarketing practices. Congress found that “automated
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`and prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call,”
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`and decided that “banning” such calls made without consent was “the only effective means of
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`protecting telephone consumers from the nuisance and privacy invasion.” Pub. L. No. 102-243,
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`§§ 2 (10-13) (Dec. 20, 1991), codified at 47 U.S.C. § 227. See also Mims v. Arrow Fin. Services,
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`LLC, 565 U.S. 368 (2012) (“The Act bans certain invasive telemarketing practices”).
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`10.
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`The TCPA regulates, among other things, the use of an artificial or prerecorded
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`voice to deliver messages via telephone. Specifically, the plain language of section 227(b)(1)(B)
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`states that it shall be unlawful for any person “to initiate any telephone call to any residential
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`telephone line using an artificial or prerecorded voice to deliver a message without the prior
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`express consent of the called party,” if either the caller or recipient is within the United States.
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`11.
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`The FCC’s regulations “generally establish that the party on whose behalf a
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`solicitation is made bears ultimate responsibility for any violations.” In the Matter of Rules
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`and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 10 FCC Rcd. 12391,
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`12397, ¶ 13 (1995). The FCC reiterated this principle in 2013, when it explained that “a seller
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`. . . may be held vicariously liable under federal common law principles of agency for
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`violations of either section 227(b) or section 227(c) that are committed by third-party
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`telemarketers.” In the Matter of the Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd.
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`6574, 6574 (2013).
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`12.
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`The FCC has also confirmed that a party can be vicariously liable for calls that
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`are placed by third parties in violation of Section 227(b) of the TCPA and that subsection’s
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`corresponding regulations. See In re Joint Pet. Filed by Dish Network, 28 FCC Rcd. 6574
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`(2013). Accord, Jenkins v. National Grid USA, No. 15-cv-1219, 2017 WL 1208445, *3
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`(E.D.N.Y. Mar. 31, 2017); McCabe v. Caribbean Cruise Line, Inc., No. 13-cv-6131, 2014 WL
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`3014874, *3 (E.D.N.Y. July 3, 2014).
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`FACTUAL ALLEGATIONS
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`13.
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`Plaintiff has never provided Defendants with consent to call him using an
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`artificial or prerecorded voice.
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`14.
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`Despite that, Defendants placed numerous telemarketing calls to Mr. Epps’s
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`cellular phone from the phone number 541-884-1313 using an artificial or prerecorded voice,
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`including but not limited to a call on February 9, 2022.
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`15.
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`When Mr. Epps answered these calls, he heard a recording saying it was Pepsi
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`calling and then the recorded voice asked whether he would like to restock his supply of Pepsi
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`products.
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`16.
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`The calls to Mr. Epps’ cellphone from Defendants have been a nuisance and an
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`invasion of his privacy.
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`17.
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`PCB placed each of these calls at the direction and on behalf of PepsiCo, while
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`acting as its agent. At all relevant times, PCB was acting with PepsiCo’s permission, knowledge
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`and control. PCB made all of the calls at issue for the benefit of PepsiCo.
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`18.
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`PCB holds itself out as an agent of Pepsi. On each of the calls at issue, PCB
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`identified itself as “Pepsi,” demonstrating that it was acting with the apparent authority of
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`PepsiCo. The name of PCB’s website—kfpepsi.com—highlights its connection to PepsiCo.
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`When PCB’s phone number is called, a recording states “Offices of PepsiCola.” PCB even uses
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`the PepsiCo logo as its own:
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`19.
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`Furthermore, the apparent authority of PCB can be traced back to manifestations
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`of PepsiCo itself. Specifically, PepsiCo permitted PCB to use the Pepsi logo and to hold itself
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`out as an alter ego of PepsiCo.
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`20.
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`Based on these facts, a third party would reasonably infer, as Plaintiff reasonably
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`inferred, that the calls placed by PCB were made either by PepsiCo itself or by an agent of
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`PepsiCo acting on behalf of PepsiCo.
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`21.
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`Furthermore, PepsiCo provides actual authority to PCB to make the calls at issue
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`on behalf of PepsiCo. PepsiCo’s licensing agreements with PCB direct PCB to sell PepsiCo’s
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`products.
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`CLASS ACTION ALLEGATIONS
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`Class Definitions: Plaintiff brings this Complaint against Defendants, pursuant
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`22.
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`to Federal Rule of Civil Procedure 23, on behalf of himself and the following Class:
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`All persons within the United States who (a) received a telephone
`call on his or her landline or cellular telephone; (b) made by or on
`behalf of Defendants; (c) at any time in the period that begins four
`years before the filing of the complaint in this action to the date
`that class notice is disseminated (the “Class”).
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`23.
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`Excluded from the Class are Defendants, their affiliates, employees, officers and
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`directors, persons or entities, and the Judge(s) assigned to this case. Plaintiff reserves the right to
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`modify the Class definition if discovery and/or further investigation reveal that it should be
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`expanded or otherwise modified.
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`24.
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`Numerosity: Although the exact number of Class Members is uncertain and can
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`only be ascertained through appropriate discovery, the number is great enough such that joinder
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`is impracticable. The disposition of the claims of these Class Members in a single action will
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`provide substantial benefits to all parties and to the Court. The Class Members are readily
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`identifiable from information and records in Defendants’ possession, custody, or control.
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`25.
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`Typicality: Plaintiff’s claims are typical of the claims of the other members of
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`the Class. Plaintiff is not different in any relevant way from any other member of the Class, and
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`the relief he seeks is common to the Class.
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`26.
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`Commonality: Plaintiff’s and Class Members’ experiences receiving calls by or
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`on behalf of Pepsi are common. They received uninvited robocalls for the purposes of marketing
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`Pepsi’s products or services. The calls were made despite the fact that neither Plaintiff nor Class
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`Members had expressly consented to such calls.
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`27.
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`In addition, common questions of fact and law exist as to all members of the
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`Class and predominate over the questions affecting only individual members of the Class.
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`Identification of the individuals who qualify as a member of the Class will be sufficient to
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`establish liability to the Class Member. The predominant common questions include:
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`a. Whether Defendants made telephone calls to Plaintiff and Class Members
`using an artificial or prerecorded voice;
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`b. Whether PCB placed the calls at issue, and if so, if it did so while acting as an
`agent of PepsiCo;
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`c. Whether Defendants and/or their agents had legally effective consent to place
`telemarketing calls using an artificial or prerecorded voice to Plaintiff and
`Class Members;
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`d. Whether Plaintiff and Class Members are entitled to damages, including
`whether Defendants’ violations were performed willfully or knowingly such
`that Plaintiff and Class Members are entitled to treble damages; and
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`e. Whether Plaintiff and Class Members are entitled to injunctive relief for
`violations of their privacy and attorney’s fees and costs.
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`28.
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`Adequacy: Plaintiff will fairly and adequately protect the interests of the Class
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`Members. Plaintiff has retained attorneys experienced in the prosecution of class actions,
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`including consumer and TCPA class actions, and Plaintiff intends to prosecute this action
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`vigorously.
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`29.
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`Predominance and Superiority: The Class alleged in this Complaint is
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`appropriate for certification because class proceedings are superior to all other available methods
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`for the fair and efficient adjudication of this controversy since joinder of all members is
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`impracticable. The damages suffered by each individual member of the Class will likely be
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`relatively small, especially given the burden and expense of individual prosecution of the
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`complex litigation necessitated by Defendants’ actions. It would be virtually impossible for Class
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`Members to individually obtain effective relief from Defendants’ misconduct. Even if Class
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`Members themselves could sustain such individual litigation, it would still not be preferable to a
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`class action, because individual litigation would increase the delay and expense to all parties due
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`to the complex legal and factual controversies presented in this Complaint. By contrast, class
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`actions present far fewer management difficulties and provide the benefits of single adjudication,
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`economy of scale, and comprehensive supervision by a single Court. Economies of time, effort,
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`and expense will be fostered and uniformity of decisions will be ensured.
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`30.
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`Injunctive Relief is Appropriate: Based on information and belief, Defendants
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`continue to engage in the improper practices discussed above. Injunctive relief is necessary and
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`appropriate to enjoin Defendants’ conduct and to prevent irreparable harm to Plaintiff and Class
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`Members for which they have no adequate remedy at law. In particular, Plaintiff seeks the
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`following specific relief:
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`a. Require Defendants and their agents to retain proof of any prior express
`written consent to make telemarketing calls;
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`b. Require Defendants and their agents to cease making telemarketing calls using
`an artificial or prerecorded voice to any person who has not provided prior
`express written consent to receive such calls;
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`COUNT I
`Violations of the Telephone Consumer Protection Act,
`47 U.S.C. § 227, et seq.
`(On behalf of Plaintiff and the Class)
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`31.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`Class.
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`32.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`33.
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`47 U.S.C. § 227(b)(1)(B) states that it shall be unlawful for any person “to
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`initiate any telephone call to any residential telephone line using an artificial or prerecorded
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`voice to deliver a message without the prior express consent of the called party,” if either the
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`caller or recipient is within the United States.
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`34.
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`As alleged herein, Defendants have called Plaintiff using an artificial or
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`prerecorded voice.
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`35.
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`Defendants never obtained Plaintiff’s prior express consent, written or
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`otherwise, to call him with an artificial or prerecorded voice. Defendants have thus violated 47
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`U.S.C. § 227(b)(1)(B).
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`36.
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`Because Defendants authorized and/or made the prerecorded calls and made no
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`effort to obtain Plaintiff’s prior express consent, Defendants’ violations were knowing and/or
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`willful.
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`37.
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`As a result of Defendants’ violations of 47 U.S.C. § 227 (b)(1)(B), Plaintiff and
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`members of the proposed Class are entitled to an award of $500.00 in statutory damages for each
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`and every call made in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).
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`38.
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`Because Defendants’ violations of 47 U.S.C. § 227 (b)(1)(B) were knowing
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`and/or willful, Plaintiff and members of the proposed Class are entitled to treble damages of up
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`to $1,500.00 for each and every call made in violation of the statute, pursuant to 47 U.S.C. §
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`227(b)(3)(C).
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, on behalf of himself and members of the Class, respectfully
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`requests that this Court enter judgment and order in their favor against Defendants as follows:
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`a.
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`b.
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`c.
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`An order certifying the proposed Class, designating Plaintiff as named
`representative of the Class, and designating the undersigned as Class
`Counsel;
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`Judgment against Defendants, and in favor of Plaintiff and the other Class
`Members in the amount of $500 per violation of the TCPA as proven at
`trial;
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`Judgment against Defendants, and in favor of Plaintiff and the other Class
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`Members in the amount of $1,500 per knowing and willful violation of
`the TCPA as proven at trial;
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`Equitable and injunctive relief, including injunctions enjoining further
`violations of the TCPA;
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`An award of pre-judgment and post-judgment interest, as provided by
`law;
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`Leave to amend the Complaint to conform to the evidence produced
`during discovery and at trial; and
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`Such other relief as may be appropriate under the circumstances.
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`d.
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`a.
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`b.
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`c.
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`DEMAND FOR TRIAL BY JURY
`Plaintiff hereby demands a trial by jury on all claims and issues so triable.
`Respectfully submitted,
`Dated: February 18, 2022
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`BURSOR & FISHER, P.A.
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`By: /s/ Joshua D. Arisohn
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` Joshua D. Arisohn
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`Joshua D. Arisohn
`Matthew A. Girardi
`Julian C. Diamond
`888 Seventh Avenue
`New York, NY 10019
`Tel: (646) 837-7150
`Fax: (212) 989-9163
`E-Mail: jarisohn@bursor.com
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` mgirardi@bursor.com
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` jdiamond@bursor.com
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`Attorneys for Plaintiff
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