Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 1 of 10 PAGEID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`
`
`DAVID K. HICKS, individually, and on
`behalf of all others similarly situated,
`
`
`Plaintiff,
`
`
`
`
`
`Case No.
`
`
`
`v.
`
`CHARTER COMMUNICATIONS, INC.
`d/b/a SPECTRUM and JOHN DOES 1-10,
`
`
`Defendant.
`
`
`CLASS ACTION COMPLAINT
`
`
`
`NOW COMES DAVID K. HICKS (“Plaintiff), individually, and behalf of all others
`
`similarly situated, by and through his undersigned counsel, complaining of CHARTER
`
`COMMUNICATIONS, INC. d/b/a SPECTRUM (“Defendant”), as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this action seeking redress for Defendant’s violations of the
`
`Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
`
`2.
`
` “The primary purpose of the TCPA was to protect individuals from the harassment,
`
`invasion of privacy, inconvenience, nuisance, and other harms associated with unsolicited,
`
`automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th Cir. 2018) citing Telephone
`
`Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991).
`
`3.
`
`As the Supreme Court recently observed, “Americans passionately disagree about
`
`many things. But they are largely united in their disdain for robocalls.” Barr v. Am. Ass’n of
`
`Political Consultants, 140 S. Ct. 2335, 2343 (2020).
`
`
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`
`
`DAVID K. HICKS, individually, and on
`behalf of all others similarly situated,
`
`
`Plaintiff,
`
`
`
`
`
`Case No.
`
`
`
`v.
`
`CHARTER COMMUNICATIONS, INC.
`d/b/a SPECTRUM and JOHN DOES 1-10,
`
`
`Defendant.
`
`
`CLASS ACTION COMPLAINT
`
`
`
`NOW COMES DAVID K. HICKS (“Plaintiff), individually, and behalf of all others
`
`similarly situated, by and through his undersigned counsel, complaining of CHARTER
`
`COMMUNICATIONS, INC. d/b/a SPECTRUM (“Defendant”), as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this action seeking redress for Defendant’s violations of the
`
`Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
`
`2.
`
` “The primary purpose of the TCPA was to protect individuals from the harassment,
`
`invasion of privacy, inconvenience, nuisance, and other harms associated with unsolicited,
`
`automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th Cir. 2018) citing Telephone
`
`Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991).
`
`3.
`
`As the Supreme Court recently observed, “Americans passionately disagree about
`
`many things. But they are largely united in their disdain for robocalls.” Barr v. Am. Ass’n of
`
`Political Consultants, 140 S. Ct. 2335, 2343 (2020).
`
`
`
`1
`
`
`
`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 2 of 10 PAGEID #: 2
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`JURISDICTION AND VENUE
`
`4.
`
`5.
`
`This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
`
`Venue in this district is proper under 28 U.S.C. § 1391(b)(2) as a substantial part
`
`of the events or omissions giving rise to Plaintiff’s claims occurred in this judicial district.
`
`6.
`
`Plaintiff is a natural person, over 18-years-of-age, who at all times relevant resided
`
`PARTIES
`
`in Moraine, Ohio.
`
`7.
`
`8.
`
`9.
`
`Defendant is a corporation organized under the laws of the State of Delaware.
`
`Defendant is a prominent cable and internet service provider.
`
`Defendant provides cable and internet services to more than 31 million customers
`
`in 41 states, including the State of Ohio.
`
`10.
`
`11.
`
`12.
`
`Defendant maintains its principal place of business in Stamford, Connecticut.
`
`Defendant is a “person” as defined by 47 U.S.C. § 153(39).
`
`JOHN DOES 1-10 are third party vendors/agents that Defendant engages to place
`
`outbound marketing calls to consumers on Defendant’s behalf.
`
`13.
`
`Defendant is vicariously liable for the acts of JOHN DOES 1-10.
`
`FACUTAL ALLEGATIONS
`
`14.
`
`Upon information and belief, Defendant develops marketing campaigns using a
`
`combination of sales channels, with an emphasis on outbound telemarketing.
`
`15.
`
`Upon information and belief, Defendant utilizes third-party vendors (John Does 1-
`
`10) to market its cable and internet products.
`
`16.
`
`Upon information and belief, Defendant’s vendors are essential to the success of its
`
`telemarketing campaigns.
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`2
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 3 of 10 PAGEID #: 3
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`17.
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`Upon information and belief, Defendant’s ability to generate revenue significantly
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`depends on its access to high-quality vendors.
`
`18.
`
`Defendant is subject to liability under the TCPA for actions of its third-party
`
`vendors who engage in outbound telemarketing efforts on Defendant’s behalf.
`
`19.
`
`At all times relevant, Plaintiff was the sole operator, possessor, and subscriber of
`
`the numbers ending in 5676 and 2174 (“Plaintiff’s phone numbers”).
`
`20.
`
`At all times relevant, Plaintiff’s phone numbers were assigned to a cellular
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`telephone service.
`
`21.
`
`At all times relevant, Plaintiff was financially responsible for his cellular telephone
`
`equipment and services.
`
`22.
`
`23.
`
`24.
`
`At no point in time did Plaintiff enter into a services contract with Defendant.
`
`At no point in time did Plaintiff solicit Defendant’s services.
`
`At no point in time did Plaintiff provide Plaintiff’s phone numbers to Defendant or
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`otherwise consent to receive marketing calls from Defendant.
`
`25.
`
`In or around March 2021, Plaintiff started to receive solicitation calls from
`
`Defendant to his cellular number ending in 5676.
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`26.
`
`Shortly after Defendant’s solicitation calls began, Plaintiff answered a few of
`
`Defendant’s calls.
`
`27.
`
`Immediately upon answering Defendant’s solicitation calls, Plaintiff was greeted
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`by a prerecorded or artificial voice that marketed Defendant’s services.
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`28.
`
`At first, Plaintiff would just hang up and hope that the calls would cease on their
`
`own.
`
`29.
`
`Unfortunately, Defendant’s solicitation calls did not end and Defendant continued
`
`3
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 4 of 10 PAGEID #: 4
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`placing solicitation calls to Plaintiff’s number ending in 5676.
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`30.
`
`Frustrated with the invasive solicitation calls, Plaintiff answered one of
`
`Defendant’s calls and was eventually connected with a live representative.
`
`31.
`
`Once connected with a live representative, Plaintiff advised the representative that
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`he was not interested in Defendant’s services and requested that Defendant cease its solicitation
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`calls to his number ending in 5676.
`
`32.
`
`Despite Plaintiff expressing no interest in Defendant’s services, Defendant
`
`continued placing solicitation calls to Plaintiff’s number ending in 5676 through December 2021.
`
`33.
`
`In December 2021, Plaintiff changed his cellular phone number and obtained a new
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`number ending in 2174.
`
`34.
`
`Shortly after Plaintiff changed numbers, Plaintiff began receiving solicitation calls
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`from Defendant to his new number ending in 2174.
`
`35.
`
`In or around December 2021, frustrated with Defendant’s relentless solicitation
`
`calls, Plaintiff answered one of Defendant’s calls and again spoke to a live representative.
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`36.
`
`During this call, Plaintiff requested that Defendant cease its calls to his new number
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`ending in 2174.
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`37.
`
`Defendant’s request fell on deaf ears and Defendant continued to bombard
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`Plaintiff’s new number with solicitation calls.
`
`38.
`
`Defendant placed its solicitation calls from various phone numbers, including the
`
`phone number (937) 262-9586.
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`39.
`
`All of Defendant’s solicitation calls utilized an artificial or prerecorded voice
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`(“robocalls”).
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`40.
`
`It was clear to Plaintiff that Defendant’s phone calls utilized an artificial and/or
`
`4
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 5 of 10 PAGEID #: 5
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`prerecorded voice because (1) all calls contained the identical sales pitch; (2) the voice in all calls
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`was monotone and was conspicuously not the voice of a live representative; and (3) none of the
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`calls identified Plaintiff by name.
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`41.
`
`In total, Defendant placed no less than twenty-five (25) solicitation calls to
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`Plaintiff’s phone numbers from March 2021 through the present.
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`DAMAGES
`
`42.
`
`Defendant’s illegal telemarketing practices have caused Plaintiff concrete harm,
`
`including: invading Plaintiff’s privacy, nuisance, wasting Plaintiff’s time, the increased risk of
`
`personal injury resulting from the distraction caused by the solicitation calls, decreased
`
`productivity, aggravation that accompanies unwanted solicitation calls, frustration, loss of
`
`concentration, and the loss of battery charge.
`
`43. Moreover, each time Defendant placed a robocall to Plaintiff’s phone numbers,
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`Defendant occupied Plaintiff’s cellular phone such that Plaintiff was unable to receive other phone
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`calls or otherwise utilize his cellular phone while his phone was ringing.
`
`44.
`
`Frustrated and concerned with the escalation of Defendant’s invasive telemarketing
`
`practices, Plaintiff retained counsel to file this action to compel Defendant to cease its unlawful
`
`practices.
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`CLASS ALLEGATIONS
`
`45.
`
`All preceding Paragraphs of this Complaint are expressly adopted and incorporated
`
`herein as though fully set forth herein.
`
`46.
`
`Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3)
`
`individually, and on behalf of all others similarly situated (“Putative Class”) defined as follows:
`
`
`
`5
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`
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 6 of 10 PAGEID #: 6
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`All individuals in the United States (1) who do not have an account with
`Defendant; (2) to whom Defendant, or a third party acting on Defendant’s
`behalf, placed, or caused to be placed, a phone call; (3) directed to a number
`assigned to a cellular telephone service; (4) using an artificial or prerecorded
`voice; (5) without the individual’s prior express written consent; (6) within the
`four years preceding the date of this complaint through the date of class
`certification.
`The following individuals are excluded from the Putative Class: (1) any Judge or
`47.
`
`Magistrate Judge presiding over this action and members of their families; (2) Defendant,
`
`Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which Defendant or
`
`its parents have a controlling interest and their current or former employees, officers, and directors;
`
`(3) Plaintiff’s attorneys; (4) individuals who properly execute and file a timely request for
`
`exclusion from the Putative Class; (5) the legal representatives, successors, or assigns of any such
`
`excluded individuals; and (6) individuals whose claims against Defendant have been fully and
`
`finally adjudicated and/or released.
`
`A.
`
`Numerosity
`
`48.
`
`Upon information and belief, the members of the Putative Class are so numerous
`
`that joinder of them is impracticable.
`
`49.
`
`The exact number of the members of the Putative Class is unknown to Plaintiff at
`
`this time and can only be determined through targeted discovery.
`
`50.
`
`The members of the Putative Class are ascertainable because the Class is defined
`
`by reference to objective criteria.
`
`51.
`
`The members of the Putative Class are identifiable in that their names, addresses,
`
`and telephone numbers can be identified in business records maintained by Defendant or its third-
`
`party vendors.
`
`
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`6
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 7 of 10 PAGEID #: 7
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`B.
`
`Commonality and Predominance
`
`52.
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`There are many questions of law and fact common to the claims of Plaintiff and the
`
`claims of the members of the Putative Class.
`
`53.
`
`Those questions predominate over any questions that may affect individual
`
`members of the Putative Class.
`
`C.
`
`Typicality
`
`54.
`
`Plaintiff’s claims are typical of members of the Putative Class because Plaintiff and
`
`members of the Putative Class are entitled to damages as a result of Defendant’s unlawful
`
`marketing practices.
`
`D.
`
`Superiority and Manageability
`
`55.
`
`This case is also appropriate for class certification as class proceedings are superior
`
`to all other available methods for the efficient and fair adjudication of this controversy.
`
`56.
`
`The damages suffered by the individual members of the Putative Class will likely
`
`be relatively small, especially given the burden and expense required for individual prosecution.
`
`57.
`
`By contrast, a class action provides the benefits of single adjudication, economies
`
`of scale, and comprehensive supervision by a single court.
`
`58.
`
`Economies of effort, expense, and time will be fostered, and uniformity of decisions
`
`ensured.
`
`E.
`
`Adequate Representation
`
`59.
`
`Plaintiff will adequately and fairly represent and protect the interests of the Putative
`
`Class.
`
`60.
`
`Plaintiff has no interests antagonistic to those of the members of the Putative Class
`
`7
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`
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 8 of 10 PAGEID #: 8
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`and Defendant has no defenses unique to Plaintiff.
`
`61.
`
`Plaintiff has retained competent and experienced counsel in consumer class action
`
`litigation.
`
`CLAIMS FOR RELIEF
`
`COUNT I:
`Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.)
`(On behalf of Plaintiff and the Members of Putative Class)
`
`62.
`
`All preceding Paragraphs of this Complaint are expressly adopted and incorporated
`
`
`
`herein as though fully set forth herein.
`
`63.
`
`Section 227(b)(1)(A)(iii) of the TCPA prohibits “any call (other than a call made
`
`for emergency purposes or made with the prior express consent of the called party) using any
`
`automatic telephone dialing system or an artificial or prerecorded voice” to “any telephone
`
`number assigned to a paging service, cellular telephone service, specialized mobile radio service,
`
`or other radio common carrier service, or any service for which the called party is charged for the
`
`call.” Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335, 2344 (2020) (emphasis added).
`
`64.
`
`The TCPA prohibits solicitation calls to wireless numbers unless the caller has the
`
`prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii).
`
`65.
`
`Under the TCPA consent rules, some types of calls require prior express written
`
`consent, while other types of calls do not require that the consent be in writing.
`
`66.
`
`“Prior express written consent” is required for (a) all telemarketing/promotional
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`calls/texts made using an automatic telephone dialing system (“ATDS”) placed to wireless
`
`numbers, and (b) all artificial or prerecorded telemarketing/promotional voice calls to wireless and
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`residential numbers.1
`
`
`1 47 C.F.R. §§ 64.1200(a)(2) and (3).
`
`
`8
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 9 of 10 PAGEID #: 9
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`67.
`
`The TCPA consent rules define “prior express written consent” as “an agreement,
`
`in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or
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`cause to be delivered to the person called advertisements or telemarketing messages using an
`
`ATDS or an artificial or prerecorded voice, and the telephone number to which the signatory
`
`authorizes such advertisements or telemarketing messages to be delivered.”2
`
`68.
`
`Defendant violated § 227(b)(1)(A)(iii) of the TCPA by placing or causing to be
`
`placed no less than twenty-five (25) solicitation calls to Plaintiff’s phone numbers utilizing an
`
`artificial or prerecorded voice without Plaintiff’s prior express written consent.
`
`69.
`
`As pled above, Defendant used an artificial or prerecorded voice that automatically
`
`played upon Plaintiff answering Defendant’s calls.
`
`70.
`
`As pled above, Plaintiff never provided Defendant with his phone numbers or
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`otherwise consented to receiving phone calls from Defendant.
`
`71.
`
`Upon information and belief, it is Defendant’s business practice to place robocalls
`
`to consumers without their prior express written consent, a practice designed to maximize profits
`
`at the expense of consumers.
`
`72.
`
`Upon information and belief, Defendant does not maintain adequate procedures or
`
`protocols to ensure that Defendant has the requisite consent to place robocalls to consumers.
`
`73.
`
`As a result of Defendant’s willful violations of the TCPA, Plaintiff and the
`
`members of the Putative Class are entitled to receive up to $1,500.00 in treble damages for each
`
`such violation.
`
`
`
`2 47 C.F.R. § 64.1200(c)(2)(ii).
`
`
`
`9
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`Case: 1:22-cv-00426-DRC-SKB Doc #: 1 Filed: 07/21/22 Page: 10 of 10 PAGEID #: 10
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`WHEREFORE, Plaintiff, on behalf of himself and the members of the Putative Class,
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`requests the following relief:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`A.
`
`
`
`B.
`
`
`C.
`
`D.
`
`E.
`
`
`F.
`
`
`G.
`
`an order granting certification of the proposed class, including the designation of
`Plaintiff as the named representative, and the appointment of the undersigned as
`Class Counsel;
`
`an order enjoining Defendant from placing or causing to place further violating
`calls to consumers;
`
`judgment in Plaintiff’s favor for Defendant’s violations of the TCPA;
`
`judgment in favor of the putative class for Defendant’s violations of the TCPA;
`
`an award of $500.00 in damages to Plaintiff and the members of the Putative Class
`for each violating call;/
`
`an award of treble damages up to $1,500.00 to Plaintiff and the members of the
`Putative Class for each violating call; and
`
`any further relief this Court deems just and proper.
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`DEMAND FOR JURY TRIAL
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`
`
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`
`
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`
`
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury.
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`Dated: 7/21/2022
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`Respectfully submitted,
`
`
`
`
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`
`
`
`
` By: s/Jonathan Hilton
`
`Jonathan Hilton (0095742)
`HILTON PARKER LLC
`7544 Slate Ridge Blvd
` Reynoldsburg, OH 43068
`
`Tel: (614) 992-2277
`
`Fax: (614) 927-5980
`
`jhilton@hiltonparker.com
`
`
`
`10
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