Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 1 of 11 PageID #:81
`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
`
`YEFIM ELIKMAN, individually and on behalf of
`classes of similarly situated individuals,
`
`Plaintiff,
`
`v.
`
`SIRIUS XM RADIO, INC., a Delaware
`corporation, CAREER HORIZONS, INC., an
`Indiana corporation,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 15-cv-02093
`
`Hon. Joan H. Lefkow
`
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`Plaintiff Yefim Elikman (“Plaintiff”) brings this second amended class action complaint
`
`against Defendants Sirius XM Radio, Inc. (“Sirius XM”) and Career Horizons, Inc. d/b/a
`
`TeleServices Direct (“TeleServices”) (collectively “Defendants”), to stop Defendants’ unlawful
`
`telephone solicitation practices in the form of unauthorized telephone calls using an automatic
`
`telephone dialing system (“ATDS”), and to obtain redress for all persons injured by their
`
`conduct. Plaintiff alleges as follows upon personal knowledge as to himself and his own acts
`
`and experiences, and as to all other matters, upon information and belief, including investigation
`
`conducted by his attorneys.
`
`NATURE OF THE ACTION
`
`1.
`
`In a misguided effort to market its satellite radio subscription services, Sirius XM,
`
`together with its agent TeleServices, established an automated calling operation to place
`
`unsolicited automated calls to the cellular telephones of thousands of consumers nationwide.
`
`1
`
`Fraunhofer Ex 2017-1
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
`
`YEFIM ELIKMAN, individually and on behalf of
`classes of similarly situated individuals,
`
`Plaintiff,
`
`v.
`
`SIRIUS XM RADIO, INC., a Delaware
`corporation, CAREER HORIZONS, INC., an
`Indiana corporation,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 15-cv-02093
`
`Hon. Joan H. Lefkow
`
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`Plaintiff Yefim Elikman (“Plaintiff”) brings this second amended class action complaint
`
`against Defendants Sirius XM Radio, Inc. (“Sirius XM”) and Career Horizons, Inc. d/b/a
`
`TeleServices Direct (“TeleServices”) (collectively “Defendants”), to stop Defendants’ unlawful
`
`telephone solicitation practices in the form of unauthorized telephone calls using an automatic
`
`telephone dialing system (“ATDS”), and to obtain redress for all persons injured by their
`
`conduct. Plaintiff alleges as follows upon personal knowledge as to himself and his own acts
`
`and experiences, and as to all other matters, upon information and belief, including investigation
`
`conducted by his attorneys.
`
`NATURE OF THE ACTION
`
`1.
`
`In a misguided effort to market its satellite radio subscription services, Sirius XM,
`
`together with its agent TeleServices, established an automated calling operation to place
`
`unsolicited automated calls to the cellular telephones of thousands of consumers nationwide.
`
`1
`
`Fraunhofer Ex 2017-1
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 2 of 11 PageID #:82
`
`2.
`
`Defendants Sirius XM and TeleServices violated federal law when the automated
`
`calling operation established, directed, and operated by Defendants to market Sirius XM’s
`
`satellite radio service, placed unauthorized automated telephone calls using an ATDS
`
`(“robocalls”) to the cellular telephones of individuals throughout the nation.
`
`3.
`
`Defendants Sirius XM and TeleServices also violated federal law when the
`
`automated calling operation established, directed, and operated by Defendants to market Sirius
`
`XM’s satellite radio service, placed unauthorized telephone solicitation calls to the telephones of
`
`individuals throughout the nation whose phone numbers were registered with the National Do-
`
`Not-Call registry, as established by 47 U.S.C. § 227(c).
`
`4.
`
`By effectuating these unauthorized calls, Defendants have violated the called
`
`parties’ statutory rights and have caused such call recipients actual harm, not only because the
`
`called parties were subjected to the aggravation and invasion of privacy that necessarily
`
`accompanies unsolicited telephone solicitation calls, but also because the recipients sometimes
`
`have to pay their cellular phone providers for receiving the calls or incur a usage deduction on
`
`their plan.
`
`5.
`
`In order to redress these injuries, Plaintiff, on behalf of himself and two
`
`nationwide classes brings suit under the Telephone Consumer Protection Act, 47 U.S.C.
`
`§ 227 (the “TCPA”), which protects the privacy right of consumers to be free from receiving
`
`unsolicited automated telephone calls.
`
` 6.
`
`On behalf of the classes, Plaintiff seeks an injunction requiring Defendants to
`
`cease all unauthorized automated telephone calls, and an award of statutory damages to the
`
`members of the classes, together with costs and reasonable attorneys’ fees.
`
`
`
`2
`
`Fraunhofer Ex 2017-2
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 3 of 11 PageID #:83
`
`JURISDICTION AND VENUE
`
`7.
`
`This Court has federal question subject matter jurisdiction under 28 U.S.C.
`
`§ 1331, as the action arises under the federal Telephone Consumer Protection Act, 47 U.S.C.
`
`§ 227 et seq.
`
`8.
`
`Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(b)
`
`because Plaintiff resides in this District, Defendants transact business in this District, and a
`
`substantial part of the events concerning the unauthorized robocalls at issue occurred in this
`
`District, as Plaintiff’s cellular telephone received Defendants’ unsolicited robocalls within this
`
`District.
`
`9.
`
`Plaintiff Elikman is a resident of the State of Illinois.
`
`PARTIES
`
`10.
`
`Defendant Sirius XM Radio, Inc. is a nationwide provider of satellite radio
`
`services. Sirius XM is a Delaware corporation with its principal place of business located in
`
`New York. Sirius XM conducts business in this District, and conducts business elsewhere
`
`throughout the United States.
`
`11.
`
`Defendant Career Horizons, Inc. d/b/a TeleServices Direct is a global operator of
`
`call centers located in the United States and in other countries. TeleServices is an Indiana
`
`corporation with
`
`its
`
`principal
`
`place
`
`of
`
`business
`
`located
`
`in
`
`Indiana.
`
`COMMON ALLEGATIONS OF FACT
`
`12.
`
`Sirius XM is a nationwide provider of a paid subscription satellite radio service.
`
`13.
`
`TeleServices is a global operator of call centers that works with various
`
`companies to establish automated phone call operations that market their goods and services by
`
`3
`
`Fraunhofer Ex 2017-3
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 4 of 11 PageID #:84
`
`using an ATDS to place telephone calls to the phone numbers of thousands of potential
`
`customers.
`
`14.
`
`In an effort to promote its satellite radio service, Sirius XM contracted with
`
`TeleServices to establish an automated calling operation to solicit potential customers.
`
`15.
`
`Sirius XM and TeleServices both shared control over various aspects of the day-
`
`to-day operations of the automated calling operation.
`
`16.
`
`Sirius XM authorized and directed the automated calling operation to act on its
`
`behalf and establish contractual relationships between Sirius XM and called parties who agreed
`
`to purchase Sirius XM’s satellite radio service as a result of a successful telephone solicitation
`
`call.
`
`17.
`
` Starting at least as early as 2014, Defendants engaged in the mass transmission of
`
`unsolicited robocalls to the cell phones nationwide of what they hoped were potential customers
`
`of Sirius XM services.
`
`18.
`
`Beginning in or about December 2014, in an apparent effort to sell Sirius XM’s
`
`satellite radio subscription service to Plaintiff, Defendants began placing robocalls to Plaintiff’s
`
`cellular telephone.
`
`19.
`
`Specifically, Plaintiff’s cell phone would ring and indicate that he was receiving a
`
`phone call from 888-539-7474, a phone number associated with Defendants’ automated calling
`
`operation that markets Sirius XM’s satellite radio service.
`
`20.
`
`These automated solicitation calls, including the calls made to Plaintiff, were
`
`placed en masse using “predictive dialing” technology, which automatically places calls without
`
`
`
`4
`
`Fraunhofer Ex 2017-4
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 5 of 11 PageID #:85
`
`human intervention until the called party answers the call, at which time such automatic dialer
`
`attempts to connect the called party with a human representative.
`
`21. When Plaintiff would answer the phone calls, the call would be connected to
`
`Defendants’ automated calling operation and a sales representative would eventually come on
`
`the line and attempt to make a “sales pitch” promoting Sirius XM’s satellite radio service.
`
`22.
`
`For example, on or about February 26, 2015, Plaintiff received yet another
`
`unauthorized robocall from Defendants. When Plaintiff answered the call, a sales associate
`
`introduced herself by name, stated that she was calling on behalf of Sirius XM Radio, and
`
`proceeded to make a sales pitch. The sales associate told Plaintiff to call 888-553-9879 –
`
`another phone number associated with Defendants’ automated calling operation that markets
`
`Sirius XM’s satellite radio service – if he was interested in purchasing a subscription in the
`
`future.
`
`23.
`
`Plaintiff received these unwanted and unsolicited robocalls one to two times a
`
`week, every week, over the past several months preceding the filing of the instant complaint.
`
`24.
`
`Plaintiff has never been a Sirius XM subscriber and at no time did Plaintiff
`
`provide Sirius XM or TeleServices with consent, including any written consent, to place any
`
`telephone calls, including any calls made through an ATDS, to his cellular telephone number.
`
`25.
`
`Plaintiff’s cellular telephone number has been registered with the National Do-
`
`Not-Call Registry since August 2006 and at all times that he received robocalls from Defendants.
`
`26.
`
`Plaintiff has never contacted Sirius XM or TeleServices for any purpose and has
`
`never had any business relationship with either Defendant.
`
`
`
`5
`
`Fraunhofer Ex 2017-5
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 6 of 11 PageID #:86
`
`27.
`
`Sirius XM was, or should have been, aware that the automated calling operation
`
`marketing its satellite radio service was placing telephone solicitation calls in violation of the
`
`TCPA.
`
`28.
`
`Sirius XM had the ability to prevent unauthorized calls in violation of the TCPA
`
`from being placed by the automated calling operation.
`
`CLASS ACTION ALLEGATIONS
`
`29.
`
`Plaintiff brings this action on behalf of himself, two nationwide classes, and one
`
`subclass (together, the “Classes”) defined as follows:
`
`(i) The Called Party Class: All persons in the United States and its Territories who, within
`
`four years prior to the commencement of this litigation, received one or more telephone
`
`solicitation calls on their cellular telephone advertising Sirius XM’s satellite radio service
`
`through an automated telephone dialing system without providing prior express consent to
`
`receive such phone calls.
`
`(ii) The Written Consent Subclass: All persons in the United States and its Territories
`
`who, since October 16, 2013, received one or more telephone solicitation calls on their cellular
`
`telephone advertising Sirius XM’s satellite radio service through an automated telephone dialing
`
`system without providing prior express written consent to receive such phone calls.
`
`(iii) The Do-Not-Call Class: All persons in the United States and its Territories who,
`
`within four years prior to the commencement of this litigation, received one or more telephone
`
`solicitation calls on their telephone advertising Sirius XM’s satellite radio service more than 31
`
`days after registering their telephone number with the National Do-Not-Call Registry and who
`
`6
`
`Fraunhofer Ex 2017-6
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 7 of 11 PageID #:87
`
`did not have a prior established business relationship with Defendants and did not provide
`
`Defendants prior express written consent to receive such calls..
`
`30.
`
`Plaintiff will fairly and adequately represent and protect the interests of the other
`
`members of the Classes. Plaintiff has retained counsel with substantial experience in prosecuting
`
`complex litigation and class actions. Plaintiff and his counsel are committed to vigorously
`
`prosecuting this action on behalf of the other members of the Classes, and have the financial
`
`resources to do so. Neither Plaintiff nor his counsel has any interest adverse to those of the other
`
`members of the Classes.
`
`31.
`
`Absent a class action, most members of the Classes would find the cost of
`
`litigating their claims to be prohibitive and would have no effective remedy. The class treatment
`
`of common questions of law and fact is also superior to multiple individual actions or piecemeal
`
`litigation in that it conserves the resources of the courts and the litigants, and promotes
`
`consistency and efficiency of adjudication.
`
`32.
`
`Defendants have acted and failed to act on grounds generally applicable to the
`
`Plaintiff and the other members of the Classes, requiring the Court’s imposition of uniform relief
`
`to ensure compatible standards of conduct toward the members of the Classes, and making
`
`injunctive or corresponding declaratory relief appropriate for the Classes as a whole.
`
`33.
`
`The factual and legal bases of Defendants’ liability to Plaintiff and to the other
`
`members of the Classes are the same, resulting in injury to Plaintiff and to all of the other
`
`members of the Classes. Plaintiff and the other members of the Classes have all suffered harm
`
`and damages as a result of Defendants’ unlawful and wrongful conduct.
`
`7
`
`Fraunhofer Ex 2017-7
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 8 of 11 PageID #:88
`
`34.
`
`Upon information and belief, there are hundreds, if not thousands, of members of
`
`the Classes such that joinder of all members is impracticable.
`
`35.
`
`There are many questions of law and fact common to the claims of Plaintiff and
`
`the other members of the Classes, and those questions predominate over any questions that may
`
`affect individual members of the Classes. Common questions for the Classes include, but are not
`
`limited to, the following:
`
`(a)
`
`Did Defendants place automated telephone calls marketing Sirius XM’s satellite
`
`radio service?
`
`(b) Were the calls marketing Sirius XM’s satellite radio service placed using an
`
`automatic telephone dialing system?
`
`(c)
`
`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
`
`radio service using an automatic telephone dialing system to persons who did not
`
`previously provide Defendants with prior express consent to receive such calls on
`
`their respective cellular telephone numbers?
`
`(d)
`
`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
`
`services using an automatic telephone dialing system after October 16, 2013 to
`
`persons who did not previously provide Defendants with prior express written
`
`consent to receive such calls on their respective cellular telephone numbers?
`
`(e)
`
`Did the unauthorized calls made by Defendants using an ATDS violate the
`
`TCPA?
`
`(f)
`
`Did Defendants place telephone solicitation calls advertising Sirius XM’s satellite
`
`services to persons whose telephone numbers were registered with the National
`
`
`
`8
`
`Fraunhofer Ex 2017-8
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 9 of 11 PageID #:89
`
`Do-Not-Call Registry and who did not have a prior established relationship with
`
`Defendants and did not provide Defendants with prior express written consent to
`
`receive such calls?
`
` (g) Was Defendants’ conduct in violation of the TCPA willful such that the members
`
`of the Classes are entitled to treble damages?
`
` (h)
`
`Should Defendants be enjoined from continuing to engage in such conduct?
`
`COUNT I
` Violation of the Telephone Consumer Protection Act (47 U.S.C. 227, et seq.)
`on behalf of the Called Party Class and Written Consent Subclass
`
`
`
`36.
`
`Plaintiff incorporates by reference the foregoing allegations as if fully set forth
`
`herein.
`
`37.
`
`Defendants made unauthorized telephone solicitation calls without prior express
`
`consent using an automatic telephone dialing system to the cellular telephone numbers of
`
`Plaintiff and the other members of the Called Party Class. Each such automated call was made
`
`using equipment that had the capacity at the time the calls were placed to store or produce
`
`telephone numbers to be called using a random or sequential number generator and to dial such
`
`numbers.
`
`38.
`
`Defendants made unauthorized telephone solicitation calls after October 16, 2013
`
`without prior express written consent using an automatic telephone dialing system to the cellular
`
`telephone numbers of Plaintiff and the other members of the Written Consent Subclass. Each
`
`such automated call was made using equipment that had the capacity at the time the calls were
`
`placed to store or produce telephone numbers to be called using a random or sequential number
`
`generator and to dial such numbers.
`
`
`
`9
`
`Fraunhofer Ex 2017-9
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 10 of 11 PageID #:90
`
`39.
`
`Defendants’ conduct violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii).
`
`40.
`
`As a result of Defendants’ illegal conduct, the members of the Called Party Class
`
`and Written Consent Subclass have had their privacy rights violated, have suffered statutory and
`
`actual damages, and, under 47 U.S.C. § 227(b)(3)(B), are each entitled, inter alia, to a minimum
`
`of $500.00 in damages for each such violation of the TCPA.
`
`COUNT II
` Violation of the Telephone Consumer Protection Act (47 U.S.C. 227, et seq.)
`on behalf of the Do-Not-Call Class
`
`
`
`41.
`
`Plaintiff incorporates by reference the foregoing allegations as if fully set forth
`
`herein.
`
`42.
`
`Defendants made telephone solicitation calls to the telephone numbers of Plaintiff
`
`and the other members of the Do-Not-Call Class.
`
`43.
`
`Each such call was placed more than 31 days after Plaintiff and the other
`
`members of the Do-Not-Call Class had registered their respective phone numbers with the
`
`National Do-Not-Call Registry.
`
`44.
`
`Plaintiff and the other members of the Do-Not-Call Class never had an established
`
`business relationship with Defendants prior to receiving the calls.
`
`45.
`
`Plaintiff and the other members of the Do-Not-Call Class never gave prior express
`
`written consent to Defendants to receive telephone solicitation calls.
`
`46.
`
`Defendants’ conduct violated the TCPA, 47 U.S.C. § 227(c)(5) and its
`
`implementing regulations 47 C.F.R. 64.1200(c)(2) and 47 C.F.R. 64.1200(e).
`
`47.
`
`As a result of Defendants’ illegal conduct, the members of the Do-Not-Call Class
`
`have had their privacy rights violated, have suffered statutory and actual damages, and, under 47
`
`
`
`10
`
`Fraunhofer Ex 2017-10
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
`
`Case: 1:15-cv-02093 Document #: 11 Filed: 04/01/15 Page 11 of 11 PageID #:91
`
`U.S.C. § 227(c)(5)(B), are each entitled, inter alia, to a minimum of $500.00 in damages for each
`
`such violation of the TCPA.
`
`REQUEST FOR RELIEF
`
`Plaintiff, on behalf of himself and the Classes, requests the following relief:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`An order certifying the Classes as defined above;
`
`An award of statutory damages;
`
`An injunction requiring Defendants to cease all unauthorized automated telephone
`
`activities;
`
`An award of reasonable attorney’s fees and expenses of litigation; and
`
`Such further and other relief as the Court deems just or equitable.
`
`Plaintiff requests trial by jury of all claims that can be so tried.
`
`JURY DEMAND
`
`Dated: April 1, 2015
`
`YEFIM ELIKMAN, individually and on behalf of
`classes of similarly situated individuals
`
`By: /s/ Eugene Y. Turin
`One of Plaintiff’s Attorneys
`
`Myles McGuire
`Evan M. Meyers
`Eugene Y. Turin
`MCGUIRE LAW, P.C.
`161 North Clark Street, 47th Fl.
`Chicago, Illinois 60601
`Tel: (312) 216-5179
`Fax: (312) 275-7895
`mmcguire@mcgpc.com
`emeyers@mcgpc.com
`eturin@mcgpc.com
`
`11
`
`Fraunhofer Ex 2017-11
`Sirius XM v Fraunhofer, IPR2018-00690
`
`
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