UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`
`Plaintiff,
`
`Armania Ingram, on behalf of herself
`and on behalf of all others similarly
`situated,
`
`
`
`v.
`
`ADT LLC,
`
`
`
`
`Defendant.
`
`
`
`
`
`Case No:
`Class Action
`JURY DEMAND
`
`
`
`
`
`
`
`
`
`COMPLAINT
`
`
`Plaintiff Armania Ingram, on behalf of herself and on behalf of all others
`
`similarly situated, alleges on personal knowledge, investigation of counsel and
`
`information and belief as follows:
`
`NATURE OF ACTION
`
`1.
`
`Plaintiff brings this action for damages, and other legal and equitable
`
`remedies, resulting from the illegal actions of defendant in negligently, knowingly
`
`and/or willfully calling plaintiff and class members on their cellular telephones using an
`
`“automatic telephone dialing system,” as defined by 47 U.S.C. § 227(a)(1), and/or using
`
`“an artificial or prerecorded voice” as referenced in 47 U.S.C. § 227(b)(1)(A), without
`
`their prior express consent within the meaning of the Telephone Consumer Protection
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 1 of 13 PageID #: 1
`
`1
`
`
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`
`Plaintiff,
`
`Armania Ingram, on behalf of herself
`and on behalf of all others similarly
`situated,
`
`
`
`v.
`
`ADT LLC,
`
`
`
`
`Defendant.
`
`
`
`
`
`Case No:
`Class Action
`JURY DEMAND
`
`
`
`
`
`
`
`
`
`COMPLAINT
`
`
`Plaintiff Armania Ingram, on behalf of herself and on behalf of all others
`
`similarly situated, alleges on personal knowledge, investigation of counsel and
`
`information and belief as follows:
`
`NATURE OF ACTION
`
`1.
`
`Plaintiff brings this action for damages, and other legal and equitable
`
`remedies, resulting from the illegal actions of defendant in negligently, knowingly
`
`and/or willfully calling plaintiff and class members on their cellular telephones using an
`
`“automatic telephone dialing system,” as defined by 47 U.S.C. § 227(a)(1), and/or using
`
`“an artificial or prerecorded voice” as referenced in 47 U.S.C. § 227(b)(1)(A), without
`
`their prior express consent within the meaning of the Telephone Consumer Protection
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 1 of 13 PageID #: 1
`
`1
`
`
`
`Act (hereinafter referred to as the “TCPA”), 47 U.S.C. § 227 et seq., and the Federal
`
`Communication Commission rules promulgated thereunder, 47 C.F.R. § 64.1200.
`
`2.
`
`Plaintiff brings this action for injunctive relief and statutory damages
`
`resulting from defendant’s illegal actions.
`
`JURISDICTION AND VENUE
`
`3.
`
`This matter in controversy exceeds $5,000,000, as each member of the
`
`proposed class is entitled to up to $3,000 in statutory damages for each call that violated
`
`the TCPA. Accordingly, this court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2).
`
`Further, plaintiff alleges a national class, which will result in at least one class member
`
`belonging to a different state. Therefore, both elements of diversity jurisdiction under
`
`the Class Action Fairness Act of 2005 (“CAFA”) are present, and this court has
`
`jurisdiction. This court also has federal question jurisdiction pursuant to 28 U.S.C. §
`
`1331.
`
`4.
`
`Venue is proper in this court pursuant to 28 U.S.C. § 1391 and 28 U.S.C. §
`
`123 because a substantial part of the events or omissions giving rise to the claim
`
`occurred in this district.
`
`PARTIES
`
`5.
`
`Plaintiff is, and at all times mentioned herein was, a resident of Knox
`
`County, Tennessee.
`
`
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`
`2
`
`
`
`6.
`
`Defendant ADT LLC is, and at all times mentioned herein was, a
`
`Delaware limited liability company doing business in Knox County, Tennessee.
`
` THE TELEPHONE CONSUMER PROTECTION ACT
`
`7.
`
`In 1991, Congress enacted the TCPA1 in response to a growing number of
`
`consumer complaints regarding certain telemarketing practices.
`
`8.
`
`The TCPA regulates, among other things, the use of automated telephone
`
`equipment, or “autodialers,” and prerecorded voices. Specifically, the plain language of
`
`section 227(b)(1)(A)(iii) prohibits the use of an autodialer or prerecorded voice to make
`
`any call to a wireless number in the absence of an emergency or the prior express
`
`consent of the called party.2
`
`9.
`
`According to findings by the FCC, the agency Congress vested with
`
`authority to issue regulations implementing the TCPA, such calls are prohibited
`
`because, as Congress found, automated or prerecorded telephone calls are a greater
`
`nuisance and invasion of privacy than live solicitation calls, and such calls can be costly
`
`
`
`1 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991),
`codified at 47 U.S.C. § 227. The TCPA amended Title II of the Communications Act of
`1934, 47 U.S.C. § 201 et seq.
`
`2 Courts have long held that that a “called party” under the TCPA is the recipient of the
`call, not the party the caller was intending to reach. See, e.g., Osorio v. State Farm Bank,
`F.S.B., 746 F.3d 1242, 1251 (11th Cir. 2014); Soppet v.Enhanced Recovery Co., LLC,, 679 F.3d
`637, 638-39 (7th Cir. 2012).
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 3 of 13 PageID #: 3
`
`3
`
`
`
`and inconvenient. The FCC also recognized that wireless customers are charged for
`
`incoming calls whether they pay in advance or after the minutes are used.3
`
`10.
`
`In 2003, the FCC affirmed that it is unlawful “to make any call using an
`
`automatic telephone dialing system or an artificial or prerecorded message to any
`
`wireless telephone number.”4
`
`11.
`
`Further, a single call using both a prerecorded voice and an autodialer
`
`constitutes two violations of the TCPA, even if both violations arose from the same call.5
`
`12.
`
`The 2003 FCC order also defined a predictive dialer as “an automated
`
`dialing system that uses a complex set of algorithms to automatically dial consumers’
`
`telephone numbers in a manner that ‘predicts’ the time when a consumer will answer
`
`the phone and a telemarketer will be available to take the call.”6 The FCC concluded
`
`that “[t]he basic function of such equipment…[is] the capacity to dial numbers without
`
`human intervention.”7
`
`13. On January 4, 2008, the FCC released a Declaratory Ruling wherein it
`
`“reiterate[d] that the plain language of section 227(b)(1)(A)(iii) prohibits the use of
`
`
`3 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
`CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003).
`
`4 Id., ¶ 165. See also 47 U.S.C. § 227(b)(1), which contains exceptions for calls made for
`emergency purposes or made with the prior express consent of the called party.
`
`5 See Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101 (11th Cir. 2015).
`
`6 Id. at 14,143 n. 31.
`
`7 Id. at 14,092.
`
`
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`
`4
`
`
`
`autodialers to make any call to a wireless number in the absence of an emergency or the
`
`prior express consent of the called party.”8
`
`14.
`
`The 2008 Declaratory Ruling “affirm[ed] that a predictive dialer
`
`constitutes an automatic telephone dialing system and is subject to the TCPA’s
`
`restrictions on the use of autodialers.”9
`
`15.
`
`In 2018, a D.C. Circuit decision struck down portions of a 2015 FCC Order,
`
`but in a portion unaffected by the decision the 2015 FCC Order held that consumers
`
`may revoke consent through reasonable methods. Thus, consumers may revoke consent
`
`through any reasonable method, including orally: “[c]onsumers generally may revoke,
`
`for example, by way of a consumer-initiated call, directly in response to a call initiated
`
`or made by a caller, or at an in-store bill payment location, among other possibilities.”10
`
`16. Under the TCPA, the burden is on defendants to demonstrate prior
`
`express consent.11
`
`
`8 In the Matter of Rules and Regulations Implementing the Telephone Consumer
`Protection Act of 1991 (“FCC Declaratory Ruling”), 23 F.C.C.R. 559, ¶ 11, 23 FCC Rcd.
`559, 43 Communications Reg. (P&F) 877, 2008 WL 65485 (F.C.C.) (2008).
`
`9 23 FCC Rcd. at 566.
`
`10 2015 Order at (¶ 64).
`
`11 See FCC Declaratory Ruling, 23 F.C.C.R. at 565 (¶ 10); Toney v. Quality Res., Inc., 2014
`WL 6757978, at *3 (N.D. Ill. Dec. 1, 2014).
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 5 of 13 PageID #: 5
`
`5
`
`
`
`FACTUAL ALLEGATIONS
`
`17.
`
`Plaintiff is, and at all times mentioned herein was, a “person” as defined
`
`by 47 U.S.C. § 153(39).
`
`18. Defendant is, and at all times mentioned herein was, a “person” as
`
`defined by 47 U.S.C. § 153(39).
`
`19.
`
`Plaintiff has, and at all times mentioned herein had, a cellular telephone
`
`number ending in 8261 (hereinafter “plaintiff’s [or her] cellular telephone number”).
`
`20.
`
`Plaintiff’s cellular telephone number is, and at all times mentioned herein
`
`was, “assigned…to a cellular telephone service,” as referenced in 47 U.S.C. §
`
`227(b)(1)(A)(iii).
`
`21.
`
`Beginning in approximately July 2019, plaintiff began receiving calls from
`
`defendant on her cellular telephone number.
`
`22. Defendant’s calls to plaintiff’s cellular telephone number were not “for
`
`emergency purposes,” as referenced in 47 U.S.C. § 227(b)(1)(A).
`
`23. When plaintiff answered the calls, sometimes she heard a noticeable pause
`
`(characteristic of autodialed calls) followed by a live person and sometimes she heard
`
`an artificial or prerecorded voice.
`
`24.
`
`Plaintiff has never been a customer of defendant, and she has never given
`
`prior express consent to be called by defendant using an automatic telephone dialing
`
`system or an artificial or prerecorded voice.
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 6 of 13 PageID #: 6
`
`6
`
`
`
`25.
`
`Several times plaintiff asked defendant to stop calling, but the calls
`
`continued and totaled in the hundreds if not thousands.
`
`26.
`
`The calls were repeated, annoying, intrusive and harassing.
`
`27.
`
`In receiving unwanted and unsolicited calls on her cellular telephone
`
`number, plaintiff suffered concrete harm in the form of lost time spent fielding the
`
`unwanted calls, loss of use of her cellular telephone as the calls came in, loss of capacity
`
`of the voice mailbox, invasion of her privacy, and intrusion upon her seclusion and time
`
`with her family.
`
`28. Many or all of the calls made by defendant to plaintiff’s cellular telephone
`
`number were made using an “automatic telephone dialing system,” as defined by 47
`
`U.S.C. § 227(a)(1), and/or “an artificial or prerecorded voice,” as referenced in 47 U.S.C.
`
`§ 227(b)(1)(A).
`
`29. Many or all of the calls made by defendant to plaintiff’s cellular telephone
`
`number were made using equipment that had, at the time the calls were made, the
`
`capacity to: (a) store or produce telephone numbers to be called; and (b) dial such
`
`telephone numbers without human intervention, regardless of whether or not such
`
`capacity was actually used to place a particular call.
`
`30.
`
`Specifically, defendant used equipment manufactured by Avaya to call
`
`plaintiff.
`
`
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`
`7
`
`
`
`31. Defendant’s Avaya system included Avaya Proactive Contact, a system
`
`the Sixth Circuit recently held qualifies as an automatic telephone dialing system.12
`
`32. Defendant’s calls to plaintiff’s cellular telephone number using an
`
`automatic telephone dialing system and/or an artificial or prerecorded voice violated 47
`
`U.S.C. § 227(b)(1)(A)(iii).
`
`CLASS ACTION ALLEGATIONS
`
`33.
`
`Plaintiff brings this action on behalf of herself and on behalf of all other
`
`persons similarly situated (hereinafter referred to as “the class”).
`
`34.
`
`Plaintiff proposes the following class definition, subject to amendment as
`
`appropriate:
`
`All persons within the United States whose cellular telephone number
`was called by defendant on or after August 24, 2016, for a non-emergency
`purpose, using an automatic telephone dialing system or an artificial or
`prerecorded voice, and who did not provide, or who revoked, prior
`express consent for such calls.
`
`
`Collectively, all these persons will be referred to as “class members.” Plaintiff
`
`represents, and is a member of, the class. Excluded from the class are defendant and
`
`any entities in which defendant has a controlling interest, defendant’s agents and
`
`employees, any judge to whom this action is assigned and any member of such judge’s
`
`staff and immediate family, plaintiff’s counsel, and claims for personal injury, wrongful
`
`
`12 See Allan v. Pennsylvania Higher Educ. Assistance Agency, 2020 WL 4345341 (6th Cir.
`July 29, 2020).
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 8 of 13 PageID #: 8
`
`8
`
`
`
`death and/or emotional distress.
`
`35.
`
`Plaintiff does not know the exact number of members in the class, but on
`
`information and belief the number is at a minimum in the thousands.
`
`36.
`
`Plaintiff and all members of the class have been harmed by defendant’s
`
`acts, including, but not limited to, the invasion of their privacy, annoyance, waste of
`
`time, depletion of their cellular phone battery, and the intrusion on their cellular
`
`telephone that occupied it from receiving legitimate communications.
`
`37.
`
`This class action complaint seeks injunctive relief and money damages.
`
`38.
`
`The joinder of all class members is impracticable due to the size and
`
`relatively modest value of each individual claim. The disposition of the claims in a class
`
`action will provide substantial benefit to the parties and the judicial economy of the
`
`court in avoiding a multiplicity of identical suits. The class can be identified easily
`
`through records maintained by defendant.
`
`39.
`
`There are well defined, nearly identical, questions of law and fact affecting
`
`all class members. The questions of law and fact involving the class claims predominate
`
`over questions which may affect individual class members. Those common questions of
`
`law and fact include, but are not limited to, the following:
`
`a.
`
`Whether defendant made non-emergency calls to plaintiff’s and class
`members’ cellular telephones using an automatic telephone dialing system
`and/or an artificial or prerecorded voice;
`
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 9 of 13 PageID #: 9
`
`9
`
`
`
`c.
`
`b. Whether defendant can meet its burden of showing it obtained prior
`express consent (i.e., consent that is clearly and unmistakably stated) to
`make such calls;
`
`Whether defendant’s conduct was knowing and/or willful;
`
`d. Whether defendant is liable for damages, and the amount of such
`damages; and
`
`Whether defendant should be enjoined from engaging in such conduct in
`the future.
`
`40. As a person who received numerous and repeated calls made using an
`
`e.
`
`automatic telephone dialing system or an artificial or prerecorded voice, without her
`
`prior express consent within the meaning of the TCPA and rules, plaintiff asserts claims
`
`that are typical of each class member. Plaintiff will fairly and adequately represent and
`
`protect the interests of the class, and she has no interests which are antagonistic to any
`
`member of the class.
`
`41.
`
`Plaintiff has retained counsel experienced in handling class action claims
`
`involving violations of federal and state consumer protection statutes, including claims
`
`under the TCPA.
`
`42. A class action is the superior method for the fair and efficient adjudication
`
`of this controversy. Class wide relief is essential to compel defendant to comply with
`
`the TCPA. The interest of class members in individually controlling the prosecution of
`
`separate claims against defendant is small because the statutory damages in an
`
`individual action for violation of the TCPA are relatively small. Management of these
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 10 of 13 PageID #: 10
`
`10
`
`
`
`claims is likely to present substantially fewer difficulties than are presented in many
`
`class claims because the calls at issue are all automated and the class members, by
`
`definition, did not provide the prior express consent required under the statute to
`
`authorize calls to their cellular telephones.
`
`43. Defendant has acted on grounds generally applicable to the class, thereby
`
`making final injunctive relief and corresponding declaratory relief with respect to the
`
`class as a whole appropriate. Moreover, on information and belief, plaintiff alleges that
`
`the TCPA violations complained of herein are substantially likely to continue in the
`
`future if an injunction is not entered.
`
`CAUSES OF ACTION
`
`I.
`
`FIRST COUNT: KNOWING AND/OR WILLFUL VIOLATIONS OF THE
`TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.
`
`
`44.
`
`Plaintiff incorporates by reference the foregoing paragraphs of this
`
`complaint as if fully stated herein.
`
`45.
`
`The foregoing acts and omissions of defendant constitute numerous and
`
`multiple knowing and/or willful violations of the TCPA, including but not limited to
`
`each of the above-cited provisions of 47 U.S.C. § 227 et seq.
`
`46. As a result of defendant’s knowing and/or willful violations of 47 U.S.C. §
`
`227 et seq., plaintiff and each member of the class are entitled to treble damages of $1,500
`
`for each and every violation of the statute, pursuant to 47 U.S.C. § 227(b)(3).
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 11 of 13 PageID #: 11
`
`11
`
`
`
`47.
`
`Plaintiff and all class members are also entitled to and do seek injunctive
`
`relief prohibiting such conduct violating the TCPA by defendant in the future. Plaintiff
`
`and class members are also entitled to an award of attorney fees and costs.
`
`II.
`
`SECOND COUNT: STATUTORY VIOLATIONS OF THE TELEPHONE
`CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.
`
`48.
`
`Plaintiff incorporates by reference the foregoing paragraphs of this
`
`complaint as if fully set forth herein.
`
`49.
`
`The foregoing acts and omissions of defendant constitute numerous and
`
`multiple violations of the TCPA, including but not limited to each of the above cited
`
`provisions of 47 U.S.C. § 227 et seq.
`
`50. As a result of defendant’s violations of 47 U.S.C. § 227 et seq., plaintiff and
`
`class members are entitled to an award of $500 in statutory damages for each and every
`
`violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).
`
`51.
`
`Plaintiff and class members are also entitled to and do seek injunctive
`
`relief prohibiting defendant’s violation of the TCPA in the future.
`
`52.
`
`Plaintiff and class members are also entitled to an award of attorney fees
`
`and costs.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, plaintiff respectfully requests that the court grant plaintiff and all
`
`class members the following relief against defendant:
`
`A.
`
`Injunctive relief prohibiting such violations of the TCPA by defendant in
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 12 of 13 PageID #: 12
`
`12
`
`
`
`the future;
`
`B.
`
`As a result of defendant’s willful and/or knowing violations the TCPA,
`
`plaintiff seeks for herself and each class member treble damages, as provided by statute,
`
`of $1,500 for each and every violation of the TCPA;
`
`C.
`
`As a result of defendant’s statutory violations the TCPA, plaintiff seeks for
`
`herself and each class member $500 in statutory damages for each and every violation
`
`of the TCPA;
`
`D. An award of attorney fees and costs to counsel for plaintiff and the class;
`
`E.
`
`An order certifying this action to be a proper class action pursuant to
`
`Federal Rule of Civil Procedure 23, establishing an appropriate class, finding that
`
`plaintiff is a proper representative of the class, and appointing the lawyers and law firm
`
`representing plaintiff as counsel for the class;
`
`F.
`
`A trial by jury on all counts so triable; and
`
`F.
`
`Such other relief as the court deems just and proper.
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`THE HIGGINS FIRM, PLLC
`
`/s/ Benjamin J. Miller______________________
`BENJAMIN J. MILLER (#25575)
`525 4th Ave S
`Nashville, TN 37210
`(615) 353-0930
`ben@higginsfirm.com
`
`Attorneys for Plaintiff
`
`13
`
`
`Case 3:20-cv-00376-PLR-HBG Document 1 Filed 08/24/20 Page 13 of 13 PageID #: 13
`
`
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