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On information and belief, Defendants received some or all of the revenues from the sale of the products, goods and services advertised on Exhibit A, and Defendants profit and benefit from the sale of the products, goods and services advertised on Exhibit A. Plaintiff did not give prior express invitation or permission to Defendants to send the fax. On information and belief, Defendants faxed the same and other unsolicited facsimiles with opt-out language identical or substantially similar to the opt-out language of the fax advertisement attached hereto as Exhibit A to Plaintiff and at least 40 other recipients or sent the same and other advertisements by fax with the required opt-out language but without first receiving the recipients’ express invitation or permission and without having an established business relationship as defined by the TCPA and its regulations because the opt-out language was not compliant. There is no reasonable means for Plaintiff (or any other class member) to avoid receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent communications their owners desire to receive. Defendants’ facsimile attached as Exhibit A does not display a proper opt-out notice as required by 47 C.F.R. § 64.1200. Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon such information and belief avers, that the number of persons and entities of the Plaintiff Class is numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon such information and belief avers, that the number of class members is at least forty. Typicality (Fed. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received the same or similar faxes as the faxes sent by or on behalf of the Defendants advertising products, goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted in the same or in a similar manner with respect to the Plaintiff and all the class members by sending Plaintiff and each member of the class the same or similar faxes or faxes which did not contain the proper opt-out language or were sent without prior express invitation or permission. Need for Consistent Standards and Practical Effect of Adjudication (Fed. R. Civ. P. 23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by class members would: (a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties. Common Conduct (Fed. R. Civ. P. 23 (b) (2)): Class certification is also appropriate because the Defendants have acted in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demands such relief as authorized by 47 U.S.C. § 227. The JFPA makes it unlawful for any person to “use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . .” 47 U.S.C. § 227(b)(1)(C). Defendants’ Other Violations. Plaintiff is informed and believes, and upon such information and belief avers, that during the period preceding four years of the filing of this Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from telephone facsimile machines, computers, or other devices to telephone facsimile machines of members of the Plaintiff Class other faxes that constitute advertisements under the JFPA that were transmitted to persons or entities without their prior express invitation or permission (and/or that Defendants are precluded from asserting any prior express invitation or permission or that Defendants had an established business relationship because of the failure to comply with the Opt-Out Notice Requirements in connection with such transmissions). By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder. Plaintiff is informed and believes, and upon such information and belief avers, that Defendants may be continuing to send unsolicited advertisements via facsimile transmission in violation of the JFPA and the regulations promulgated thereunder, and absent intervention by this Court, will do so in the future. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent.
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13,145,643
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a statement that the recipient is legally entitled to opt-out of receiving future faxed advertisements – knowing that he or she has the legal right to request an opt-out gives impetus for recipients to make such a request, if desired; On or about August 13, 2014, Defendants transmitted by telephone facsimile machine an unsolicited fax to Plaintiff. A copy of the facsimile is attached hereto as Exhibit A. Plaintiff had not invited or given permission to Defendants to send the fax. On information and belief, Defendants faxed the same and other unsolicited facsimiles without the required opt-out language to Plaintiff and more than 40 other recipients without first receiving the recipients’ express permission or invitation. There is no reasonable means for Plaintiff (or any other class member) to avoid receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent communications their owners desire to receive. Defendants’ facsimiles did not display a proper opt-out notice as required by 47 C.F.R. § 64.1200 because it does not contain: a) a toll free fax number to opt out, b) a statement explaining that a recipient is legally entitled to opt out, c) a statement that the sender must honor the request within 30 days and that failure to do so is unlawful, d) a statement advising recipient how he or she may opt out all his or her fax numbers, and e) the notice is not clear and conspicuous. a statement that the sender must honor a recipient’s opt-out request within 30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to opt-out, if they did not want future faxes, by advising them that their opt-out requests will have legal “teeth”; Class Size (F. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon such information and belief avers, that the number of persons and entities of the Plaintiff Class is numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon such information and belief avers, that the number of class members is over forty. Typicality (F. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received the same faxes as the faxes sent by or on behalf of the Defendants advertising goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted the same or in a similar manner with respect to the Plaintiff and all the class members by sending Plaintiff and each member of the class the same faxes. Fair and Adequate Representation (F. R. Civ. P. 23 (a) (4)): The Plaintiff will fairly and adequately represent and protect the interests of the class. It is interested in this matter, has no conflicts and has retained experienced class counsel to represent the class. Common Conduct (F. R. Civ. P. 23 (b) (2)): Class certification is also appropriate because the Defendants have acted and refused to act in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demands such relief as authorized by 47 U.S.C. §227. The JFPA makes unlawful for any person to "use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement …" 47 U.S.C. § 227(b)(1)(C). The JFPA defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." 47 U.S.C. § 227 (a) (5). The Fax. Defendants sent the on or about August 13, 2014, advertisement via facsimile transmission from telephone facsimile machines, computers, or other devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Fax as previously set forth herein. The Fax was transmitted to persons or entities without their prior express permission or invitation and/or Defendants are precluded from asserting any prior express permission or invitation because of the failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder by sending the Fax via facsimile transmission to Plaintiff and members of the Class. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent. The Defendants knew or should have known that (a) the Plaintiff and the other class members had not given express invitation or permission for the Defendants or anybody else to fax advertisements about the Defendants’ goods or services; (b) the Plaintiff and the other class members did not have an established business relationship; (c) Defendants transmitted an advertisement; (d) the Faxes did not contain the required Opt-Out Notice; and (e) Defendants’ transmission of advertisements that did not contain the required Opt-Out Notice was unlawful.
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8,138,726
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win
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Caduceus is an Occupational Medicine Practice with eight locations in Georgia. At all relevant times, Caduceus employed, and continues to employ, “Medical Assistants.” Caduceus employed Chavis as a “Medical Assistant.” Chavis regularly worked more than forty (40) hours in a workweek. Caduceus did not pay Chavis the overtime wage differential required by the FLSA on the occasions that he worked over forty (40) hours in a workweek. Chavis worked primarily at Caduceus’ midtown office location, but he also floated between offices as needed. Throughout Chavis’ employment with Caduceus, he has not been customarily or regularly engaged away from Caduceus’ place of business. Chavis’ job duties did not require the exercise of discretion and independent judgment with respect to matters of significance. Chavis did not manage any of Caduceus’ offices. Throughout Chavis’ employment with Caduceus, he has not customarily or regularly directed the work of at least two or more other full-time employees or their equivalent. Throughout Chavis’ employment with Caduceus, he has not had the authority to hire or fire any other employee. Throughout Chavis’ employment with Caduceus, his primary job duty has not been, and has not included, the performance of office or non-manual work directly related to the management or general business operations of Caduceus or Caduceus’s clients or customers. Throughout Chavis’ employment with Caduceus, his primary job has not been, and has not included, the performance of work requiring advanced technical knowledge, defined as work which has been predominately intellectual in character and which has included work requiring the consistent exercise of discretion and judgment. Based upon the duties assigned to Chavis, Caduceus has willfully failed and refused to pay Chavis one and one half times his regular rate for hours that he has worked in excess of forty (40) hours per work week. On or about January 26, 2010, Caduceus terminated Chavis’ employment after Chavis went out on medical leave on December 30, 2009. Chavis files this Complaint as a collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), on behalf of himself and on behalf of the Collective Plaintiffs. At all relevant times Chavis and the Collective Plaintiffs are / were1 similarly situated, have / had substantially similar job requirements and pay provisions, and are / were subject to Caduceus’ common decisions, policies, plans, programs, practices, procedures, protocols, routines and rules. Chavis’ claim / cause of action against Caduceus for willfully failing and refusing to pay him one and one half times their regular rate for hours that he worked in excess of forty (40) hours per workweek in violation of the FLSA is essentially the same as that of the Collective Plaintiffs. The Collective Plaintiffs’ primary or exclusive duties are / were answering the phone, taking x-rays, taking vital signs, performing agility tests, and medical assistant duties. The Collective Plaintiffs’ primary job is not / was not, and does not / did not include the exercise of discretion and independent judgment with respect to matters of significance. The Collective Plaintiffs do not / did not customarily or regularly direct the work of at least two or more other full-time employees or their equivalent. The Collective Plaintiffs do not / did not have the authority to hire or fire any other employee. The Collective Plaintiffs do not / did not provide suggestions or recommendations as to the hiring, firing, advancement, promotion or any other change of status of any other employee. The Collective Plaintiffs’ primary job is not / was not, and does not / did not include the performance of work requiring advanced technical knowledge, defined as work which has been predominately intellectual in character and which has included work requiring the consistent exercise of discretion and judgment. The Collective Plaintiffs’ primary job is not / was not, and does not / did not include, the performance of work requiring invention, imagination, originality or talent in a recognized field or artistic or creative endeavor. Caduceus regularly suffers or permits / regularly suffered or permitted the Collective Plaintiffs to work in excess of forty (40) hours per work week. Caduceus has willfully misclassified some Collective Plaintiffs as being exempt from overtime. There are at least approximately thirty (30) potential Collective Plaintiffs (i.e., similarly situated current and former individuals employed by Caduceus with the title / in the position “Medical Assistant” on or after the date that is three years prior to the date of the filing of this Complaint). Each of these potential Collective Plaintiffs would benefit from the issuance of Notice of this Complaint and the opportunity to opt in / join this Complaint. The potential Collective Plaintiffs’ names, current or last known telephone numbers, and current or last known addresses are readily available from Caduceus. Notice of this Complaint and the opportunity to opt in / join this Complaint can be provided to all of the potential Collective Plaintiffs via first class mail to each Collective Plaintiffs’ current or last known address. Chavis realleges and incorporates as if fully set forth herein the allegations set forth in all of the above paragraphs. Caduceus regularly suffers or permits / regularly suffered or permitted Chavis and the Collective Plaintiffs to work in excess of forty (40) hours per work week. Caduceus has failed and refused to pay Chavis and the Collective Plaintiffs one and one half times their regular rate for hours that they worked in excess of forty (40) hours per work week. Caduceus has misclassified some Collective Plaintiffs as being exempt from overtime. As a result of Caduceus’ violations of the FLSA, Chavis and the Collective Plaintiffs have suffered damages. Caduceus’ conduct in refusing to pay Chavis and the Collective Plaintiffs overtime compensation was a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a), entitling Chavis and the Collective Plaintiffs to the benefit of the three-year statute of limitations and unpaid compensation with interest to date plus liquidated damages all pursuant to 29 U.S.C. §§ 207, 215, 216(b), and 255. Caduceus’ failure or refusal to pay Chavis and the Collective Plaintiffs the overtime compensation owed further entitles them to recover attorneys’ fees and costs of this action pursuant to 29 U.S.C. § 216(b).
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18,623,509
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win
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Defendant Radius Agent develops software for real estate agents. One of their software programs, Radius Assist, generates leads for real estate agents by automatically sending out text messages. To advertise its software and demonstrate its functionality, Defendant used its software to automatically text thousands of cellular phones across the country. On September 28, 2020, Plaintiff received a text on his cell phone ending number in 1146 from Defendant from the phone number (720) 549-4205. The text message that Plaintiff received said “Hey Terry, I’m Mari with Radius Assist. We call and text your old and real-time leads for you,[sic] and increase your conversion rates. May I send you info?” Plaintiff responded to the message and was then solicited further for Defendant’s software. Plaintiff never consented to be contacted by Defendant and had no knowledge of Defendant whatsoever prior to receiving the unsolicited text message. Class Definition: Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of Plaintiff and a class defined as follows: Monetary Relief Class. All persons in the United States who: (1) from November 9, 2016 to the present; (2) were sent text message(s); (3) on his or her cellular telephone; (4) promoting the products or services of Radius Agent. Injunctive Relief Class. All persons who did not give express written consent prior to receiving texts advertising Defendant’s products or services on their cellular telephone numbers. Numerosity: The exact number of the Class members is unknown and not available to Plaintiff, but it is apparent that individual joinder is impracticable. On information and belief, Defendant sent text messages to thousands of consumers who fall into the definition of the Class. Members of the Class can be identified through Defendant’s records. Typicality: Plaintiff’s claims are typical of the claims of other members of the Class, in that Plaintiff and the Class members sustained damages arising out of Defendant’s uniform wrongful conduct and unsolicited text messages. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the other members of the Class. Plaintiff’s claims are made in a representative capacity on behalf of the other members of the Class. Plaintiff has no interests antagonistic to the interests of the other members of the proposed Class and is subject to no unique defenses. Plaintiff has retained competent counsel to prosecute the case on behalf of Plaintiff and the proposed Class. Plaintiff and Plaintiff’s counsel are committed to vigorously prosecuting this action on behalf of the members of the Class and have the financial resources to do so. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendant have acted or refused to act on grounds generally applicable to the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the Class members and making final injunctive relief appropriate with respect to the Class as a whole. Defendant’s practices challenged herein apply to and affect the Class members uniformly, and Plaintiff’s challenge of those practices hinge on Defendant’s conduct with respect to the Class as a whole, not on facts or law applicable only to Plaintiff. Plaintiff incorporates the foregoing allegations as if fully set forth herein. Using sophisticated software that it developed, Defendant sent automated text messages to Plaintiff’s and the Class members’ cellular telephones without having their prior express written consent to do so. Defendant used an automatic telephone dialing system as proscribed by 47 U.S.C. §227(b)(1)(A). Defendant’s texts were made for a commercial purpose. As a result of its unlawful conduct, Defendant repeatedly invaded Plaintiff’s and the Class’s personal privacy, causing them to suffer damages and, under 47 U.S.C. § 227(b)(3)(B), entitling them to recover $500 in civil fines for each violation and an injunction requiring Defendant to stop their illegal texting campaign. Defendant and/or its agent made the violating texts “willfully” and/or “knowingly” under 47 U.S.C. § 227(b)(3)(C). If the court finds that Defendant willfully and/or knowingly violated this subsection, the court may increase the civil fine from $500 to $1500 per violation under 47 U.S.C. § 227(b)(3)(C). Plaintiff incorporates the foregoing allegations as if fully set forth herein. Each of Defendant’s violations of 47 U.S.C. §227(b)(1)(A)(iii) constitute separate and cumulative violations of §17200. Plaintiff is authorized to pursue a private right of action for injunctive relief against Defendant under §17204. Unlawful Violation of California Unfair Competition Law Cal. Bus. & Prof. Code §17200 (On behalf of Plaintiff and the Class) Violation of 47 U.S.C. § 227 (On behalf of Plaintiff and the Class)
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5,317,841
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Defendant has employed in excess of 200 non-exempt Right of Way Agents who have been subject to the same policies (payment of day rate, no salary, non-payment of overtime despite having the primary duty of performing non-exempt work) at all times relevant to this matter (since May 2011). Defendant has violated §207(a) of the FLSA and the PMWA by failing to pay Plaintiff, and all other similarly situated non-exempt Right of Way Agents, who have performed work in excess of forty (40) hours in workweeks since May 2011 at a rate of time-and-one-half (1½) their regular rate of pay for the overtime hours worked. Prosecuting this case as a collective action under the FLSA and a class action under the PMWA for similarly situated non-exempt Right of Way Agents who have been unlawfully denied overtime wages will promote judicial efficiency and will best protect the interest of the class members. There are no conflicts of interest among the class members. Counsel for the Representative Plaintiff, Joseph H. Chivers and John R. Linkosky, are experienced in the field of employment law (including FLSA and PMWA wage claims), and collective/class actions, and will fairly and competently represent the interests of the class members. The class is so numerous that joinder of all members is impracticable [numerosity]. - As noted above, there are in excess of 200 class members and it would be impractical - if not impossible - to join them all individually. The claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]. - As noted above, the claims of the named Plaintiff are typical of the claims of the other Right of Way Agents, i.e., failure to pay overtime in accordance with the FLSA/PMWA. The defenses to Plaintiff’s claims (proper classification as exempt) are typical of any defenses to the claims of the class. The representative parties will fairly and adequately protect the interests of the class [adequacy]. - As noted above, counsel for the representative Plaintiffs, Joseph H. Chivers and John R. Linkosky, are experienced in the field of wage and hour law, and collective/class actions, and will fairly and competently represent the interests of the class members. In light of the above (numerosity, commonality, impracticability of joinder of separate actions), prosecuting this case as a collective/class action for similarly situated non- exempt Right of Way Agents who have been unlawfully denied overtime wages will promote judicial efficiency and will best protect the interests of the class members. Common issues predominate. A collective/class action is superior to other available methods for fairly and efficiently adjudicating this controversy, and would avoid duplicative and potentially inconsistent or varying adjudications that could impair or impede the ability of either party to protect its interests. Proof of liability for Defendant’s conduct depends on the conduct of Defendant, not on the conduct of the individual class members. Defendant has acted on grounds that apply generally to the class of non-exempt Right of Way Agents, making declaratory relief appropriate respecting the class as a whole. There are no conflicts of interest among the class members. Plaintiff hereby incorporates by reference Paragraphs 1 through 57 of his Complaint as though the same were more fully set forth herein. Defendant is an employer within the meaning of the FLSA and the PMWA. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, are not paid a salary. The primary duties of Plaintiff, and all other similarly situated non-exempt Right of Way Agents, are non-exempt duties within the meaning of the FLSA and the PMWA. These non-exempt primary duties are the result of common policies and practices applied by Defendant to Plaintiff, and all other similarly situated non-exempt Right of Way Agents. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, have worked in excess of 40 hours in workweeks since May 2011. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, have been paid no overtime pay since May 2011. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, have been subject to the same common policies and practices since May 2011. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, are entitled to be paid overtime compensation at time-and-one-half (1½) their regular rate of pay pursuant to the FLSA and the PMWA for hours worked in excess of forty (40) hours in workweeks since May 2011. Defendant has violated the FLSA and the PMWA by not paying Plaintiff, and all other similarly situated non-exempt Right of Way Agents, overtime compensation at time-and- one-half their regular rate of pay in workweeks in which the non-exempt Right of Way Agents have worked more than 40 hours since May 2011. Plaintiff, and all other similarly situated non-exempt Right of Way Agents, are also, under the FLSA, entitled to liquidated damages in an amount equal to the unpaid overtime. Defendant has also failed to maintain accurate time records regarding Plaintiff, and all other similarly situated non-exempt Right of Way Agents, in accordance with 29 CFR §516. Defendant’s failure to pay overtime at time-and-one-half (1½) the regular rate of pay, and to maintain accurate time records, is knowing and willful. Defendant’s failure to pay overtime at time-and-one-half (1½) the regular rate of pay, and to maintain accurate time records, is a violation of the FLSA and the PMWA. FAILURE TO PAY OVERTIME (INDIVIDUAL AND COLLECTIVE/CLASS ACTION)
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6,236,319
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TransUnion routinely reports information about tax liens on consumer reports and continues to report tax liens for a specified number of years after they have been paid, satisfied or released. On or about May 5, 2016, a Massachusetts state tax lien in the amount of $500 was entered against the property where Plaintiff lives in Worcester County, Northern District, Massachusetts. On or about June 28, 2016, Plaintiff caused payment in full to be sent to the proper authority, and on July 18, 2016, the lien was released. The “Status Date” for the lien record listed on the August 2017 report was “06/16,” which indicates that TransUnion had made no effort to check for updated public records on Plaintiff for over a year. 15 U.S.C. § 1681e(b) Despite the satisfaction of the tax lien, as reflected on Massachusetts public records, and pursuant to its usual and systemic practice, TransUnion did not remove the tax lien public record from Plaintiff’s credit reports, nor update it to show it as satisfied, released or paid. Massachusetts maintains online registries per county that are searchable by name or address. (See www.masslandrecords.com.) These records can be searched for free. Worcester County, Northern District maintains its online searchable records at www.fitchburgdeeds.com, which is also accessible through the site www.masslandrecords.com, once “North Worcester” is selected as the County to search. These records can be searched for free. Both from the face of the search results and from the underlying records, it is clear that Plaintiff’s tax lien has been paid and released. It is also clear that this release occurred in July 2016. The FCRA provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). TransUnion is well aware that it has problems with failing to accurately report public record information. In fact, it has been sued multiple times for reporting out-of-date tax lien information in particular. See Matthews v. Trans Union, LLC, No. 17-cv-01825 (E.D. Penn.); Dennis v. Trans Union, LLC, No. 14-cv-2865 (E.D. Penn.); Anderson v. Trans Union, LLC, No. 16-cv-558 (W.D. Va.); Clark v. Trans Union, LLC, No. 15-cv-391 (E.D. Va.). These suits were filed well in advance of the reporting of Plaintiff’s lien here. TransUnion receives its public record information that it includes on its reports from a third party. TransUnion knows that the tax lien information it obtains from this third party are often inaccurate, out of date, and/or stale. Yet, TransUnion does not take any action to ensure that the information it receives is accurate before reporting it. These rules were supposed to be in effect as of July 1, 2017, a month prior to TransUnion’s inaccurate reporting of Plaintiff’s lien status, and a year after the date of the release of the lien public record. However, the rules were clearly not in effect, because Plaintiff’s lien was more than a year out of date, and the face of the report indicated the record had not been updated since June of 2016. TransUnion’s failure to accurately report Plaintiff’s tax lien occurred because it failed to follow reasonable procedures to assure maximum possible accuracy in the preparation of reports. Specifically, TransUnion does not obtain up to date information on the status of tax lien releases, even though such information is freely available online. Indeed, TransUnion has no systematic procedure to assure that, when tax liens are paid, satisfied or released, the updated status is promptly obtained and reflected upon a consumer’s credit report. Plaintiff incorporates by reference all preceding paragraphs as alleged above. Plaintiff brings this action pursuant to the Federal Rules of Civil Procedure 23(a) and 23(b)(3) on behalf of the following Class: All consumers who: (i) had a tax lien recorded in the State of Massachusetts; (ii) the tax lien appeared on a TransUnion consumer report dated within two years prior to the filing of this Complaint and continuing through the resolution of this case; (iii) the State of Massachusetts public record indicated that the tax lien had been paid, satisfied, or released on a date prior to the date of the TransUnion consumer report, and (iv) the TransUnion consumer report incorrectly identified the tax lien as not released, unpaid, or with an unpaid balance. TransUnion likely possesses data for consumers that include name, address, date of birth, Social Security Number, case numbers/lien identifiers, lien amounts, jurisdiction of liens, disposition of the liens, date of file in public record, date of disposition in public record, and dates consumers had credit inquiries where such information was reported. TransUnion is likely able to produce this data in standardized spreadsheet form. Massachusetts, in turn, maintains electronic records of liens, easily accessible and reviewable, that are searchable by name, and include record descriptions, file dates, disposition dates, lien identifiers, and other identifying information. The Massachusetts data can be easily compared to TransUnion’s data to ascertain which consumers would meet the definition of the Class above. Existence and Predominance of Common Questions of Law and Fact. Common questions of law and fact exist as to all members of the Class, and predominate over the questions affecting only individual members. The common legal and factual questions include, among others: a. Whether TransUnion willfully violated the FCRA by reporting tax liens which, according to Massachusetts public records, were paid; and b. Whether TransUnion willfully violated the FCRA by failing to follow reasonable procedures to assure the maximum possible accuracy of the Massachusetts tax lien information it reported. Adequacy. Plaintiff is an adequate representative of the Class. Her interests are aligned with, and are not antagonistic to, the interests of the members of the Class she seeks to represent. She has retained counsel competent and experienced in such litigation, and intends to prosecute this action vigorously. Plaintiff and her counsel will fairly and adequately protect the interests of members of the Class. Predominance and Superiority. Questions of law and fact common to the class members predominate over questions affecting only individual class members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. TransUnion’s conduct described in this Complaint stems from common and uniform practices, resulting in common violations of the FCRA. Members of the Class do not have an interest in pursuing separate actions against TransUnion, as the amount of each class member’s individual claim is small compared to the expense and burden of individual prosecution. Class certification also will obviate the need for unduly duplicative litigation that might result in inconsistent judgments concerning TransUnion’s practices. Moreover, management of this action as a class action will not likely present any difficulties. In the interests of justice and judicial efficiency, it would be desirable to concentrate the litigation of all class members’ claims in a single forum. Plaintiff incorporates by reference all preceding paragraphs as alleged above. TransUnion failed to comply with 15 U.S.C. § 1681e(b) by failing to follow reasonable procedures to assure maximum possible accuracy of the tax lien information in the consumer reports it prepared regarding Plaintiff and the other class members. The foregoing violations were negligent. The foregoing violations were willful. TransUnion’s inaccurate reporting of Plaintiff and class members’ lien information harmed, and/or created a risk of real harm to, their concrete interests under the FCRA. TransUnion is one of the “big three” credit reporting agencies in the United States. TransUnion sells consumer reports (commonly called “credit reports”) about millions of consumers annually. TransUnion is regulated by the FCRA.
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5,407,549
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win
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J.T.L. is a subscriber to and beneficiary of the Eaton Vance Management Health Benefit Plan. J.T.L. is an eight-year-old boy who has been diagnosed with autism by his treating physician. His treating physician referred J.T.L. to a Board Certified Behavior Analyst for clinical ABA therapy to treat his autism. J.T.L.’s treating physician has approved the treatment plan developed by his ABA therapist. J.T.L. receives ABA therapy from Apple Consulting in Bellevue, Washington. J.T.L.’s therapy is overseen by a Board Certified Behavior Analyst. J.T.L.’s ABA therapist is a covered provider under the terms of the plan. J.T.L.’s treatment plan calls for 6 hours per week of ABA therapy provided in a clinical setting and 20 hours per week of ABA therapy provided in a school setting. J.T.L.’s therapist does not work for, is not affiliated with, and is not paid by J.T.L.’s school. J.T.L.’s therapist provides services to him both in a clinical setting and in a school setting. Class Definition: The Class consists of all individuals who: (1) have been, are, or will be beneficiaries of an ERISA-governed health plan that has been or will be delivered, issued for delivery, or renewed by defendant BCBS-MA; (2) have been or will be diagnosed with an autism spectrum disorder; and (3) have required at any time within six years prior to the filing of this complaint, require, or will require ABA therapy in a school setting as part of a treatment plan approved by their treating physician. The definition of the Class is clear and members of the Class are easily identifiable on the basis of objective information. BCBS-MA maintains records of its subscribers and coverage determinations. Children who have been diagnosed with an autism spectrum disorder and whose providers have sought authorization or reimbursement for ABA therapy provided in school as part of a physician-approved treatment plan can be identified from BCBS-MA’s records through use of diagnostic and procedure codes. The number of children whose treatment for autism spectrum disorder calls for ABA therapy delivered in school as part of a physician-approved treatment plan and who are beneficiaries of an ERISA-governed health plan insured by BCBS-MA is expected to number in the hundreds and is so large that joinder of all Class members is impracticable. Plaintiffs re-allege each and every allegation set forth in the proceeding paragraphs. ERISA provides that a participant or beneficiary may bring an action to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” ERISA § 502(a)(1)(B); 29 U.S.C. § 1132(a)(1)(B). Plaintiffs and the Class are entitled to recover benefits they have been denied on the basis of the improper exclusion for medically-necessary ABA therapy provided in a school setting, as described above. Plaintiffs and the Class are entitled to a declaration of present and future rights to benefits for medically-necessary ABA therapy that is part of a treatment plan approved by a treating physician, without regard to whether the therapy is provided in a school setting. Plaintiffs re-allege each and every allegation set forth in the proceeding paragraphs. ERISA provides that a participant or beneficiary may “enjoin any act or practice which violates any provision of [ERISA] or the terms of the plan.” ERISA § 502(a)(3); 29 U.S.C. § 1132(a)(3)(A). A participant or beneficiary may also obtain appropriate equitable relief to redress violations of those provisions. ERISA § 502(a)(3)(B); 29 U.S.C. § 132(a)(3)(B). Plaintiffs re-allege each and every allegation set forth in the proceeding paragraphs. BCBS-MA is a fiduciary under ERISA because it makes benefit determinations and reviews and finally decides appeals of denied claims under the ERISA plans it insures. 29 Breach of Fiduciary Duties ERISA § 502(a)(2); 29 U.S.C. § 1132(a)(2); ERISA § 404(A)(1); 29 U.S.C. § 1104(A) Claim for Recovery of Benefits, Clarification of Rights under the Plan, and Clarification of Right to Future Benefits under the Plan ERISA § 502(a)(1)(B); 29 U.S.C. § 1132(a)(1)(B) Claim to Enjoin Acts and Practices in Violation of the Terms of the Plan, to Obtain Other Equitable Relief, and to Enforce the Terms of the Plan ERISA § 502(a)(3); 29 U.S.C. § 1132(a)(3)
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lose
| 3
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4,322,202
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win
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Allegations concerning each Plaintiff are based on personal knowledge. All other allegations are based on investigation by Plaintiffs’ counsel. Plaintiffs propose a class consisting of: All residents of the United States who are members of the British Airways Executive Club, who purchased a Reward Ticket with frequent flier miles from November 9, 2006 to the present (the “Proposed Class”), and who paid a purported “fuel surcharge” when making the purchase. B. The Class is so Numerous that Individual Joinder is Impractical. According to its 2011 annual report, BA “is the UK’s largest international scheduled airline and one of the world’s leading global premium airlines.” On information and belief, there are at least hundreds of thousands of Executive Club Members within the United States. On information and belief, no fewer than tens of thousands of those Members have redeemed Miles for Reward Tickets and paid the “fuel surcharges” during the relevant time period. C. The Answers to Questions Common to the Proposed Class will Drive the Resolution of this Litigation, and Common Questions Predominate over Individual Questions. The answer to two questions will determine BA’s liability to all (or nearly all) Class Members. -12- 1061826.5 Plaintiffs contend that the Contract does not permit BA to impose any charge that is not an “incidental fee[] or tax[] charged by any person or relevant authority or body.” Whether or not the Contract permits such a charge is a legal question that is common to all Class Members, the answer to which would drive resolution of the litigation. If a judge and/or jury were to agree with Plaintiffs, BA would be liable to all Class Members for imposition of its “fuel surcharge.” Plaintiffs also contend that the “fuel surcharge” is not a “fuel surcharge” at all, because it is unrelated to the fluctuating price of worldwide oil; and that even if BA were contractually permitted to impose its own fuel surcharge, such a charge would only be proper if it were based on BA’s actual fuel costs. The issue of whether the “fuel surcharges” are based on BA’s fuel costs presents a question of fact that is common to all Class Members, the answer to which would drive resolution of the litigation. Should a judge and/or jury agree with Plaintiffs on this issue, BA would be liable to all Class Members for imposition of the “fuel surcharges.” Put more broadly, this litigation focuses entirely on whether BA’s conduct was in breach of the Contract, as interpreted under the law of a single jurisdiction. Should a judge and/or jury find BA liable for breach of the Contract, it is a ministerial task to determine damages for Plaintiffs and Class Members because, on information and belief, BA maintains electronic records of the ”fuel surcharges” it assessed against each and every Plaintiff and Class Member. D. Plaintiffs’ Claims are Typical of the Claims of all Class Members. Plaintiffs, like all Class Members, are Executive Club Members. Plaintiffs’ relationship with BA, like the relationship between all Class Members and BA, is governed by the terms of the Contract. Plaintiffs, like all Class Members, redeemed Miles for Reward Tickets. -13- 1061826.5 Plaintiffs, like all Class Members, paid a “fuel surcharge” when purchasing their Reward Tickets. If BA is liable to Plaintiffs for the claim enumerated in this Complaint, it also is liable to all Class Members for that claim. E. Plaintiffs and their Counsel Will Adequately Represent the Proposed Class. Plaintiffs will put the interests of the Class Members on equal footing with their own interests, and Plaintiffs bring this lawsuit out of a desire to help all Class Members, not merely out of a desire to recover their own damages. Plaintiffs’ counsel are highly experienced class action litigators who are well- prepared to represent the interests of the Class Members. F. A Class Action is Superior to Individual Actions. BA is a sophisticated party with substantial resources. Each individual Proposed Class Member’s damages are relatively small. On information and belief, relatively few Proposed Class Members will have more than $2000 in damages. Prosecution of this litigation is likely to be expensive. For example, Plaintiffs’ counsel anticipate that to fully analyze BA’s “fuel surcharge” and fuel cost data, expert analysis alone will cost at least tens of thousands of dollars. Given the high cost of litigation, relatively low individual damages, and the fact that an individual litigating against BA would have to hire an expert to perform an analysis regarding BA fuel costs and “fuel surcharges” that would be similar to the analysis required to prove the claims of an entire Class, it would not make economic sense for any (or almost any) Class Member to pursue this litigation as an individual action. -14- 1061826.5 V. A. Proposed Class Definition.
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win
| 1
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7,701,378
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win
|
Between November 2, 2017 and April 1, 2018, Peterson’s sent at least 5 texts to Plaintiff’s cellular phone number, from short code 599-25, without Plaintiff’s consent: Peterson’s unsolicited texts were a nuisance that aggravated Plaintiff, wasted his time, invaded his privacy, diminished the value of the cellular services he paid for, caused him to temporarily lose the use and enjoyment of his phone, and caused wear and tear to his phone’s data, memory, software, hardware, and battery components. In sending the unsolicited text messages at issue, Peterson’s, or a third party acting on its behalf, utilized an automatic telephone dialing system; hardware and/or software with the capacity to store or produce cellular telephone number to be called, using a random or sequential number generator. This is evident from the circumstances surrounding the text messages, including the ability to trigger an automated response by replying “Y,” the text messages’ commercial and generic content, that substantively identical texts were sent to multiple recipients, and that they were sent from a short code, which is consistent with the use of an automatic telephone dialing system to send text messages. Accordingly, Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule 23(b)(3) on behalf of himself and all others similarly situated and seeks certification of the following Class: All persons who, on or after four years prior to the filing of the initial complaint in this action, (1) were sent a text message to their cellular telephone number by or on behalf of Peterson’s, (2) using an automatic telephone dialing system, (3) for the purpose of soliciting their purchase of Peterson’s products, and (4) from whom Peterson’s (a) does not allege to have consent, or (b) alleges to have obtained consent in the same manner it alleges to have obtained consent from Plaintiff. Numerosity: The exact size of the Class is unknown and unavailable to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant sent unsolicited text messages to thousands of individuals who fall into the Class definition. Class membership can be easily determined from Defendant’s records. Typicality: Plaintiff’s claims are typical of the claims of the other members of the Class. Plaintiff is a member of the Class, and if Defendant violated the TCPA with respect to Plaintiff, then it violated the TCPA with respect to the other members of the Class. Plaintiff and the Class sustained the same damages as a result of Defendant’s uniform wrongful conduct. Commonality and Predominance: There are many questions of law and fact common to the claims of Plaintiff and the Class, and those questions predominate over any questions that may affect individual members of the Class. Common questions for the Class include, but are not necessarily limited to the following: a) How Defendant gathered, compiled, or obtained the cellular telephone numbers of Plaintiff and the Class; b) Whether the text messages were sent using an automatic telephone dialing system; c) Whether Defendant’s text messages were sent for the purpose of marketing Defendant’s products; d) Whether Defendant sent some or all of the text messages without the consent of Plaintiff and the Class; and e) Whether Defendant’s conduct was willful and knowing such that Plaintiff and the Class are entitled to treble damages. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendant has acted or refused to act on grounds generally applicable to the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the members of the Class, and making final injunctive relief appropriate with respect to the Class as a whole. Defendant’s practices challenged herein apply to and affect the members of the Class uniformly, and Plaintiff’s challenge of those practices hinges on Defendant’s conduct with respect to the Class as a whole, not on facts or law applicable only to Plaintiff. Plaintiff repeats and realleges the allegations of paragraphs 1 through 22 of this complaint and incorporates them by reference. Defendant and/or its agents agent transmitted text messages to cellular telephone numbers belonging to Plaintiff and the other members of the Class using an automatic telephone dialing system. These solicitation text messages were sent without the consent of Plaintiff and the other members of the Class. Defendant has, therefore, violated 47 U.S.C. § 227(b)(1)(A)(iii), and as a result, under 47 U.S.C. § 227(b)(3)(B), Plaintiff and the Class are entitled to a minimum of $500.00 in damages for each violation. In the event that the Court determines that Defendant’s conduct was wilful and knowing, it may, under 47 U.S.C. § 227(b)(3)(C), treble the amount of statutory damages recoverable by Plaintiff and the Class. Peterson’s is one of the oldest Harley Davidson dealers in the country. As part of its marketing plan, Peterson’s sends consumers text messages promoting Peterson’s Harley Davidson motorcycles, apparel, and other merchandise. Violation of 47 U.S.C. § 227 (On Behalf of Plaintiff and the Class)
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win
| 1
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7,272,347
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lose
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Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1) (On behalf of the Nationwide Class) 11. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23 on behalf of himself and all others similarly situated, comprising a Class and Subclass, which are defined as follows: a. Nationwide Class: All persons and entities in the United States who purchased or owned, not for resale, during the four years preceding the date of the filing of this putative class action through the present, a Pulse X2 or X26P model CEW manufactured by Taser. b. California Subclass: All persons and entities in the State of California who purchased or acquired during the four years preceding the date of the filing of this putative class action through the present, a Pulse, X2 or X26P model CEW manufactured by Taser. c. California Consumer Subclass: All members of the California Subclass who purchased or acquired for personal, family or household use during the four years preceding the date of the filing of this putative class action through the present, a Pulse, X2 or X26P model CEW manufactured by Taser. Plaintiff is a member of the Nationwide Class and the California Subclass. The preceding paragraphs are incorporated herein by reference as though the same were set forth below at length. The preceding paragraphs are incorporated herein by reference as though the same were set forth below at length. Plaintiff brings this count individually and on behalf of the members of the Nationwide Class. The preceding paragraphs are incorporated herein by reference as though the same were fully set forth at length. Plaintiff brings this count individually and on behalf of the members of the California Consumer Subclass. Plaintiff and members of the California Consumer Subclass are “buyers” within the meaning of Cal. Civ. Code § 1791. The CEWs are “consumer goods” within the meaning of Cal. Civ. Code § 1791. The preceding paragraphs are incorporated herein by reference as though the same were fully set forth below at length. Plaintiff brings this count individually and on behalf of the members of the California Subclass. Plaintiff and members of the California Subclass are “buyers” within the meaning of Cal. Civ. Code § 1791. The CEWs are “consumer goods” within the meaning of Cal. Civ. Code § 1791. Taser is a “manufacturer” of the CEWs within the meaning of Cal. Civ. Code § 1791. Taser impliedly warranted to Plaintiff and the California Subclass members that the CEWs were “merchantable” within the meaning of Cal. Civ. Code §§ 1791.1(a) and 1792. Cal. Civ. Code § 1791.1 states that: “Implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following: (1) Pass without objection in the trade under the contract description; (2) Are fit for the ordinary purpose for which such goods are used; (3) Are adequately contained, packaged, and labeled; and (4) Conform to the promises of affirmations of fact made on the container or label. The CEWs would not pass without objection because they share a common design defect in that they are prone to firing with the safety mechanism engaged. Because of the defect, the CEWs are not fit for their ordinary purpose. The CEWs were not adequately labeled because the labeling failed to disclose the defects described herein. The preceding paragraphs are incorporated herein by reference as though the same were fully set forth below at length. Plaintiff brings this count individually and on behalf of the members of the California Subclass. Taser was aware of the CEWs defect when it marketed and sold the CEWs to Plaintiff and the California Subclass members. FRAUDULENT OMISSION (On Behalf of the California Subclass) UNJUST ENRICHMENT (On Behalf of the California Subclass) VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT FOR BREACH OF IMPLIED WARRANTY Cal. Civ. Code § 1790, et seq. (Brought on behalf of the California Consumer Subclass) VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT FOR BREACH OF EXPRESS WARRANTY Cal. Civ. Code § 1790, et seq. (On behalf of the California Consumer Subclass)
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lose
| 3
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6,642,888
|
lose
|
Defendants have been attempting to collect from plaintiff an alleged credit card debt incurred, if at all, for personal, family or household purposes and not for business purposes. The alleged original creditor was Credit One Bank, which is also part of the Sherman Financial Group. Credit One Bank reported the debt to Experian and possibly other credit bureaus (consumer reporting agencies) as delinquent beginning in March 2016. LVNV began reporting the debt (or Resurgent reported it for LVNV) to Experian and possibly other credit bureaus in October 2016, as a “collection account” held by a “debt buyer.” Resurgent, on behalf of LVNV, placed the alleged debt with Frontline for collection. On or about November 4, 2016, after the debt had already been reported by both LVNV and Credit One Bank, Frontline sent plaintiff the letter attached as Exhibit A. LVNV and Credit One Bank have standardized credit reporting practices, in terms of the time at which a debt is reported to credit bureaus. Exhibit A is a form letter. Exhibit A offers a settlement and asks plaintiff to make payment arrangements. It also states: “In order to prevent any further action, please contact us so that we may assist you in resolving this debt. Please note that a negative credit bureau report reflecting on your credit record may be submitted to a credit reporting agency by the current account holder if you fail to fulfill the terms of your credit obligations.” The quoted statement seeks to induce payment by telling the least sophisticated consumer that payment of the debt will avoid a negative credit bureau report. The quoted statement is false and misleading, and omits to state material facts 5 necessary to make the statements made not misleading, in that a negative credit bureau report has already been made and will not be avoided by payment. The quoted statement was made by Frontline as authorized agent of Resurgent and LVNV. Plaintiff incorporates paragraphs 1-42. Defendants violated 15 U.S.C. §1692e, 1692e(2), 1692e(5), and 1692e(10) by making the statements quoted above. Section 1692e provides: § 1692e. False or misleading representations [Section 807 of P.L.] A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . . (2) The false representation of-- (A) the character, amount, or legal status of any debt; . . . (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. . . . (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. . . . Plaintiff brings this claim on behalf of a class and subclass, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3). The class consists of (a) all individuals (b) to whom Frontline sent a letter in the form represented by Exhibit A (c) relating to a debt that had already been reported to a credit bureau by the current owner of the debt or an affiliate (d) which letter was sent at any time during a period beginning one year prior to the filing of this action and ending 20 days after the filing of this action. 6 The subclass consists of class members whose debts were allegedly owned by LVNV at the time the letter was sent. On information and belief, based on the use of a form letter, the class and subclass are so numerous that joinder of all members is not practicable. There are questions of law and fact common to the class members, which common questions predominate over any questions relating to individual class members. The predominant common questions are: a. Whether defendants represent that negative credit bureau reporting may be avoided by payment, when it has already occurred; b. Whether such representation violates the FDCPA. Plaintiff’s claim is typical of the claims of the class members. All are based on the same factual and legal theories. Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and FDCPA litigation. A class action is superior for the fair and efficient adjudication of this matter, in that: a. Individual actions are not economically feasible. b. Members of the class are likely to be unaware of their rights; c. Congress intended class actions to be the principal enforcement mechanism under the FDCPA. 7 WHEREFORE, the Court should enter judgment in favor of plaintiff and the class members and against defendants for: i. Statutory damages; ii. Attorney’s fees, litigation expenses and costs of suit; iii. Such other and further relief as the Court deems proper. s/Tiffany N. Hardy Tiffany N. Hardy Tiffany N. Hardy
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win
| 1
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4,276,476
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win
|
Plaintiff brings this action individually and as a class action under Federal Rule of Civil Procedure 23 on behalf of all persons and/or entities that own AS&E common stock (the “Class”). Excluded from the Class are Defendants and their affiliates, immediate families, legal representatives, heirs, successors or assigns and any entity in which Defendants have a controlling interest. Plaintiff’s claims are typical of the claims of the other members of the Class. Plaintiff and the other members of the Class have sustained damages as a result of Defendants’ wrongful conduct as alleged herein. Plaintiff will fairly and adequately protect the interests of the Class, and has no interests contrary to or in conflict with those of the Class that Plaintiff seeks to represent. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. On November 5, 2015, the Board “discussed the competitive environment, potential consolidation in the detection equipment industry and the effects that these factors may have on the Company.” The Board also discussed strategic alternatives for the Company going forward, including possible acquisitions or a sale of the Company. To this end, the Board authorized the Company’s management to retain a financial advisor and to report back to the Board on potential acquisitions or a sale. Subsequently, the Company’s management retained Evercore as the Company’s financial advisor. On February 4, 2016, Evercore reviewed certain strategic alternatives with the Board and, in response to a question by the Board, recommended that the Board consider a targeted outreach to potential partners were it to pursue a sales process. On February 9, 2016, Sanders was contacted by Deepak Chopra (“Chopra”), the President and CEO of OSI. Chopra informed Sanders that OSI was interested in making an offer to acquire the Company. Shortly thereafter, on February 10, 2016, Chopra contacted Dougherty and stated that OSI would be sending a written proposal subject to completion of a diligence investigation. On a follow-up call on February 12, 2016, with Dougherty, Chopra expressed the importance and potential for meaningful synergies that could inure for OSI. The Board met on February 22, 2016, to discuss OSI’s proposal, and came to a consensus that the proposed price range was not sufficient to commence negotiations. The Board directed Evercore to reach out to four potential strategic bidders in the detection equipment industry. On February 23, 2016, Dougherty informed Chopra that, while the Company was still considering the proposal, the current valuation range was not sufficient to engage in diligence, but a higher range might cause the Company to entertain further discussions. Chopra told Dougherty that OSI would be willing to increase the proposed purchase price range to between $37.00 and $42.00 per share of Company common stock, representing a 45% to 64% premium to the closing price of Company common stock on the day prior. Evercore contacted the four parties—Company A, Company B, Company C, and Company D—on February 24 and 25, 2016, to gauge their interest in a potential transaction with Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. As alleged herein, Defendants have failed to provide AS&E’s stockholders with material information concerning the Proposed Transaction, including, inter alia, the potential conflicts of interest affecting the Company’s management, the process leading to the Merger Agreement, the financial analysis of Evercore, and the Company’s financial projections. Instead, Defendants are soliciting stockholders’ votes via a materially misleading and incomplete Proxy Statement. Further, Defendants have accepted an offer to sell AS&E at a price that fails to reflect the true value of the Company, thus depriving common stock stockholders of the reasonable, fair and adequate value of their shares. The Proposed Transaction consideration being offered and accepted represents a meager premium over the closing share price as compared to like transactions. There is no indication the Proposed Transaction was the result of a competitive bidding process or arms’-length negotiation where all reasonably available synergistic acquirers were vetted. As such, unless the Individual Defendants’ conduct is enjoined by the Court, they will continue to breach their fiduciary duties to Plaintiff and the other members of the Class, and will further a process that inhibits the maximization of stockholder value and the disclosure of material information. AS&E Background CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST DEFENDANTS
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lose
| 3
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14,731,134
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win
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Defendant owns and operates a telecommunication company that specializes in selling minutes for overseas phone calls. Plaintiff himself was sent at least two marketing text messages without his express written consent. Below is a depiction of an actual text message received by Plaintiff from Defendant: Defendant’s text messages constitute telemarketing because they encourage the future purchase of Defendant’s products by consumers. Plaintiff received the subject text messages within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted by text for marketing purposes. Plaintiff is the subscriber and sole user of the ***-***-5833 phone number. Some, if not all of the messages originated from “305-520-7863.” Specifically, upon information and belief, Defendant, through their direction, utilized a combination of hardware and software systems to send the text messages at issue in this case. The systems utilized by Defendant have the current capacity or present ability to generate or store random or sequential numbers or to dial sequentially or randomly at the time the call is made, and to dial such numbers, en masse, in an automated fashion without human intervention. Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to his daily life. See Patriotic Veterans, Inc. v. Zoeller, No. 16-2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner’s time and mental energy, both of which are precious.”). Plaintiff received the subject text message while he was at work, causing him to stop his work activities to check his phone. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. Defendant and their employees or agents, Plaintiff’s attorneys and their employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death, and/or emotional distress are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiffs and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. Plaintiff re-alleges and incorporates paragraphs 1-48 as if fully set forth herein. It is a violation of the TCPA to make “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 . . . to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). “Automatic telephone dialing system” refers to any equipment that has the “capacity to dial numbers without human intervention.” See, e.g., Hicks v. Client Servs., Inc., No. 07-61822, 2009 WL 2365637, at *4 (S.D. Fla. June 9, 2009) (citing FCC, In re: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA International for Clarification and Declaratory Ruling, 07–232, ¶ 12, n.23 (2007)). Defendant – or third parties directed by Defendant– used equipment having the capacity to dial numbers without human intervention to make marketing telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined above. Defendant therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make marketing telephone calls to the cell phones of Plaintiff and Class Members without their prior express written consent. All possible Defendants are directly, jointly, or vicariously liable for each such violation of the TCPA. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. Plaintiff re-alleges and incorporates paragraphs 1-48 as if fully set forth herein. At all times relevant, Defendant knew or should have known that their conduct as alleged herein violated the TCPA. Defendant knew that they did not have prior express written consent to send these text messages. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls to their cellular telephones, the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. As a result of Defendant violations, Plaintiff and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). WHEREFORE, Plaintiff, MARIO GUERRA, on behalf of herself and the other members of the Class, prays for the following relief: a. A declaration that Defendant practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. A declaration that Defendant violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, were willful and knowing; c. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express consent of the called party; d. An award of actual, statutory damages, and/or trebled statutory damages; and e. Such further and other relief the Court deems reasonable and just. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)
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win
| 2
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4,524,761
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lose
|
Plaintiff Stancu was hired by Defendant Ethos in or around September of 2015. Plaintiff Stancu was required to perform all relevant tasks in the front of the restaurant including acting as a bartender, waiter, busser and food runner. He also cleaned and stocked the bar and kitchen. Plaintiff worked hard and diligently within the restaurant. Due to his hard work, in or around May of 2016, Plaintiff was asked to work a few days a week in Defendants’ other food establishment, Pathos Café, located on 932 1st Ave, New York, NY 10022. Throughout his employment, Plaintiff Stancu worked anywhere from thirty (30) to sixty (60) hours a week. Throughout his employment, Plaintiff Stancu worked only as tipped employee. However, Defendants required that Plaintiff Stancu share his tips with other employees, including the manager. He was not paid any hourly wage for hours worked, nor any overtime wage for hours worked over forty (40). Defendants never provided a wage statement or pay stub detailing hours worked or amount of tips accumulated. Defendants did not have a systematic way of fairly paying their workers. Tips were always kept in house and distributed unevenly between managers and other employees. Throughout his employment, Plaintiff Stancu was never paid on time or on a regular basis. While the tips collected by Defendant Ethos would often be more than one thousand dollars ($1,000.00) per week, Plaintiff Stancu would only be paid that much or less for the entire week no matter how much he actually accumulated. Despite his hard work and long shifts, Plaintiff Stancu was not properly compensated and had his tips stolen from him on a regular basis through a tip pool which included members of management. Defendants often threatened to fire Plaintiff Stancu if he did not agree with their way of payment. Mr. Chatiris was rude and malignant when Plaintiff insisted on being paid on time. Due to the fact Plaintiff was persistent, Mr. Chatiris began to harass him making his work unbearable. Mr. Chatiris often cursed at him in front of other employees and assigned Plaintiff to as much heavy lifting as possible knowing he had a persistent back pain. When Plaintiff asked for help from other workers, Mr., Chatiris refused to let anyone help him. On some occasions Plaintiff had to call out of work due to horrible back pains and soreness. In or around the end of May of 2016, Plaintiff Stancu demanded that he be paid in full and on time because he needed the money. Mr. Chatiris ignored his request and told Plaintiff his pay was not ready. When Plaintiff Stancu insisted that he be paid, Mr. Chatiris responded with “I will give you the money now but you are fired”. If Plaintiff Stancu had not complained about Defendants’ violations of the law then he would not have been terminated. In fact, this was the explicit reason given for his termination. As a result, Plaintiff Stancu has lost pay to which he is entitled under the FLSA and NYLL and has been damaged in an amount yet to be determined. Defendants’ violations of the FLSA and NYLL were done with knowledge of the law and with full understanding that this policy violated the law. Plaintiff Stancu has lost income due to the loss of his job as he has suffered a period of unemployment. Defendant Ethos is an employer under the FLSA and NYLL. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint as if same were set forth herein fully at length. Defendants willfully employed Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs in the afore-mentioned enterprise and failed to compensate them for all hours worked during their employment. Defendants failed to pay any wages for hours worked by Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs. Defendants failed to pay any wages for hours worked by Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs. Defendants also failed to provide any pay the overtime premium rate of one and a half times their regular hourly rate as is required by the FLSA. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint as if same were set forth herein fully at length. Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs were employees of Defendants within the meaning of New York Wage Regulations (NYCRR Labor Section 138 et seq.). Defendants failed to pay Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs any rate of pay for certain hours when they were required to be at work, ready to work, and actually performing work. Defendants’ failure to comply with the New York Labor Law minimum wage protections caused Plaintiff, Class Plaintiffs and Rule 23 Class Plaintiffs to suffer loss of wages and interest thereon. Defendants’ failure to pay proper wages for each hour worked was willful. Defendants also failed to pay overtime pay as is required by the New York Labor Law. Defendants also stole tips which were owed to Plaintiff due to the work he performed, which were paid to Plaintiff by clients and to which he is entitled. Defendants also failed to pay any spread of hours pay to Plaintiff for days in which he worked more than ten (10) hours. On account of such violations, Defendants are liable to Plaintiff for actual, statutory and liquidated damages. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint as if same were set forth herein fully at length. Defendants then retaliated against Plaintiff by immediately terminating his employment. This action violates the New York Labor Law § 215. As a result of this violation, Plaintiff has suffered and continues to suffer loss of wages, benefits and emotional damages for which Defendants are liable. Plaintiff is further entitled to reinstatement, liquidated damages, injunctive relief and attorneys’ fees and costs. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint as if same were set forth herein fully at length. At all times relevant to this action, Plaintiff was employed by Defendants within the meaning of New York Labor Law §§ 190 et seq., including §§ 191, 193, 195, 198 and the applicable regulations thereunder. At all times relevant herein, Defendants, individually and/or jointly, failed and willfully failed to provide Plaintiff with the notice(s) required by NYLL 195(1) – Plaintiff is therefore entitled to and seeks to recover in this action the maximum recovery for this violation, plus attorneys’ fees and costs pursuant to NYLL 198 including NYLL 198(1-b). At all times relevant herein, Defendants failed and willfully failed to provide Plaintiff with the statement(s) required by NYLL 195(3) – Plaintiff is therefore entitled to and seeks to recover in this action the maximum recovery for this violation, plus attorneys’ fees and costs pursuant to NYLL 198 including NYLL 198(1-d) VIOLATION OF THE FAIR LABOR STANDARDS ACT VIOLATION OF NEW YORK LABOR LAW VIOLATION OF NEW YORK LABOR LAW (wage notice and statement) VIOLATION OF NEW YORK LABOR LAW
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win
| 4
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16,694,791
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lose
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On or about January 16, 2019, Plaintiff responded to Defendant’s text messages with the word “Stop” as shown below, “Stop” was the “opt-out” preference provided by Defendant in its text messages: Defendant’s text messages constitute telemarketing and advertising because they promote Defendant’s business, goods and services. The text messages also include a hyperlink to a landing page website (www.govideodeal.com) which upon information and belief, is owned and/or operated by or on behalf of Defendant. Plaintiff received the subject text message within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. At no point in time did Plaintiff provide Defendant with her express consent to be contacted by text messages using an ATDS. Plaintiff is the sole user of the 1992 Number. The number used by Defendant (480-977-0116) is known as a “long code,” a standard 10-digit code that enables Defendant to send SMS text messages en masse, while deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual. Long codes work as follows: Private companies known as SMS gateway providers have contractual arrangements with mobile carriers to transmit two-way SMS traffic. These SMS gateway providers send and receive SMS traffic to and from the mobile phone networks' SMS centers, which are responsible for relaying those messages to the intended mobile phone. This allows for the transmission of a large number of SMS messages to and from a long code. Upon information and belief, the number (480-977-0116) that transmitted the text messages is operated by or on behalf of Defendant. To send the text messages, Defendant used a messaging platform (the “Platform”) that permitted Defendant to transmit thousands of automated text messages without any human involvement. The Platform has the capacity to store telephone numbers, which capacity was in fact utilized by Defendant. The Platform has the capacity to generate sequential numbers, which capacity was in fact utilized by Defendant. The Platform has the capacity to dial numbers in sequential order, which capacity was in fact utilized by Defendant. The Platform has the capacity to dial numbers from a list of numbers, which capacity was in fact utilized by Defendant. The Platform has the capacity to dial numbers without human intervention, which capacity was in fact utilized by Defendant. The Platform has the capacity to schedule the time and date for future transmission of text messages, which occurs without any human involvement. Additionally, the Platform has an auto-reply function that results in the transmission of text messages to individual’s cellular telephones automatically from the system, and with no human intervention, in response to a keyword (e.g. “STOP”) being sent by a consumer. Defendant then created the content of the text messages, selected the telephone numbers to transmit the messages to, and selected a date and time for transmission. In making these selections, Defendant was simply creating a set of instructions that were subsequently executed automatically (i.e. with no human intervention), by the Platform. The Platform automatically executed Defendant’s instructions as follows: (1) The Platform retrieved each telephone number from the list of numbers uploaded by Defendant in the sequential order the numbers were listed by Defendant; (2) The Platform then generated each number in the sequential order listed by Defendant and combined each number with the content of Defendant’s message to create “packets” consisting of one telephone number and the message content; (3) Each packet was then transmitted in the sequential order listed by Defendant to an SMS aggregator, which acts an intermediary between the Platform, mobile carriers (e.g. AT&T), and consumers. (4) Upon receipt of each packet, the SMS aggregator transmitted each packet – automatically and with no human intervention – to the respective mobile carrier for the telephone number, again in the sequential order listed by Defendant. Each mobile carrier then sent the message to its customer’s mobile telephone. Further, the Platform “throttles” the transmission of the text messages depending on feedback it receives from the mobile carrier networks. In other words, the platform controls how quickly messages are transmitted depending on network congestion. The platform performs this throttling function automatically and does not allow a human to control the function. The following graphic summarizes the above steps and demonstrates that the dialing of the text messages at issue was done by the Platform automatically and without any human intervention: Defendant’s unsolicited text message caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to her daily life. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. There are numerous questions of law and fact common to the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the Class are: (1) Whether Defendant made non-emergency calls to Plaintiff and Class members’ cellular telephones using an ATDS; (2) Whether Defendant can meet their burden of showing that they obtained prior express written consent to make such calls; (3) Whether Defendant’s conduct was knowing and willful; (4) Whether Defendant is liable for damages, and the amount of such damages; and (5) Whether Defendant should be enjoined from such conduct in the future. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. It is a violation of the TCPA to make “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 … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines an “automatic telephone dialing system” (hereinafter “ATDS”) as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Id. at § 227(a)(1). Defendant – or third parties directed by Defendant – used equipment having the capacity to store telephone numbers, using a random or sequential generator, and to dial such numbers and/or to dial numbers from a list automatically, without human intervention, to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class. Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. WHEREFORE, Plaintiff Elizabeth Boriskin, on behalf of herself and the other members of the Class, prays for the following relief: a. A declaration that Defendant’s practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. A declaration that Defendant’s violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, were willful and knowing; c. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express consent of the called party; d. An award of actual, statutory damages, and/or trebled statutory damages; and e. Such further and other relief the Court deems reasonable and just. PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)
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win
| 3
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17,335,248
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lose
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The amount of the debt; Plaintiff brings this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. Excluded from the Plaintiff Class are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. There are questions of law and fact common to the Plaintiff Class, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendants' written communications to consumers, in the forms attached as Exhibit A, violate 15 U.S.C. §§ l692e and 1692g. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. The name of the creditor to whom the debt is owed; Some time prior to October 25, 2019, an obligation was allegedly incurred to Salal Credit Union by Plaintiff. The Salal Credit Union obligation arose out of transactions in which money, property, insurance or services which are the subject of the transactions were primarily for personal, family or household purposes. The alleged Salal Credit Union obligation is a “debt” as defined by 15 U.S.C. §1692a(5). Salal Credit Union is a “creditor” as defined by 15 U.S.C. §1692a(4). Defendant FAI was contracted by Salal Credit Union to collect the alleged debt. On or about October 25, 2019, Defendant FAI sent Plaintiff an initial collection letter (the “Letter”) regarding the alleged debt currently owed. See Exhibit A. The FDCPA further provides that ''if the consumer notifies the debt collector in writing within the thirty day period . . . that the debt, or any portion thereof, is disputed . . . the debt collector shall cease collection . . . until the debt collector obtains verification of the debt . . . and a copy of such verification is mailed to the consumer by the debt collector.'' 15 U.S.C. § 1692g(b). Although a collection letter may track the statutory language, ''the collector nevertheless violates the Act if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty.'' Russell v. EQUIFAX A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (''It is not enough for a debt collection agency to simply include the proper debt validation notice in a mailing to a consumer-- Congress intended that such notice be clearly conveyed.''). Put differently, a notice containing ''language that 'overshadows or contradicts' other language informing a consumer of her rights . . . violates the Act.'' Russell, 74 F.3d at 34. This language completely overshadows the “G-Notice” by scaring Plaintiff into making payment immediately to avoid negative credit reporting instead of exercising her statutory right to dispute the debt as provided by the Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. A statement that the consumer notifies the debt collector in writing within thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Defendant violated said section by: a. Making a false and misleading representation in violation of §1692e(10). By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. Pursuant to 15 USC §1692g, a debt collector: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – The Defendant violated 15 U.S.C. §1692g, by threatening negative credit reporting, which overshadows the ''g-notice'' language and coerces the consumer not to exert its rights under the FDCPA. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. A statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq.
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| 1
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16,094,926
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lose
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Defendant Exit Realty is a real estate agent or brokerage. Defendant John Doe 1 is an authorized agent of Defendant Exit Realty. As a way to cut corners yet also increase its advertising reach, Defendant and its authorized agents, including John Doe 1, repeatedly called thousands of cellular and residential phones at a time using an automatic telephone dialing system in violation of the TCPA. When the Class members answered their cellular phones, they heard silence for several seconds and a distinct “click” sound before being transferred to a live agent, which denotes the use of an automatic telephone dialing system. On or about July 3, 2019, Plaintiff received a call on his cellular phone number ending in 1146. The Caller ID displayed that the phone number originated from 520-277-9156. When Plaintiff answered his phone, Plaintiff said “hello” several times, but there was silence for approximately 4 seconds. Plaintiff then heard a “click” sound. There was an additional silent delay after the distinct “click” before a live agent answered. Upon information and belief, the technology used to robocall Plaintiff had the capability to store phone numbers and dial those numbers automatically. The live agent informed Plaintiff that he was calling on behalf of Defendant Exit Realty and advertising Defendant’s Exit Realty’s services. The live agent gave Plaintiff some information about Defendant Exit Realty and asked if Plaintiff would be interested in more information. In order to investigate the company calling, Plaintiff agreed to receive more information about Defendant Exit Realty. The live agent told Plaintiff that he would be sending Plaintiff a video regarding Defendant Exit Realty and that one of his partners would follow up. On or about July 10, 2019, Plaintiff received a follow up telephone call from a real estate agent with Defendant Exit Realty. Plaintiff did not answer the telephone call as Plaintiff did not recognize the telephone number 612-702-1869. Defendant’s voicemail stated, in pertinent part, “Hi this is for Terry. This is Cade from Upper Midwest Realty. We had one of our associates reach out and connect with you here last week …” Plaintiff never consented to be contacted by Defendants. Prior to the robocall, Plaintiff had no relationship with Defendants. Class Definition: Plaintiff Shanahan brings this action pursuant to Federal Rule of Civil Procedure 23(b)(1), 23(b)(2), and/or 23(b)(3) on behalf of himself and a class defined as follows: TCPA Class. All persons in the United States who: (1) from the last 4 years to present (2) who received at least one telephone call; (3) on his or her cellular or residential telephone; (4) that used an automatic telephone dialing system; (5) for the purpose of promoting Defendant’s services; (6) where Defendant did not first obtain the person’s express written consent. The following people are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendants, Defendants’ subsidiaries, parents, successors, predecessors, and any entity in which the Defendants or their parents have a controlling interest and its current or former employees, officers and directors; (3) persons who properly execute and file a timely request for exclusion from the Class; (4) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released; (5) Plaintiff’s counsel and Defendants’ counsel; and (6) the legal representatives, successors, and assigns of any such excluded persons. Numerosity: The exact number of the Class members is unknown and not available to Plaintiff, but it is clear that individual joinder is impracticable. On information and belief, Defendants placed telephone calls to thousands of consumers who fall into the definition of the Class. Members of the Class can be identified through Defendants’ records. Typicality: Plaintiff’s claims are typical of the claims of other members of the Class, in that Plaintiff and the Class members sustained damages arising out of Defendants’ uniform wrongful conduct and unsolicited telephone calls. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendants have acted or refused to act on grounds generally applicable to the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the Class members and making final injunctive relief appropriate with respect to the Class as a whole. Defendants’ practices challenged herein apply to and affect the Class members uniformly, and Plaintiff’s challenge of those practices hinge on Defendants’ conduct with respect to the Class as a whole, not on facts or law applicable only to Plaintiff. Superiority: This case is also appropriate for class certification because class proceedings are superior to all other available methods for the fair and efficient adjudication of this controversy as joinder of all parties is impracticable. The damages suffered by the individual members of the Class will likely be relatively small, especially given the burden and expense of individual prosecution of the complex litigation necessitated by Defendant Exit Realty and Defendant John Doe 1’s actions. Thus, it would be virtually impossible for the individual members of the Class to obtain effective relief from Defendant Exit Realty and Defendant John Doe 1’s misconduct. Even if members of the Class could sustain such individual litigation, it would still not be preferable to a class action, because individual litigation would increase the delay and expense to all parties due to the complex legal and factual controversies presented in this Complaint. By contrast, a class action presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single Court. Economies of time, effort and expense will be fostered, and uniformity of decisions ensured. The May 2013 FCC Ruling rejected a narrow view of TCPA liability, including the assertion that a seller’s liability requires a finding of formal agency and immediate direction and control over the third-party who placed the telemarketing call. Id. at 6587 n. 107. Prior to conducting discovery in this litigation, due to the anonymous nature of robocalling, Plaintiff has no way to identify the exact party who called his cellular phone whether it was Defendant Exit Realty, Defendant John Doe 1 or some other unknown company. However, for the purposes of TCPA liability, Plaintiff is not expected to know this information at the pleading stage. Even if Defendant Exit Realty alleges that it did not personally make the TCPA-violating calls, Defendant Exit Realty is liable because it took steps to cause the calls to be made by hiring a third party to market the services Defendant Exit Realty, or because the calls were made pursuant to Defendant Exit Realty’s actual authority, apparent authority and/or ratification, or pursuant to joint enterprise or acting in concert liability. Plaintiff incorporates the foregoing allegations as if fully set forth herein. Defendants and/or its agents placed calls using an automatic telephone dialing system to Plaintiff’s and the Class members’ cellular telephones without having their prior express written consent to do so. The system used by Defendants to place such automated calls had the capability to store a list of numbers and automatically dial those numbers. Defendant Exit Realty’s and Defendant John Doe’s calls were made for the purpose of advertising and marketing employment opportunities and realty services with Defendant Exit Realty. Defendants used an automatic telephone dialing system as proscribed by 47 U.S.C. § 227(b)(1)(A)(iii) and 47 U.S.C. § 227(b)(1)(B) to generate Plaintiff’s phone number as well as the phone numbers of the Class members. Defendants made the violating calls “willfully” and/or “knowingly” under 47 U.S.C. § 227(b)(3)(C). If the court finds that Defendants willfully and/or knowingly violated this subsection, the court may increase the civil fine from $500 to $1500 per violation under 47 U.S.C. § 227(b)(3)(C). Violation of 47 U.S.C. § 227 Telecommunications Consumer Protection Act (On behalf of Plaintiff and the Class against all Defendants)
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| 4
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4,516,603
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lose
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On information and belief, on or about March 14, 2011, April-May, 2012, May 10, 2012, October 19, 2012, September 30, 2013 and October 8, 2013, Defendants transmitted by telephone facsimile machine seven (7) unsolicited advertisements to Plaintiff. Copies of the facsimiles are attached hereto as Exhibit A. Plaintiff did not invite or give permission to Defendants to send the faxes. On information and belief, Defendants faxed the same and other unsolicited facsimiles without the required opt out language to Plaintiff and more than 25 other recipients without first receiving the recipients’ express permission or invitation. Defendants’ facsimile did not display a proper opt-out notice as required by 47 In accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this class action pursuant to the JFPA, on behalf of the following class of persons: All persons in the United States who (1) on or after four years prior to the filing of this action until the date of class certification, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendants, and (3) which did not display a proper opt-out notice. Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon such information and belief avers, that the number of persons and entities of the Plaintiff Class is numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon such information and belief avers, that the number of class members is more than 100. Typicality (Fed. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received the same faxes as the faxes sent by or on behalf of the Defendants advertising goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted in the same or in a similar manner with respect to the Plaintiff and all the class members by sending Plaintiff and each member of the class the same faxes. Need for Consistent Standards and Practical Effect of Adjudication (Fed. R. Civ. P. 23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by class members would: (a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties. Common Conduct (Fed. R. Civ. P. 23 (b) (2)): Class certification is also appropriate because the Defendants have acted and refused to act in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demands such relief as authorized by 47 U.S.C. §227. All Paragraphs of the Complaint are incorporated herein by reference. The JFPA makes it unlawful for any person to “use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . .” 47 U.S.C. § 227(b)(1)(C). The Faxes. Defendants, upon information and belief, sent on or about March 14, 2011, April-May, 2012, May 10, 2012, October 19, 2012, September 30, 2013 and October 8, 2013, advertisements via facsimile transmission from telephone facsimile machines, computers, or other devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Faxes constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Faxes. The Faxes were transmitted to persons or entities without their prior express permission or invitation and/or Defendants are precluded from asserting any prior express permission or invitation because of the failure to comply with the Opt-Out Notice Requirements. Defendants violated the JFPA and the regulations promulgated thereunder by sending the Faxes via facsimile transmission to Plaintiff and members of the Class. Plaintiff is informed and believes, and upon such information and belief avers, that Defendants may be continuing to send unsolicited advertisements via facsimile transmission in violation of the JFPA and the regulations promulgated thereunder, and absent intervention by this Court, will do so in the future. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent.
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| 1
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13,452,001
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win
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Defendant has been sending repeated, unsolicited marketing text messages to the Plaintiffs’ cellular telephone numbers, XXX-XXX-8117 (Huron), and XXX-XXX-2457 (Wright). True and correct copies of some of the text messages received by Plaintiffs from Defendant are produced below: Defendant’s text messages to Plaintiffs advertised promotions for the sale of Jo- Ann Stores goods. Defendant’s text messages did not include an automated mechanism through which the Plaintiffs, or any consumer, could reply “stop” to force the texts to cease. Plaintiffs never provided Defendant with their cell phone numbers or their prior express consent to call their cell phone numbers with automated text messages. The text messages sent to Plaintiffs’ cellular phones were made with an ATDS as defined by 47 U.S.C. § 227(a)(1). The ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. The telephone numbers messaged by Defendant were assigned to cellular telephone services for which Plaintiffs incur charges for incoming messages pursuant to 47 U.S.C. § 227(b)(1). The messages from Defendant to Plaintiffs were not placed for “emergency purposes” as defined by 47 U.S.C. § 227(b)(1)(A)(i). Plaintiffs have received hundreds of such text messages. The messages are annoying, frustrating to the Plaintiffs and are an invasion of their privacy. Plaintiffs bring this case as a class action pursuant to Fed. R. Civ. P. 23 on behalf of themselves and all others similarly situated. Plaintiffs represent, and are members of the following class: All persons within the United States who did not provide Defendant clear and conspicuous prior express written consent to send automated telemarketing text messages and who received one or more automated telemarketing text messages, from or on behalf of Defendant, to said person’s cellular telephone, made through the use of any automatic telephone dialing system within four years prior to the filing of the Complaint Upon information and belief, Defendant sent automated telemarketing text messages to cellular telephone numbers belonging to thousands of consumers throughout the United States without their prior express written consent. The members of the Class, therefore, are believed to be so numerous that joinder of all members is impracticable. The exact number and identities of the Class members are unknown at this time and can only be ascertained through discovery. Identification of the Class members is a matter capable of ministerial determination from Defendant’s records. C. Common Questions of Law and Fact There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. These questions include: a. Whether Defendant sent non-emergency text messages to Plaintiffs and Class members’ cellular telephones using an ATDS; b. Whether Defendant can meet its burden of showing it obtained prior express written consent to send each message; c. Whether Defendant’s conduct was knowing and/or willful; d. Whether Defendant are liable for damages, and the amount of such damages; and e. Whether Defendant should be enjoined from such conduct in the future. Plaintiffs’ claims are typical of the claims of the Class members, as they are all based on the same factual and legal theories. E. Protecting the Interests of the Class Members Plaintiffs will fairly and adequately protect the interests of the Class and have retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither Plaintiffs nor their counsel have any interests which might cause them not to vigorously pursue this action. F. Proceeding via Class Action is Superior and Advisable A class action is the superior method for the fair and efficient adjudication of this controversy. The interest of Class members in individually controlling the prosecutions of separate claims against Defendant is small because it is not economically feasible for Class members to bring individual actions. Management of this class action is unlikely to present any difficulties. Several courts have certified classes in TCPA actions. These cases include, but are not limited to: Mitchem v. Ill. Collection Serv., 271 F.R.D. 617 (N.D. Ill. 2011); Sadowski v. Med1 Online, LLC, 2008 WL 2224892 (N.D. Ill., May 27, 2008); CE Design Ltd. V. Cy’s Crabhouse North, Inc., 259 F.R.D. 135 (N.D. Ill. 2009); Lo v. Oxnard European Motors, LLC, 2012 WL 1932283 (S.D. Cal., May 29, 2012). Defendant sent multiple automated text messages to cellular numbers belonging to Plaintiffs and the other members of the Class without their prior express written consent. Each of the aforementioned messages by Defendant constitutes a violation of the Plaintiffs repeat and reallege the above paragraphs of this Complaint and incorporate them herein by reference. Defendant knowingly and/or willfully sent multiple automated text messages to cellular telephone numbers belonging to Plaintiffs and the other members of the Class without their prior express consent. As a result of Defendant’s knowing and/or willful violations of the TCPA, Plaintiffs and the Class are entitled to an award of treble damages up to $1,500.00 for each call in violation of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). Additionally, Plaintiffs and the Class are entitled to and seek injunctive relief prohibiting such conduct by Defendant in the future. Plaintiffs and the Class are also entitled to and do seek a declaration that: a. Defendant knowingly and/or willfully violated the TCPA; b. Defendant knowingly and/or willfully placed telemarketing text messages to Plaintiffs and the Class; c. Defendant knowingly and/or willfully obtained the telephone numbers of non- customers; d. Defendant willfully placed telemarketing text messages to non-customers such as Plaintiffs and the Class, knowing they did not have prior express written consent to do so; and e. It is Defendant’s practice and history to place telemarketing text messages to non- customers without their prior express consent. A. The Class Dated: June 16, 2016 Respectfully submitted, PLAINTIFFS, LAURA WRIGHT AND DEBRA Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.
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| 1
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16,964,613
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) Defendants allege Plaintiff owes a debt (“the alleged Debt”). The alleged Debt is an alleged obligation of Plaintiff to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. The alleged Debt does not arise from any business enterprise of Plaintiff. The alleged Debt is a “debt” as defined by 15 U.S.C. § 1692a(5). At an exact time known only to Defendants, the alleged Debt was assigned or otherwise transferred to Defendants for collection. At the time the alleged Debt was assigned or otherwise transferred to Defendants for collection, the alleged Debt was in default. In its efforts to collect the alleged Debt, Defendants contacted Plaintiff by email (“the Email”) dated October 1, 2019. (A true and accurate copy is annexed hereto as “Exhibit The Email conveyed information regarding the alleged Debt. The Email is a “communication” as defined by 15 U.S.C. § 1692a(2). The Email was the initial written communication Plaintiff received from Defendants concerning the alleged Debt. The Email was received and read by Plaintiff. 15 U.S.C. § 1692g protects Plaintiff's concrete interests. Plaintiff has the interest and right to receive a clear, accurate and unambiguous validation notice, which allows a consumer to confirm that he or she owes the debt sought to be collected by the debt collector. As set forth herein, Defendants deprived Plaintiff of this right. 15 U.S.C. § 1692e protects Plaintiff's concrete interests. Plaintiff has the interest and right to be free from deceptive and/or misleading communications from Defendants. As set forth herein, Defendants deprived Plaintiff of this right. 15 U.S.C. § 1692g(b) provides if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtain verification of the debt or a copy of a judgment, or the name and address of the original creditor, is mailed to the consumer by the debt collector. 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. 15 U.S.C. § 1692e(10) prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt. Plaintiff disputed the alleged Debt by email on September 30, 2019. In response to Plaintiffs dispute, a representative for Defendants contacted Plaintiff by email, to notify her that the dispute would be filed immediately. Additionally Defendants’ representative informed Plaintiff that they would be reaching out to Plaintiff once they received adequate information from LVNV Funding LLC. Defendants again contacted Plaintiff by the Email on October 1, 2019, luring her into an offer for flexible payment options. The Email further stated, that it was an attempt to collect a debt. Defendants failed to respond to Plaintiffs dispute on the alleged Debt but instead continued collection efforts on such alleged Debt. As a result of the foregoing Defendants violated 15 U.S.C. § 1692g(b) by failing to cease collection efforts after receiving Plaintiff’s written dispute on the alleged Debt. As a result of the foregoing Defendants violated 15 U.S.C. § 1692e by falsely representing that it was entitled to continue collection efforts and were not required to cease communication after receiving such dispute from Plaintiff. As a result of the foregoing Defendants violated 15 U.S.C. § 1692e(10) by attempting to collect on the alleged Debt through false representation that such efforts were legitimate. Plaintiff brings this action individually and as a class action on behalf of all persons similarly situated in the State of North Carolina. Plaintiff seeks to certify a class of: All consumers to whom Defendants sent a collection letter in violation of 15 U.S.C. § 1692g(b), substantially and materially similar to the Letter sent to Plaintiff, which letter was sent on or after a date one year prior to the filing of this action to the present. This action seeks a finding that Defendants' conduct violates the FDCPA, and asks that the Court award damages as authorized by 15 U.S.C. § 1692k. The Class consists of more than thirty-five persons. Plaintiff's claims are typical of the claims of the Class. Common questions of law or fact raised by this action affect all members of the Class and predominate over any individual issues. Common relief is therefore sought on behalf of all members of the Class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to the individual members of the Class, and a risk that any adjudications with respect to individual members of the Class would, as a practical matter, either be dispositive of the interests of other members of the Class not party to the adjudication, or substantially impair or impede their ability to protect their interests. Defendants have acted in a manner applicable to the Class as a whole such that declaratory relief is warranted. Plaintiff will fairly and adequately protect and represent the interests of the Class. The management of the class is not extraordinarily difficult, and the factual and legal issues raised by this action will not require extended contact with the members of the Class, because Defendants' conduct was perpetrated on all members of the Class and will be established by common proof. Moreover, Plaintiff has retained counsel experienced in actions brought under consumer protection laws.
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6,176,993
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win
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(Plaintiff Individually and on Behalf of All Similarly Situated Employees Pursuant to 29 U.S.C. §216) (Rule 23 Claim) Plaintiff and other similarly situated current and former employees in the asserted class regularly worked over 40 hours per week and earned the additional $1.25 per hour shift differential. At all times material to this Complaint, Defendant failed to comply with the FLSA in that Plaintiff and those similarly situated to Plaintiff performed services for Defendant for which no provision was made by Defendant to pay Plaintiffs and similarly situated persons the correct overtime rate of pay. Plaintiff and asserted members of the collective are similarly situated because, inter alia, they were all were not paid the required overtime rate but were entitled under the FLSA to the paid overtime rate of one and one-half times their regular rate of pay for all work in excess of 40 hours per week; and had such rights undermined and neglected by Defendants’ unlawful prac- tices and policies. Defendant encouraged, permitted, and required the Class to work without required overtime compensation of one and one-half times the normal wages. Defendant knows that Plaintiff and other members of the FLSA Class have been deprived of required overtime compensation. Nonetheless, Defendant has operated under a scheme to deny the Plaintiff and the Class required compensation of one and one-half time regular rate of pay for work in excess of 40 hours of the FLSA Class. Defendant’s conduct, as alleged herein, was willful and has caused significant dam- age to Plaintiff and other members of the FLSA class. Plaintiff will fairly and adequately protect the interests of each proposed class mem- ber and have retained counsel that is experienced in class/collective actions and employment lit- igation. Plaintiff has no interest that is contrary to, or in conflict with, members of the collective. The Plaintiff re-alleges and incorporates paragraphs 1 through 32, as if fully set forth herein. At all relevant times, RCI employed and/or continued to employ Plaintiff and each member of the proposed class of hourly employees within the meaning of the FLSA. Defendant has a policy and practice of not paying the proper overtime rate. Under the FLSA, Plaintiff and the Class (hereinafter referred to as “The FLSA Class”) were entitled to be paid at the overtime rate by Defendants for each hour worked in excess of 40 hours each work week. The overtime rate is computed by multiplying 1.5 times an employee’s regular hourly rate, which includes all non-discretionary compensation paid to employees, including any shift differential. Upon information and belief, Defendant’s practices were not based upon Defend- ant’s review of any policy or publication of the United States Department of Labor and therefore were willful and deliberate. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. §255(a). Due to Defendant’s violations of the FLSA, Plaintiff alleges on behalf of the mem- bers of the proposed class that they have suffered damages and are entitled to recover damages from Defendant. WHEREFORE, the Plaintiff requests the following relief, individually and on behalf of similarly situated employees: a.) A declaratory judgment that Defendant violated the overtime wage provisions of the FLSA as to the Plaintiff and the Class; b.) A declaratory judgment that Defendant’s violations were willful; c.) A judgment of unpaid overtime compensation; b.) A judgement of an additional equal amount as liquidated damages; c.) Prejudgment interest; and d.) Reasonable attorneys’ fees, and costs and disbursements of this action, pursuant to 29 U.S.C. §216(b). This count arises from Defendants’ violation of the overtime compensation provi- sions of the IMWL, 820 ILCS § 105/1 et seq. Under the IMWL, Defendants were and remain obligated to compensate Plaintiff for all hours worked in excess of 40 hours in any individual work week. Overtime compensation must be paid at a rate of not less than one and one-half times the regular rate of pay, which includes the shift differential. Plaintiff was regularly permitted, encouraged and/or required to work in excess of 40 hours per week but was not compensated at the required one and one-half times regular hourly rate for such overtime work. By failing to pay overtime compensation due to Plaintiff, Defendants willfully, knowingly and/or recklessly violated the IMWL which requires overtime compensation of one and one-half times normal rate to be paid. As a result of Defendants’ policy and practice of withholding overtime compensa- tion, Plaintiff has been damaged in that he has not received wages due to him pursuant to the
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17,115,352
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During Plaintiffs’ employment as Field Service Engineers, Defendant paid Plaintiffs and other Field Service Engineers on a salary basis and classified them as exempt under the FLSA. Defendant has employed, on average, six (6) or so Field Service Engineers at any given time over the last three (3) years. Defendant has employed Field Service Engineers in many states across the country, including in California, Washington, Oregon, Utah, Delaware, Colorado, Texas, Kansas, Illinois, Georgia, and Florida. Defendant subjects all Field Service Engineers, including Plaintiffs, to the same employment policies and procedures. Plaintiffs and other Field Service Engineers all reported to the same Field Engineering Manager. During Plaintiffs’ employment, Field Service Engineers reported to Defendant’s Field Engineering Manager, Jireh Providencia (“Providencia”). Field Service Engineers were expected to work before, during, and after Defendant’s scheduled business hours (i.e., Monday through Friday 8:00 am to 5:00pm PT). Plaintiffs, and those similarly situated, were regularly forced to work in excess of forty (40) hours per week without overtime compensation. In addition to their primary job duties noted above, Field Service Engineers were regularly required to answer calls and follow any and all instructions from Defendant, make or respond to customer calls, draft or respond to e-mails, prepare weekly reports, handle and request parts (or “trunk stock”) as necessary to perform maintenance and repair services, and travel extensively for service calls throughout the United States, during and outside of Defendant’s scheduled business hours. Defendant established a policy and practice of requiring Field Service Engineers, like Plaintiffs, to work in excess of forty (40) hours per week, without overtime compensation, in order to maintain a satisfactory level of job performance with Defendant. Plaintiffs and other Field Service Engineers were uniformly misclassified by Defendant as exempt from overtime compensation. Defendant failed to post or provide notice to its Field Service Engineers of their federal wage and hour rights under the FLSA. 29 C.F.R. § 516.4. Defendant has instructed Field Service Engineers to not record their hours worked. Defendant uses ADP for payroll processing services. Defendant’s Field Service Engineers have access to an ADP interface wherein they can see their payroll information. This interface also allows Field Service Engineers to enter information about their hours worked into the ADP system, which Defendant can see or access. On at least one occasion, Defendant—through Providencia— explicitly instructed Grey to not enter his hours worked into the ADP system and to delete any hours worked information he had already put into the ADP system. Following their conversation, by the time Grey went to check on the hours worked information that he had previously entered into the ADP system, Providencia had already deleted from the ADP system the hours worked information that Grey had entered. Plaintiffs are representative of those similarly situated Field Service Engineers employed by Defendant who are current or former employees of Defendant who were required to work in excess of forty (40) hours per week and who did not receive overtime compensation. Plaintiffs, individually and on behalf of those similarly situated Field Service Engineers, seek relief on a collective basis, challenging, among other FLSA violations, Defendant’s uniform misclassification of Field Service Engineers as exempt employees, Defendant’s policy and/or practice of failing to make and maintain accurate records of their hours worked, and Defendant’s failure to pay them for all overtime hours worked. Plaintiffs and other Field Service Engineers have together been the victim of these common policies or plans of Defendant that violate the FLSA. Plaintiffs bring this case as an “opt-in” collective action under 29 U.S.C. § 216(b) on behalf of all those who file a Consent to Join form with the Court. Plaintiffs’ Consent to Join Forms are attached as Exhibit 1 and Exhibit 2. Plaintiffs incorporate by reference the above-stated paragraphs as if set forth fully hereunder. Plaintiffs and other Field Service Engineers of Defendant are entitled to the rights, protections and benefits provided under the FLSA. The FLSA requires employers to pay non-exempt employees one and one-half times the regular rate of pay at which they are employed for all hours worked over forty (40) hours per workweek. 29 U.S.C. § 207. The FLSA also requires employers to make and maintain accurate records of hours worked each workweek, and to post or provide notice of employee rights under the FLSA. 29 U.S.C. § 211(c); 29 C.F.R. § 516.4. Defendant’s actions, policies and/or practices violated the FLSA’s requirements by failing to compensate Plaintiffs and other Field Service Engineers for time spent on work activities as described in this Complaint. Defendant further violated the FLSA by failing to make and maintain accurate records of hours worked by Field Service Engineers and to post or provide notice to Field Service Engineers of their federal wage and hour rights under the FLSA. Defendant knew or should have known that Plaintiffs and other Field Service Engineers were non-exempt employees entitled to overtime compensation. Defendant had knowledge of and information on the job duties and expectations for Field Service Engineers, their hours worked exceeding forty (40) per workweek, and their complaint(s) of not being paid overtime compensation for such hours. Defendant knowingly and willfully violated the FLSA by failing to pay overtime compensation to Plaintiffs and other Field Service Engineers, by failing to make and maintain accurate records of their hours worked, and by failing to post or provide notice of their federal wage and hours rights under the FLSA. Defendant has deliberately sought to conceal these violations rather than remedy them and has refused to fully remedy and correct the issues when brought to Defendant’s attention for out-of-court resolution. FAILURE TO PAY OVERTIME IN VIOLATION OF THE FLSA
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| 1
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16,920,519
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At all times relevant, Plaintiff was the sole operator, possessor, and subscriber of the number ending in 5290. At all times relevant, Plaintiff’s number ending in 5290 was assigned to a cellular telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff applied for and received a Mastercard issued by Celtic Bank Corporation. Over time, Plaintiff made personal charges on this credit card. Plaintiff defaulted on payments. Plaintiff’s account, once unpaid, was referred for collection. Plaintiff started to receive phone calls from Defendant seeking to collect on Plaintiff’s $746.71 balance. On numerous occasions, Plaintiff answered. Often times, Plaintiff was met by an automated, machine-operated voice prompting Plaintiff to: “... please return this call …” On multiple occasions, Plaintiff returned Defendant’s call only to tell them to stop calling. Unfortunately, these phone calls continue. To date, dozens of phone calls have been received from number(s) leading back to Defendant – including, (563) 217-4577 and (563)-514-4664. Defendant’s phone calls resulted in aggravation that accompanies persistent and unwanted phone calls, anxiety, distress, increased risk of personal injury resulting from distraction, intrusion upon and occupation of Plaintiff’s cellular telephone capacity, invasion of privacy, loss of concentration, nuisance, stress, and wasted time. Accordingly, Plaintiff is forced to expend energy and/or time consulting with attorneys to put an end to Defendant’s unlawful collection practices. All paragraphs of this Complaint are expressly adopted and incorporated herein as though fully set forth herein. 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 (the “Putative Classes”) defined as follows: FDCPA Class All persons throughout the United States (1) to whom Defendant placed, or caused to be placed, a call; (2) within the one year preceding the date of this complaint through the date of class certification; (3) in connection with the collection of a consumer debt; (4) after he/she requested that Defendant cease calls to his/her telephone number. TCPA Class All persons throughout the United States (1) to whom Defendant placed, or caused to be placed, a call; (2) directed to a number assigned to a cellular telephone service; (3) using an artificial or prerecorded voice; (4) within the four years preceding the date of this complaint through the date of class certification; (5) after he/she requested that Defendant cease calls to his/her telephone number. Upon information and belief, the members of the Putative Classes are so numerous that joinder of them is impracticable. The exact number of the members of the Putative Classes is unknown to Plaintiff at this time, and can be determined only through appropriate discovery. The members of the Putative Classes are ascertainable because the classes are defined by reference to objective criteria. The members of the Putative Classes are identifiable in that their names, addresses and telephone numbers can be identified in business records maintained by Defendant. B. Commonality and Predominance There are many questions of law and fact common to the claims of Plaintiff and the Putative Classes, and those questions predominate over any questions that may affect individual members of the Putative Classes. C. Typicality 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. The damages suffered by the individual members of the Putative Classes will likely be relatively small, especially given the burden and expense required for individual prosecution. By contrast, a class action provides the benefits of single adjudication, economies of scale and comprehensive supervision by a single court. Economies of effort, expense, and time will be fostered and uniformity of decisions ensured. E. Adequate Representation Plaintiff will adequately and fairly represent and protect the interests of the Putative Classes. Plaintiff has no interests antagonistic to those of the Putative Classes, and Defendant has no defenses unique to Plaintiff. Plaintiff has retained competent and experienced counsel in consumer class action litigation. In Colorado, “to prevail on a claim for intrusion upon seclusion as a violation of one’s privacy, a plaintiff must show that another has intentionally intruded, physically or otherwise, upon the plaintiff’s seclusion or solitude, and that such intrusion would be considered offensive by a reasonable person.” Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998), cert. denied (Colo. Mar. 1, 1999). This tort can encompass conduct such as persistent and unwanted telephone calls. Quigley v. Rosenthal, 327 F.3d 1044, 1073 (10th Cir. 2003) (citing High- Tech Inst., 972 P.2d, at 1067. Defendant’s persistent and unwanted phone calls to Plaintiff violated Plaintiff’s right to privacy based on an intrusion upon her seclusion. See Dunlap v. McCarthy, 284 Ark. 5, 678 S.W.2d 361 (1984); see generally W. Prosser & W. Keeton, Torts 117 (5th ed. 1984) (examples of intrusion upon seclusion include eavesdropping by wiretapping and persistent and unwanted telephone calls). All paragraphs of this Complaint are expressly adopted and incorporated herein as though fully set forth herein. Violation(s) of 15 U.S.C. § 1692d Section 1692d provides: [a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. 15 U.S.C. § 1692d(5). Defendant violated 15 U.S.C. § 1692d(5) by repeatedly or continuously calling Plaintiff after being asked to stop. See Chiverton v. Federal Financial Group, Inc., 399 F. Supp. 2d 96 (D. Conn. 2005) (finding that repeated calls after the consumer had asked debt collector to stop calling amounted to harassment). The phone calls at issue were intended to be annoying, abusive, or harassing. All paragraphs of this Complaint are expressly adopted and incorporated herein as though fully set forth herein. Defendant placed or caused to be placed dozens of non-emergency calls, including but not limited to the aforementioned collection calls, to Plaintiff’s cellular telephone utilizing an artificial or prerecorded voice without Plaintiff’s consent in violation of 47 U.S.C. § 227 (b)(1)(A)(iii). As plead above, Defendant used an artificial or pre-recorded voice which automatically played once Plaintiff answered Defendant’s phone calls. As result of Defendant’s violations of 47 U.S.C. §227 (b)(1)(A)(iii). Plaintiff is entitled to receive $500.00 in damages for each violation. Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) (On behalf of Plaintiff and the Members of FDCPA Class) Invasion of Privacy by Seclusion (On behalf of Plaintiff) Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.) (On behalf of Plaintiff and the Members of TCPA Class)
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| 2
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4,511,944
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win
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Plaintiff is not a customer of Verde. Plaintiff has not sought Verde’s services online or otherwise. On or around September of 2015, Verde began calling Plaintiff’s cellular telephone, number 413-xxx-4923. Verde called Plaintiff from telephone number 978-253-4077. At all times mentioned herein, Verde contacted Plaintiff using an automated telephone dialer system (“ATDS” or “predictive dialer”) and/or by using an artificial or prerecorded voice. When Plaintiff answered calls from Verde, she heard a prerecorded message instructing Plaintiff to hold for the next available operator. Plaintiff did not provide her cellular telephone number to Verde and does not know how they obtained it. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23 on behalf of himself and all others similarly situated. Plaintiff represents, and is a member of the following class: All persons within the United States to whom Defendant or its agent/s and/or employee/s made telephone calls using an ATDS or prerecorded or artificial messages and (1) such call was to a cellular telephone number and (2) such person did not provide prior express consent to receive such a call. The class period encompasses the four year period preceding the filing of this complaint. Defendants and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to modify or expand the Class definitions to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. B. Numerosity The exact number and identities of the Class members are unknown at this time and can only be ascertained through discovery. Identification of the Class members is a matter capable of ministerial determination from Defendant’s call records. C. Common Questions of Law and Fact There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. These questions include: a. Whether Defendant made non-emergency calls to Plaintiff and Class members’ cellular telephones using an artificial or prerecorded voice; b. Whether Defendant made non-emergency calls to Plaintiff and the Class members’ cellular telephones using an ATDS; c. Whether Defendant can meet its burden of showing it obtained prior express consent to make each call; d. Whether Defendant’s conduct was knowing and/or willful; e. Whether Defendant is liable for damages, and the amount of such damages; and f. Whether Defendant should be enjoined from such conduct in the future. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely places unauthorized automated calls to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. D. Typicality Plaintiff will fairly and adequately protect the interests of the Class and has retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither Plaintiff nor his counsel has any interests which might cause them not to vigorously pursue this action. F. Proceeding Via Class Action is Superior and Advisable A class action is the superior method for the fair and efficient adjudication of this controversy. The interest of Class members in individually controlling the prosecutions of separate claims against Defendant is small because it is not economically feasible for Class members to bring individual actions. Management of this class action is unlikely to present any difficulties. Several courts have certified classes in TCPA actions. These cases include, but are not limited to: Mitchem v. Ill. Collection Serv., 271 F.R.D. 617 (N.D. Ill. 2011); Sadowski v. Med1 Online, LLC, 2008 WL 2224892 (N.D. Ill., May 27, 2008); CE Design Ltd. V. Cy’s Crabhouse North, Inc., 259 F.R.D. 135 (N.D. Ill. 2009); Lo v. Oxnard European Motors, LLC, 2012 WL 1932283 (S.D. Cal., May 29, 2012). Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates them herein by reference. Each of the aforementioned calls by Defendant constitutes a negligent violation of the TCPA. Plaintiff and the Class are entitled to an award of $500.00 in statutory damages for each call in violation of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(B). Additionally, Plaintiff and the Class are entitled to and seek injunctive relief prohibiting such conduct by Defendant in the future. Plaintiff and Class members are also entitled to and do seek a declaration that: • Defendant violated the TCPA; • Defendant used prerecorded voices and/or artificial voices; and • Defendant placed calls to the Plaintiff and the Class without prior express consent. Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates them herein by reference. Defendant knowingly and/or willfully placed multiple prerecorded or artificial calls to cellular numbers belonging to Plaintiff and the other members of the Class without their prior express consent. Each of the aforementioned calls by Defendant constitutes a knowing and/or willful violation of the TCPA. Additionally, Plaintiff and the Class are entitled to and seek injunctive relief prohibiting such conduct by Defendant in the future. Plaintiff and Class members are also entitled to and do seek a declaration that: • Defendant knowingly and/or willfully violated the TCPA; • Defendant knowingly and/or willfully used prerecorded voices and/or artificial voices on calls to Plaintiff and the Class; • Defendant knowingly and/or willfully obtained the cell phone numbers of Plaintiff and the Class from third parties; • Defendant willfully placed automated calls to the Plaintiff and the Class at the numbers received from those third parties, knowing it did not have prior express consent to do so; and • It is Defendant’s practice and history to place automated telephone calls to consumers without their prior express consent. A. The Class Dated: December 20, 2015 Respectfully submitted, By /s/ Sergei Lemberg Sergei Lemberg (BBO# 650671) Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.
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| 1
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16,688,988
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win
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Plaintiffs and those they seek to represent in this action were employed to perform work on various jobs for Defendant as part of its contracting business. Defendant paid Plaintiffs and those they seek to represent “straight time”—i.e., the same hourly wage for every hour worked, regardless of whether such hours were in excess of 40 in a workweek. Plaintiffs and those they seek to represent regularly worked in excess of 40 hours in a workweek. Defendant labeled the hourly payments for hours in excess of 40 in a workweek as “bonus” payments on the pay statements of Plaintiffs and those they seek to represent. A pay statement of Charles Clouse from July 2017, which shows such a “bonus” payment, is attached hereto as Exhibit A as an example of the pay practice which applied to Plaintiffs and those they seek to represent. The “bonus” payment of $143.00 shown on Exhibit A is actually a payment for 13 hours worked in excess of 40 in a workweek made at Plaintiff Clouse’s then-current hourly rate of $11 per hour ($11/hour x 13 hours = $143.00). The FLSA and KWHA require employers to pay employees at one and one-half times their regular rate of pay for all hours in excess of 40 in a workweek. By failing to pay Plaintiffs and those they seek to represent at one and one-half times their regular rate of pay for all hours in excess of 40 in a workweek, Defendant violated the overtime pay requirements of the FLSA and KWHA. Defendant labeled these straight-time hourly payments for hours over 40 in a workweek, which it made to Plaintiffs and those they seek to represent at their regular rate of pay, as “bonus” payments, in order to conceal its violation of the overtime pay requirements of Case: 5:20-cv-00011-KKC Doc #: 1 Filed: 01/10/20 Page: 3 of 9 - Page ID#: 3 4 the FLSA and KWHA. Defendant also continued these practices despite formal and informal complaints by Plaintiffs about not receiving time-and-a-half and despite inquiries and investigations by the Kentucky Labor Cabinet. Accordingly, Defendant knew or should have known that Plaintiffs and those they seek to represent were entitled to one and one-half times their regular hourly rate for hours over 40 in a workweek and therefore acted willfully in failing to compensate all work time by these employees at the proper overtime rate. Plaintiffs asserts their FLSA claims pursuant to 29 U.S.C. § 216(b) as a collective action on behalf of the following individuals: All current and former hourly-paid employees of Defendant at any time since January 10, 2017. (the “Collective Class”). Plaintiffs’ FLSA claims should proceed as a collective action because Plaintiffs and other similarly situated employees were paid in the same manner as described herein, and are, therefore, “similarly situated” as that term is defined in 29 U.S.C. § 216(b) and the associated decisional law. Plaintiffs bring this action on their own behalf and, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of the following class of individuals: All current and former hourly-paid employees of Defendant at any time since January 10, 2015.1 (the “Rule 23 Class”). 1 The statute of limitations under the KWHA is five years. KRS 413.120(2). Case: 5:20-cv-00011-KKC Doc #: 1 Filed: 01/10/20 Page: 4 of 9 - Page ID#: 4 5 Plaintiffs are members of the Rule 23 Class they seek to represent. Since January 9, 2015, Defendant has employed more than 50 individuals who it paid in the manner described above and who therefore fall within the Rule 23 Class definition. Thus, the Rule 23 Class is sufficiently numerous that joinder of all members is impractical, satisfying Fed. R. Civ. P. 23(a)(1). Plaintiffs and the members of the Rule 23 Class share the same pivotal questions of law and fact, satisfying Fed. R. Civ. P. 23(a)(2). Defendant failed to pay Plaintiffs and the members of the Rule 23 Class all overtime wages owed, pursuant to the same policies and in the same manner. As a result, the Rule 23 Class shares several factual and legal questions, including, for example: (1) whether they were entitled to one and one-half times their regular rate for hours over 40 in a workweek; and (2) whether Defendant violated the KWHA by paying purported “bonus” payments at their regular rate of pay for hours over 40 in a workweek. Plaintiffs’ claims are typical of the claims of the Rule 23 Class, satisfying Fed. R. Civ. P. 23(a)(3). Defendant’s violation of the overtime pay requirements of the KWHA was not the result of any Plaintiff-specific circumstances. Rather, it arose from Defendant’s common pay policies and practices, which Defendant applied generally to all of the hourly-paid employees who worked on jobs as part of its contracting business, including Plaintiffs. Thus, in advancing their own claims, Plaintiffs will also be advancing the claims of the Rule 23 Class. Plaintiffs will fairly and adequately represent and protect the interests of the Rule 23 Class, satisfying Fed. R. Civ. P. 23(a)(4). Plaintiffs’ interests are shared with the Rule 23 Class and Plaintiffs have no interests that conflict with those of the Rule 23 Class. Furthermore, Plaintiffs have retained competent counsel experienced in representing classes of employees against their employers related to their employers’ failure to pay them properly under the law. Case: 5:20-cv-00011-KKC Doc #: 1 Filed: 01/10/20 Page: 5 of 9 - Page ID#: 5 6 By failing to pay hourly paid employees all required overtime wages pursuant to its common pay practices and policies, Defendant has created a scenario where questions of law and fact common to the Rule 23 Class predominate over any questions affecting only individual members. Thus, a class action is superior to other available methods for the fair and efficient adjudication of this matter. Plaintiffs are entitled to pursue their claims as a class action, pursuant to Fed. R. Civ. P. 23(b)(3). All previous paragraphs are incorporated as though fully set forth herein. Plaintiffs assert this claim on behalf of themselves and members of the Collective Class who opt into this action by filing a consent form, pursuant to 29 U.S.C. § 216(b). Plaintiffs and the Collective Class are employees entitled to the FLSA’s protections. Defendant is an employer covered by the FLSA. The FLSA requires that covered employees receive overtime compensation “not less than one and one-half times” their regular rate of pay for hours over 40 in a workweek. All previous paragraphs are incorporated as though fully set forth herein. Plaintiffs assert this claim on behalf of themselves and members of the Rule 23 Class, pursuant to Fed. R. Civ. P. 23. Plaintiffs and the Rule 23 Class are employees entitled to the KWHA’s protections. Defendant is an employer covered by the KWHA. The KWHA requires that covered employees receive overtime compensation “not less than one and one-half times” their regular rate of pay for hours over 40 in a workweek. KRS 337.285. Defendant pays Plaintiffs and the Rule 23 Class the same hourly rate for every hour worked including hours over 40 in a workweek and does not pay them at one and one-half times their regular rate of pay for hours over 40 in a workweek, in violation of the KWHA. In violating the KWHA, Defendant has acted willfully and with reckless disregard of clearly applicable KWHA provisions, for example, by seeking to conceal its violation on the pay statements of Plaintiffs and the Rule 23 Class members and by ignoring formal and informal complaints from Plaintiffs and the Kentucky Labor Cabinet. Case: 5:20-cv-00011-KKC Doc #: 1 Filed: 01/10/20 Page: 2 of 9 - Page ID#: 2 3 VIOLATION OF THE OVERTIME REQUIREMENTS OF THE KWHA VIOLATION OF THE OVERTIME REQUIREMENTS OF THE FLSA
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win
| 4
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6,158,776
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lose
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Identify that the call was an attempt to collect a debt; The message did not identify that the call was an attempt to collect a debt, that any information obtained will be used for that purpose, or that the communication was from a debt collector. Upon information and belief, that same day DEFENDANT also left the following message on PLAINTIFF’S work phone number: Confidential and important message for Ashley Coleman. Chris ____ calling from Central Portfolio Control. Please contact me at 1-888-351-1975. Thank you. This message also failed to identify that the call was an attempt to collect a debt, that any information obtained will be used for that purpose, or that the communication was from a debt collector. PLAINTIFF called DEFENDANT back. During the subsequent conversation, DEFENDANT again failed to disclose that the call was an attempt to collect a debt and/or that any information obtained would be used for that purpose. DEFENDANT never sent an initial 1692g collection letter to PLAINTIFF. PLAINTIFF is informed and believes and therefore alleges that PLAINTIFF and the class members are entitled to statutory damages and may have also suffered actual damages in other ways and to other extents not presently known to PLAINTIFF, and not specified herein. PLAINTIFF reserves the right to assert additional facts and damages not referenced herein, and/or to present evidence of the same at the time of trial. PLAINTIFF repeats, re-alleges, and incorporates by reference, paragraphs 1 through 16 inclusive, above. A class action is superior for the fair and efficient adjudication of the class members’ claims as Congress specifically envisioned class actions as a principal means of enforcing the FDCPA. See 15 U.S.C.§ 1692k. The members of the class are generally unsophisticated consumers, whose rights will not be vindicated in the absence of a class action. Prosecution of separate actions by individual members of the classes would also create the risk of inconsistent or varying adjudications resulting in the establishment of inconsistent or varying standards and would not be in the best interest of judicial economy. Identify that any information obtained will be used for that purpose; and/or PLAINTIFF repeats, re-alleges and incorporates by reference, paragraphs 1 through 20 inclusive, above. A debt collector is required to disclose in the initial communication “that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose” and in subsequent communications “that the communication is from a debt collector”. 15 U.S.C. §1692e(11). In December of 2014, DEFENDANT began placing calls to PLAINTIFF’s phone number, in an attempt to collect a consumer debt from PLAINTIFF. DEFENDANT left the following message on PLAINTIFF’S cell phone: Confidential and important message for Ashely Coleman. This is Chris ______ calling from Central Portfolio Control. Please contact me at 1-888-351-1975 that’s 888-351-1975. Thank you. The message did not identify that the call was an attempt to collect a debt, that any information obtained will be used for that purpose, or that the communication was from a debt collector. That same day DEFENDANT also left the following message on PLAINTIFF’S work phone number: Confidential and important message for Ashley Coleman. Chris ____ calling from Central Portfolio Control. Please contact me at 1-888-351-1975. Thank you. When PLAINTIFF called DEFENDANT back, DEFENDANT again failed to disclose that the call was an attempt to collect a debt and/or that any information obtained would be used for that purpose. As a result of the FDCPA violations by DEFENDANT, PLAINTIFF is entitled to an award of actual and statutory damages. It has been necessary for PLAINTIFF to obtain the services of an attorney to pursue this claim, on behalf of herself and those similarly situated, and is entitled to recover reasonable attorneys’ fees therefor. Identify that the communication was from a debt collector. b. Class Number Two: A class consisting of nationwide consumers who: i. Within one year prior to the filing of this action; ii. Were not provided 1692g(a) notices; iii. Within 5 days from the initial communication with DEFENDANT. PLAINTIFF repeats, re-alleges and incorporates by reference, paragraphs 1 through 29 inclusive, above. Here, DEFENDANT failed to send PLAINTIFF an initial collection letter notifying PLAINTIFF of her rights pursuant to §1692g(a). As a result of the FDCPA violations by DEFENDANT, PLAINTIFF is entitled to an award of actual and statutory damages. It has been necessary for PLAINTIFF to obtain the services of an attorney to pursue this claim, on behalf of herself and those similarly situated, and is entitled to recover reasonable attorneys’ fees therefor. PLAINTIFF repeats, re-alleges, and incorporates by reference, paragraphs 1 through 8 inclusive, above. VIOLATIONS OF THE FDCPA 15 U.S.C. §§ 1692e(11) BROUGHT BY PLAINTIFF INDIVIDUALLY AND ON BEHALF OF CLASSES NUMBERS ONE VIOLATION OF THE FDCPA 15 U.S.C. § 1692g(a) BROUGHT BY PLAINTIFF INDIVIDUALLY AND ON BEHALF OF CLASS NUMBER TWO
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win
| 3
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14,493,636
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win
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The amount of the debt; Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). The Class consists of: a. all individuals with addresses in the State of Texas; b. to whom Defendant Law Offices sent an initial collection letter attempting to collect a consumer debt; c. on behalf of Defendant Westhill; d. that included a false and misleading statements regarding consumers rights to dispute the debt as outlined in §1692g; e. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (2l) days after the filing of this action. The identities of all class members are readily ascertainable from the records of Defendants and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. Excluded from the Plaintiff Class are the Defendants and all officer, members, partners, managers, directors and employees of the Defendants and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class defined in this complaint. The Plaintiff has retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor her attorneys have any interests, which might cause them not to vigorously pursue this action. The name of the creditor to whom the debt is owed; Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. The MidAmerica Bank & Trust obligation arose out of transactions where Plaintiff used MidAmerica Bank & Trust funds primarily for personal, family or household purposes. The alleged MidAmerica Bank & Trust obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). MidAmerica Bank & Trust is a "creditor" as defined by 15 U.S.C.§ 1692a(4). Defendant Westhill, a debt collector and the subsequent owner of the MidAmerica Bank & Trust debt, contracted with Defendant Law Offices to collect the alleged debt. Defendants collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation – September 25, 2017 Collection Letter On or about September 25, 2017, Defendant Law Offices sent the Plaintiff an initial contact notice (the “Letter”) regarding the alleged debt owed to Defendant Westhill. See Letter at Exhibit A. A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt-collector; This letter is commonly referred to as the “G notice.” The “G-Notice” in the September 25, 2017 letter does not meet the required guidelines of the FDCPA and falsely state the requirements of the consumer. Firstly, the “G-Notice” wrongfully advises the consumer that she must “notify [Defendants] in writing that she disputes the debt or Defendants will assume the debt to be valid.” This language is false and misleading to the Plaintiff since a consumer may dispute the debt with Defendants by any method in order to be a valid dispute. (See §1692g(a)(3)). Defendants letter then improperly advises the consumer as to her rights under §1692g as when it fails to properly state when notification in writing is required. Defendants wrongfully advise the consumer that “if you notify us of a dispute, we will obtain verification of the debt and mail a copy of such verification to you.” Defendants’ letter fails on all accounts to inform the Plaintiff of her fundamental rights as a consumer to dispute the debt, and the methods in which different disputes and information requested must occur. Plaintiff incurred an informational injury as Defendants falsely stated her rights under §1692g of the FDCPA which put her at imminent risk of losing her right to validate and dispute the debt. As a result of Defendants’ deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. Defendants’ debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e. Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Defendants violated §1692e : a. By making a false and misleading representation in violation of §1692e(10). By reason thereof, Defendants are liable to Plaintiff for judgment that Defendants’ conduct violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. Defendants’ debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. Pursuant to 15 USC §1692g, a debt collector: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – The Defendants violated 15 U.S.C. §1692g, by wrongfully advising Plaintiff of her rights and responsibilities as set forth in this section of the FDCPA. A statement that, upon the consumer’s written request within the thirty- day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. By reason thereof, Defendants are liable to Plaintiff for judgment that Defendants’ conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq.
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win
| 4
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4,401,433
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lose
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Plaintiff brings this action on his own behalf and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all holders of Dawson common stock who are being and will be harmed by Defendants’ actions described below (the “Class”). Excluded from the Class are Defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any of the Defendants. On November 12, 2013, Dawson announced impressive operating results for its fiscal fourth quarter and 2013 year-end results. Specifically, the Company reported that EBITDA increased by 15%, to a record $57.2 million and income from operations increased 22% over 2012 to $20.1 million. The Company also reported significant capital investments including 12,000 single-channel Geospace GSX units, 1,000 three-channel GSX units, 2,500 channels of the Wireless Seismic RT System 2 recording system and 10 INOVA vibrator energy source units to increase recording capacity and improve efficiency. The year-end results further indicated the Company’s strong financial position, “[t]he Company’s balance sheet remains strong with approximately $79,000,000 of working capital, $13,000,000 of debt, $76,000,000 of cash and cash equivalents and short-term investments, and $115,000,000 of retained earnings. In addition, the Company has $20,000,000 available under its undrawn revolving line of credit. The Company anticipates financing its recent purchase of GSX equipment with a mixture of cash and debt.” Commenting on the 2014 fiscal second-quarter financial results, Defendant Jumper stated: While we are pleased with our return to profitability, the declaration of our second quarterly dividend payment and our ability to maintain our strong balance sheet, we are disappointed to have another short term utilization issue. We believe the issue will clear itself during the quarter. We continue to explore ways to right size our operation to fit current demand and project readiness timing while maintaining a high resolution product that continually meets client needs. Based on recent bid activity, we believe market conditions in the United States indicate signs of improvement for the second half of calendar 2014. In sum, Dawson is well positioned to generate significant earnings in the foreseeable future. Despite Dawson’s bright financial prospects, the Board has now agreed to the merger with TGC which will dilute the share value of Dawson’s current shareholders, provide no premium and subject Dawson shareholders to the downward pull on the deal value based on the plummeting share price of TGC and the Board’s failure to require a collar. Plaintiff incorporates by reference and realleges each and every allegation contained above as though fully set forth herein. The Individual Defendants have violated fiduciary duties of care, loyalty, good faith, and candor owed to Dawson shareholders. As demonstrated by the allegations above, the Individual Defendants failed to exercise the care required, and breached their duties of loyalty, good faith, independence, and candor owed to Dawson shareholders because, among other reasons, they failed to take reasonable steps to obtain and/or ensure that Dawson shareholders receive adequate consideration for their shares, agreed to restrictive deal protection devices that deter other suitors from making a superior bid for the Company, and caused a materially incomplete and misleading Definitive Proxy concerning the Proposed Transaction to be filed with the SEC. By reason of the foregoing acts, practices, and courses of conduct, the Individual Defendants have failed to exercise ordinary care and diligence in the exercise of their fiduciary obligations toward Plaintiff and the other members of the Class. As a result of the actions of Defendants, Plaintiff and the Class will suffer irreparable injury in that they have not and will not receive their fair portion of the value of Dawson assets and businesses, have been and will be prevented from obtaining a fair price for their Dawson common shares, and will not be able to cast an informed vote the Proposed Transaction. Unless the Court enjoins Defendants, they will continue to breach their fiduciary duties owed to Plaintiff and the members of the Class, all to the irreparable harm of the members of the Class. Plaintiff incorporates by reference and realleges each and every allegation contained above as though fully set forth herein. Dawson, TGC, and Merger Sub have acted and are acting with knowledge of, or with reckless disregard to, the fact that the Individual Defendants are in breach of their fiduciary duties to Dawson’s shareholders, and have participated in such breaches of fiduciary duties. Dawson, TGC, and Merger Sub knowingly aided and abetted the Individual Defendants’ wrongdoing alleged herein. In so doing, Dawson, TGC, and Merger Sub rendered substantial assistance in order to effectuate the Individual Defendants’ plan to consummate the Proposed Transaction in breach of their fiduciary duties. Plaintiff incorporates by reference and realleges each and every allegation contained above as though fully set forth herein. Defendants have issued the Definitive Proxy with the intention of soliciting shareholder support for the Proposed Transaction. Specifically, the Definitive Proxy violates Section 14(a) and Rule 14a-9 because it omits material facts as set forth supra. Moreover, in the exercise of reasonable care, Defendants should have known that the Definitive Proxy is materially misleading and omits material facts that are necessary to render it non-misleading. The misrepresentations and omissions in the Definitive Proxy are material to Plaintiff and the Class, who will be deprived of his entitlement to cast a fully informed vote if such misrepresentations and omissions are not corrected prior to the vote on the Proposed Transaction. As a direct and proximate result of Defendants’ conduct, Plaintiff and the Class will be irreparably harmed. Plaintiff incorporates by reference and realleges each and every allegation contained above as though fully set forth herein. The Individual Defendants acted as controlling persons of Dawson within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as officers and/or directors of Dawson, and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Definitive Proxy filed with the SEC, they had the power to influence and control and did influence and control, directly or indirectly, the decision making of the Company, including the content and dissemination of the various statements which Plaintiff and the Class contend are false or materially incomplete and therefore misleading. A. Dawson’s Recent Financial Performance On Behalf of Plaintiff and the Class Against Dawson, TGC, and Merger Sub for Aiding and Abetting the Individual Defendants’ Breaches of Fiduciary Duty On Behalf of Plaintiff and the Class Against the Individual Defendants for Breach of Fiduciary Duties On Behalf of Plaintiff and the Class for Violations of Sections 14(a) and of the Exchange Act Against the Company and the Individual Defendants On Behalf of Plaintiff and the Class for Violations of Section 20(a) of the Exchange Act Against the Individual Defendants
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lose
| 4
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4,236,109
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win
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Plaintiff desires to attend the aqua classes at the Sunrise, Florida location. Plaintiff previously explained to Defendant’s personnel at the front desk that her PCA is required in order to assist her in getting dressed prior to and after the aqua class in the locker room. Plaintiff is partially paralyzed in her left side and cannot get into and out of a swimsuit without the assistance of her PCA. Plaintiff explained in detail that her PCA would be coming into the locker room to assist with dressing, and would in no way be availing herself of the services offered at the gym. On or about Wednesday, July 30, 2014, the Defendant’s front desk at the Sunrise, Florida location would not let Plaintiff’s PCA onto the premises to assist Plaintiff in changing clothes. Plaintiff immediately brought this issue to the attention of the manager, Maurice, and explained that her PCA would have to be allowed into and out of the locker room to assist with changing in and out of Plaintiff’s bathing suit. The manager of the location (Maurice) instructed Plaintiff that either the PCA would have to buy a gym membership, or Plaintiff would be required to pay a personal trainer to assist when inside the gym. Plaintiff replied that a personal trainer does not assist with dressing and undressing disabled individuals in the locker room. Plaintiff insisted that it was discriminatory to disallow the PCA from entering the premises to assist Plaintiff with changing clothes, which Plaintiff cannot undertake on her own due to disability. Defendant’s manager then stated “have a nice day” and walked away without any further communication. Accordingly, so as to continue to make use of the Sunrise, Florida, 24 HOUR FITNESS location, and so as to be assured that her PCA will be granted entry to change Plaintiff’s clothing within the locker room (without being stopped, impeded, or harassed), Plaintiff has been left with no choice but to file this lawsuit seeking an injunction, and mandating that the gym comply with its legal obligations as it relates to policies and procedures applicable to disabled gym members such as Plaintiff. Plaintiff brings this action on her own behalf and as a class action pursuant to Federal Rule of Civil Procedure 23, on behalf of the following class of individuals: All members of any 24 HOUR FITNESS gym nationwide, who by virtue of physical disability, require the assistance of a Personal Care Attendant while on gym property (the “Class”). The Class includes all individuals who have been forced to pay membership fees for their PCA in order to secure entry for the PCA onto gym property. Plaintiff has personal knowledge that there exist other 24 HOUR FITNESS members who have been told or forced to buy memberships for their PCAs, so the PCAs can provide disability-related assistance within the gym premises. The members of the Class are so numerous that joinder of all Class members is not practical; the exact size of the Class can be determined only through discovery. Plaintiff can adequately protect the interest of the members of the Class and has retained competent counsel experienced in ADA and class action litigation. Plaintiff has no interest that is contrary to or in conflict with the interests of the members of the Class. A class action is superior to other methods of adjudicating this controversy. The expense and burden of individual litigation over this issue makes it virtually impossible for the Class members to individually seek redress for all violations across the country, and it would be highly inefficient for the Defendant, the Class, and the Court system, for all Class members to individually seek redress for the issue raised herein. Common questions of law and fact exist as to all members of the Class and predominate over questions solely affecting any individual Class member. Among such questions of law and fact is whether or not Defendant has violated one or more statutory obligations by failing to accommodate disabled gym members in need of assistance (relating to a function of daily living) from a PCA. Plaintiff knows of no difficulty that would be encountered in the management of this litigation that would preclude its maintenance as a class action. The names and addresses of disabled individuals who have been excluded from fair and equal access is obtainable through traditional channels used to identify members of any class; notice can be delivered to all such individuals by U.S. Mail or electronic mail using techniques and in a form of notice similar to those customarily used in class action litigation. The subject 24 HOUR FITNESS location in Sunrise, Florida, is a place of public accommodation as defined by the ADA. 42 U.S.C. § 12181. Plaintiff has been a long term member of the 24 HOUR FITNESS gym, and was a bona fide visitor to the subject Sunrise, Florida location on July 30, 2014, and intends to continue visiting the Sunrise, Florida location and making use of aqua classes into the foreseeable future, and thus desires to use the goods, services, facilities, privileges, advantages and/or accommodations offered at the Sunrise, Florida gym. In light of her disabilities, Plaintiff will be unable to fully, properly, safely, and equally access the subject facility and/or the goods, services, facilities, privileges, advantages and/or accommodations therein, unless and until Defendant is required to modify its policies and procedures so as to comply with the Americans with Disabilities Act, or if such policies and procedures already exist, is required by injunction to enforce those policies and procedures at the Sunrise, Florida location, and at every location used by any member of the Class. Defendant has discriminated against Plaintiff and all others with similar disabilities by denying full and equal access and enjoyment of the goods, services, facilities, privileges, advantages and/or accommodations at the subject gym. Defendant will continue to discriminate against Plaintiff and all others similarly situated requiring the assistance of a PCA in the locker room (or elsewhere), unless and until it is compelled by this Court to remove barriers to access by either implementing appropriate policies and procedures or enforcing policies and procedures that are not being followed by the Sunrise, Florida location and its management. This Court is vested with authority to grant injunctive relief sought by Plaintiff herein including entry of an order requiring creation, implementation, and/or enforcement of applicable policies, practices, and procedures necessary to provide full and equal access to Plaintiff and all those similarly situated. As a corollary to the injunctive relief sought herein, Plaintiff seeks disgorgement of profits garnered through enjoined and unlawful misconduct. Both the Eleventh Circuit Court of Appeal and the U.S. Supreme Court have been clear that a Court sitting in equity has at its disposal a full range equitable remedies, including the power to disgorge funds previously garnered through enjoined activities. This Court’s equitable jurisdiction has been invoked through Plaintiff’s filing of a claim for violation of the ADA (which provides for injunctive relief). As an adjunct to this Court’s authority to award an injunction in this case, the Court is fully vested with jurisdiction to disgorge Defendant of all funds collected as direct result of its own discriminatory and enjoined misconduct. Plaintiff has been a member of the 24 HOUR FITNESS gym for years, and for years has made use of the Miramar, Florida location, with the assistance of her personal care attendant (“PCA”), without any issue. VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
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win
| 5
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17,436,216
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win
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Defendant owns and operates a restaurant known as Bluefin Bar & Grill. Defendant employs several servers, bartenders, hosts, bussers, and runners. As a server, Plaintiff was responsible for serving food and beverages, explaining the menu and taking orders from guests, and adhering to company standards for food and beverages. Plaintiff typically worked thirty (30) to forty (40) hours per week. Defendant paid Plaintiff an hourly wage less than federal minimum wage (approximately $5.60). In addition, Plaintiff earned tips as a server. Defendant paid Plaintiff according to what is commonly referred to as the “tip credit.” Throughout Plaintiff’s employment Defendant failed to notify Plaintiff of the provisions of FLSA § 3(m), 29 U.S.C. § 203(m). Throughout Plaintiff’s employment Defendant required Plaintiff to share her tips with other workers. Specifically, Defendant required Plaintiff to tip out other “back of house,” non- tipped employees. Servers should not share tips with back of the house employees. As a result, Defendants were not entitled to utilize the FLSA’s tip credit provision to credit Plaintiff’s tips towards a portion of their minimum wage obligations. VI. Defendant employs other servers as part of its business operations. Servers perform similar job duties as Plaintiff in that they explain the menu and take orders from guests, serve beverages and keep their area clean. Servers are paid less than minimum wage, plus tips (“the tip credit”). Servers typically work thirty (30) to forty (40) hours per week. Servers are required to tip out “back of house” employees in a manner similar to Plaintiff. Defendant’s servers are the putative class members for this potential collective action. Plaintiff and the class members performed the same or similar job duties as one another in that they provided services for Defendants. Plaintiff and the class members were required to tip back of house employees each shift in violation of the FLSA’s requirement that minimum wages be paid “free and clear.” Shortly after being hired, Defendant explains it policy that servers are required to tip out dishwashers. The tip out is mandatory and affects all servers. Further, Plaintiff and the class members were subjected to the same pay provisions in that they were subject to working without receiving proper compensation in the form of a free and clear minimum wage. Defendants’ common policy violations have caused Plaintiff and the class members to receive less than minimum wage for all hours worked. Thus, the class members are similar with regard to their wages for the same reasons as Plaintiff. Defendant knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay Plaintiff and the class members at a rate of at least the statutorily prescribed minimum wage. Defendant did not act in good faith or reliance upon any of the following in formulating its pay practices: (a) case law, (b) the FLSA, 29 U.S.C. § 201, et seq., (c) Department of Labor Wage & Hour Opinion Letters or (d) the Code of Federal Regulations. During the relevant period, Defendant violated § 7(a)(1), § 15(a)(2) and § 203(m), by employing employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA as aforesaid, for one or more workweeks without compensating such employees for their work at the statutorily prescribed minimum wage within a work week during one or more weeks. Defendant has acted willfully in failing to pay Plaintiff and the class members in accordance with the law. Plaintiff reincorporates and readopts all allegations contained within Paragraphs 1-27 above as though fully stated herein. Plaintiff and the class members are entitled to be paid minimum wage for each hour worked during their employment with Defendant. Because of Defendant’s improper tip out policy in this regard, Plaintiff and the class members have not been paid the minimum wage for each hour worked during one or more weeks of employment with Defendant. Defendant willfully failed to pay Plaintiff and the class members minimum wage for one or more weeks of work contrary to 29 U.S.C. § 206 because it was aware of the minimum wage law requirements but continued its violations. As a direct and proximate result of Defendant’s deliberate underpayment of wages, Plaintiff and the class members have been damaged in the loss of minimum wages for one or more weeks of work with Defendant. Plaintiff demands a trial by jury.
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Dataset Summary
USClassActions is an English dataset of 200 complaints from the US Federal Court with the respective binarized judgment outcome (Win/Lose). The dataset poses a challenging text classification task. We are happy to share this dataset in order to promote robustness and fairness studies on the critical area of legal NLP. The data was annotated using Darrow.ai proprietary tool.
Data Instances
from datasets import load_dataset
dataset = load_dataset('darrow-ai/USClassActionOutcomes_ExpertsAnnotations')
Data Fields
id: (int) a unique identifier of the document origin_label : (str) the outcome of the case target_text: (str) the facts of the case annotator_prediction : (str) annotators predictions of the case outcome based on the target_text annotator_confidence : (str) the annotator's level of confidence in his outcome prediction \
Curation Rationale
The dataset was curated by Darrow.ai (2022).
Citation Information
Gil Semo, Dor Bernsohn, Ben Hagag, Gila Hayat, and Joel Niklaus ClassActionPrediction: A Challenging Benchmark for Legal Judgment Prediction of Class Action Cases in the US Proceedings of the 2022 Natural Legal Language Processing Workshop. Abu Dhabi. 2022
@InProceedings{darrow-niklaus-2022-uscp,
author = {Semo, Gil
and Bernsohn, Dor
and Hagag, Ben
and Hayat, Gila
and Niklaus, Joel},
title = {ClassActionPrediction: A Challenging Benchmark for Legal Judgment Prediction of Class Action Cases in the US},
booktitle = {Proceedings of the 2022 Natural Legal Language Processing Workshop},
year = {2022},
location = {Abu Dhabi},
}
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