Attorneys for Plaintiff, individually, and on behalf of others similarly situated

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1 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 1 of 20 MATTHEW RIGHETTI, ESQ. {121012} 1 2 JOHN GLUGOSKI, ESQ. {191551) 3 MICHAEL RIGHETTI, ESQ. {258541} 4 5 RIGHETTI GLUGOSKI, P.C. 456 Montgomery Street, Suite San Francisco, CA Telephone: ( 415) Facsimile: (415) CHARLES A. JONES ESQ. {SBN } KELLY MCINERNEY ESQ. {SBN } 10 JONES LAW FIRM Prototype Court, Suite B Reno, Nevada Telephone: (775) Facsimile: (775) Attorneys for Plaintiff, individually, and on behalf of others similarly situated UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RAOUL BENNETT, on behalf of herself and all similarly situated persons, vs. Plaintiff, Lead Info Stream Inc., dba Promedia Leads, and LeadPoint, Inc. Defendants Case No.: 3: 14-cv H-JLB CLASS ACTION FIRST AMENDED COMPLAINT FOR VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 227 DEMAND FOR JURY TRIAL

2 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 2 of 20 Plaintiff, RAOUL BENNETT, ("Plaintiff') brings this action on behalf of herself 2 and the alleged class of persons similarly situated against Defendant LEAD INFO 3 STREAM INC. dba PROMEDIA LEADS and Defendant LEADPOINT, INC. and other unknown Defendants whose involvement in the alleged acts complained of herein will be the subject of immediate discovery ("Defendants") for violations of the Telephone Consumer Protection Act ("TCPA"). PRELIMINARY STATEMENT 8 I. Defendant LEAD INFO STREAM INC. represents itself as a "direct 9 advertiser specializing in lead generation and inquiry for the financial, educational, IO health, and travel industries. The multifaceted company develops technology and media 11 assets to engage targeted consumers seeking information. Leads, which consist of real 12 time consumer requests, are captured, validated, and delivered to product and service 13 providers." Defendant LEAD INFO STREAM INC. also does business as PROMEDIA 14 LEADS, which represents itself as a "[specialist] in providing the highest quality 15 financial, educational, health and travel leads. Leads consist of real time consumer 16 requests, which are captured, validated, and delivered to product and service providers. 17 Our technology allows information to be double verified by our internal quality control 18 team. ProMedia Leads is the leader in call center marketing using in-bound and out- 19 bound targeted dialer solutions to create a fun fast paced work environment." These 20 representations are found on Defendants' respective websites at 21 and Consistent with their representations to act as call center marketers, 23 Defendants engaged in marketing/advertising campaigns and together made or caused to 24 be made and benefitted/profited from unauthorized "robocalls" to cellular telephone 25 numbers throughout California and the greater United States Defendant, LEADPOINT, INC. is a third party marketing company, which 27 advertises itself on its website at as follows: "The Lead 2

3 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 3 of 20 Marketplace is the lead generation industry's most comprehensive trading platform. Only 2 LeadPoint connects lead buyers and sellers through public and private auctions, ensuring 3 transparent and efficient transactions." LeadPoint, Inc. engages/participates in the for- 4 profit business of buying and selling leads from call centers, including Co-Defendants, 5 to other third party end-users of such leads, (e.g. solar panel installation companies, 6 mortgage refinance companies, etc.). Defendant LeadPoint contracted with Defendant 7 Lead Info Stream and thereby retained Lead Info Stream to provide marketing services 8 on behalf of LeadPoint. In this respect, Defendant LeadPoint expressly authorizes Lead 9 Info Stream to provide marketing services. These marketing services included the 10 illegal telemarketing acts complained of herein. As a result of its direct engagement 11 with Lead Info Stream, LeadPoint profited and benefitted from the illegal telemarketing 12 calls, and LeadPoint knew or consciously avoided knowing that the marketing services 13 provided on its behalf by Lead Info Stream were the product of illegal telemarketing 14 calls placed by Co-Defendants herein. Indeed, LeadPoint compensated Lead Info 15 Stream for the very telemarketing calls alleged to have violated the TCP A Plaintiff brings this class action complaint against Defendants to halt 17 Defendants' illegal practice of initiating or making or substantially assisting in the 18 initiation or making of unsolicited "robocalls" to cellular telephone numbers throughout 19 California and the greater United States. Plaintiff also brings this class action against 20 Defendants for initiating or making unsolicited calls to cellular telephone numbers after 21 those numbers had been registered on the National Do-Not-Call Registry and/or 22 Defendant Lead Info Stream Inc. 's internal do-not-call registry. For her class action 23 complaint, Plaintiff alleges as follows upon personal information as to herself and her 24 own acts and experiences, and, as to all other matters, upon information and belief. 25 NATURE OF THE ACTION This suit asserts allegations that Defendants violated the Telephone 27 Consumer Protection Act (47 U.S.C. 227 et seq.) ("TCPA") with their marketing and 3

4 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 4 of 20 advertising campaigns by making, or causing to be made, and benefiting/profiting from 2 the making of telephone calls to cellular telephone lines using an artificial or 3 prerecorded voice or an automatic dialing system to deliver a message. By effectuating 4 this telephonic spam, Defendants have caused consumers actual harm, not only because 5 the consumers were subjected to a violation of their right to privacy, but also because of 6 the annoyance and aggravation that necessarily accompanies unsolicited telemarketing 7 phone calls, especially the type of the "robocall" nature. Moreover, with respect to 8 telephone calls made to cellular devices, subscribers to cellular services must actually 9 pay their cell phone providers for receipt of such calls or have their planned allotment of 10 cell phone minutes debited by such calls. Most importantly, the "robocalls" are being 11 made in violation of the TCP A - a federal statute specifically prohibiting the type of 12 conduct alleged herein The "robocalls" described herein were made by Defendants Lead Info 14 Stream and Promedia Leads which operate various telemarketing call centers, including 15 a call-center in Denver, Colorado which was responsible for the call at issue herein, and 16 another in Guatemala. The calls were made on behalf of Co-Defendant LeadPoint, 17 which had retained Lead Info Stream to provide marketing services on its behalf. 18 LeadPoint expressly authorized Lead Info Stream to provide marketing services, 19 including telemarketing, on LeadPoint's behalf via written contract. Additionally, Lead 20 Info Stream had implied authority to provide telemarketing services on LeadPoint's 21 behalf because LeadPoint provided general direction to Lead Info Stream. LeadPoint 22 managed a virtual marketing platform whereby its agent, Lead Info Stream, could and in 23 fact did sell leads, thereby creating a profit for both Lead Info Stream and LeadPoint. 24 Defendants placed the telephone calls using an automatic dialing system and/or placed 25 telephone calls using an artificial or prerecorded voice. Defendants Lead Info Stream 26 and/or Promedia Leads then sold leads they developed from these telemarketing calls to 27 third party-agents they had contracted with, such as Defendant Leadpoint, and other 4

5 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 5 of 20 1 third-party end-users. Because the third party-agents who contracted with, assisted, 2 profited or benefitted from the illegal telemarketing calls made by Defendants are also 3 liable under the TCP A, Plaintiff reserves the right to amend this Complaint to add 4 additional third parties after conducting focused discovery on which third party-agents 5 contracted with Lead Info Stream and purchased and sold leads generated by 6 Defendants' illegal telemarketing practices Specifically with respect to Plaintiff, Defendant LeadPoint contracted with 8 Defendant Lead Info Stream whereby Lead Info Stream would provide marketing 9 services focused on consumer lending. Pursuant to the contract, Lead Info Stream was 10 obligated to provide leads exclusively to Defendant LeadPoint, LeadPoint compensated 11 Lead Info Stream based on the performance of the marketing services provided. 12 Furthermore, LeadPoint provided Lead Info Stream with implied authority to telemarket 13 on LeadPoint's behalf by providing the very platform whereby Lead Info Stream would 14 manufacture and sell leads to LeadPoint, which would sell them to end-users. 15 Defendants Lead Info Stream and/or Promedia Leads made illegal telemarketing calls to 16 Plaintiffs cell phone and thereafter sold Plaintiffs information as a "lead" to Co- 17 Defendant LeadPoint as "an interested mortgage refinance customer." Defendants Lead 18 Info Stream and/or Promedia Leads also robo-dialed and/or called Plaintiff multiple 19 times using an automated dialing system in connection with a solar panel installation 20 campaign. The end users and lead brokers in this scheme purchased such leads seeking 21 to increase revenue through marketing and advertising campaigns, and in furtherance of 22 such efforts, knew or should have known or consciously avoided knowing that 23 thousands of phone calls were being made by Defendants using an automatic dialing 24 system or an artificial or prerecorded voice to cellular telephone lines without the 25 express consent of the party called, in violation of the TCPA. At all times complained of 26 herein, Defendant Lead Info Stream acted as the agent of LeadPoint and provided 27 telemarketing services on LeadPoint's behalf. 5

6 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 6 of There were multiple calls made and/or bought and sold by Defendants that 2 spawned this Complaint. Specifically, Defendants Lead Info Stream and/or Promedia 3 Leads dialed Plaintiff's cell phone on or about August 12, 2013 with an automatic 4 dialing system and/or automated or prerecorded voice. The calls were made pursuant to 5 an express and/or implied agreement to provide marketing services between Defendant 6 LeadPoint and Lead Info Stream. Plaintiff's information was then sold as a "lead" to 7 Defendant LeadPoint Inc. as an "interested mortgage refinance customer." Defendant 8 LeadPoint Inc. sold Plaintiff's information for a profit, although to whom LeadPoint sold 9 the information is currently unknown Defendants Lead Info Stream and/or Promedia Leads also made calls to 11 Plaintiff's cellular telephone on at least four other occasions for a solar panel installation 12 campaign Defendant Lead Info Stream conducted under its dba "Promedia." 13 Specifically, Defendant made calls to Plaintiff's cellular telephone on or around Aug , 2013, Sept. 3, 2013, Sept. 5, 2013 and Sept. 12, Plaintiff is informed and 15 believes other third parties contractually retained Lead Info Stream to make such calls 16 on its behalf and are profiting from such contractual relationship whereby Lead Info 17 Stream makes illegal telemarketing calls their behalf. Plaintiff intends to amend this 18 Complaint further upon completion of initial fact discovery directed at determining 19 whether any additional agents contracted with Defendant Lead Info Stream and thereby 20 benefitted benefitting from such illegal calls made by Defendants Defendants Lead Info Stream and/or Promedia Leads made the illegal 22 telemarketing calls complained of herein after Plaintiff had registered her cellular 23 telephone number on the National Do-Not-Call Registry (approximately July of 2013) 24 and after registering her number on Defendants internal do-not-call registry in violation 25 of 47 CFR 1200(d) and (e). Plaintiff received more than one illegal telemarketing call 26 from Defendants Lead Info Stream and/or Promedia Leads within a 12-month period. 27 6

7 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 7 of 20 I 11. Defendants Lead Info Stream and/or Promedia Leads made, or caused to be 2 made, thousands of such telephone calls to cellular phone numbers using an automatic 3 dialing system and/or an artificial or prerecorded voice to deliver a message without the 4 prior express consent of the called party. The making of such calls to cellular telephone 5 lines using an artificial or prerecorded voice to deliver a message and/or through the use 6 of an automatic telephone dialing system without the recipients' consent violates 47 7 U.S.C. 227(b)(l)(A)(iii) Plaintiff, on behalf of herself and a class of similarly situated persons in the 9 United States, as more specifically defined herein, brings this suit under the TCPA for IO injunctive relief and an award of statutory damages together with costs. 11 JURISDICTION AND VENUE This Honorable Court has sole and exclusive jurisdiction over this actio 13 under the TCP A. The TCPA expressly creates a private right of action for damages and 14 injunctive relief by a person who suffers a violation of the statute, and jurisdiction t 15 federal district courts to consider and decide such cases or controversies. 47 U.S.C (b )(3). Venue is appropriate in the Southern District of California because Plaintif 17 resides in the Southern District of California, and Plaintiff received the phone calls tha 18 are the subject of this Complaint in the Southern District of California. 19 DESCRIPTION OF THE PARTIES Raoul Bennett is an individual domiciled and residing m the City of 21 Oceanside, County of San Diego, State of California. She received multiple calls made 22 by or on behalf of the Defendants using an automatic telephone dialing system and/or an 23 artificial or prerecorded voice to deliver a message on her cellular telephone both before 24 and after placing herself on the National and Defendant's' internal do-not-call registries Defendant Lead Info Stream Inc. is a Delaware corporation headquartered 26 in Denver, Colorado. Plaintiff is informed and believes Lead Info Stream Inc. also does 27 business as Promedia Leads, which operates call centers in Greeley, Colorado and 7

8 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 8 of 20 Guatemala. Defendant LeadPoint, Inc. is a Delaware corporation based in Los Angeles, 2 CA. 3 FACTUAL ALLEGATIONS 4 General Overview of the TCP A In 1991, Congress enacted the Telephone Consumer Protection Act, 47 6 U.S.C. 227 (TCPA), in response to a growing number of consumer complaint 7 regarding certain telemarketing practices The TCPA regulates, among other things, the use of automated telephon 9 equipment, also known as "autodialers" or "robocalls." Specifically, the plain languag 10 of section 227(b)(l)(A)(iii) prohibits the use ofautodialers to make any call to a wireles 11 phone number in the absence of an emergency or the prior express consent of the calle 12 party. That section also prohibits the making of calls using an artificial or prerecorde 13 voice to cellular telephone users According to findings by the Federal Communication Commission ("FCC"), 15 the agency Congress vested with authority to issue regulations implementing the TCP A 16 such calls are prohibited because, as Congress found, automated or prerecorded telephon 17 calls are a greater nuisance and invasion of privacy than live solicitation calls, and sue 18 calls can be costly and inconvenient. The FCC also recognized that wireless customer 19 are charged for incoming calls whether they pay in advance or after the minutes are used. 20 Rules and Regulations Implementing the Telephone Consumer Protection Act o , CG Docket No , Report and Order, 18 FCC Red (2003) Under the TCPA and pursuant to the FCC's January 2008 Declarato 23 Ruling, the burden is on Defendant to demonstrate that Plaintiff provided express consen 24 within the meaning of the statute The Telemarketing Sales Rule provides that it is a "deceptiv 26 telemarketing act or practice and violation of this Rule for a person to 27 provide substantial assistance or support to any seller or telemarketer whe 8

9 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 9 of 20 that person knows or consciously avoids knowing that the seller o 2 telemarketer is engaged in any act or practice that violates of thi 3 Rule." 16C.F.R (b) The FTC publishes a manual for businesses to help them 5 ensure compliance with the TCP A, entitled Complying with the Telemarketin 6 Sales Rule which provides: It is a violationof the Rule to substantially assist a seller or telemarketer while knowing - or consciously avoiding knowing - that the seller or telemarketer is violating the Rule. Thus, taking deliberate steps to ensure one's own ignorance of a seller or telemarketer's Rule violations is an ineffective strategy to avoid liability. The help that a third-party provides must be more than casual or incidental dealing with a sell er or telemarketer that is not related to a violation of the Rule. For example, cleaning a telemarketer's office, delivering lunches to the telemarketer's premises, or engaging in some other activity with little or no relation to the conduct that violates the Rule would not be enough to support liability as an assistor or facilitator. Third parties who do business with sellers and telemarketers should be aware that their dealings may provide a factual basis to s u p po rt an inference that they know, or deliberately remain ignorant of, Rules violations of these sellers and telemarketers. For example, a third party who provides sellers or telemarketers with mailing lists, helps in creating sales scripts or direct mail pieces, or any other substantial assistance while knowing or deliberately avoiding knowing that the seller or telemarketer is engaged in a Rule violation may be violating the Rule. 27 9

10 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 10 of 20 Placing and Receipt of the Calls At all relevant times Plaintiff, an individual residing m the State o 3 California, was a "person" as defined by 47 U.S.C. 153(32) Although Plaintiff did not provide her cellular phone number to Defendant 5 at any time or in any way, and after Plaintiff registered her cellular phone number on th 6 National Do-Not-Call Registry, Defendants made, or caused to be made, and 7 benefited/profited from the making of telephone calls to Plaintiffs cellular telephon 8 using an artificial or prerecorded voice to deliver a message. The telephone calls receive 9 by Plaintiff consisted of a prerecorded phone message using an artificial voice t 10 advertise solar powered energy solutions for homeowners and/or interest rate mortgag 11 reductions among other things. Plaintiff was aware that the call that she received used a 12 artificial or prerecorded voice due to the robotic nature of the voice delivering th 13 message, which, based on Plaintiffs experience, was separate and distinct from the voic 14 used by a natural or "live" person. Plaintiff was also aware that the call that she receive 15 used an artificial or prerecorded voice due to the delay between when Plaintiff answere 16 the call and the beginning of the message. Similarly, Plaintiff was aware that the call tha 17 she received used an artificial or prerecorded voice because Plaintiff attempted to spea 18 yet when she did so, she was unable to interrupt the artificial or prerecorded voice whic 19 simply kept delivering its script in a robotic fashion Specifically, Defendants made, or caused to be made, and benefited/profite 21 from the making of a telephone call to Plaintiffs cellular phone. When Plaintif 22 answered the call, an artificial or prerecorded voice began delivering a message about a 23 opportunity to lower Plaintiffs electric bill by switching to solar power and/or about a 24 opportunity to lower her mortgage interest rate Plaintiff is informed and believes and thereon alleges that all telephon 26 contact by Defendants Lead Info Stream and/or Promedia Leads to Plaintiff on he 27 telephone occurred via an "automatic telephone dialing system," or using a system tha IO

11 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 11 of 20 had the capacity to make automated calls, as defined by 47 U.S.C. 227(a)(l), and all 2 calls that are the subject of this Complaint occurred within four years of the filing ofthi 3 Complaint The telephone number that Defendants used to contact Plaintiff, using a 5 artificial or prerecorded voice to deliver a message regarding solar power solution 6 and/or mortgage rate reductions were assigned to a cellular telephone service as specifie 7 in 47 U.S.C. 227(b)(l)(A)(iii) Plaintiff did not provide "express consent" allowing Defendants to plac 9 telephone calls to Plaintiff's cellular telephone line utilizing an "automatic telephon IO dialing system" or an "artificial or prerecorded voice" to deliver a message 11 meaning of 47 U.S.C. 227(b)(l)(A). 12. Plaintiff is informed and believes and based thereon alleges tha 13 substantially similar telephone calls using an artificial or prerecorded voice to deliver 14 message were made by Defendants to other individuals' cellular telephone lines, an 15 were similarly made on repeated occasions to other cellular telephone numbers belongin 16 to the other members of the class. None of those cellular telephone subscribers gav 17 Defendants their prior express consent to receive the calls and the calls were not made fo 18 emergency purposes. 19 CLASS ACTION ALLEGATIONS Plaintiff brings this action pursuant to Federal Rules of Civil Procedur 21 23(b) on behalf of herself and all individuals in the United States and its territories wh 22 received telephone calls from an automatic telephone dialing system or calls containin 23 an artificial or prerecorded voice on their cellular telephones. Specifically, the Classe 24 are defined as follows: Class I: All persons in the United States or its territories who, within the last four years, received a telephone call on their cellular telephone which was made I I

12 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 12 of by or caused to be made by Defendants using an automatic telephone dialing system and/or an artificial or prerecorded voice. Class 2: All individuals in the United States and its territories who received more than one telemarking call within a 12 month period made by Defendant Lead Info Stream or its dba Promedia Leads to a phone line registered on Defendant Lead Info Stream or its dba Promedia Leads' Do-Not-Call Registry or on the National Do-Not-Call Registry The Classes consist of thousands of individuals who are geographically 8 dispersed making joinder impractical, in satisfaction of Federal Rule of Civil Procedure 9 23(a)(l). The exact size of the respective class and identities of the individual members 10 thereof are ascertainable through Defendants' records, or the records of its 11 representatives, including but not limited to the telephone message or transmission logs The claims of Plaintiff are typical of the claims of the respective class 13 members. The claims of the Plaintiff and the respective class members are based on the 14 same legal theories and arise from the same unlawful and willful conduct, resulting in 15 the same injury to the Plaintiff and the respective class members The respective classes have a well-defined community of interest. 17 Defendant has acted and failed to act on grounds generally applicable to the Plaintiff and 18 the respective class members, requiring the Court's imposition of uniform relief to 19 ensure compatible standards of conduct toward the respective class members There are many questions of law and fact common to the claims of Plaintiff 21 and the respective class members, and those questions predominate over any questions 22 that may affect only individual class members within the meaning of Federal Rule of 23 Civil Procedure 23(a)(2) and 23(b )(2) Common questions of fact and law affecting members of the Class include, 25 but are not limited to, the following: 26 (a) Whether Defendants' conduct violates 47 U.S.C. 227(b)(l)(A)(iii); 27 12

13 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 13 of 20 1 (b) Whether the equipment used by Defendants to make the calls alleged herei 2 qualifies as an Automatic Telephone Dialing System within the meaning of 47 3 U.S.C. (a)(l); 4 ( c) Whether Plaintiff and members of the Class are entitled to damages and cost 5 from Defendants; 6 (d) Whether Plaintiff and members of the Class are entitled to a permanen 7 injunction enjoining Defendants from continuing to engage in their unlawful conduct; 8 ( e) Whether Plaintiff and members of the Class are entitled to treble damage 9 based on the willfulness of Defendants' conduct; and 10 (f) Whether Defendants Lead Info Stream and Promedia are/were the agent o 11 Defendant LeadPoint Absent a class action, most of the respective class members would find th 13 cost of litigating their claims to be prohibitive, and will have no effective remedy. Th 14 class treatment of common questions of law and fact is also superior to multipl 15 individual actions or piecemeal litigation in that it conserves the resources of the court 16 and the litigants, and promotes consistency and efficiency of adjudication Plaintiff will fairly and adequately represent and protect the interests of th 18 respective class members. Plaintiff has retained counsel with substantial experience i 19 prosecuting complex litigation and class actions. Plaintiff and her counsel are committe 20 to vigorously prosecuting this action on behalf of the respective class members, and hav 21 the financial resources to do so. Neither Plaintiff nor her counsel has any interest advers 22 to those of the respective class members This action is brought and may properly be maintained as a class actio 24 pursuant to the provisions of Federal Rule of Civil Procedure 23. This action satisfies th 25 numerosity, commonality, typicality, adequacy, predominance, and superiority 26 requirements of these statutory provisions and the jurisprudence of the courts

14 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 14 of 20 I 2 COUNT ONE 3 LIABILITY PURSUANT TO THE TCPA Plaintiff restates and incorporates by reference each and every allegation 5 contained in paragraphs l through 35, inclusive, as though fully set forth herein Defendants made, or caused to be made, and benefited/profited from th 7 making of telephone calls using an automatic dialing system and/or using an artificial o 8 prerecorded voice to deliver a message to Plaintiff and the Class Members' telephon 9 lines in violation of 47 U.S.C. 227 et seq These calls were made en masse without the prior express consent of th 11 Plaintiff or other members of the Class. None of the calls were made for emergenc 12 purposes Thus, Defendants violated 47 U.S.C. 227(b)(l)(A)(iii), which makes i 14 unlawful to "make any call (other than a call made for emergency purposes or made wit 15 the prior express consent of the called party) using any automatic telephone 16 system or an artificial or prerecorded voice to any cellular telephone service." Moreover, Plaintiff is informed and believes and based thereon alleges tha 18 Defendants failed to satisfy the requirements set forth by 47 C.F.R (d), whic 19 is a separate and independent violation under the Act. That regulation provides that "[n] 20 person or entity shall initiate any call for telemarketing purposes to a residential 21 telephone subscriber unless such person or entity has instituted procedures fo 22 maintaining a list of persons who request not to receive telemarketing calls made by or o 23 behalf of that person or entity." The procedures instituted must meet the followin 24 minimum standards: 25 (1) Written policy. Persons or entities making calls for telemarketing purpose 26 must have a written policy, available upon demand, for maintaining a do-not-call list

15 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 15 of 20 (2) Training of personnel engaged in telemarketing. Personnel engaged in an 2 aspect of telemarketing must be informed and trained in the existence and use of the do 3 not-call list. 4 (3) Recording, disclosure of do-not-call requests. If a person or entity making a call 5 for telemarketing purposes (or on whose behalf such a call is made) receives a reques 6 from a residential telephone subscriber not to receive calls from that person or entity, th 7 person or entity must record the request and place the subscriber's name, if provided, an 8 telephone number on the do-not-call list at the time the request is made. Person o 9 entities making calls for telemarketing purposes (or on whose behalf such calls are made 10 must honor a residential subscriber's do-not-call request within a reasonable time fro 11 the date such request is made. This period may not exceed thirty days from the date o 12 such request. 13 (4) Identification of sellers and telemarketers. A person or entity making a call fo 14 telemarketing purposes must provide the called party with the name of the individual 15 caller, the name of the person or entity on whose behalf the call is being made, and 16 telephone number or address at which the person or entity may be contacted. Th 17 telephone number provided may not be a 900 number or any other number for whic 18 charges exceed local or long distance transmission charges. 19 (5) Affiliated persons or entities. In the absence of a specific request by th 20 subscriber to the contrary, a residential subscriber's do-not-call request shall apply to th 21 particular business entity making the call (or on whose behalf a call is made), and will no 22 apply to affiliated entities unless the consumer reasonably would expect them to b 23 included given the identification of the caller and the product being advertised. 24 (6) Maintenance of do-not-call lists. A person or entity making calls fo 25 telemarketing purposes must maintain a record of a consumer's request not to receiv 26 further telemarketing calls. A do-not-call request must be honored for 5 years from th 27 time the request is made. 15

16 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 16 of 20 I C.F.R (e) provides that (d) is "applicable to an 2 person or entity making telephone solicitations or telemarketing calls to wireles 3 telephone numbers to the extent described in the Commission's Report and Order, CG 4 Docket No FCC , 'Rules and regulations Implementing the Telephon 5 Consumer Protection Act of 1991." Defendants violated ( d) and ( e) by making, or causing to be made, 7 and/or benefiting/profiting from and/or assisting in the making of calls for telemarketing 8 purposes cellular telephone subscribers, such as Plaintiff and the Class, without 9 instituting procedures that comply with the regulatory minimum standards for IO maintaining a list of persons who request not to receive telemarketing calls or texts from 11 them, and in particular by (1) failing to have a written policy for maintaining a do-not- 12 call list; (2) failing to inform and train telemarketing personnel in the existence and use 13 of the do-not-call list; (3) failing to record do-not-call list at the time the request is made; 14 ( 4) failing to honor called parties' do-not-call requests within a reasonable time from the 15 date such request is made and no later than thirty days from the date such request; and/or 16 (5) failing to provide called parties with the name of the individual caller, the name of 17 the person or entity on whose behalf the call is being made, and a working telephone 18 number or address at which the person or entity may be contacted. Plaintiff herein made 19 two such requests to be placed on Defendants' do-not-call list, both of which Defendants 20 ignored In addition to Defendants making the calls, Defendant LeadPoint and other 22 third parties directly benefitted and profited from the illegal calls and knew or should 23 have known that the calls were being made by Lead Info Stream and/or Promedia Leads 24 in violation of the TCPA thus subjecting them to liability for the violations of the TCPA 25 alleged herein. LeadPoint retained Lead Info Stream to provide telemarketing services 26 on LeadPoint's behalf pursuant to a Marketing Services Agreement, and LeadPoint 27 compensated Lead Info Stream based on the value of the telemarketing services Lead 16

17 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 17 of 20 Info Stream provided. Moreover, the Marketing Services Agreement contains 2 warranties that, for example, Lead Info Stream will comply with the Telephone 3 Consumer Protection Act and not make any calls in violation of the TCP A and Do Not 4 Call Implementation Act. Further, the agreement includes a liquidated damages 5 provision whereby LeadPoint receives $5,000 per violation of the TCP A. Yet, the 6 statutory damages for making a telemarketing call in violation of the TCPA start at 7 $500. As a result, LeadPoint stands to gain ten-fold by virtue of its indemnification 8 agreement with Lead Info Stream if Lead Info Stream is found to have violated the 9 TCP A. The liquidated damages provision creates a perverse incentive for LeadPoint to 10 ignore and/or consciously disregard the telemarketing practices of its agent, Lead Info 11 Stream, which is what happened with respect to the illegal telemarketing calls made to 12 Plaintiff and similarly situated individuals DAMAGES UNDER THE TCPA 46. Pursuant to 47 U.S.C. 227(b )(3), a person or entity may bring a privat action to recover either actual damages, or $500 in statutory damages for each sue violation, whichever is greater. 47. Accordingly, as a proximate result of the Defendants' conduct, Plaintiff and the Class seek statutory damages as provided by law. 48. Plaintiff and the alleged Class are also entitled to recover statutory damages separate and apart from the statutory damages recoverable for the placing of the phon calls, based on Defendants' failure to implement and abide by the procedures outlined b 47 C.F.R (d) and (e). 49. In addition, if the court finds that the Defendants willfully or knowing! violated the TCPA, the Court may, in its discretion, increase the amount of the award t an amount equal to not more than 3 times the amount available under 47 U.S.C (b )(3). 17

18 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 18 of 20 TCP A INJUNCTIVE RELIEF Additionally, Plaintiff and the Class is entitled to request that Defendants b enjoined from initiating any more calls to cellular telephone lines using an artificial o prerecorded voice to deliver a message pursuant to 47 U.S.C. 227(b)(3)(A) and tha Defendants be enjoined from failing to abide the procedures outlined in 47 C.F.R (d) and (e). DEMAND FOR PRESERVATION 51. Plaintiff specifically demands that Defendants and its agents, employees an affiliates, retain and preserve all records relating to the allegations in this Complaint. Specifically, Plaintiff's demand for preservation includes, but is not limited to, th following documents and information: (a) Scripts of the prerecorded messages sent over the past four (4) years, wit corresponding dates when those messages were sent; (b) Lists of all phone numbers to which prerecorded phone message advertisement were sent within the last four years; (c) List of all persons or phone numbers who requested to opt-out of receivin prerecorded phone messages over the past four years; (d) Any and all documents, including but not limited to invoices, transmission logs or summary logs, provided to Defendant by any company or person Defendant retained t transmit prerecorded phone messages on Defendant's behalf; ( e) Any proof Defendant contends shows that Defendant obtained the prior expres consent of any recipient of Defendant's prerecorded phone messages; (t) Any and all transmission or phone logs showing dates of transmission, receip or identity of recipient of prerecorded phone messages placed by Defendant or o Defendant's behalf within the last four years; 18

19 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 19 of 20 I 2 3 (g) Copies of any and all policies or procedures implemented by Defendant wit regard to the placement of prerecorded phone messages, as well as marketing activitie and restrictions; 4 (h) Documents related to Defendants cost for transmitting the prerecorded phon 5 messages sent by Defendant or on Defendant's behalf within the last four years; and 6 (i) Demand is made on Defendants to notify any third parties, customers, o 7 vendors of this preservation demand and request preservation of any informatio 8 requested through this demand. 9 PRAYER FOR RELIEF 10 WHEREFORE, the Plaintiff, on behalf of herself and as representative of all othe 11 persons similarly situated, prays for judgment against the Defendants, as follows: 12 (1) An Order certifying the Class under the appropriate provisions of F.R.C.P. 23 and 13 appointing the Plaintiff and his counsel to represent the class; 14 (2) For statutory damages as provided for under 47 U.S.C. 227(b)(3) plus up to trebl 15 that amount for Defendants' willful and knowing violations of the law; 16 (3) For statutory damages as provided for under 47 U.S.C. 227(c)(5); 17 ( 4) For an injunction restraining Defendants from making any more phone calls using a 18 artificial or prerecorded voice to persons without their prior express consent; 19 (5) For an injunction restraining Defendants from making any more telemarketing phon 20 calls to individuals who have requested placement on the national or Defendants' do-not call registry. (6) For pre-judgment interest from the date of filing this suit; (7) For all costs of this proceeding; and (8) For all general, special, and equitable relief to which the plaintiffs and the member 25 of the class are entitled by law

20 Case 3:14-cv H-JLB Document 13 Filed 08/12/14 Page 20 of 20 JURY DEMAND 2 Plaintiff demands trial by jury on all counts for which a jury trial is permitted Dated: August 12, 2014 RESPECTFULLY SUBMITTED, RIGHETTI GLUGOSKI, P.C. sf Michael C. Righetti Michael C. Righetti, Esq. Attorneys for Plaintiff 20

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