first amended consolidated plaintiffs, damages … amended... · american express company, america...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JENNIFER OSSOLA, JOETTA CALLENTINE AND SCOTT DOLEMBA, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

AMERICAN EXPRESS COMPANY, AMERICA EXPRESS CENTURION BANK, WEST ASSET MANAGEMENT, INC., and ALORICA INC.,

Defendants.

Case No. 1:13-CV-4836

FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF PURSUANT TO 47 U.S.C. § 227 ET SEQ. (TELEPHONE CONSUMER PROTECTION ACT)

CLASS ACTION

DEMAND FOR JURY TRIAL

Plaintiffs Jennifer Ossola, Joetta Callentine, and Scott Dolemba (hereinafter referred to as

“Plaintiffs”), individually and on behalf of all others similarly situated, allege on personal

knowledge, investigation of their counsel, and on information and belief as follows:

NATURE OF ACTION

1. Plaintiffs bring this action for damages, and other legal and equitable

remedies, resulting from the illegal actions of American Express Company and American

Express Centurion Bank (“American Express,” the “Bank,” or “Defendant”), West Asset

Management, Inc., (“West Asset Management”), and Alorica Inc. (“Alorica”) (collectively

“Defendants”) in negligently, knowingly, and/or willfully contacting Plaintiffs and Class

Members on their cellular telephones without their prior express consent within the meaning of

the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and the Federal

Communication Commission rules promulgated thereunder, 47 C.F.R. § 64.1200 (hereinafter

referred to as the “TCPA”).

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Case: 1:13-cv-04836 Document #: 126 Filed: 06/10/14 of 21 PageID #:1028

2. On March 11, 2005, the Federal Communications Commission (“FCC” or

“Commission”) issued a citation to American Express for violations of the TCPA, admonishing

American Express that “[i]f, after receipt of this citation, you or your company violate the

Communications Act or the Commission’s rules in any manner described herein, the

Commission may impose monetary forfeitures not to exceed $11,000 for each such violation or

each day of a continuing violation.”

3. Notwithstanding these prior violations of the TCPA and the FCC’s

citation, American Express has continued to violate the TCPA by contacting Plaintiffs and others

similarly situated on their cellular telephones via an “automatic telephone dialing system,” as

defined by 47 U.S.C. § 227(a)(1), and/or using “an artificial or prerecorded voice” as described

in 47 U.S.C. § 227(b)(1)(A), without their prior express consent within the meaning of the

TCPA.

4. Plaintiffs bring this action for injunctive relief and statutory damages

resulting from the Defendants’ illegal actions.

JURISDICTION AND VENUE

5. This matter in controversy exceeds $5,000,000, as each member of the

proposed Classes of thousands is entitled to up to $1,500.00 in statutory damages for each call

that has violated the TCPA. Accordingly, this Court has jurisdiction pursuant to 28 U.S.C.

§ 1332(d)(2). Further, Plaintiffs allege a national class, which will result in at least one Class

member belonging to a different state. Therefore, both elements of diversity jurisdiction under

the Class Action Fairness Act of 2005 (“CAFA”) are present, and this Court has jurisdiction.

This Court also has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

6. Venue is proper in the United States District Court for the Northern

District of Illinois pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1441(a), because: Defendant is

deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time

the action is commenced; Defendant’s contacts with this District are sufficient to subject it to

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personal jurisdiction; and a substantial part of the events giving rise to the claims occurred in this

District. PARTIES

7. Plaintiff Jennifer Ossola is and at all times mentioned herein was, an

individual citizen of the State of Illinois and resident of this District.

8. Plaintiff Joetta Callentine is and at all times mentioned herein was, an

individual citizen of the State of Ohio, who resides in Delaware, Ohio.

9. Plaintiff Scott Dolemba is and all times mentioned herein was, an

individual citizen of the State of Illinois and a resident of this District.

10. Defendant American Express Company is a New York corporation doing

business in the state of Illinois and this District.

11. Defendant American Express Centurion Bank, a wholly owned subsidiary

of American Express Travel Related Services, Inc., is a Utah corporation doing business in the

State of Illinois and this District.

12. Defendant West Asset Management is a corporation organized and

existing pursuant to the laws of the State of Nebraska which is primarily engaged in the business

of the collection of debts, including in the State of Illinois and this District.

13. Defendant Alorica is a California corporation doing business in the state

of Illinois and this District.

THE TELEPHONE CONSUMER PROTECTION ACT OF 1991 (TCPA), 47 U.S.C. § 227

14. In 1991, Congress enacted the TCPA,1 in response to a growing number of

consumer complaints regarding certain telemarketing practices.

1 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227 (TCPA). The TCPA amended Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq. - 2 - 1175683.1


15. The TCPA regulates, among other things, the use of automated telephone

equipment, or “autodialers.” Specifically, the plain language of section 227(b)(1)(A)(iii)

prohibits the use of autodialers to make any call to a wireless number in the absence of an

emergency or the prior express consent of the called party.2

16. According to findings by the FCC, the agency Congress vested with

authority to issue regulations implementing the TCPA, such calls are prohibited because, as

Congress found, automated or prerecorded telephone calls are a greater nuisance and invasion of

privacy than live solicitation calls, and such calls can be costly and inconvenient. The FCC also

recognized that wireless customers are charged for incoming calls whether they pay in advance

or after the minutes are used.3

17. Under the TCPA, the burden is on Defendants to demonstrate prior

express consent.

Debt Collection Calls

18. On January 4, 2008, the FCC released a Declaratory Ruling wherein it

confirmed that autodialed and prerecorded message calls to a wireless number by a creditor (or

on behalf of a creditor) are permitted only if the calls are made with the “prior express consent”

of the called party.4 The FCC “emphasize[d] that prior express consent is deemed to be granted

only if the wireless number was provided by the consumer to the creditor, and that such number

was provided during the transaction that resulted in the debt owed.”5

19. In the same Declaratory Ruling, the FCC emphasized that creditors and

their third party debt collector may be held liable under the TCPA for debt collection calls.

2 47 U.S.C. § 227(b)(1)(A)(iii). 3 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003). 4 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (“FCC Declaratory Ruling”), 23 F.C.C.R. 559, 23 FCC Rcd. 559, 43 Communications Reg. (P&F) 877, 2008 WL 65485 (F.C.C.) (2008). 5 FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10). - 3 - 1175683.1


(“A creditor on whose behalf an autodialed or prerecorded message call is made to a wireless

number bears the responsibility for any violation of the Commission’s rules. Calls placed by a

third party collector on behalf of that creditor are treated as if the creditor itself placed the

call... A third party collector may also be liable for a violation of the Commission’s rules.”)

Telemarketing Calls

20. The FCC has explained that only consumers who “knowingly release

their phone numbers to a business” will be deemed to have given prior express consent.6

21. The FCC further clarified that consumers are deemed to have consented

to telemarketing calls only where they have “(a) clearly stated that the telemarketer may call,

and (b) clearly expressed an understanding that the telemarketer’s subsequent call will be made

for the purpose of encouraging the purchase or rental of, or investment in, property, goods or

services.”7

22. While telemarketing calls to residential lines are exempted where there

exists an “established business relationship,” no such exemption applies to telemarketing calls

to cell phones. See 47 C.F.R. § 64.1200(f)(5).

23. “[R]ules generally establish that the party on whose behalf a solicitation

is made bears ultimate responsibility for any violations.” 8

24. On May 9, 2013, the FCC released a Declaratory Ruling holding that a

corporation or other entity that contracts out its telephone marketing “may be held vicariously

liable under federal common law principles of agency for violations of . . . section 227(b) . . .

that are committed by third-party telemarketers.”9

6 In re Rules and Regulations Implementing the Tel. CPA of 1991, 7 FCC Rcd 8752, 8753 (1992). 7 In re Rules and Regulations Implementing the Tel. CPA of 1991, 10 FCC Rcd 12391, 12396 (1995). 8 In re Rules and Regulations Implementing the Tel. CPA of 1991, 10 FCC Rcd 12391, 12396 (1995). 9 In the Matter of The Joint Petition Filed by DISH Network, LLC, the United States of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling - 4 - 1175683.1


25. More specifically, the May 2013 FCC Ruling held that, even in the

absence of evidence of a formal contractual relationship between the seller and the

telemarketer, a seller is liable for telemarketing calls if the telemarketer “has apparent (if not

actual) authority” to make the calls. 28 F.C.C.R. at 6586 (¶ 34).

26. The May 2013 FCC Ruling further clarifies the circumstances under

which a telemarketer has apparent authority: [A]pparent authority may be supported by evidence that the seller allows the outside sales entity access to information and systems that normally would be within the seller’s exclusive control, including: access to detailed information regarding the nature and pricing of the seller’s products and services or to the seller’s customer information. The ability by the outside sales entity to enter consumer information into the seller’s sales or customer systems, as well as the authority to use the seller’s trade name, trademark and service mark may also be relevant. It may also be persuasive that the seller approved, wrote or reviewed the outside entity’s telemarketing scripts.

28 F.C.C.R. at 6592 (¶ 46).

27. The May 2013 FCC Ruling states that called parties may obtain

“evidence of these kinds of relationships . . . through discovery, if they are not independently

privy to such information.” Id. at 6592-93 (¶ 46). Evidence of circumstances pointing to

apparent authority on behalf of the telemarketer is “sufficient to place upon the seller the

burden of demonstrating that a reasonable consumer would not sensibly assume that the

telemarketer was acting as the seller's authorized agent.” Id. at 6593 (¶ 46).

FACTUAL ALLEGATIONS

Plaintiff Ossola

28. Plaintiff Ossola is, and at all times mentioned herein was, a “person” as

defined by 47 U.S.C. § 153(39).

Concerning the Telephone Consumer Protection Act (TCPA) Rules, et al., 28 F.C.C.R. 6574, 6574 (¶ 1) (2013). - 5 - 1175683.1


29. “During the transaction that resulted in the debt owed,” Plaintiff Ossola

did not provide express consent to receive prerecorded calls by American Express on her cellular

telephone.10 In fact, Plaintiff Ossola did not even have an American Express account during the

time period that she received calls from American Express.

30. American Express repeatedly called Plaintiff Ossola’s cellular telephone.

Plaintiff Ossola received repeated, harassing debt collection calls at all hours of the day.

Because these calls were prerecorded, Plaintiff could not request that the calls end or to voice her

complaints to a real person, despite attempts to do so.

31. In early June 2013, Plaintiff Ossola finally reached American Express and

informed American Express that she was not the person they were trying to call and requested

that they stop calling her. The representative assured Plaintiff Ossola that her cellular telephone

number would be blocked from the autodialer system.

32. Despite this conversation, the very next day, American Express called

Plaintiff Ossola’s cellular telephone phone. These automated phone calls continued until shortly

before the commencement of this action.

33. American Express is, and at all times mentioned herein was, a “person”, as

defined by 47 U.S.C. § 153(39).

34. All telephone contact by American Express to Plaintiff Ossola on her

cellular telephone occurred via an “automatic telephone dialing system,” as defined by 47 U.S.C.

§ 227(a)(1), and/or used “an artificial or prerecorded voice” as described in 47 U.S.C. §

227(b)(1)(A).

35. The telephone number that American Express used to contact Plaintiff

Ossola, with an “artificial or prerecorded voice” and/or made by an “automatic telephone dialing

system,” was assigned to a cellular telephone service as specified in 47 U.S.C. §

227(b)(1)(A)(iii).

10 See FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10). - 6 - 1175683.1


36. Plaintiff Ossola did not provide “express consent” allowing American

Express to place telephone calls to Plaintiff Ossola’s cellular phone utilizing an “artificial or

prerecorded voice” or placed by an “automatic telephone dialing system,” within the meaning of

47 U.S.C. § 227(b)(1)(A).

37. American Express’s telephone calls to Plaintiff Ossola’s cellular phone

were not “for emergency purposes” as described in 47 U.S.C. § 227(b)(1)(A).

38. American Express’s telephone calls to Plaintiff Ossola’s cellular phone

utilizing an “artificial or prerecorded voice” or placed by an “automatic telephone dialing

system” for non-emergency purposes and in the absence of Plaintiff’s prior express consent

violated 47 U.S.C. § 227(b)(1)(A).

39. Under the TCPA and pursuant to the FCC’s January 2008 Declaratory

Ruling, the burden is on American Express to demonstrate that Plaintiff Ossola provided express

consent within the meaning of the statute.11

40. Plaintiff Ossola received automated phone calls to her cellular telephone

on, at a minimum, the following dates and times from telephone number 866-663-8310, as

identified by Plaintiff Ossola’s caller identification system:

a. April 12, 2013 at 2:14 p.m.;

b. April 12, 2013 at 2:16 p.m.;

c. April 20, 2013 at 11:07 a.m.;

d. May 10, 2013 at 10:02 a.m.;

e. May 20, 2013 at 5:16 p.m.;

f. June 14, 2013 at 10:12 a.m.;

g. June 14, 2013 at 1:26 a.m.;

h. June 14, 2013 at 4:30, p.m.;

i. June 15, 2013 at 10:05 a.m.

11 See FCC Declaratory Ruling, 23 F.C.C.R. at 565 (¶ 10). - 7 - 1175683.1


j. June 15, 2013 at 1:11 p.m.;

k. June 17, 2013 at 10:05 a.m.;

l. June 17, 2013 at 1:42 p.m.;

m. June 17, 2013 at 5:44 p.m.;

n. June 18, 2013 at 9:16 a.m.;

o. June 18, 2013 at 12:17 p.m.;

p. June 18, 2013 at 4:21 p.m.;

q. June 19, 2013 at 9:35 a.m.;

r. June 19, 2013 at 1:01 p.m.;

s. June 19, 2013 at 5:12 p.m.;

t. June 21, 2013 at 12:58 p.m.;

u. June 21, 2013 at 6:09 p.m.

41. On June 26, 2013 at 2:30 p.m., Plaintiff Ossola also received at least one

call from telephone number 201-331-6249. There likely were other calls, too.

42. When automated phone calls were placed to her cellular telephone,

Plaintiff Ossola’s caller identification system identified calls from telephone numbers 866-663-

8310 and 201-331-6249 as coming from “American Express.”

43. When 866-663-8310 or 201-331-6249 is called, a prerecorded voice states

“Thank you for calling American Express.”

44. Operators that come onto the line after the prerecorded voice messages

identify themselves as working for “American Express.”

45. Plaintiff Ossola’s telephone service provider, in response to a subpoena

issued in this action, indicated that telephone number 866-663-8310 is assigned to Defendant

West Asset Management.

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46. Upon information and belief, the subpoena response is correct: 866-663-

8310 is assigned to West Asset Management, which made the calls that are the subject of this

action associated with that phone number.

47. Upon information and belief, the calls from telephone number 201-331-

6249 were also made by West.

48. Plaintiff Ossola was unable to determine the purpose behind American

Express’s automated calls, but they appear to constitute an attempt to locate and collect monies

from someone other than Plaintiff Ossola. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d

637 (7th Cir. 2012) (unwanted cell phone robocall recipients are damaged).

Plaintiff Callentine

49. At all times relevant, Plaintiff Callentine was an individual residing in the

State of Ohio. Plaintiff Callentine is, and at all times mentioned herein was, a "person" as

defined by 47 U.S.C. § 153(39).

50. American Express repeatedly contacted Plaintiff Callentine on her

cellular telephone. Because these calls were prerecorded, Plaintiff Callentine had no ability to

request that the calls end or to voice her complaints to a real person.

51. All telephone contact by American Express to Plaintiff Callentine on her

cellular telephone occurred via an “automatic telephone dialing system,” as defined by 47 U.S.C.

§ 227(a)(1), and/or used “an artificial or prerecorded voice” as described in 47 U.S.C. §

227(b)(1)(A).

52. The telephone number that American Express used to contact Plaintiff

Callentine, with an “artificial or prerecorded voice” and/or made by an “automatic telephone

dialing system,” was assigned to a cellular telephone service as specified in 47 U.S.C. §

227(b)(1)(A)(iii).

53. Plaintiff Callentine did not provide “express consent” allowing American

Express to place telephone calls to Plaintiff Callentine’s cellular phone utilizing an “artificial or

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prerecorded voice” or placed by an “automatic telephone dialing system,” within the meaning of

47 U.S.C. § 227(b)(1)(A).

54. American Express’s telephone calls to Plaintiff Callentine’s cellular phone

were not “for emergency purposes” as described in 47 U.S.C. § 227(b)(1)(A).

55. American Express’s telephone calls to Plaintiff Callentine’s cellular phone

utilizing an “artificial or prerecorded voice” or placed by an “automatic telephone dialing

system” for non-emergency purposes and in the absence of Plaintiff Callentine’s prior express

consent violated 47 U.S.C. § 227(b)(1)(A).

Debt Collection Calls

56. Under the TCPA and pursuant to the FCC’s January 2008 Declaratory

Ruling, the burden is on American Express to demonstrate that Plaintiff Callentine provided

prior express consent within the meaning of the statute.

57. On information and belief, Plaintiff Callentine’s cellular telephone number

was “associated” by American Express with Plaintiff Callentine’s mother’s American Express

account, who, upon information and belief, was an American Express account holder prior to her

death in 2009. Shortly after her mother’s death, Plaintiff Callentine began receiving automated

American Express debt collection calls to her cellular telephone.

58. The debt collection calls made to Plaintiff Callentine were placed by

Defendant West Asset Management on behalf of American Express.

59. On information and belief, West Asset Management placed automated

calls to Plaintiff Callentine’s cellular telephone in order to collect debts to American Express

allegedly owed by Plaintiff Callentine’s deceased mother.

60. “During the transaction that resulted in the debt owed,” Plaintiff

Callentine did not provide express consent to receive prerecorded calls by American Express on

her cellular telephone. In fact, Plaintiff Callentine has never been an American Express account

holder.

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Telemarketing Calls

61. In 2012, Plaintiff Callentine began receiving automated American Express

telemarketing calls to her cellular telephone.

62. Plaintiff Callentine received automated calls to her cellular telephone on

April 12, 2012 at 3:08 p.m. and on April 30, 2012 at 3:11 p.m.

63. On information and belief, the telemarketing calls made to Plaintiff

Callentine were placed by Alorica, a call center company that has made telemarketing calls on

behalf of American Express.

64. The number that appeared on Plaintiff Callentine’s caller identification

system and Verizon Wireless phone records was (866) 490-9096.

When (866) 490-9096 is called, a prerecorded voice states “Welcome to American Express. . .

.”Plaintiff Dolemba

65. On or about June 27, 2013, Plaintiff Dolemba received a telephone call

on his cell phone from defendant West Asset Management Inc., using number 866 663-8310.

66. The 866 663-8310 number is issued to defendant West Asset

Management Inc., under that name or its former name of Omnium Worldwide, Inc.

67. The caller did not identify herself as calling from West. The caller said

she was calling “for American Express” and said that she wanted to talk to Casimir Dolemba.

Plaintiff stated that he was not Casimir Dolemba, that he did not live with Casimir Dolemba,

and that the collector had called a wrong number.

68. On information and belief, the call was placed using a predictive dialer.

69. There was a pause after the plaintiff picked up the phone and before

someone came on the line, a characteristic of an automated dialer.

70. On July 9, 2013, plaintiff received a second call from the 866-663-8310

number. Plaintiff did not answer the call and no message was left.

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71. Plaintiff Dolemba did not authorize the automated placement of calls to

his cell phone by any defendant.

72. Plaintiff Dolemba did not furnish his cell phone number to any

defendant.

CLASS ACTION ALLEGATIONS

73. Plaintiffs bring this action on behalf of themselves and on behalf of all

other persons similarly situated (hereinafter referred to as “the Classes”).

74. Plaintiffs propose the following Class definitions, subject to amendment as

appropriate:

Debt Collection Class: All persons within the United States who, on or after July 3, 2009, received a debt collection call from American Express and/or West Asset Management on behalf of American Express, to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not have a contractual relationship with American Express.

Telemarketing Class: All persons within the United States who, on or after July 3, 2009, received a telemarketing call from American Express and/or Alorica Inc. on behalf of American Express, to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice.

Collectively, all these persons will be referred to as “Class members.” Plaintiffs Ossola,

Callentine, and Dolemba represent, and are members of, the Debt Collection Class. Plaintiff

Callentine represents, and is a members of, the Telemarketing Class Excluded from the Classes

are American Express and any entities in which American Express has a controlling interest,

American Express’s agents and employees, any Judge to whom this action is assigned and any

member of such Judge’s staff and immediate family, and claims for personal injury, wrongful

death and/or emotional distress.

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75. Plaintiffs propose the following Subclass definition, subject amendment as

appropriate:

West Subclass: All persons within the United States who, on or after July 3, 2009, received a debt collection telephone call from West Asset Management on behalf of American Express to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls during the transaction that resulted in the debt owed.

Plaintiffs represent, and are members of, the West SubClass. Excluded from the West

SubClass are West Asset Management and any entities in which West Asset Management has a

controlling interest, American Express’s agents and employees, any Judge to whom this action

is assigned and any member of such Judge’s staff and immediate family, and claims for

personal injury, wrongful death and/or emotional distress.

76. Plaintiffs do not know the exact number of members in the Classes or

the Subclass, but based upon the representations of Defendants as to their market share,

Plaintiffs reasonably believe that members of the Classes and Subclass number at minimum in

the thousands.

77. Plaintiffs and all members of the Classes and Subclass have been harmed

by the acts of Defendants.

78. This Class Action Complaint seeks injunctive relief and money damages.

79. The joinder of all members of the Classes and Subclass is impracticable

due to the size and relatively modest value of each individual claim. The disposition of the

claims in a class action will provide substantial benefit to the parties and the Court in avoiding a

multiplicity of identical suits. The Classes and Subclass can be identified easily through records

maintained by American Express, West Asset Management, and/or Alorica.

80. There are well defined, nearly identical, questions of law and fact

affecting all parties. The questions of law and fact involving the class claims predominate over

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questions which may affect individual members of the Classes and Subclass. Those common

questions of law and fact include, but are not limited to, the following:

a. Whether non-emergency calls made to Plaintiffs, and members of the Classes’ and Subclass’ cellular telephones used an automatic telephone dialing system and/or an artificial or prerecorded voice;

b. Whether such calls were made by or on behalf of Defendants;

c. Whether Defendants can meet their burden of showing they obtained prior express consent (i.e., consent that is clearly and unmistakably stated);

d. Whether Defendants’ conduct was knowing and/or willful;

e. Whether Defendants are liable for damages, and the amount of such damages; and

f. Whether Defendants should be enjoined from engaging in such conduct in the future.

81. As people who received numerous and repeated telephone calls using an

automatic telephone dialing system or an artificial or prerecorded voice, without their prior

express consent within the meaning of the TCPA and Rules, Plaintiffs assert claims that are

typical of each member of the Classes and Subclass. Plaintiffs will fairly and adequately

represent and protect the interests of the Classes and Subclass, and have no interests which are

antagonistic to any member of the Classes and/or Subclass.

82. Plaintiffs have retained counsel experienced in handling class action

claims involving violations of federal and state consumer protection statutes, including claims

under the TCPA.

83. A class action is the superior method for the fair and efficient adjudication

of this controversy. Class wide relief is essential to compel Defendants to comply with the

TCPA. The interest of members of the Classes and Subclass in individually controlling the

prosecution of separate claims against Defendants is small because the statutory damages in an

individual action for violation of the TCPA are relatively small. Management of these claims is - 14 - 1175683.1


likely to present significantly fewer difficulties than are presented in many class claims because

the calls at issue are all automated and the members of the Classes and Subclass, by definition,

did not provide the prior express consent required under the statute to authorize calls to their

cellular telephones.

84. Defendants have acted on grounds generally applicable to the Classes and

Subclass, thereby making final injunctive relief and corresponding declaratory relief with respect

to the Classes and Subclass as a whole appropriate. Moreover, on information and belief,

Plaintiffs allege that the TCPA violations complained of herein are substantially likely to

continue in the future if an injunction is not entered.

CAUSES OF ACTION

FIRST COUNT

KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.

85. Plaintiffs incorporate by reference the foregoing paragraphs of this

Complaint as if fully stated herein.

86. The foregoing acts and omissions of Defendants constitute numerous and

multiple knowing and/or willful violations of the TCPA, including but not limited to each of the

above-cited provisions of 47 U.S.C. § 227 et seq.

87. As a result of Defendants’ knowing and/or willful violations of 47 U.S.C.

§ 227 et seq., Plaintiffs and each member of the Classes and Subclass are entitled to treble

damages of up to $1,500.00 for each and every call in violation of the statute, pursuant to 47

U.S.C. § 227(b)(3).

88. Plaintiffs and all members of the Classes and Subclass are also entitled to

and do seek injunctive relief prohibiting such conduct violating the TCPA by Defendants in the

future. Plaintiffs and members of the Classes and Subclass are also entitled to an award of

attorneys’ fees and costs.

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SECOND COUNT

STATUTORY VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ.

89. Plaintiffs incorporate by reference the foregoing paragraphs of this

Complaint as if fully set forth herein.

90. The foregoing acts and omissions of Defendants constitute numerous and

multiple violations of the TCPA, including but not limited to each of the above cited provisions

of 47 U.S.C. § 227 et seq.

91. As a result of Defendants’ violations of 47 U.S.C. § 227 et seq., Plaintiffs

and members of the Classes and Subclass are entitled to an award of $500.00 in statutory

damages for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).

92. Plaintiffs and members of the Classes and Subclass are also entitled to and

do seek injunctive relief prohibiting American Express’s violation of the TCPA in the future.

93. Plaintiffs and members of the Classes and Subclass are also entitled to an

award of attorneys’ fees and costs. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court grant Plaintiffs and all and

members of the Classes and Subclass the following relief against Defendants:

A. Injunctive relief prohibiting such violations of the TCPA by Defendants in the

future;

B. As a result of Defendants’ willful and/or knowing violations of 47 U.S.C.

§ 227(b)(1), Plaintiffs seeks for themselves and each member of the Classes and Subclass treble

damages, as provided by statute, of up to $1,500.00 for each and every call that violated the

TCPA;

C. As a result of Defendants’ violations of 47 U.S.C. § 227(b)(1), Plaintiffs seeks for

themselves and each member of the Classes and Subclass $500.00 in statutory damages for each

and every call that violated the TCPA;

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D. An award of attorneys’ fees and costs to counsel for Plaintiffs, the Classes, and

the Subclass;

E. An order certifying this action to be a proper class action pursuant to Federal Rule

of Civil Procedure 23, establishing any appropriate Classes and Subclass the Court deems

appropriate, finding that Plaintiff is a proper representative of the Classes and Subclass, and

appointing the lawyers and law firms representing Plaintiffs as counsel for the Classes and

Subclass;

F. Such other relief as the Court deems just and proper.

Dated: June 10, 2014 By: _/s/ Alexander H. Burke______________ Alexander H. Burke BURKE LAW OFFICES, LLC Alexander H. Burke Email: [email protected] 155 N. Michigan Avenue, Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 SMITHMARCO P.C., Larry P. Smith Email: [email protected] David M. Marco Email: [email protected] 205 North Michigan Avenue, Suite 2940 Chicago, IL 60601 (312) 222-9028 (888) 418-1277(fax)

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Jonathan D. Selbin (NY State Bar No. 3948684; admitted to the N.D. Ill. general bar) Email: [email protected] Douglas I. Cuthbertson (admitted pro hac vice) Email: [email protected] 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Daniel M. Hutchinson (CA State Bar No. 239458; admitted to the N.D. Ill. general bar) Email: [email protected] 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

MEYER WILSON CO., LPA Matthew R. Wilson (Ohio State Bar No. 0072925; admitted to the N.D. Ill. general bar) Email: [email protected] 1320 Dublin Road, Ste. 100 Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066

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KEOGH LAW, LTD. Keith Keogh Email: [email protected] Timothy Sostrin Email: [email protected] Katherine Bowen Email: [email protected] 55 W. Monroe, Ste. 3390 Chicago, Il. 60603 Phone: 312-265-3258 Fax: 312-726-1093 Attorneys for Plaintiffs Jennifer Ossola and Joetta Callentine and the Proposed Classes s/ Daniel A. Edelman Daniel A. Edelman EDELMAN, COMBS, LATTURNER & GOODWIN, L.L.C. Daniel A. Edelman Cathleen M. Combs James O. Latturner Francis R. Greene 120 S. LaSalle Street, 18th Floor Chicago, Illinois 60603 (312) 739-4200 (312) 419-0379 (FAX) Attorneys for Plaintiff Scott Dolemba and the Proposed Class

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DEMAND FOR JURY TRIAL

Plaintiffs demands a trial by jury on all counts so triable.

Dated: May __, 2014 By: _/s/ Alexander H. Burke______________

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first amended consolidated plaintiffs, damages … amended... · american express company, america...

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