Class Action Complaint: Wright v. Genesis FS Card Services for TCPA Violations, Lecture notes of Law

Download Class Action Complaint: Wright v. Genesis FS Card Services for TCPA Violations and more Lecture notes Law in PDF only on Docsity! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yana A. Hart, Esq. (SBN: 306499) yana@westcoastlitigation.com Hyde & Swigart, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3609 
 Telephone: (619) 233-7770 
 Fax: (619) 297-1022 Daniel G. Shay (SBN: 250548) danielshay@tcpafdcpa.com Law Office of Daniel G. Shay 409 Camino Del Rio south, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7492 Fax: (866) 431-3292 Attorneys for Plaintiff Nicholas Wright UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.1 11 NICHOLAS WRIGHT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. GENESIS FS CARD SERVICES, INC. d/b/a BANKCARD SERVICES, Defendant. Case No: CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF PURSUANT TO THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq. JURY TRIAL DEMANDED '18CV2375 JLBBAS Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.1 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. Plaintiff Nicholas Wright (“Plaintiff”) brings this Class Action Complaint for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of defendant Genesis FS Card Services, Inc. d/ b/a Bankcard Services, (“Defendant”) in negligently and/or willfully or knowingly contacting Plaintiff on Plaintiff’s cellular telephone, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., (“TCPA”), thereby invading Plaintiff’s privacy. Plaintiff alleges as follows upon personal knowledge as to himself and his own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by his attorneys. 2. The TCPA was designed to prevent calls like the ones described within this complaint, and to protect the privacy of citizens like Plaintiff. “Voluminous consumer complaints about abuses of telephone technology – for example, computerized calls dispatched to private homes – prompted Congress to pass the TCPA.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012). 3. In enacting the TCPA, Congress intended to give consumers a choice as to how creditors and telemarketers may call them, and made specific findings that “[t]echnologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer. TCPA, Pub.L. No. 102–243, § 11. Toward this end, Congress found that: [b]anning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion. COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.2 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.2 Page 2 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Within a five day span, Defendant called Plaintiff approximately eight (8) times and there were many other harassing calls in addition to that. 20. Defendant encouraged, directed, and authorized its agents and/or employees to place marketing calls to individuals including Plaintiff, in order to solicit consumers, acquire business and economic benefits from such increased business. 21. On information and belief, an ATDS was used to call Plaintiff because as ATDS systems often result in abandoned calls. Plaintiff would answer calls from Defendant only to hear pause, dead air, and be disconnected. Returning the calls, lead to a robotic message with no human representative on the line, after holding for nearly half a minute, a live representative eventually gets connected to the call. Plaintiff did not provide Defendant or its agents with “prior express consent” nor written consent to receive calls to his cellular telephone, including those calls by means of an ATDS as prohibited by 47 U.S.C. § 227(b)(1)(A). 22. Plaintiff did not consent to be called on Plaintiff’s cellular telephone by Defendants for marketing or any other purpose. 23. Upon information and belief, Defendant’s telephone equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 24. Upon information and belief, the telephone equipment used by Defendant to place the calls at issue has the capacity to dial telephone numbers automatically from a stored list or database without human intervention, using a random or sequential number generator. 25. Defendant did not have written consent to place telemarketing calls to Plaintiff’s cellular telephone. 26. Defendant’s telemarketing calls were not made for emergency purposes, as defined by 47 U.S.C. § 227(b)(1)(A). COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.5 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.5 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. Defendant’s telemarketing call was placed to a telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 28. Plaintiff was personally affected by Defendant’s aforementioned conduct because Plaintiff was frustrated and distressed that Defendant interrupted Plaintiff with unwanted telemarketing calls using an ATDS for marketing purposes. 29. Through Defendant’s aforementioned conduct, Plaintiff suffered an invasion of a legally protected interest in privacy, which is specifically addressed and protected by the TCPA. 30. Plaintiff is informed and believes and here upon alleges, that the calls were made by Defendant and/or its agent(s), with Defendant’s permission, knowledge, control and for Defendant’s benefit. 31. Defendant’s calls forced Plaintiff, and other similarly situated class members, to live without the utility of their cellular phones by occupying their cellular telephone with one or more unwanted calls, causing a nuisance and lost time. 32. Defendant’s calls interfered with Plaintiff’s work, annoyed and frustrated Plaintiff, distracted Plaintiff, and invaded Plaintiff’s privacy. 33. Through the aforementioned conduct, Defendant or its agent(s) has violated 47 U.S.C. § 227(b)(1)(A)(iii). CLASS ACTION ALLEGATIONS 34. Plaintiff brings this action on behalf of himself and on behalf of all others similarly situated (the “Class”). 35. Plaintiff represents, and is a member of the Class, consisting of: All persons within the United States who received any telephone call from Genesis FS Card Services, Inc., d/b/a Bankcard Services, or its agent/s and/or employee/s, not sent for emergency purposes, to said person’s cellular telephone made through the use of any automatic telephone COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.6 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.6 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dialing system and/or with an artificial or prerecorded voice within four years prior to the filing of this Complaint. 36. 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 is in the thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter 37. Plaintiff and members of the Class were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through its agents, illegally contacted Plaintiff and the Class members via their cellular telephones for marketing purposes by using an ATDS, thereby causing Plaintiff and the Class members to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff and the Class members. Plaintiff and the Class members were damaged thereby. 38. 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 expand the Class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 39. Numerosity. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the Court. The Class can be identified through Defendant’s records or Defendant’s agents’ records. 40. Existence and Predominance of Common Questions of Law and Fact. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The questions of law and fact to the Class predominate over questions which may affect individual Class members, including the following: COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.7 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.7 Page 7 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION: KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. 52.Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 53.The foregoing acts and omissions of Defendant constitute multiple knowing and/ or willful violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. section 227 et seq. 54.As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. section 227 et seq., Plaintiff and each member of the Class is entitled to treble damages, as provided by statute, up to $1,500.00, for each and every violation, pursuant to 47 U.S.C. section 227(b)(3)(B) and 47 U.S.C. section 227(b)(3)(C). 55.Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. PRAYER FOR RELIEF 56. Wherefore, Plaintiff respectfully requests the Court grant Plaintiff and each Class member the following relief against Defendant: • Certify the Class as requested herein; • Appoint Plaintiff to serve as the Class Representative in this matter; • Appoint Plaintiff’s Counsel as Class Counsel in this matter; and • Any such further relief as may be just and proper. In addition, Plaintiff and the Class pray for further judgment as follows against each Defendant: FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATION OF THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3) COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.10 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.10 Page 10 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (B). • Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. • Any other relief the Court may deem just and proper. SECOND CAUSE OF ACTION FOR KNOWING AND/OR WILLFUL VIOLATION OF THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member treble damages, as provided by statute, up to $1,500.00 for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3) (C). • Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. • Any other relief the Court may deem just and proper. TRIAL BY JURY 57. Pursuant to the Seventh Amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. Respectfully submitted, Date: October 17, 2018 Hyde & Swigart, APC By: s/ Yana A. Hart Yana A. Hart, Esq. Attorney For Plaintiff COMPLAINT - ! of ! - Wright v. Genesis FS Card Services, Inc.11 11 Case 3:18-cv-02375-BAS-JLB Document 1 Filed 10/17/18 PageID.11 Page 11 of 11 CIVIL COVER SHEET (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) (c) (Firm Name, Address, and Telephone Number) (If Known) II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF (U.S. Government Not a Party) or and (Indicate Citizenship of Parties in Item III) IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES PERSONAL INJURY PERSONAL INJURY PROPERTY RIGHTS LABOR SOCIAL SECURITY PERSONAL PROPERTY REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS Habeas Corpus: IMMIGRATION Other: V. ORIGIN (Place an “X” in One Box Only) (specify) VI. CAUSE OF ACTION (Do not cite jurisdictional statutes unless diversity) VII. REQUESTED IN COMPLAINT: CLASS ACTION DEMAND $ JURY DEMAND: VIII. RELATED CASE(S) IF ANY (See instructions): FOR OFFICE USE ONLY Nicholas Wright, Individually and on Behalf of all others Similarly Situated San Diego Yana A. Hart, Esq. Hyde & Swigart 619-233-7770 2221Camino Del Rio S., Ste. 101, San Diego, CA 92108 Genesis FS Card Services, Inc. d/b/a Bankcard Services 47 U.S.C. §§ 227 et seq. ("TCPA") Defendant violated the Telephone Consumer Protection Act 75,000.00 10/17/2018 s/ Yana A. Hart '18CV2375 JLBBAS Case 3:18-cv-02375-BAS-JLB Document 1-1 Filed 10/17/18 PageID.12 Page 1 of 2