Datasets:

darrow-ai

/

USClassActions

like 0

16. On or about July 9, 2020, Defendant sent Plaintiff a text message (the “Text”) to his cellular telephone number via ATDS, as defined by 47 U.S.C. § 227(a)(l), without first obtaining Plaintiff’s written consent. A true and correct copy of the screenshot of the Text is attached hereto as Exhibit A. 18. Plaintiff is the exclusive user of the cellular telephone that received the Text. Plaintiff’s number is on the National Do Not Call registry and the phone is for personal use. 19. Defendant’s Text to Plaintiff constituted a call that was not for emergency purposes as defined by 47 U.S.C. § 227(b)(l)(A)(i). 20. Plaintiff never requested, desired, permitted, or otherwise provided his prior express consent to Defendant to send or transmit the Text or any other texts to his cellular telephone. 21. Plaintiff never provided his prior express written consent to Defendant to send or transmit the Text or any other advertisement or telemarketing to his cellular telephone. 22. The phone number utilized by Defendant to send the text, 262-93, does not receive return phone calls, and, on information and belief, is used solely to send text messages en masse, is a telephone number leased by Defendant or Defendant’s agent(s), and is used for operating Defendant’s text message marketing program. 24. Based on the foregoing, all telephone contact by Defendant or Defendant’s agent(s) to Plaintiff and the other members of the Class was sent utilizing an ATDS as defined by 47 U.S.C. § 227(b)(1)(A). 25. As a result of receiving the Text, Plaintiff incurred expenses to his wireless service, wasted data storage capacity, suffered the nuisance, waste of time, and aggravation that accompanies receipt of such unauthorized advertisements, and was subjected to an intrusion upon seclusion and invasion of privacy. 26. On information and belief, Defendant sent the Text, or other text messages, en masse to a list of thousands of randomly generated cellular telephone numbers using an automatic telephone dialing system. 27. On information and belief, Defendant sent the text message to Plaintiff and the Class members using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers without human intervention. 29. Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), Plaintiff brings this class action on behalf of the following Class: All individuals in the United States who, within the four years prior to the filing of the instant Complaint, received a text to their cellular telephones from Defendant through the use of an automatic dialing system and who did not provide prior express written consent to receive such text messages. Excluded from the Class are the Defendant and its members, managers, employees, and agents and members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. 30. 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 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 (40) based on Defendant’s use of automated and impersonal text message content sent via a telephone number with an automated message center. 33. Fair and Adequate Representation (Fed. R. Civ. P. 23(a)(4)): Plaintiff will fairly and adequately represent and protect the interests of the class. Plaintiff is interested in this matter, has no conflicts, and has retained experienced class counsel to represent the class. 36. The Text Defendant sent Plaintiff and the Class members is an advertisement as defined by 47 C.F.R. § 64.1200(f)(1) because it promotes Defendant’s property, goods, or services. 37. Defendant and/or its agent sent the Text, or other unsolicited automated text messages to the cellular telephone number of Plaintiff and the other Class members en masse without their prior express written consent. 38. Defendant sent the Text, or had them sent on its behalf, using an automatic telephone dialing system or device which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers. 39. Defendant utilized equipment that sent the text messages, including the Text, to Plaintiff and other Class members simultaneously and without human intervention. 40. By sending the unsolicited text messages to Plaintiff and the Class, Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii). 42. Plaintiff incorporates by reference paragraphs 1-34 as if fully set forth herein. 43. The Text Defendant sent Plaintiff and the Class is an advertisement as defined by 47 C.F.R. § 64.1200(f)(1) because it promotes Defendant’s property, goods, or services. 44. Defendant and/or its agent sent the Text, or other unsolicited automated text messages to the cellular telephone number of Plaintiff and the Class members en masse without their prior express consent and prior express written consent. 45. Defendant sent the Text, or had it sent on its behalf, knowingly using an automatic telephone dialing system or device which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers. 46. Defendant knowingly utilized equipment that sent the text messages, including the Text, to Plaintiff and other Class members simultaneously and without human intervention. 48. On information and belief, Defendant knew, or willfully ignored the fact, that its conduct as alleged herein violated the TCPA. 49. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the Class were harmed and entitled to statutory relief. Violation of the TCPA, 47 U.S.C. § 227(b)(3) Willful and/or Knowing Violation of the TCPA, 47 U.S.C. § 227(b)(3)

lose

13. Plaintiff brings this claim on behalf of the following class, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 14. The Class consists of: a. all individuals with addresses in the state of New York; b. to whom Defendant EOS sent a collection letter; c. On behalf of Defendant USAM; d. attempting to collect a consumer debt; e. which debt was past the statute of limitation for filing suit thereon; f. without disclosing that the statute of limitations for suing to collect the debt had expired; g. without disclosing that if a payment is made it could restart the statute of limitations; h. 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 (21) days after the filing of this action. 15. 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. 16. Excluded from the Plaintiff Class are the Defendants and all officers, 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. 17. 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. §§ 1692e and 1692f. 18. 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. 19. This action has been brought, and may properly be maintained, as a class action pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a well- defined community interest in the litigation: a. Numerosity: The Plaintiff is informed and believes, and on that basis alleges, that the Plaintiff Class defined above is so numerous that joinder of all members would be impractical. b. Common Questions Predominate: Common questions of law and fact exist as to all members of the Plaintiff Class and those questions predominance over any questions or 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. § 1692e and §1692f. c. Typicality: The Plaintiff’s claims are typical of the claims of the class members. The Plaintiff and all members of the Plaintiff Class have claims arising out of the Defendants' common uniform course of conduct complained of herein. d. Adequacy: The Plaintiff will fairly and adequately protect the interests of the class members insofar as Plaintiff has no interests that are adverse to the absent class members. The Plaintiff is committed to vigorously litigating this matter. Plaintiff has also retained counsel experienced in handling consumer lawsuits, complex legal issues, and class actions. Neither the Plaintiff nor her counsel have any interests which might cause them not to vigorously pursue the instant class action lawsuit. e. Superiority: A class action is superior to the other available means for the fair and efficient adjudication of this controversy because individual joinder of all members would be impracticable. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum efficiently and without unnecessary duplication of effort and expense that individual actions would engender. 20. 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. 21. 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). 22. Plaintiff repeats the above paragraphs as if set forth here. 23. On a date better known to the original creditor Verizon, the Plaintiff incurred a debt. 24. The obligation arose out of a transaction allegedly incurred by Plaintiff in which money, property, insurance or services which are the subject of the transaction were incurred solely for personal purposes, specifically for personal telephone service. 25. The alleged Verizon obligation is a "debt" as defined by 15 U.S.C. § 1692a (5). 26. Verizon is a "creditor" as defined by 15 U.S.C. § 1692a (4). 27. Defendant EOS collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of itself or others using the United States Postal Services, telephone and internet. 28. Defendant USAM collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of itself or others using the United States Postal Services, telephone and internet. 29. Upon information and belief, Defendant USAM contracted with Defendant EOS to collect the alleged debt. Violation – October 9, 2019 Collection Letter 30. On or about October 9, 2019, Defendant sent the Plaintiff an initial collection letter regarding the alleged debt. A copy of the letter is attached as Exhibit A. 31. The top right of the letter contains the “ACCOUNT INFORMATION” that states the “TOTAL AMOUNT DUE” is $242.09 and the “SETTLEMENT AMOUNT DUE” is $164.62. 32. The letter fails to disclose that the statute of limitations to file a lawsuit to collect the debt had already expired. 33. The statute of limitations for commencing suit on this debt is two years after default, the time of which has already passed. 34. This material omission misleads the consumer into paying a time-barred debt. 35. The letter fails to state that if a payment is made the statute of limitations will restart, thus allowing for a lawsuit to occur. 36. This omission fails to clearly and adequately inform the consumer of the true legal status of the debt and potential ramifications of making a payment and restarting the statute of limitations. 37. As a result of Defendant’s deceptive, misleading, and unfair debt collection practices, Plaintiff has been damaged. 38. Plaintiff repeats the above paragraphs as if set forth here. 39. 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. 40. 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. 41. Defendants violated said section by: a. omitting material information creating a false and misleading representation of the debt in violation of §1692e (10); and b. falsely representing the character, amount or legal status of the debt in violation of §1692e (2)(A). 42. 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. 43. Plaintiff repeats the above paragraphs as if set forth here. 44. 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. § 1692f. 45. Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or unconscionable means in connection with the collection of any debt. 46. Defendants violated this section by omitting material information that gave Plaintiff a false understanding of her rights under the FDCPA. 47. By reason thereof, Defendants are liable to Plaintiff for judgment that Defendants’ conduct violated Section 1692f 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. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq.

lose

2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 20. Defendant is a clothing and accessories company that operates www.bonworth.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 21. Defendant operates and distributes its products throughout the United States, including New York. 22. Defendant’s Website provides consumers with access to an array of goods and services, including the ability to browse products for delivery, including clothing and related accessories, find information on promotions, as well as related goods and services available online. 24. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered to the general public. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 26. During Plaintiff’s visits to the Website, the last occurring in February 2019, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods and services of the Website, by being unable to learn more information, the ability to browse clothing and related accessories available for delivery, find information on promotions, and related goods and services available online. 28. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and in the future. 29. These access barriers on Defendant’s Website have deterred Plaintiff from learning about those specific Clothing and related accessories available for purchase and delivery, and enjoying them equal to sighted individuals because: Plaintiff was unable to determine and or purchase items from its Website, among other things. 30. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 31. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 34. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 36. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, shop for and otherwise research related goods and services available via the Website. 37. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 38. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 39. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of those services, during the relevant statutory period. 42. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 45. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 50. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. Defendant’s Website and its’ sale of goods to the general public, constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. 59. Defendant is subject to New York Human Rights Law because it owns and operates its Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 60. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, services that Defendant makes available to the non-disabled public. 61. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 64. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 65. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 71. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 72. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 75. Defendant’s Website is a service, privilege or advantage of Defendant and its Website which offers such goods and services to the general public is required to be equally accessible to all. 76. Defendant is subject to New York Civil Rights Law because it owns and operates their Website, and Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 77. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 80. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 81. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 82. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 83. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 86. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 87. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 88. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 90. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 91. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 92. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 93. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 94. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 97. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 98. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

11. On July 24, 2017, Plaintiff received a telephone call to his cellular phone from phone number (832) 240-3940. 12. When Plaintiff picked up the call, an automated voice advertised the availability of an extended vehicle warranty. 13. Plaintiff was then connected to a live person who identified themself as working for Royal Admin. 14. Prior to this call, Plaintiff had never heard of Royal Admin, had never done business with Royal Admin, and had never given written or oral permission to receive automated pre-recorded marketing calls from Royal Admin. 15. Under the TCPA, the term telemarketing means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person. ! 4 16. The call from Royal Admin fits squarely within this definition, as the purpose of the call from Royal Admin was to encourage the purchase of goods or services. 17. Any purported consent received by Royal Admin or its agents did not conform to requirements of the TCPA or the Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830 (2012) and Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, FCC 15-72, 30 F.C.C.R. 7961, 7996 (July 10, 2015), or otherwise satisfy any prior express requirements applicable under the 18. Plaintiff bring this case pursuant to Rules 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of the proposed Class, defined as: All persons within the United States who, within four years prior to the filing of this action received any telephone call from Defendant or its agents to either: (1) a cellular telephone subscribed to by said person, or (2) a cellular telephone for which said person is the number’s customary user, where the call from Defendant was made through the use an artificial or prerecorded voice, which call was not made for emergency purposes. 19. Defendant and its employees and agents are excluded from the Class. 20. The Class is comprised of hundreds or likely thousands of individuals. Although the exact number of class members is presently unknown, the number ! 5 and identity of Class members can be readily determined through Royal Admin’s records. 21. The disposition of the numerous claims of these class members in a single class action will provide substantial benefits to all parties and to the Court. 22. Defendant has acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief is appropriate respecting the Class as a whole. 23. There is a well-defined community of interest in the questions of law and fact involved affecting the class members. The questions of law and fact common to the Class predominate over questions affecting only individual class members, and include without limitation the following: A. Whether Royal Admin used an artificial or prerecorded voice in placing calls. B. Whether Royal Admin received consent from Plaintiff and Class members prior to placing calls to the cellular telephones of Plaintiff and Class members. C. Whether any purported consent received by Royal Admin complied with the requirements set forth by the Federal Communications Commission and/or the TCPA. D. Whether Royal Admin acted willfully and/or knowingly in violation of the TCPA. ! 6 24. Plaintiff’s claims are typical of the claims of the Class. Plaintiff and Class members have similarly received calls from Royal Admin to cellular telephones owned by Plaintiff and Class members, and Plaintiff and Class members suffered the same harm arising from Royal Admin’s legal violations as identified in causes of action enumerated and set forth below. 25. Plaintiff’s and Class members’ claims flow, in each instance, from a common nucleus of operative facts: Royal Admin’s legal violations as identified in causes of action enumerated and set forth below. 26. Plaintiff is an adequate representative of the Class because his interests do not conflict with and are not antagonistic to the interests of the Class members he seeks to represent. Plaintiff will fairly and adequately represent and protect the interests of the Class. 27. Plaintiff has retained competent and experienced counsel. 28. Plaintiff and Class members have all suffered and will continue to suffer substantial harm and damages due to Royal Admin’s conduct. A class action is superior to other methods for the fair and efficient adjudication of the subject controversy. Absent a class action, most Class members likely will find the cost of litigating their individual claims to be prohibitive, and will have no effective remedy at all. Absent a class action, class members will continue to sustain damages, and Royal Admin’s misconduct will proceed without remedy. 29. The class treatment of common questions of law and fact is also superior to multiple individual actions or piecemeal litigation in that it conserves ! 7 the resources of the courts and the litigants and promotes consistency and efficiency of adjudication. Additionally, Royal Admin has acted, and failed to act, on grounds generally applicable to Plaintiff and the Class, requiring court imposition of uniform relief to insure compatible standards of conduct toward Plaintiff and the Class. 31. The foregoing acts and omissions of Defendant and its agents constitute numerous and multiple negligent violations of the TCPA, including but not limited to each of the above-cited provisions of 47 U.S.C. § 227. 32. As a result of the negligent violations of 47 U.S.C. § 227 by Defendant and its agents, Plaintiff and Class members are entitled to an award of $500 in statutory damages for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 33. Plaintiff and Class members are also entitled to and seek injunctive relief prohibiting Defendant’s, and its agents’, violation of the TCPA in the future. 34. Plaintiff and Class members are also entitled to an award of attorneys’ fees and costs. ! 8 35. The foregoing acts and omissions of Defendant and its agents 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. 36. As a result of Defendant’s, and its agents’, knowing and/or willful violations of 47 U.S.C. § 227, Plaintiff and each member of the Class are entitled to treble damages of up to $1,500 for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3). 37. Plaintiff and all Class members are also entitled to and do seek injunctive relief prohibiting such conduct violating the TCPA by Defendant and its agents in the future. 38. Plaintiff and Class members are also entitled to an award of attorneys’ fees and costs. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227

lose

22. Sometime before January 25, 2019, Plaintiff is alleged to have incurred certain financial obligations to the Southern California Gas Company, the “original creditor.” 23. These financial obligations were primarily for personal, family or household purposes and are therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5). 24. These alleged obligations were money, property, or their equivalent, which is due or owing, or alleged to be due or owing, from a natural person to another person and are therefore a “debt” as that term is defined by California Civil Code § 1788.2(d), and a “consumer debt” as that term is defined by California Civil Code § 1788.2(f). 25. Sometime thereafter, but before January 25, 2019, Plaintiff allegedly fell behind in the payments allegedly owed on the alleged debt. As it is irrelevant to this action, Plaintiff currently takes no position as to the validity of this alleged debt. 26. Sometime before January 25, 2019, the alleged debt was assigned, placed, or otherwise transferred to Defendant for collection. 27. On or about January 25, 2019, Defendant mailed Plaintiff a dunning letter in the form of a post card, which was not sealed inside an envelope, in attempt to collect the alleged debt. A few days later Plaintiff received that post card. 28. This communication to Plaintiff was a “communication” as that term is defined by 15 U.S.C. § 1692a(2). 43. Plaintiff brings this case as a Class Action pursuant to Fed. R. Civ. P. 23 on behalf of Plaintiff and all others similarly situated. 44. Plaintiff also represents, and is a member of, the following sub-class (the “Sub-Class”) defined as: All persons with addresses within the State of California who Defendant sent a post card collection communication that was substantially similar or identical to the post card sent to Plaintiff, within one (1) year prior to the filing of this Complaint in this action. 44. Plaintiff represents, and is a member of, the following class (the “Class”) defined as: All persons within the United States who Defendant sent a post card collection communication that was substantially similar or identical to the post card sent to Plaintiff, within one (1) year prior to the filing of this Complaint in this action. 45. Plaintiff represents, and is a member of, the Class because Plaintiff received a written communication from Defendant as described above in Defendant’s attempt to collect a debt. 46. Defendant, its employees and agents are excluded from the Class. 47. Plaintiff does not know the number of members in the Class, but believes the Class’ members number 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. 55. Plaintiff repeats, re-alleges, and incorporates by reference, all other paragraphs. 56. The foregoing acts and omissions constitute numerous and multiple violations of the FDCPA, including but not limited to each and every one of the above- cited provisions of the FDCPA, 15 U.S.C. §§ 1692, et seq. 57. As a result of each and every violation of the FDCPA, Plaintiffs and the Class and Sub-Class members are each entitled to any actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); and, reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3) from each Defendant individually. 58. Plaintiff repeats, re-alleges, and incorporates by reference, all other paragraphs. 59. The foregoing acts and omissions constitute numerous and multiple violations of the Rosenthal Act, including but not limited to each and every one of the above-cited provisions of the Rosenthal Act, Cal. Civ. Code §§ 1788, et seq. FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) 15 U.S.C. §§ 1692, ET SEQ. ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT (ROSENTHAL ACT) CAL. CIV. CODE §§ 1788, ET SEQ.

win

10. The alleged debt identified in Exhibit A was incurred for personal, family or household purposes, specifically store credit with Montgomery Ward, an online retailer. http://www.wards.com/custserv/custserv.jsp?pageName=altCreditFull. 11. Exhibit A includes the following text: 13. The primary definition of the word “proceeding” refers to legal action. See, http://www.merriam-webster.com/dictionary/proceeding (“1. legal action <a divorce proceeding>”) 14. In fact, ACS is merely a debt collector, authorized only to use mail and telephone to collect debts. 15. ACS is not an attorney or law firm. 16. ACS is collecting on behalf of its client, Montgomery Ward. See Exhibit A (identifying “Montgomery Ward” as the “Creditor”). 17. Upon information and belief, ACS has no ownership interest in Plaintiff’s or any class member’s alleged debt. 18. ACS has no standing to sue and no ability to represent the creditor in a lawsuit. 19. ACS’s misrepresentation is material misrepresentation because it misleads the unsophisticated consumer about risk of legal action. See Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757-58 (7th Cir. 2009). 20. 15 U.S.C. § 1692e generally prohibits “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 21. 15 U.S.C. § 1692e(5) specifically prohibits: “The threat to take any action that cannot legally be taken or that is not intended to be taken.” 22. 15 U.S.C. § 1692e(10) specifically prohibits the “use of any false representation or deceptive means to collect or attempt to collect any debt.” 24. Exhibit A falsely implies that ACS is authorized to bring a legal action against the consumer. 25. Defendant violated 15 U.S.C. §§ 1692e, 1692e(5) and 1692e(10). 26. Plaintiff brings this action on behalf of a Class, consisting of (a) all natural persons in the State of Wisconsin, (b) who were sent a collection letter in the form represented by Exhibit A, (c) seeking to collect a debt for personal, family or household purposes, (d) on or after April 24, 2013, (e) that was not returned by the postal service. 27. The Class is so numerous that joinder is impracticable. Upon information and belief, there are more than 50 members of the Class. 28. There are questions of law and fact common to the members of the class, which common questions predominate over any questions that affect only individual class members. The predominant common question is whether Exhibit A violates the FDCPA. 29. Plaintiff’s claims are typical of the claims of the Class members. All are based on the same factual and legal theories. 30. Plaintiff will fairly and adequately represent the interests of the Class members. Plaintiff has retained counsel experienced in consumer credit and debt collection abuse cases. 31. A class action is superior to other alternative methods of adjudicating this dispute. Individual cases are not economically feasible. 8. On or about May 10, 2013, ACS mailed a debt collection letter to Plaintiff regarding an alleged debt owed to “MONTGOMERY WARD”. A copy of this letter is attached to this Complaint as Exhibit A. 9. Upon information and belief, Exhibit A is a form letter, generated by computer, and with the information specific to Plaintiff inserted by computer. Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: 14-cv-468

lose

(Failure to Properly Pay Overtime Wages - FLSA - 29 U.S.C. § 207) (Failure to Pay Timely Wages Due - Arizona Wage Statute) 19. Fletcher’s is an Arizona corporation in the business of providing auto repair and service. 20. Upon information and belief, Fletcher’s employs approximately seventy Technicians at its 35 locations throughout Arizona. Their principal business is to provide auto repair and service for the company’s customers. 21. Plaintiff was employed by Fletcher’s as a Technician from on or around December 2, 2015 until on or around June 25, 2016. 22. Plaintiff provided service and auto repair on vehicles brought to Fletcher’s by the company’s customers. 23. During a typical day, Plaintiff would clock-in at the Fletcher’s shop around 8:00 a.m. and would first make sure the shop was set up properly and check the equipment he used to service and repair vehicles. 24. Plaintiff would then go to the office to meet with the manager to get the jobs and repair orders he was to complete that day. 26. Once the problem was diagnosed, Plaintiff would then return to his manager for approval regarding the service or repairs he would be conducting on the vehicle at issue. 27. He would then conduct the service or repair work. 28. Plaintiff was compensated for the time he spent repairing vehicles. He was often not compensated for the time he spent diagnosing problems or otherwise preparing to conduct the actual labor on the vehicle. 29. Plaintiff was paid a flat rate of $23 and eventually $25 during his employment. After completing a service or repair, Plaintiff, as a flat rate Technician, was credited with a certain number of “labor hours” according to the Mitchell Manual, which is an industry time guide that assigns labor hours based upon the manufacturer’s recommendations. The Mitchell Manual estimates the average time it should take to complete any number of automotive services on a wide variety of makes and models of vehicles. 30. For example, if the Mitchell Manual designated repair of a carburetor at two labor hours, Plaintiff would be paid his flat rate for each of the labor hours designated by the Mitchell Manual regardless of the time it actually took him to complete the repair. 31. At the end of the week, Plaintiff’s hours based on the Mitchell Manual were totaled and multiplied by his flat rate to determine his weekly compensation. 32. Plaintiff was not paid a commission. Plaintiff was paid the exact same hourly rate regardless of the amount charged to the customer. 34. Plaintiff routinely worked in excess of forty (40) hours per week as part of his regular schedule as a Technician, many hours for which he was required to work off the clock. 35. Plaintiff typically worked approximately fifty (50) hours per week during his employment at Fletcher’s. 36. During a typical day, Plaintiff would start his work for Fletcher’s at around 8:00 a.m. in the morning. He would survey his equipment and check with management to obtain orders. He would then transport vehicles so that he could work on them according to his schedule. He would then typically end his day around 5:30 p.m. in the evening. He typically worked these hours six days a week. 37. Despite having worked numerous hours of overtime, Plaintiff was not paid proper overtime wages at a rate of one and one-half times his regular rate of pay for hours worked over forty in a work week. 38. Fletcher’s also failed to timely pay Plaintiff all the wages that he was due in violation of the Arizona Wage Statute. 39. Plaintiff’s duties, hours and compensation are indicative of the similarly situated Technicians. 40. Fletcher’s improper policies and compensation practices applied to Plaintiff and all similarly situated Technicians he purports to represent. 42. All the Technicians are uniformly subject to the same unlawful compensation practices that Plaintiff was subject to during his employment at Fletcher’s. 43. Plaintiff brings his claim under the FLSA, 29 U.S.C. § 201 et seq., as a collective action. Plaintiff brings this action on behalf of himself and others similarly situated, properly defined as: All current and former Fletcher’s employees who worked as Technicians and were paid a Flat Rate for Fletcher’s during the Liability Period. 44. Fletcher’s illegal overtime wage practices were widespread with respect to the proposed Class. The failure to pay proper overtime was not the result of random or isolated individual management decisions or practices. 45. Fletcher’s overtime wage practices were routine and consistent. Throughout the Liability Period, employees regularly were not paid the proper overtime wage despite working in excess of forty hours per week. 46. Other Technicians performed the same or similar job duties as Plaintiff. Moreover, these Technicians regularly worked more than forty hours in a workweek. Accordingly, the employees victimized by Fletcher’s unlawful pattern and practices are similarly situated to Plaintiff in terms of employment and pay provisions. 47. Fletcher’s failure to pay overtime compensation at the rates required by the FLSA result from generally applicable policies or practices and do not depend on the personal circumstances of the members of the collective action. Thus, Plaintiff’s experience is typical of the experience of the others employed by Fletcher’s. 49. The state law claims under the Arizona Wage Statute are brought as a class action under Federal Rules of Civil Procedure 23(a) and (b)(3). The Class is defined in paragraph 2 above. 50. Throughout the Liability Period, Fletcher’s has employed a large number of Technicians. The Class is therefore so numerous that joinder of all members is impracticable. Members of the Class can readily be identified from business records maintained by Fletcher’s. 51. Proof of Fletcher’s liability under the Arizona Wage Statute involves factual and legal questions common to the Class. Whether Defendants paid Class members the proper wages due in accordance with A.R.S. §§ 23-351, 23-353, 23-355 is a question common to all Class members. 52. Like Plaintiff, all Class members worked without being paid the statutorily required wages. Plaintiff’s claim is therefore typical of the claims of the Class. 53. Plaintiff has no interest antagonistic to those of other Class members and has retained attorneys who are knowledgeable in wage and hour and class action litigation. The interests of Class members are therefore fairly and adequately protected. 54. This action is maintainable as a class action under Rule 23(b)(3) because questions of law or fact common to the Class predominate over any questions affecting only individual members. 56. Plaintiff’s Arizona Wage Statute claim is easily managed as a class action. The issue of liability is common to all Class members. Although the amount of damages may differ by individual, they are objectively ascertainable and can be easily calculated. 57. Plaintiff incorporates by reference all of the above allegations as though fully set forth herein. 58. Plaintiff was a non-exempt employee entitled to the statutorily mandated overtime pay according to the FLSA. 59. Fletcher’s was an employer pursuant to 29 U.S.C. § 203(d). 60. Fletcher’s failed to comply with 29 U.S.C. § 207 because Plaintiff worked for Fletcher’s in excess of forty hours per week, but Fletcher’s failed to pay Plaintiff for those excess hours at the statutorily required rate of one and one-half times Plaintiff’s regular rate of pay as required by the FLSA. 61. Fletcher’s failure to pay overtime to Plaintiff was willful. Fletcher’s knew Plaintiff was working overtime but failed to properly pay overtime wages. Fletcher’s had no reason to believe its failure to pay overtime was not a violation of the FLSA. 62. Plaintiff is entitled to statutory remedies provided pursuant to 29 U.S.C. § 216(b), including but not limited to liquidated damages and attorneys’ fees. 63. Plaintiff incorporates by reference all of the above allegations as though fully set forth herein. 64. Fletcher’s was aware of its obligation to pay timely wages pursuant to

lose

21. Defendant operates a consumer finance corporate website that connects consumers interested in mortgage and other lending opportunities to commercial lenders. 22. Unfortunately for consumers, Defendant utilized (and continued to utilize) a sophisticated telephone dialing system to call individuals en masse promoting its services. 23. Defendant obtained these telephone numbers (i.e., leads) by purchasing marketing lists containing consumers’ telephone numbers and by capturing numbers used to call or submit web inquiries to Defendant. 24. Unfortunately, in Defendant’s overzealous attempt to market its services, it placed (and continues to place) phone calls to consumers who never provided consent to call and to consumers having no relationship with Defendant. Worse yet, Defendant placed (and continues to place) repeated and unwanted calls to consumers whose phone numbers are listed on the National Do Not Call Registry. Consumers place their phone numbers on the Do Not Call Registry for the express purpose of avoiding unwanted telemarketing calls like those alleged here. 26. Over six years ago on or about June 11, 2008, Plaintiff registered her cellular phone number ending in 6312 with the National Do Not Call Registry. 27. Between April 14, 2015 and April 16, 2015, Plaintiff received three calls on her cellular telephone from the phone number (801) 994-7833. 28. Plaintiff received all calls described above on her cellular telephone assigned a number ending in 6312. 29. Defendant and/or third parties on Defendant’s behalf, placed all the calls described above using an ATDS, as defined by 47 U.S.C. § 227(a)(1) without first obtaining Plaintiff’s prior express written consent. 30. Plaintiff was able to answer two of these calls and interact with the caller’s live representative after being transferred by the dialing system. 31. After Plaintiff answered the first call at 11:29 a.m. on April 15, 2015, Plaintiff was greeted by “Zeina” who proceeded to promote mortgage lending services. 32. Plaintiff asked Zeina which company she was calling from and how the company obtained her phone number, but Zeina refused to tell her. Plaintiff asked Zeina to remove her number from the call list. 55. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(a), (b)(2), and (b)(3) on behalf of herself and the following classes defined as follows (the “Class”): “Robocall Class”: All individuals in the United States who received a call made by or on behalf of Defendant to the individual’s cellular telephone through the use of an automatic telephone dialing system, or pre-recorded voice, or any other device having the capacity to dial numbers without human intervention, from October 16, 2013 to the date the Class is certified, where Defendant’s records fail to indicate prior express written consent from the recipient to make such call. “DNC2 Class”: All individuals in the United States who: (1) received more than one telephone call made by or on behalf of Defendant within a 12- month period; (2) to a telephone number that had been registered with the National Do Not Call Registry for at least 30 days; and (3) for whom Defendant has no record of consent to place such calls. 56. The following individuals are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and its current or former employees, officers, and directors; (3) Plaintiff’s counsel and Defendant’s counsel; (4) persons who properly execute and file a timely request for exclusion from the Class; (5) the legal representatives, successors or assigns of any such excluded persons; and (6) persons whose claims against Defendant have been fully and finally adjudicated 2 “DNC” referenced herein refers to the National Do Not Call Registry, established pursuant to 47 U.S.C. 227(c) and the regulations promulgated by the Federal Communications Commission (“FCC”). 75. Plaintiff re-alleges and incorporates by reference each preceding paragraph as though set forth at length herein. 76. Defendant made unsolicited and unauthorized calls using an ATDS or pre-recorded voice to Plaintiff’s and the Class Members’ cellular telephones for the purpose of marketing products and/or services to Plaintiff and the Plaintiff Class Members. 77. Defendant made the calls without prior express written consent of the Plaintiff and Plaintiff Class Members. 78. The foregoing acts and omissions of Defendant constitutes numerous and multiple violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227, et. seq. 79. As a result of Defendant’s violations of 47 U.S.C. § 227, et. seq., Plaintiff and the Plaintiff Class Members are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 80. Because Defendant had knowledge that Plaintiff and the Plaintiff Class Members did not consent to the receipt of the aforementioned telephone solicitations, the Court should, pursuant to 47 U.S.C. § 227(b)(3)(C), treble the amount of statutory damages recoverable by the Plaintiff and Plaintiff Class Members. 81. Plaintiff and the Plaintiff Class Members are also entitled to and seek injunctive relief prohibiting such conduct in the future. 82. Plaintiff re-alleges and incorporates by reference each preceding paragraph as though set forth at length herein. 83. 47 U.S.C. § 227(c) provides that any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 84. The TCPA’s implementing regulation—47 C.F.R. § 64.1200(c)—provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.” See 47 C.F.R. § 64.1200(c). 85. 47 C.F.R. § 64.1200(e), provides that 47 C.F.R. §§ 64.1200(c) and (d) “are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers to the extent described in the Commission’s Report and Order, CG Docket No. 02-278, FCC 03-153, ‘Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,’” which the Report and Order, in turn, provides as follows: The Commission’s rules provide that companies making telephone solicitations to residential telephone subscribers must comply with time of day restrictions and must institute procedures for maintaining do-not-call lists. For the reasons described above, we conclude that these rules apply to calls made to wireless telephone numbers. We believe that wireless subscribers should be afforded the same protections as wireline subscribers. A. CLASS ALLEGATIONS VIOLATION OF TCPA, 47 U.S.C. § 227 (“Robocall Claim” On behalf of Plaintiff and the Class) VIOLATION OF TCPA, 47 U.S.C. § 227 (“DNC Claim” On behalf of Plaintiff and the Class)

lose

14. Defendant Gutterbrush LLC sells a product called “Gutter Brush” that cleans household gutter systems. 15. As a cheap way to advertise, Defendant repeatedly called thousands of cellular and residential phones at a time using an artificial or prerecorded voice in violation of the TCPA. 16. When the Class members answered their phones or listened to their messages, they heard an artificial or prerecorded voice advertising Defendant’s products. 18. On or about May 9, 2019 at 1:36 p.m., Plaintiff received a call on his cellular phone number ending in 0181 from an unknown telephone phone number (401) 314-9431. 19. When Plaintiff listened to the voice message, he heard a prerecorded message from Defendant advertising Gutterbrush. 20. The prerecorded voice message first said “Hi, my name is Alex from Gutterbrush.” 21. The prerecorded voice message then said it was “offering information about a new profitable product and solution for your customers, you probably haven’t seen it before, it’s called Gutterbrush and it’s the simplest imaginable way of keeping commercial and residential gutters from clogging. It’s really different and it requires no tools, no fasteners to install, easy to maintain and renew and keeps you want more information let me know where to send it, you can call me or text back to this number 401-314-9431, you email me at [email protected] or you can see it at gutterbrush.com… so thanks hope to hear from you and have a great day.” 22. Plaintiff never requested that Defendant contact him in any manner, let alone pursuant to a prerecorded message. 23. Further, Plaintiff never consented to be contacted by Defendant using an artificial or prerecorded voice message. 24. Defendant violated Plaintiff’s statutory rights and his right to privacy. 26. The following people are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its 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 Defendant’s counsel; and (6) the legal representatives, successors, and assigns of any such excluded persons. 27. 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, Defendant placed telephone calls to thousands of consumers who fall into the definition of the Class. Members of the Class can be identified through Defendant’s records. 28. 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 telephone calls. 30. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendant 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. 31. 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: i. Whether Defendant’s conduct violated the TCPA; ii. Whether Defendant’s conduct violated the TCPA willingly and/or knowingly; iii. Whether Defendant used an automatic telephone dialing system to place calls to thousands of cell phones; iv. Whether Defendant used a prerecorded or artificial voice to contact any members of the Class; v. Whether Defendant’s obtained prior written consent prior to contacting any members of the Class; vi. Whether members of the Class are entitled to treble damages based on the knowingness or willfulness of Defendant’s conduct. 33. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 34. Defendant placed calls to Plaintiff’s and the Class members’ cellular and residential telephones without having their prior express consent to do so. 35. The calls were made for the purpose of advertising Defendant’s products. 36. The calls used a prerecorded or artificial voice as proscribed by 47 U.S.C. § 227(b)(1)(A)(iii) and 47 U.S.C. § 227(b)(1)(B). 38. Defendant made the violating calls “willfully” and/or “knowingly” under 47 U.S.C. § 227(b)(3)(C). 39. 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). Telephone Consumer Protection Act Violation of 47 U.S.C. § 227 (On behalf of Plaintiff and the Class)

lose

(FLSA - COLLECTIVE ACTION FOR UNPAID OVERTIME) 13. During relevant times, Fresh Thyme has had a companywide meal break policy that requires all hourly, non-exempt employees, including Plaintiff, to clock out for thirty (30) minutes once the employees have worked five (5) hours per day (hereinafter called "Meal Deduction Policy"). Specifically, the policy states as follows: "2-4. Meal and Break Period: Employees are provided meal and break periods as required by applicable law. Your Manager will provide further details. For employees scheduled more than five (5) hours in one day, the Company policy requires these employees to take a 30-minute unpaid break. This mandatory break must be taken by the beginning of the fifth hour worked. Employees may receive a paid 10-minute break for every four (4) hours worked." 14. Within the past three (3) years preceding the filing of this Complaint, Plaintiff and I ·other similarly situated employees regularly worked over (40) hours per week. Page 3 ofll 15. During all times relevant, Plaintiff and other similarly situated employees were not paid time-and-a-half ("overtime rate") for all hours worked in excess of forty ( 40) resulting in unpaid overtime wages and other wages owed because of Defendant's companywide Meal Deduction Policy and/or practice whereby Defendant requires hourly, non-exempt employees to clock out for thirty (30) minutes by the fifth hour worked. Defendant deducts this time from its hourly< non-exempt employees' compensable time even though employees did/do not receive an uninterrupted meal period in the amount of 30 minutes each shift. 16. During the relevant time period, Defendant applied the same pay practices and policies to all hourly, non-exempt employees, including Plaintiff. 17. During the previous three (3) years preceding this Complaint, Plaintiff and other similarly situated employees were not paid. for all of their compensable hours worked due to the aforementioned Meal Deduction Policy even though employees did not receive an uninterrupted meal period because. they continued to perform substantial job duties on behalf of Defendant even though they were "clocked out" during the purported meal period. 18. Plaintiff was an hourly, non-exempt employee of Defendant as defined in the FLSA because she was paid on an hourly basis during all times relevant. 19. Further, with the exception of employees at the Store Director level and above, Defendant paid their employees on an hourly basis. Defendant also pays its employees on a weekly basis. 20. With the exception of employees at the Store Director level and above, Fresh Thyme hourly, non-exempt employees are only paid for hours worked during the workweek ("Hourly, Non-exempt FT Employees"). Page 4 ofll 21. Plaintiff and other similarly situated employees were not guaranteed a predetermined amount on a weekly basis. 22. Plaintiff and other similarly situated employees' pay were subject to reduction because of variations in the quantity of work performed. 23. Defendant knew or should have been aware that Plaintiff and other similarly situated employees worked in excess of forty ( 40) hours in a workweek, but willfully elected not to compensate them for all hours worked in excess of forty ( 40) during the three (3) years preceding the filing of this Complaint because of the preceding policies. 24. Defendant's failure to pay Plaintiff and similarly situated employees for all hours worked because of the preceding policies described above resulted in unpaid wages, including . overtime wages, liquidated damages, costs, and attorneys' fees. 25. Plaintiff brings her FLSA claims pursuant to 29 U.S.C. § 216(b) as a representative action on behalf of herself and all other Similarly Situated Persons ("SSPs") of the opt-in class, consisting of: All current and former hourly employees of Defendant who worked over 40 hours in any workweek and were not fully compensated for all hours worked because they were unable to take an uninterrupted meal break of thirty (30) minutes for the period beginning three (3) years immediately preceding the filing of this Complaint (the "§216(b) Class" or the "§216(b) Collective Members"). 26. This FLSA claim is brought as an "opt-in" collective action pursuant to 29 U.S.C. §216(b) as to claims for overtime compensation, compensation withheld in violation of the FLSA, liquidated damages and attorneys' fees under the FLSA. In addition to Plaintiff, numerous putative §216(b) Collective Class Members have been denied proper overtime wages due to Defendant's Page 5 ofll company-wide payroll policies and practices. Plaintiff is representative of those other similarly situated employees and is acting on behalf of her interests as well as their own in bringing this action. 27. These FLSA claims are brought as an "opt-in" collective action pursuant to 29 U.S.C. §216(b) as to claims for overtime compensation, compensation withheld in violation of the FLSA, liquidated damages and attorneys' fees under the FLSA. In addition to Plaintiff, numerous putative §216(b) Collective Class Members have been denied proper overtime wages due to Defendant's companywide payroll policies and practices. Plaintiff is representative of herself and those other similarly situated employees with respect to the §216(b) Class. 28. The identity of the putative §216(b) Collective Class Members are known to Defendant and are readily identifiable through Defendant's payroll records. These individuals may readily be notified ofthis action and allowed to opt into it pursuant to 29 U.S.C. §216(b), for the purpose of collectively adjudicating their claims for overtime wages, liquidated damages, attorneys' fees and costs under the FLSA. 29. The net effect of Defendant's policies and practices is that Defendant willfully failed to pay overtime wages and maintain proper recordkeeping. Thus, Defendant enjoyed substantial ill-gained profits at the expense of the Plaintiff and the §216(b) Class Members. V. 30. All of the preceding paragraphs are realleged as if fully rewritten herein. 32. During the three (3) years preceding the filing of this Complaint, Defendant employed the Plaintiff and the § 216(b) Collective Members. 33. Plaintiff and the§ 216(b) Collective Members were paid on an hourly basis. 34. Plaintiff and the § 216(b) Collective Members primarily performed non-exempt job duties. 35. Plaintiff and the § 216(b) Collective Members worked in excess of 40 hours in a workweek. 36. The FLSA requires that non-exempt employees receive overtime compensation for hours worked in excess of forty (40) per week. See 29 U.S.C. § 207(a)(l). 37. Plaintiff and the § 216(b) Collective Members were not exempt from receiving FLSA overtime benefits because, inter alia, they were not "executive," "administrative," or . "professional" employees, as those terms are defined under the FLSA. See 29 C.F .R. § § 541.1, et seq. 38. Plaintiff and the § 216(b) Collective Members were not exempt from receiving FLSA overtime benefits because, inter alia, they were not a "learned professional" employee, as that term is defined under the FLSA. See 29 CFR § 541.301. 39. Plaintiff and the§ 216(b) Collective Members worked in excess of forty (40) hours per week during the three (3) years preceding the filing date of this lawsuit. 40. Plaintiff and the § 216(b) Collective Class Members should have been paid the overtime premium for all hours worked in excess of forty ( 40) hours per workweek. 42. Accordingly, Defendant knew or should have known of the overtime payment requirements of the FLSA. Despite such knowledge, Defendant willfully withheld and failed to pay the overtime compensation to which Plaintiff and the § 216(b) Collective Members are entitled. 43. The exact total amount of compensation, including overtime compensation, that Defendant has failed to pay Plaintiff and the § 216(b) Collective Members is unknown at this time, as many of the records necessary to make such precise calculations are in the possession of Defendant or were not kept by Defendant. 44. As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and continues to suffer damages in an amount not presently ascertainable. In addition, Plaintiff seeks liquidated damages, interest and attorneys' fees, and all other remedies available, as result of Defendant's willful failure and refusal to pay overtime wages. VI. A. 216(b) Collective Action for Unpaid Overtime and Other Wages.

win

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 29 U.S.C. § 201 Brief description of cause: Putative FLSA collective action alleging failure to pay overtime wages.

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 20. Defendant is a subscription box company, and owns and operates the website, www.cratejoy.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 21. Defendant operates and distributes its products throughout the United States, including New York. 22. Defendant offers the commercial website, www.cratejoy.com, to the public. The website offers features which should allow all consumers to access the goods and services whereby Defendant allows for the delivery of those ordered goods to consumers throughout the United States, including New York State. The goods and services offered by Defendant include, but are not limited to the following: the ability to browse subscription boxes for purchase and delivery, view new arrivals, obtain defendant’s contact information, and related goods and services available online. 24. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 25. During Plaintiff’s visits to the Website, the last occurring in March 2021, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods and services of the Website. 26. While attempting to navigate the Website, Plaintiff encountered multiple accessibility barriers for blind or visually-impaired people that include, but are not limited to, the following: 28. Empty Links That Contain No Text causing the function or purpose of the link to not be presented to the user. This can introduce confusion for keyboard and screen- reader users; 29. Redundant Links where adjacent links go to the same URL address which results in additional navigation and repetition for keyboard and screen-reader users; and 30. Linked Images Missing Alt-text, which causes problems if an image within a link contains no text and that image does not provide alt-text. A screen reader then has no content to present the user as to the function of the link, including information contained in PDFs. 32. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and in the future. 33. These access barriers on Defendant’s Website have deterred Plaintiff from learning about those various subscription boxes for purchase and delivery, and enjoying them equal to sighted individuals because: Plaintiff was unable to determine and or purchase items from its Website, among other things. 34. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 35. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 37. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 38. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 40. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, shop for and otherwise research related goods and services available via the Website. 41. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 42. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 44. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 45. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of those services, during the relevant statutory period. 46. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 48. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 49. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 50. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 52. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 53. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 54. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 55. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 56. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 58. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 59. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 60. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 62. Defendant’s Website and its’ sale of goods to the general public, constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. 63. Defendant is subject to New York Human Rights Law because it owns and operates its Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 64. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, services that Defendant makes available to the non-disabled public. 65. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 67. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 68. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 69. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 71. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 72. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 73. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 74. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 75. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 76. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 78. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 79. Defendant’s Website is a service, privilege or advantage of Defendant and its Website which offers such goods and services to the general public is required to be equally accessible to all. 80. Defendant is subject to New York Civil Rights Law because it owns and operates their Website, and Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 81. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 83. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 84. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 85. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 86. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 87. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 89. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 90. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 91. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 92. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 94. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 95. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 96. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 97. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 98. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 99. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

lose

16. Plaintiffs bring claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt employees (including tile installers, tile installer helpers, drivers, laborers) employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 17. At all relevant times, Plaintiffs and the other FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants’ decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay them the proper overtime premium at the rate of one and one half times the regular rate for work in excess of forty (40) hours per workweek. The claims of Plaintiffs stated herein are essentially the same as those of the other FLSA Collective Plaintiffs. 18. The claims for relief are properly brought under and maintained as an opt-in collective action pursuant to §16(b) of the FLSA, 29 U.S.C. 216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action, their names and addresses are readily available from the Defendants. Notice can be provided to the FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 24. Defendants knowingly and willfully operated their business with a policy of not paying Plaintiffs the New York State overtime rate (of time and one-half). 25. Defendants knowingly and willfully operated their business with a policy of not providing a proper wage notice to Plaintiffs and other non-exempt employees at the beginning of employment and annually thereafter, in violation of the New York Labor Law. 26. When Defendants became aware Plaintiffs were contemplating to bring FLSA and New York Labor Law claims Defendants retaliated against the Plaintiffs to avoid this litigation by asking Immigration authorities to investigate Defendants immigration status and get them deported. 27. Plaintiffs retained Lee Litigation Group, PLLC to represent Plaintiffs, FLSA Collective Plaintiffs and Class members, in this litigation and has agreed to pay the firm a reasonable fee for its services. 38. Plaintiffs reallege and reaver Paragraphs 1 through 37 of collective action Complaint as if fully set forth herein. 39. At all relevant times, Plaintiffs were employed by the Defendants within the meaning of the New York Labor Law, §§2 and 651. 40. Defendants willfully violated Plaintiffs’ rights by failing to pay them overtime compensation at the rate of not less than one and one-half times the regular rate of pay for each hour worked in excess of forty hours in a workweek. 41. Defendants failed to properly notify employees of their hourly pay rate and overtime rate, in direct violation of the New York Labor Law. 42. Defendants failed to provide a proper wage and hour notice, at the date of hiring and annually, to all non-exempt employees per requirements of the New York Labor Law. 44. Defendants willfully violated Plaintiffs’ rights by paying them on a salary basis, in violation of the New York Labor Law because Plaintiffs are non-exempt employees who must be paid on an hourly basis. 45. Due to the Defendants’ New York Labor Law violations, Plaintiffs are entitled to recover from Defendants their unpaid overtime, reasonable attorneys’ fees, liquidated damages, retaliation damages, statutory penalties and costs and disbursements of the action, pursuant to New York Labor Law. VIOLATION OF THE NEW YORK LABOR LAW ON BEHALF OF PLAINTIFFS

win

(Collective Action Claim for Violation of the FLSA) (Individual Claim for Violation of the FLSA) 11. Plaintiff Sidney Mclendon brings this claim for relief for violation of the FlSA as a collective action pursuant to Section 16(b) of the FlSA, 29 U.S.C. § 216(b), on behalf of all similarly situated Expert and/or Senior Field Technicians who were or are employed by Defendant and were not paid overtime premiums at any time within the applicable statute of limitations period. 12. Plaintiff is unable to state the exact number of the class. Defendant can readily identify the members of the class, who are a certain portion of the current and former employees of Defendant. 14. The email addresses of many of the probable FLSA collective action Plaintiffs are available from Defendant, and notice should be provided to the probable FLSA collective action Plaintiffs via email to their last known email address as soon as possible. 15. Oilfield workers are by definition not at their residences as frequently as many other working-class Americans. As such, they rely on email just as much or more so than typical wage earners, who themselves live their lives with a growing dependence upon email as opposed to traditional U.S. Mail. 16. The proposed FLSA class members are similarly situated in that they have been subject to uniform practices by Defendants which violated the FLSA, including Defendants' failure to pay members of the class lawful overtime compensation in violation of the FLSA, 29 U.S.C. § 201 et seq. 17. Because these employees are similarly situated to Plaintiff, and are owed overtime for the same reasons, the opt-in class is properly defined as: All persons employed by Defendant as Senior Field Technicians or Expert Field Technicians at any time since December 9, 2012. 18. Plaintiff repeats and re-alleges all the preceding paragraphs of this Original Complaint as if fully set forth in this section. 19. Plaintiff was an employee of Defendant within the last three years. 21. Defendant has an annual gross volume of sales made or business done of not less than $500,000.00. In addition, at all times hereinafter mentioned, Plaintiff was engaged in commerce as required by 29 U.S.C. §§ 206-207. 22. From January of 2015 until November of 2015, Sidney Mclendon was employed by Defendant as an Expert Field Technician and was paid a salary plus a non- discretionary bonus, but did not receive overtime compensation for all hours worked in excess of forty (40) in a workweek. 23. Throughout 2013 and 2014, Plaintiff was employed by Defendant as a Senior Field Technician and was paid a salary plus a non-discretionary bonus, but he did not receive overtime compensation for all hours worked in excess of forty (40) in a workweek. 24. Plaintiff routinely worked in excess of forty hours per week. 25. During Plaintiff's employment as a Senior and/or Expert Field Technician, Defendant paid all such employees a salary, and also paid them a non-discretionary bonus, which it referred to as the "Job Bonus Assignment" or "JBA" Bonus. 26. The JBA Bonus was a percentage of the total amount collected by Defendant on the projects worked on by Plaintiff and other Senior and/or Expert Field Technicians. 27. Defendant violated the FLSA by failing to pay Plaintiff and similarly situated Senior and/or Expert Field Technicians overtime premiums for all hours worked in excess of forty (40) per week. 29. Plaintiff and other Senior and/or Expert Field Technicians were not required to have any special education or specialized knowledge to perform his job. 30. Defendant's Senior and/or Expert Field Technicians, including Plaintiff, were required to be physically fit and strong enough to perform the manual labor required by their primary job duties. 31. Defendant's Senior and/or Expert Field Technicians, including Plaintiff, did not supervise other employees. 32. Plaintiff and the other Senior and/or Expert Field Technicians were and are entitled to 1.5 times their regular rate of pay for hours worked in excess of 40 in a week. 33. Defendant knew, or showed reckless disregard for whether, the way it paid Plaintiff and its other Senior and/or Expert Field Technicians violated the FLSA. 34. Defendant's Senior and/or Expert Field Technicians routinely use hard hats, drilling equipment, lubricators, blow-out preventers, wrenches, and other tools, in performing their job duties. Thus its employees used, handled, sold, and/or worked on, goods or materials that were produced for or traveled in interstate commerce. 36. Plaintiff Sidney Mclendon brings this collective action on behalf of all similarly situated persons who were or are employed by Defendant as Senior and/or Expert Field Technicians at any time within the applicable statute of limitations period and were not paid overtime premiums for all hours worked in excess of forty (40) per week. 37. Plaintiff and all other similarly situated Senior and/or Expert Field Technicians were non-exempt employees entitled to overtime premiums for all hours worked in excess of forty (40) hours per week. 38. Plaintiff and other Senior and/or Expert Field Technicians regularly worked more than 40 hours per week. 39. Defendant failed to pay these workers overtime. Instead, Defendant paid (and pays) Plaintiff and all similarly situated employees a salary plus non-discretionary bonuses. 40. By reason of the unlawful acts alleged herein, Defendant is liable to Plaintiff and all those similarly situated for monetary damages, liquidated damages, and costs, including attorney's fees, for all violations that occurred in the three years prior to the filing of this Complaint. 41. Plaintiff repeats and re-alleges all previous paragraphs of this Original Complaint as though fully incorporated herein. 43. Defendant is liable to Sidney Mclendon individually for the violations described in the class claim section, above. 44. Additionally, Plaintiff is entitled to an amount equal to his unpaid wages as liquidated damages, as well as reasonable attorney's fees and the costs of this action.

lose

19. Pursuant to 29 U.S.C. §§ 207 & 216(b), Plaintiffs bring their First Cause of Action as a collective action under the FLSA on behalf of themselves and the following collective: All persons employed by Defendants at any time since October 13, 2012 and through the entry of judgment in this case (the “Collective Action Period”) who worked as construction laborers (the “Collective Action Members”). 20. A collective action is appropriate in this circumstance because Plaintiffs and the Collective Action Members are similarly situated, in that they were all subjected to Defendants’ illegal policy of failing to pay overtime premiums for work performed in excess of forty (40) hours each week. As a result of this policy, Plaintiffs and the Collective Action Members did not receive legally-required overtime premium payments for all hours worked in excess of forty (40) hours per week. 21. Plaintiffs and the Collective Action Members have substantially similar job duties and are paid pursuant to a similar, if not the same, payment structure. 22. Pursuant to the NYLL, Plaintiffs bring their Second through Fourth Causes of Action under Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and the following class: All persons employed by Defendants in New York at any time since October 13, 2009 and through the entry of judgment in this case (the “Class Period”) who worked as construction laborers (the “Class Members”). 23. 24. The Class Members are so numerous that joinder of all members is impracticable. 25. Upon information and belief, there are in excess of forty (40) Class Members. 27. The answer to these questions would drive resolution of the litigation. If a judge and/or jury agrees with Plaintiff on these issues, Defendants would be liable to all Class Members for their NYLL wage and hour violations. 28. Plaintiffs’ claims are typical of the Class Members’ claims. Plaintiffs, like all Class Members, are construction employees of Defendants who worked for Defendants pursuant to their corporate policies. Plaintiffs, like all Class Members, were, inter alia, not paid overtime premium pay for hours worked over forty (40) hours in a given workweek and did not receive proper wage statements and wage notices. If Defendants are liable to Plaintiffs for the claims enumerated in this Complaint, they are also liable to all Class Members. 29. Plaintiffs and their Counsel will fairly and adequately represent the Class. There are no conflicts between Plaintiffs and the Class Members, 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. 30. Plaintiffs’ counsel are experienced class action litigators who are well-prepared to represent the interests of the Class Members. 32. At all relevant times, Defendants Rovini Construction and Rovini Concrete have been in the construction contracting and concrete businesses, respectively. Upon information and belief, Defendants currently own, operate and manage construction contracting and concrete pouring companies with their principal offices located at 310 Nassau Avenue, Brooklyn, New York 11222. 33. According to the New York State Department of State Division of Corporations filings, Defendant R. Zollo is listed as the Chief Executive Officer of Rovini Construction. Defendant R. Zollo is also listed as the DOS Process contact in the corporate filings for Rovini Concrete. 34. Upon information and belief, the Corporate Defendants operate together as a single integrated business enterprise with shared ownership, management, employees, policies, and employment practices. Plaintiffs’ Work for Defendants 35. Plaintiff Figueroa was employed by Defendants as a laborer from in or around October 2014 through in or around August 2, 2015 (the “Figueroa Employment Period”). 36. Plaintiff Figueroa’s duties included pumping and pouring concrete and installing metal or wood reinforcing bars to strengthen and hold concrete inside walls. Throughout the Figueroa Employment Period, Plaintiff Figueroa typically performed work at building sites located at 42nd Street and 9th Avenue and 43rd Street and 10th Avenue. 38. Throughout the Figueroa Employment Period, Plaintiff Figueroa was paid eighteen dollars ($18.00) per hour. 39. On one occasion in or around October 2014, Plaintiff Figueroa recorded a conversation between himself and “Alan,” his supervisor, during which he asked Alan why he appeared to be getting paid for forty eight and one-half (48.5) hours when he had worked fifty- three (53) hours that week. Alan responded by explaining that he was getting the eight-and-a-half (8.5) hours of overtime at his “hourly rate.” 40. During another recorded conversation between Alan and Plaintiff Figueroa, Plaintiff Figueroa asked Alan when he could expect to receive twenty-seven dollars and fifty cents ($27.50) for overtime hours instead of his regular hourly rate of eighteen dollars ($18.00) per hour. Alan responded by telling Figueroa, “you’re always getting $18.00 per hour.” When Figueroa asked if that included hours worked in excess of forty (40), Alan said “yes.” Alan then went on to say, as an example, that “if you work 14 hours [overtime], that’s still 14 [hours] at $18.00 per hour.” When Figueroa asked whether he was always going to be paid straight time for all hours worked, Alan informed him that “they’re supposed to tell you that from day one.” When Figueroa asked if he would continue to get paid eighteen dollars ($18.00) per hour for hours worked over forty (40) in a week even if he went to a different job site, Alan confirmed that “any job for me, it’s all the same.” When Figueroa asked Alan whether he meant that Figueroa would be paid $18.00 per hour for all hours worked at any job site, Alan replied, “yeah.” 42. Plaintiff Jordan’s duties included pouring cement, breaking down re-shores and performing various cleanup tasks around building sites. Throughout the Jordan Employment Period, Plaintiff Jordan typically worked on a building located at 43rd Street and 10th Avenue. In or around early late June or early July 2015, Plaintiff Jordan began performing work on a hotel building site located at 577 9th Avenue, New York, NY 10036. 43. Throughout the Jordan Employment Period, Plaintiff Jordan typically worked six (6) days per week from between 6:30 am and 6:45 am to between approximately 6:00 pm and 7:00 pm, and sometimes later for a total of approximately fifty to fifty-five (50-55) hours per week. Approximately two to three (2-3) times per week, a labor foreman, Ethos Rivera (“Rivera”), would instruct Plaintiff Jordan the night before to arrive at the job site early the next day. Whenever Rivera required Jordan to be at job site early, he typically arrived between 4:30 am and 5:00 am. 44. Throughout the Jordan Employment Period, Plaintiff Jordan was paid eighteen dollars ($18.00) per hour. 45. Plaintiff Leggett was employed by Defendants as a laborer from in or around September 2014 through in or around February 2015 (the “Leggett Employment Period”). Throughout the Leggett Employment Period, Plaintiff Leggett typically performed work at a building site located at 43rd Street and 11th Avenue. 46. Throughout the Leggett Employment Period, Plaintiff Leggett typically worked a six (6) days per week from 6:00 am to approximately 4:30 pm, and sometimes later, for a total of approximately fifty-four to sixty (54-60) hours per week. 48. Plaintiff Gray was employed by Defendants as a laborer from in or around October 2014 through in or around July 31, 2015 (the “Gray Employment Period”). 49. Plaintiff Gray’s duties included pouring concrete, carrying construction equipment and tools from one location to another, filling the dumpster with debris and scraps, cleaning, and performing various tasks related to bar reassuring. Throughout the Gray Employment Period, Plaintiff Gray often performed work on a building site located at 42nd Street and 9th Avenue. 50. Throughout the Gray Employment Period, Plaintiff Gray typically worked five (5) or six (6) days a week from approximately 6:30 am or 6:45 am to between approximately 3:30 pm and 3:45 pm, and sometimes as late as 5:30 pm a total of forty-five to fifty (45-50) hours per week. 51. Throughout the Gray Employment Period, Plaintiff Gray was paid eighteen dollars ($18.00) per hour. 52. Plaintiff Parrilla was employed by Defendants as a laborer from in or around February 2014 through in or around July 2015 (the “Parrilla Employment Period”). 53. Plaintiff Parrilla’s duties included pouring concrete, cleaning, installing metal or wood forms inside walls, collecting garbage and debris and placing safety rails around the building site. Throughout the Parrilla Employment Period, Plaintiff Parrilla often performed work at building sites located at 43rd Street and 10th Avenue and 42nd Street and 9th Avenue. 55. Throughout the Parrilla Employment Period, Plaintiff Parrilla was paid eighteen dollars ($18.00) per hour. 56. Although Plaintiffs appeared to have received overtime pay at one and one-half (1.5) times their regular rate for certain hours that they worked in excess of forty (40), there were typically several hours “missing” from their payment each week such that they did not receive overtime premium pay for all hours worked in excess of forty (40) in a given workweek. Upon information and belief, Defendants deliberately decreased the number of hours on Plaintiffs’ pay stubs such that the gross amount resulted in straight time for all hours that they worked. 57. Upon information and belief, “Alan,” Ethos Rivera, “Gino” and “Freddy” typically directed and supervised Plaintiffs’ work. Upon information and belief, Defendant Zollo is in constant contact with “Alan,” Rivera, “Gino,” “Freddy” and other supervisors and foremen to ensure that the company is operating in accordance with her standards and policies. 58. Upon information and belief, BRF Construction Corp. (“BRF”), Hudson Meridian Construction Group (“Hudson Meridian”) and “New Millennium” were general contractors of certain projects on which Plaintiffs worked. Upon information and belief, BRF subcontracted Rovini Concrete to provide labor for a hotel development site located at 577 9th Avenue, a building located at 42nd Street and 9th Avenue, and other construction projects. Upon information and belief Hudson Meridian subcontracted Rovini Concrete to provide labor for a building located at 43rd Street and 11th Avenue. 60. Upon information and belief, Defendants would typically pay undocumented workers entirely in cash by splitting a check between as many as eight to ten (8-10) workers. 61. Plaintiffs did not receive proper wage statements with their wage payments including an accurate breakdown of their hours into regular and overtime hours. Defendants’ failure to provide Plaintiffs with proper wage statements was a corporate policy which applied to all Class Members. 62. Defendants failed to provide Plaintiffs with a wage notice at the date of their hiring or by February 1 of each year. Defendants’ failure to provide proper wage notice and wage statements was a corporate policy which applied to all Plaintiffs and Class Members. 63. Plaintiffs and the Class Members were all paid pursuant to the same corporate policies of Defendants, including failing to pay overtime premiums and failing to provide proper wage notice and wage statements. 65. Plaintiffs, on behalf of themselves and the Collective Action Members, repeat and reallege each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 66. By failing to pay overtime at a rate not less than one and one-half (1.5) times the regular rate of pay for work performed in excess of forty (40) hours per week, Defendants have violated and continue to violate the FLSA, 29 U.S.C. §§ 201 et seq., including 29 U.S.C. §§ 207(a)(1) and 215(a)(2). 67. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a). 68. Defendants’ failure to pay overtime caused Plaintiffs and the Collective Action Members to suffer loss of wages and interest thereon. Plaintiffs and the Collective Action Members are entitled to recover from Defendants their unpaid overtime premium compensation, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees, and costs and disbursements of the action pursuant to 29 U.S.C. § 216(b). 69. Plaintiffs, on behalf of themselves and the Class Members, repeat and reallege each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 71. Defendants’ failure to pay overtime premium compensation caused Plaintiffs and the Class Members to suffer loss of wages and interest thereon. Plaintiffs and the Class Members are entitled to recover from Defendants their unpaid overtime compensation, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees, and costs and disbursements of the action pursuant to NYLL §§ 663(1) et seq. 72. Plaintiffs, on behalf of themselves and the Class Members, repeat and reallege each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 73. At all relevant times, Defendants employed and/or continue to employ Plaintiffs and each Class Member within the meaning of the NYLL, §§ 2 and 651. 75. Due to Defendants’ violations of the NYLL, Plaintiffs and the Class Members are entitled to recover from Defendants fifty dollars ($50.00) per employee for each workweek that the violations occurred or continue to occur, or a total of twenty-five hundred dollars ($2,500.00) per employee, as provided for by NYLL, Article 6, §§ 190 et seq., reasonable attorneys’ fees, costs, pre-judgment and post-judgment interest, and injunctive and declaratory relief. 76. Plaintiffs, on behalf of themselves and the Class Members, repeat and reallege each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 77. Defendants have willfully failed to supply Plaintiffs and the Class Members with an accurate statement of wages as required by NYLL, Article 6, § 195, containing the hourly rate or rates of pay and overtime rate or rates of pay, if applicable, and the number of overtime hours worked. 78. Due to Defendants’ violations of the NYLL, Plaintiffs and the Class Members are entitled to recover from Defendants one hundred dollars ($100) per employee for each workweek that the violations occurred or continue to occur, up to a maximum of twenty-five hundred dollars ($2,500) per employee, as provided for by NYLL, Article 6, §§ 190 et seq., liquidated damages as provided for by the NYLL, reasonable attorneys’ fees, costs, pre-judgment and post- judgment interest, and injunctive and declaratory relief. Defendants’ Company FAIR LABOR STANDARDS ACT – UNPAID OVERTIME NEW YORK LABOR LAW – UNPAID OVERTIME NEW YORK LABOR LAW – WAGE NOTICE VIOLATIONS NEW YORK LABOR LAW – WAGE STATEMENT VIOLATIONS

win

14. Defendants are each a “person” as the term is defined by 47 U.S.C. § 153(39). 15. At no point has Plaintiff Batista sought out or solicited information regarding either Defendant’s products or services. 16. Plaintiff Batista’s telephone number, XXX-XXX-9165, is registered to a cellular telephone service. 18. During all three calls, the Plaintiff answered the same series of prerecorded questions before being transferred to a live agent promoting medical alert devices. 19. During the December 3 and 4 calls, the Plaintiff requested to be added to Crisp Marketing’s internal do not call list. 20. During the December 8 call, the Plaintiff feigned further interest until the live agent identified MobileHelp as the seller of the products being promoted during the calls. 21. The calls were not necessitated by an emergency. 22. Plaintiff and all members of the Class, defined below, have been harmed by the acts of Defendants because their privacy has been violated, they were annoyed and harassed, and, in some instances, they were charged for incoming calls. Plaintiff and the Class Members were also harmed by use of their cell phone battery and the intrusion on their cellular telephone that occupied it from receiving legitimate communications. MobileHelp’s Liability for Crisp Marketing’s Conduct 24. 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 FCC Rcd at 6586 (¶ 34). 25. 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. Finally, a seller would be responsible under the TCPA for the unauthorized conduct of a third-party telemarketer that is otherwise authorized to market on the seller’s behalf if the seller knew (or reasonably should have known) that the telemarketer was violating the TCPA on the seller’s behalf and the seller failed to take effective steps within its power to force the telemarketer to cease that conduct. 28 CC Rcd at 6592 (¶ 46). 26. The FCC has explained for over 25 years that its “rules generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations.” See In re Rules & Regulations Implementing the TCPA, CC Docket No. 92-90, Memorandum Opinion and Order, 10 FCC Rcd 12391, 12397 (¶ 13) (1995). 26. MobileHelp is legally responsible for ensuring that Crisp Marketing complied with the TCPA, even if MobileHelp did not itself make the calls. 28. Furthermore, MobileHelp accepted the business from illegal calls from Crisp Marketing, even while Crisp Marketing was being sued in another TCPA lawsuit for its calling conduct. 29. Moreover, MobileHelp maintained interim control over Consumer Crisp Marketing’s actions by dictating the parameters of the types of customers that they would accept. 30. Finally, 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 6592-593 (¶ 46). Moreover, evidence of circumstances pointing to apparent authority on behalf of the telemarketer “should be 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). 31. Plaintiff brings this action on behalf of herself and the following classes (the “Class”) pursuant to Federal Rule of Civil Procedure 23. 32. Plaintiff proposes the following Class definition, subject to amendment as appropriate: Pre-Record Call Class: All persons in the United States who, within four years prior to the commencement of this litigation until the class is certified, received one or more pre-recorded calls on their cellular telephone from or on behalf of Crisp Marketing concerning MobileHelp’s products or services. 34. Excluded from the Class are counsel, the Defendants, and any entities in which either Defendant has a controlling interest, the Defendants’ agents and employees, any judge to whom this action is assigned, and any member of such judge’s staff and immediate family. 35. Plaintiff and all members of the Class have been harmed by the acts of the Defendants, including, but not limited to, the invasion of their privacy, annoyance, waste of time, the use of their cell phone battery, and the intrusion on their cellular telephone that occupied it from receiving legitimate communications. 36. This Class Action Complaint seeks injunctive relief and money damages. 37. The Class as defined above is identifiable through the Crisp Marketing’s dialer records, other phone records, and phone number databases. 38. Plaintiff does not know the exact number of members in the Class, but Plaintiff reasonably believes Class members number, at minimum, in the hundreds. 39. The joinder of all Class members is impracticable due to the size and relatively modest value of each individual claim. 40. Additionally, 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. 41. There are well defined, nearly identical, questions of law and fact affecting all parties. The questions of law and fact, referred to above, involving the class claims predominate over questions which may affect individual Class members. 43. Further, Plaintiff will fairly and adequately represent and protect the interests of the Classes. Plaintiff has no interests which are antagonistic to any member of the Classes. 44. Plaintiff has retained counsel with substantial experience in prosecuting complex litigation and class actions, and especially TCPA class actions. Plaintiff and her counsel are committed to vigorously prosecuting this action on behalf of the other members of the Classes, and have the financial resources to do so. 45. Common questions of law and fact predominate over questions affecting only individual class members, and a class action is the superior method for fair and efficient adjudication of the controversy. The only individual question concerns identification of class members, which will be ascertainable from records maintained by Defendant and/or its agents. 46. The likelihood that individual members of the Classes will prosecute separate actions is remote due to the time and expense necessary to prosecute an individual case. 47. Plaintiff is not aware of any litigation concerning this controversy already commenced by others who meet the criteria for class membership described above. 49. Defendants violated the TCPA by sending, or causing to be sent via an agent, artificial or prerecorded voice messages to the cellular telephones of Plaintiff and members of the Prerecorded Call Class without their prior express written consent. 50. The Plaintiff and Prerecorded Call Class Members are entitled to an award of $500 in statutory damages per telephone call. 51. The Plaintiff and Prerecorded Call Class Members are entitled to an award of treble damages if the Defendants’ actions are found to have been knowing or willful. 52. Plaintiff and Prerecorded Call Class members are also entitled to and do seek injunctive relief prohibiting the Defendant from advertising their goods or services, except for emergency purposes, using an artificial or pre-recorded voice in the future. Violation of the Telephone Consumer Protection Act (47 U.S.C. 227, et seq.) on behalf of Prerecorded Call Class

win

13. 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. 14. Some time prior to July 2, 2019, an obligation was allegedly incurred to SYNCHRONY 30. The identities of all class members are readily ascertainable from the records of Defendant and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 31. Excluded from the Plaintiff Class are the Defendant and all officers, members, partners, managers, directors, and employees of the Defendant and their respective immediate families, and legal counsel for all parties to this action and all members of their immediate families. 33. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. 34. 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 Plaintiff’s attorneys have any interests, which might cause them not to vigorously pursue this action. 35. Plaintiff brings claims, pursuant to the Federal Rules of Civil Procedure (hereinafter “FRCP”) Rule 23, individually and on behalf of the following consumer class: (a) all individuals with addresses in the state of Virginia (b) who were sent collection letters from Defendant attempting to collect an alleged consumer debt on behalf of Midland Funding, LLC (d) which offered the consumer three payment options, (e) and referred to such payment options as a “discount program” (f) which was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action. 36. 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. 38. 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. 39. 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. 40. Pursuant to 15 U.S.C. §1692e, a debt collector is prohibited from using false, deceptive, or misleading representation in connection with the collection of a debt. 41. The Defendant violated said section by: a. Falsely representing the character, amount, and legal status of the alleged debt in violation of 1692e(2); b. Making false or deceptive representation in connection with the collection of a debt in violation of 1692e(10). 42. 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. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq.

lose

26. Plaintiffs and other similarly situated employees (putative class members) were and/or are employees of the Defendant. 27. Plaintiffs are Monitoring Technicians or Demil Technicians or other similar non-exempt hourly-paid employees for the Defendant. 28. Plaintiffs and other similarly situated employees (putative class members) conduct air Monitoring for chemical agents in order to protect the workforce and general public; as well as conduct environmental air monitoring. 29. Plaintiffs and other similarly situated employees (putative class members) conduct the startup, operation, and maintenance of agent Monitoring systems and/or instrumentation (e.g., MINICAMS and DAAMS). 31. Plaintiffs and other similarly situated employees (putative class members) respond to alarms and malfunctions within the facility as required. 32. Plaintiffs and other similarly situated employees (putative class members), among other duties also properly dispose hazardous waste generated in accordance with PCAPP procedure (Laboratory Waste Management Plan). 33. Plaintiffs and other similarly situated employees (putative class members) also perform ancillary tasks in order to support Monitoring and plant operations. 34. Plaintiffs and other similarly situated employees (putative class members) were and/or are contractual parties with the Defendant being employer and Plaintiffs and putative class members being employees. 35. Plaintiffs and other similarly situated employees (putative class members) were employed by the Defendant pursuant to a written and/or an oral contract. 36. Defendant expressly agreed, orally and/or in writing, to pay Plaintiffs and other similarly situated employees (putative class members) a specific amount of compensation for each hour worked. 38. Plaintiffs and other similarly situated employees (putative class members) were required to be actively on-call during their meal periods, and often required to respond to calls and perform other work during their meal periods, and in fact, the Plaintiffs and other similarly situated employees rarely, if ever, received an uninterrupted 30 minute meal break. 39. Defendant failed to pay regular non-overtime wages and other compensation to the Representative Plaintiffs and members of the proposed Classes for hours worked during their meal periods by automatically deducting 30 minutes of time for the meal periods for each workday. 40. Defendant failed to pay overtime wages to the Representative Plaintiffs and members of the proposed Classes for the work performed during their meal periods hours when the total hours worked exceeded 40 hours in a work week, by automatically deducting 30 minutes of time for the meal periods for each workday. 41. Defendant breached its obligation under the agreement with Representative Plaintiffs and members of the proposed Classes by failing to pay the full amount of compensation earned for each hour worked. 42. The breach of contract by Battelle caused financial harm to Representative Plaintiffs and each member of the proposed Classes. 44. Battelle has knowingly failed to compensate the employees for work performed during meal or lunch breaks. 45. As a direct and proximate result of Battelle’s unlawful conduct, as set forth herein, Representative Plaintiffs and Class Members have sustained damages, as described above, including loss of earnings for hours of overtime worked on behalf of Defendant, in an amount to be established at trial. As a further direct and proximate result of Defendant's unlawful conduct, as set forth herein, Representative Plaintiffs and Class Members are entitled to recover attorneys' fees and costs, pursuant to 29 U.S.C. § 216(b) and/or Colorado law. 47. Pursuant to 29 U.S.C. § 216(b), the representative Plaintiffs and other similarly situated employees hereby submit, attached as Exhibit 1 hereto, their written consents to serve as party plaintiffs and to join the FLSA class. 48. Defendant, its officers, and directors are excluded from each of these Classes. 50. Representative Plaintiffs incorporate in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. At all relevant times hereto, Defendant has been, and is, an employer engaged in commerce, as defined under 29 U.S.C. § 203(b) and (d). 51. At all times relevant hereto, Battelle has been an "enterprise engaged in commerce or in the production of goods for commerce" as defined under 29 U.S.C. §203(s)(1). As such, Battelle employed members of the FLSA Class as Monitoring Technicians and/or Demil Technicians and other similarly situated hourly-paid employees. 53. Representative Plaintiffs and other similarly situated employees work three-day and four- day shifts in alternating weeks. Each shift is 12.5 hours long or longer. 54. Representative Plaintiffs and other similarly situated employees are paid for 12 hours per shift or 48 hours in a four-day week. 55. Representative Plaintiffs are informed and believe, and thereon allege, that Battelle compensates the Monitoring Technicians and/or Demil Technicians and other similarly situated hourly-paid employees, for the hours worked over 40 hours in a week, at the rate of one and a half times the regular rate and Battelle’s practice has been to do so with the exceptions alleged herein as a basis for Plaintiffs’ claims. 56. Defendant has willfully failed to pay the representative Plaintiffs and similarly situated employees for the work performed. During each shift week, plaintiffs are paid overtime for only eight (8) hours in a 48-hour work week even though Plaintiffs actually work 12.5 or more hours per day rather than 12 hours per day. 58. For failing to pay for the above-mentioned work performed by the FLSA class Plaintiffs, Battelle has violated the regular wage and overtime provisions of the FLSA. 59. Defendant has failed to keep records of time spent by employees working off the clock in violation of 29 U.S.C. § 211(c) and § 215(a). 60. Indeed, in the performance of their duties for Defendant, members of the FLSA Class often did work over forty hours per week, yet did not receive overtime compensation for the work, labor, and services they provided to Defendant, as required by the FLSA, 29 U.S.C. §§ 206 and 207. The precise number of unpaid overtime hours will be proven at trial. 61. Representative Plaintiffs propose to undertake appropriate proceedings to have such FLSA Class Members aggrieved by the Defendant's unlawful conduct notified of the pendency of this action and join this action as plaintiffs, pursuant to 29 U.S.C. § 216(b), by filing written consents to join the collective action with the Court. 62. Defendant's violations of the FLSA were willful violations of the FLSA, within the meaning of 29 U.S.C. § 255(a). 64. Representative Plaintiffs incorporate in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 65. Representative Plaintiffs assert this claim as an F.R.C.P. 23 class action on behalf of themselves and all other similarly situated workers. 66. As hereinabove alleged, Battelle has willfully failed to pay to Plaintiffs and other members of the Colorado Class accrued regular wages under Colorado Wage Act, C.R.S. §§ 8-4-2, et seq., and Colorado Minimum Wage Order No. 34, 7 C.C.R. § 1103-1. 67. Plaintiffs are paid regular wages for 36 hours in each three-day workweek even though Plaintiffs actually work more than 36 hours in a that workweek. That is, Plaintiffs are not paid regular wages for the off-the-clock work performed each workday including the work performed during unpaid meal breaks. 69. At all relevant times, Battelle had a policy and practice of failing and refusing to pay regular wages to the Representative Plaintiffs and to Colorado Class members for their hours worked in excess of 36 hours in a 36-hour work week. 70. For failing to pay for the above-mentioned work performed by the Colorado class Plaintiffs, Battelle has violated the regular wage and other provisions of the Colorado Wage and Hour law. 71. The Representative Plaintiffs, on behalf of themselves and the Colorado Class members, seek the amount of their underpayments based on Battelle's failure to pay regular wages for work performed in excess of 36-hours in a 36-hour work week, as provided by Colorado Wage Act and Colorado Minimum Wage Order, as well as prejudgment interest, and such other legal and equitable relief from Battelle's unlawful and willful conduct as the Court deems just and proper. 72. Representative Plaintiffs incorporate in this cause of action each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein. 74. Representative Plaintiffs and other employees were and/or are contractual parties with the Defendants being employers and Plaintiffs being employees. 75. Representative Plaintiffs were employed by the Defendant pursuant to a written and/or an oral contract. 76. Defendant expressly agreed, orally and/or in writing, to pay Representative Plaintiffs and members of the proposed Colorado Class a specific amount of compensation for each hour worked. 77. Representative Plaintiffs and each member of the proposed Colorado Class performed his or her duties under the Defendant’s employment agreement and was entitled to receive the agreed upon wages. 78. Defendant failed to pay regular non-overtime wages and other compensation to the Representative Plaintiffs and members of the proposed Colorado Class for all hours worked. 79. Specifically, Representative Plaintiffs and each member of the proposed Classes were required to be actively on-call during their meal periods, and were frequently required to respond to calls and perform other work such that they were not free from duties during their meal periods, and yet, they were not compensated for those meal periods. 81. Representative Plaintiffs and each member of the proposed Colorado Class suffered damages because they performed work and were not paid the agreed-upon wages and other compensation for each hour worked. 82. The Representative Plaintiffs and the members of the proposed Colorado Class are entitled to an award of the full amount of the unpaid non-overtime wages, as well as pre- and post-judgment interest, and such other legal and equitable relief as the Court deems just and proper. BREACH OF CONTRACT (Propose Colorado Class) FOR RELIEF UNLAWFUL FAILURE TO PAY OVERTIME WAGES (Proposed FLSA Class) FOR RELIEF UNLAWFUL FAILURE TO PAY REGULAR WAGES (Proposed Colorado Class)

win

16. YouTube is an American video-sharing website, which permits content providers to upload videos, to be viewed by members of the public worldwide. Users can view, share, rate or favorite videos, as well as add comments, and subscribe to channels of content providers whose content they may enjoy and wish to view regularly. 17. YouTube permits many forms of original content, including videos, television shows, music videos, films, educational videos, short original videos, and other similar forms of content. Content can include such areas as political speech, comedy, education, entertainment, or other forms of artistic expression. All other things equal, there are no limits on the types of content that one is physically able to post on YouTube. 18. A large percentage of YouTube’s traffic relates to original content providers who create original videos for the express purpose of gathering subscribers to their YouTube Channel. Views and subscribers typically translate into revenue for the content providers, due to YouTube’s monetization schedule. 50. Plaintiffs bring this action under Federal Rule of Civil Procedure 23 on behalf of the following Class and Subclasses: The Class All content providers in the United States who uploaded content on YouTube.com at any point since 2006, and whose videos were available for public viewing on YouTube.com during the time frame of March 1, 2017 to present. Excluded from the proposed Class are YouTube’s officers, directors, legal representatives, successors, and assigns; any entity in which YouTube has a controlling interest; and judicial officers to whom this case is assigned and their immediate family members. 51. Plaintiffs reserve the ability to modify the definition of the proposed Class before the Court determines whether class certification is warranted. 60. Plaintiffs incorporate the above allegations by reference. 61. YouTube’s conduct resulted from policies that YouTube contrived, ratified, and implemented in California. 62. YouTube’s conduct is unlawful, in violation of the UCL, because it contravenes the legislatively declared policy against unfair methods of business competition. Additionally, YouTube’s conduct is unlawful because, as set forth below, it violates California Contract Law principles, including breach of contract, breach of quasi-contract, breach of good faith and fair dealing, common law fraud and tortious interference with contractual relations and/or prospective economic advantage. 71. Plaintiffs incorporate the above allegations by reference. 72. YouTube’s conduct resulted from policies that YouTube contrived, ratified, and implemented in California. 73. YouTube’s conduct violates the UCL’s prohibition of fraudulent business practices. 74. To induce the posting of content on YouTube.com, which in turn led to advertising partners to contract with YouTube, YouTube provided a monetization structure to members of the public interested in becoming content providers. YouTube provided very little information to content providers about the structure of how they would be compensated under the monetization schedule, but did historically provide fair compensation to content providers in exchange for the revenue generated as a result of the artistic and creative work they created and posted on YouTube.com. Historically, content providers came to expect a certain return on investment in dealing with YouTube under this structure, which remained steady and predictable. Plaintiffs relied on the fact that historically they could expect a certain return on investment to the content they created, as described above. 75. In March of 2017, YouTube implemented new terms and conditions to the arrangement, including by implementing new AdSense algorithms that targeted and demonetized certain types of content. YouTube never explained to content providers that it would be doing this, or that it did do this. YouTube did this for personal gain, i.e. to prevent advertising partners from leaving YouTube; however the result was severely detrimental to content providers, including Plaintiffs. 87. Plaintiffs incorporate the above allegations by reference. 88. At the time YouTube unilaterally altered the terms of its monetization structure for content providers, Plaintiffs and Class members had entered into business transactions with third- party advertisers, purchasers, and other businesses, which were premised in large part off of Plaintiffs’ and Class Members’ ability to monetize their content and receive both advertising revenue and views on YouTube. These sales transactions involved various contractual conditions of sale. 89. For instance, Plaintiffs were negotiating a contract with a third party who wanted to purchase the rights to own and monetize their YouTube videos. After Adpocalypse, the value of Plaintiffs’ channel plummeted, because predicting future advertising revenue through YouTube’s monetization schedule became highly challenging since YouTube took it upon itself to change the rules of monetization without notice, and to the detriment of its content providers. 90. YouTube was aware that Plaintiffs and Class members routinely enter into such related contracts with third parties, and that changes to its monetization structure, including demonetizing videos without notice or recourse, and altering the terms by which videos would receive compensation would have a direct impact on these contractual arrangements. 91. Plaintiffs had multiple contractual deals fall through or devalued as a direct attributable result of YouTube’s aforementioned conduct. 92. YouTube’s interference with the contractual conditions of sale between Plaintiffs and Class members, on one hand, and third-party marketers and investors, on the other hand, was intentional and wrongful. Fraudulent Business Practices in Violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (On Behalf of the Class) Tortious Interference with Contractual Relations and/or Prospective Economic Advantage (On Behalf of the Class) Unfair and Unlawful Business Practices in Violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (On Behalf of the Class)

lose

10. Under 34 CFR §34.5, prior to initiating wage garnishment ofstudent loans. Pioneer is required to send anotice ofproposed garnishment, said notice to include an explanation ofthe debtor's rights, including, but not limited to, those rights found at 34 CFR §34.6. Those rights include the right to inspect and copy records related to the debt, to enter into av/ritten repayment agreement to repay the debt, and to demand ahearing in accordance with 34 C.F.R. 34.8 related to the debt. 12. In its "Administrative Wage Garnishment Proceedings Notice", Pioneer fails toprovide thenotice of rights under 34 CFR§34.6, as required by 34CFR§34.5. 13. Inthealternative, if the "Administrative Wage Garnishment Proceedings Notice" is not the final notice provided to consumers prior to initiating wage garnishment, itfalsely and deceptively implies thatit isinorder to create a false sense of urgency. 14. In describingthe wage garnishment process,LetterA states: This maybe yourlastopportunity to make satisfactory payment arrangements on your student loan(s). Ifthese arrangements are not made, we will begin or continue the process ofverifying your employment for Administrative Wage Garnishment... 15. Letter A, sent to Plaintiffon orabout April 1,2016, does not disclose to Plaintiffand Class Members that they can infact have at least two other methods three avoid a garnishment: request a loan rehabilitation; object tothe existence, amount orcurrent enforceability ofthe debt; orfile for bankruptcy and seek to discharge the debt with an undue hardship exemption. 16. Contrary to the statement in Letter A, Federal Law allows Plaintiffand Class Members to avoid awage garnishment by submitting arequest for aloan rehabilitation. Pending the evaluation ofthe loan rehabilitation, orduring the pendency ofthe loan rehabilitation. Pioneer is prohibited from initiating a wage garnishment. 18. Further, contrary to thestatement inLetter A, Federal Law allows Plaintiffand Class Members to avoid a wage garnishment byfiling a bankruptcy proceeding andseeking to dischargethe debt with an undue hardship exemption. 19. The debtthatDefendant sought to collect from Plaintiffwas originally incurred for personal, family, or household purposes. 20. Paragraphs 1 through 19are herein incorporated. 21. Under Rule 23 ofthe Federal Rules of Civil Procedure, Plaintiffs bring this action for themselves and on behalfofa class initially defined as follows: All natural persons who are residents ofVirginia who are similarly situated to the Plaintiffin that,within oneyearof thecommencement of thisaction and continuing to the date that anorder isentered certifying this class. Pioneer sent them a letter in a form substantially similar or materially identical to Exhibit A. 22. The proposed Class isso numerous that joinder ofall members would be impracticable. Plaintiffdoes notknow the sizeof theclass, although this information is known bythe defendant and isreadily ascertainable indiscovery. Based upon information readily available concerning the defendant, the size ofits operation, and its specialization inthe collection of student loans. Plaintiffestimates and accordingly alleges thatthere are hundreds and, in all probability, thousands of individuals intheclass. 23. There is a community ofinterest among the members ofthe proposed Class in that there are questions oflaw and fact common to the proposed Class that predominate over questions affecting only individual members. 25. Plaintiffis represented bycounsel competent and experienced in both consumer protection specific to student loans, and class action litigation, and she has no conflicts with the members of the Class. 26. The common questions oflaw and fact predominate over any individual questions, inthat the letters are form letters, andanyindividual questions aresubordinate to the common questions ofwhether Pioneer violated the FDCPA by misrepresenting the class members' rehabilitation rights. 27. Aclass action issuperior toother methods for the fair and efficient adjudication ofthe controversy. Because the damages suffered by individual class members are relatively small compared to the expense and burden oflitigation, itwould be impractical and economically unfeasible for class members to seek redress individually. The prosecution ofseparate actions by the individual class members, even ifpossible or likely, would create a risk of inconsistent orvarying adjudications with respect tothe claims asserted by individual class members and could create incompatible standards ofconduct for the defendants. Moreover, because most class members are unaware oftheright tomake nine payments within ten months to qualify for rehabilitation, they are unlikely to bring an independent action, and aclass action is the only way that these violations can be rectified. 29. Paragraphs 1 through 28 are herein incorporated. 30. Pioneer violated the FDCPA by falsely representing that it was going to perform an Administrative Wage Garnishment, without first providing the notices required by34 CFR § 34.5 and 34.6. In the alternative, Pioneer falsely implied that the Administrative Wage Garnishment Proceedings Notice was theNotice of Proposed Garnishment required under 34CFR §34.5. Pioneer's violations include, but are not limited to,the following: A. Itfalsely represented a ithad the authority togarnish wages atthe time of the letter, ifpayment arrangements were not made atthat time, in violation of 15 U.S.C. § 1692e, 1692e(4), 1692e(5)and 1692e(10). B. Itfalsely represented the character, amount orlegal status ofthe debts, in violation of 15 U.S.C. § 1692e, 1692e(2)(A)and § 1692e(10). 32. Pioneer further violated the FDCPA byfalsely representing PlaintiffandClass Members can avoid a wage garnishment by entering into a repayment agreement, without further disclosing that Plaintiffand Class Members could also avoid a wage garnishment by filing for bankruptcy and seeking todischarge the debt with anundue hardship exemption. Pioneer's violations include, but are not limited to, the following: A. Itfalsely represented a that a wage garnishment could only be stopped by paying the loan in full orentering into awritten agreement with Pioneer, in violation of 15 U.S.C. §§ 1692e and 1692e(10). B. Itfalsely represented the character, amount orlegal status ofthe debts, in violation of 15U.S.C. §§ 1692e, 1692 e(2)(A) and 1692e(10). 33. Underl5 U.S.C. § 1692k, Pioneer is liable to thePlaintiffandtheClass Members to whom it sent the letter. WHEREFORE, the Plaintiffseeks onbehalfofherselfand theclass members, class certification and statutory damages, actual damages, declaratory relief, and a reasonable attorney's fee, and costs, and such other reliefthe Court deems appropriate. 6. Plaintiff is a "consumer" as that term is defined by FDCPA § 1692a(3). 7. The Plaintiffwas a debtor with federal student loans that were placed into defaultstatus. 8. ThePlaintiffs federal student loans were "debts" as thatterm is defined bythe FDCPA. 9. The loans were assignedto Pioneerfor collectionpurposes. Claims for Violations of 15 U.S.C. §§ 1692 et seq.

win

11. The proliferation of internet-connected mobile devices has led to the growth of what are known in the industry as “free-to-play” videogames. The term is a misnomer. It refers to a model by which the initial download of the game is free, but companies reap huge profits by selling thousands of “in-app” items that start at $0.99 (purchases known as “micro-transactions” or “in-app purchases”). 12. The in-app purchase model has become particularly attractive to developers of games of chance (e.g., poker, blackjack, and slot machine mobile videogames, amongst others), because it allows them to generate huge profits. In 2017, free-to-play games of chance generated over $3.8 billion in worldwide revenue, and they are expected to grow by ten percent annually.1 Even “large land-based casino operators are looking at this new space” for “a healthy growth potential.”2 30. In or around February 2017, Plaintiff Wilson began playing Huuuge Casino through his Apple iOS device. After Plaintiff lost the balance of his initial allocation of free chips, he purchased chips from the Huuuge Casino electronic store. 32. Class Definition: Plaintiff Wilson brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3) on behalf of himself and a Class of similarly situated individuals, defined as follows: All persons in the State of Washington who purchased and lost chips at Defendant’s Huuuge Casino. The following people are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its 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 Defendant’s counsel; and (6) the legal representatives, successors, and assigns of any such excluded persons. 33. Numerosity: On information and belief, tens of thousands of consumers fall into the definition of the Class. Members of the Class can be identified through Defendant’s records, discovery, and other third-party sources. 34. Commonality and Predominance: There are many questions of law and fact common to Plaintiff’s and the Class’s claims, 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. Whether Defendant’s online casino games are “gambling” as defined by 40. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 41. Plaintiff, members of the Class, and Defendant are all “persons” as defined by 54. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 66. Plaintiff incorporates by reference the foregoing allegations as if fully set forth herein. 67. Plaintiff and the Class have conferred a benefit upon Defendant in the form of the money Defendant received from them for the purchase of chips to wager at Defendant’s Huuuge Casino. 68. The purchase of the chips to wager at Defendant’s Huuuge Casino is and was beyond the scope of any contractual agreement between Defendant and Plaintiff and members of the Class. 69. Defendant appreciates and/or has knowledge of the benefits conferred upon it by Plaintiff and the Class. I. Free-to-Play and the New Era of Online Gambling Unjust Enrichment (On behalf of Plaintiff and the Class) Violations of Revised Code of Washington § 4.24.070 (On behalf of Plaintiff and the Class) Violations of the Washington Consumer Protection Act, RCW § 19.86.010, et seq. (On behalf of Plaintiff and the Class)

win

38. In or around March of 2020, Plaintiffs became aware that the CARES Act had been signed into law. Plaintiffs, knowing that his business would be seriously impacted by the COVID-19 crisis and the shelter-in-place orders, sought to obtain a PPP loan through a financial institution. 39. On or about April 10, 2020, Plaintiffs submitted a complete, thorough, and timely application to Wells Fargo to obtain a PPP loan. In doing so, Plaintiffs relied on the representations of the CEO of Wells Fargo, who said “While all businesses have been impacted by this crisis, small businesses with fewer than 50 employees and nonprofits often have fewer resources. Therefore, we are focusing our efforts under the Paycheck Protection Program on these groups.” Knowing he could only receive one PPP loan, Plaintiffs believed that Wells Fargo would be their best choice for obtaining funding under the PPP. 40. After submitting the PPP loan application, Plaintiffs waited to get funded. While Plaintiffs waited to get funded, they made strategic business decisions, made personnel decisions, and took other steps in reliance on Wells Fargo’s representations that their lending would be “focused” on businesses with under 50 employees and would be “first-come, first served.” 45. As noted above, Plaintiffs brings this action on behalf of themselves and a state-wide class, defined as indicated below. 46. The Class Definition: All businesses in the State of California that met the criteria for receiving a loan under the PPP, i.e. met the criteria for eligibility and were not otherwise ineligible, between February 15 and June 30, 2020, who timely applied for a PPP loan through Wells Fargo, whose applications were not processed and/or who were not issued loans in accordance with SBA Regulations (i.e. “first- come, first-served) and in accordance with the stated intent of the CARES Act (i.e. prioritizing “small business concerns and entities in underserved and rural markets, including veterans and members of the military community, small business concerns owned and controlled by socially and economically disadvantaged individuals”.) 47. Excluded from the Class are Defendants, as well as their officers, employees, agents, board members and legal counsel, and any judge who presides over this action (or spouse or family member of presiding judge), as well as all past and present employees, officers and directors of Wells Fargo. 48. Plaintiffs reserve the right to expand, limit, modify, or amend this class definition, including the addition of one or more subclasses, in connection with Plaintiffs' motion for class certification, or at any other time, based upon, inter alia, changing circumstances and/or new facts obtained during discovery. 55. Plaintiffs hereby incorporate by reference the foregoing allegations as if fully set forth herein. 56. Plaintiffs asserts this cause of action on behalf of themselves and members of the class. 57. The California Unfair Competition Law (hereinafter “UCL”) defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Prof. Code § 17200. 58. A business act or practice is “unfair” under the UCL if the reasons, justifications and motives of the alleged wrongdoer are outweighed by the gravity of the harm to the alleged victims. 63. Plaintiffs hereby incorporate by reference the foregoing allegations as if fully set forth herein. 64. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Prof. Code § 17200. 65. A business act or practice is “fraudulent” under the UCL if it is likely to deceive members of the consuming public. 66. As set forth above, the Defendants’ conduct included affirmative representations about the loan approval process and the “focus” and “priorities” of the bank in processing and funding PPP loans which were not true. Those representations were made with the intent to generate public good will and to induce consumers to reasonably rely on those representations and choose Defendants when making their decision about who to make their PPP loan application through. 70. Plaintiffs hereby incorporate by reference the foregoing allegations as if fully set forth herein. 71. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Prof. Code § 17200. On Behalf of the Class Against All Defendants (Violation of the “Unfair” Prong of the UCL, California Business & Professions Code § 17200, et seq.) On Behalf of the Class Against All Defendants (Violation of the “Unlawful” Prong of the UCL, California Business & Professions Code § 17200, et seq.) On Behalf of the Class Against All Defendants (Violation of the “Fraudulent” Prong of the UCL, California Business & Professions Code § 17200, et seq.) On Behalf of the Class Against All Defendants FRAUDULENT CONCEALMENT

lose

(False Advertising in Violation of Cal. Business & Professions Code§§ 17500, et seq.) 10. Plaintiffs are informed and believe, and on that basis allege, that Wise Company markets and sells its products primarily through its website. The products are grouped into such categories as "long-term food kits,'' "emergency food kits,'' "meats, fruits & vegetables," and "emergency supplies." Among the "long-term food kits" are such products as the 56-serving entree and breakfast pack that includes 4 servings of "creamy pasta and vegetable rotini,'' 4 servings of "chili macaroni," and 12 servings of "apple cinnamon cereal," along with 36 servings of other dishes. There is also a One-Month Emergency Food Box for 1 person. Wise Company's description of these products is designed to lead the consumer to believe that the food kits will last for the period of time for which each kit is named, i.e., one month, three months, etc. 11. It is well known among nutritionists and dieticians that an adult requires a certain number of calories per day in order to sustain life and avoid starvation or other ill health effects. For example, the United States Depaiiment of Agriculture (USDA) and the Department of Health and Human Services (HHS) jointly issue the Dietary Guidelines for Americans (DGA), which is designed to facilitate informed food choices and includes, inter alia, authoritative information about caloric requirements. As part of this quinquennial effort, the government publishes the following "Estimated Calorie Needs per Day by Age, Gender and Physical Activity Level" for the 3 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. On October 21, 2015 Plaintiff Miller visited the Wise Company website. After reviewing the representations on the website for the Long-Term Food Kits, Plaintiff Miller purchased the 56-serving entree and breakfast pack. On the product web page,3 Wise Company represented that the entree and breakfast pack was "[ e ]nough to feed 1 person for 1 month or 4 adults for 1 week at 2 servings per day." This representation was reiterated graphically under the product description. Figure 1 How many people wm this feed and for how long? How long will 56 servings last? 1 Week Supply 2 SEl!\llHGS/OAY 4 Week Supply 15 ("Unlawful" Business Practices in Violation of Cal. Bus. & Prof. Code§§ 17200, et seq.) 16 17. On June 14, 2016, Plaintiff Borneman visited the Wise Company website. After reviewing the representations on the website, including the "One Month Emergency Food Box for 1 Person," Plaintiff Borneman purchased the box. On the product web page, Wise Company represented that (as implied in its name) the box would feed one person for one month. This representation is reiterated graphically in the product description on the product webpage: How long will this supply last? 19 20 21 22 23 24 25 26 27 28 19 20. Plaintiffs bring this action on behalf of themselves and all other similarly situated 20 consumers pursuant to California Code of Civil Procedure section 382, and seek certification of 21 the following class: 22 All persons who purchased a Wise Company Long-Term Food Kit or Emergency Food Kit in California from four years prior to the 23 filing of this Complaint through to the date of class certification. 24 Excluded from the Class are: (i) Wise Company employees, principals, affiliated entities, legal 25 representatives, and their successors and assigns; and (ii) the judge(s) to whom this action is 26 assigned and any members of their immediate families. Plaintiffs are infmmed and believe and on 2 7 that basis allege that there are more than 100 members of the class, and that such members reside 28 in multiple Counties. J oinder of all members of the class would, therefore, be impracticable. The 7 21 ("Unfair" Business Practices in Violation of Cal. Bus. & Prof. Code §§ 17200, et seq.) 22 23 (Violation of the Consumers Legal Remedies Act, Cal. Civil Code §§ 1750, et seq.) 24 25. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein. 25 26. Plaintiffs and each member of the proposed class are "consumers" within the 26 meaning of Civil Code§ 1761, subdivision (d). 27 27 (Declaratory Relief) 28 27. The purchases of the Wise Company's Long-Term and Emergency Food Kits by 28 consumers constitute "transactions" within the meaning of Civil Code§ 1761, subdivision (e) and 9 35. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein. 36. Wise Company uses advertising on its website and on the packaging of its Long- Tenn and Emergency Food Kits to sell these food kits. 37. The advertising disseminated by Wise Company is deceptive, untrue, and/or misleading within the meaning of California Business & Professions Code §§ 17500, et seq. because it misrepresents the truth, omits material information, and is likely to deceive members of the general public. 3 8. In making and disseminating the false advertising alleged herein, Wise Company knew or should have known that the statements were untrue and/or misleading, and it acted in violation of California Business & Professions Code §§ 17500, et seq. 39. The misrepresentations and omissions by Wise Company of the material facts detailed above constitute false and misleading advertising and therefore constitute a violation of California Business & Professions Code§§ 17500, et seq. 4 The Court's Civil Mediation Panel (available for both Court"Ordered Mediation and Private Mediation). See http://adr.riverside.courts.ca.gov/adr/civil/panelist.php or ask for the list in the civil clerk's office, attorney window. a. Riverside County ADR providers funded by DRPA (Dispute Resolution Program Act): Dispute Resolution Service (DRS) Riverside County Bar Association: (951) 682"1015 Dispute Resolution Center, Community Action Partnership {CAP): (951) 9554900 Adopted forMondotoiy Use fli~ero!do Superior Court Rl·AOR1A(Rev.111/12J Page 2 of3 40. Through its deceptive acts and practices, Wise Company has improperly and illegally obtained money from Plaintiffs and members of the class, and has been unjustly enriched. Plaintiffs are entitled to restitution of all such money as well as an injunction prohibiting Wise Company from continuing to violate the F AL, as discussed above. Otherwise, Plaintiffs and those similarly situated will continue to be harmed by Wise Company's false and/or misleading adve1iising. 4050 Main Street - 2nd Floor Riverside, CA 92501 www.riverside.courts.ca.qov 41. Pursuant to California Business & Professions Code§ 17535, Plaintiffs seek an order directing Wise Company to reforn1 its advertising so as fully to disclose the true facts. Plaintiffs additionally request an order requiring Wise Company to disgorge its ill-gotten gains and/or award full restitution of all monies wrongfully acquired by Wise Company by means of such acts of false advertising, plus interest, which ill-gotten gains are still retained by Wise Company. Members of the class and the general public may be itTeparably haimed, and Plaintiffs 12 43. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein. 17 18 19 20 21 22 23 24 25 26 27 28 44. The UCL defines unfair business competition to include any "unlawful, unfair or fraudulent" act or practice, as well as any "unfair, deceptive, untrue or misleading" advertising. Cal. Bus. Prof. Code § 17200. 45. A business act or practice is "unlawful" if it violates any established state or federal law. 46. By committing the unlawful acts and practices alleged above, Wise Company has violated the Consumers Legal Remedies Act and the False Advertising Law and therefore has engaged, and continues to engage, in unlawful business practices within the meaning of California Business and Professions Code§§ 17200, et seq. 47. Through its unlawful acts and practices, Wise Company has obtained, and continues to obtain, money from members of the class. Plaintiffs and class members are entitled to restitution of all such money as well as an injunction prohibiting Wise Company from 13 56. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein. 23 57. The UCL defines unfair business competition to include any "unlawful, unfair or 24 fraudulent" act or practice, as well as any "unfair, deceptive, untrue or misleading" advertising. 25 Cal. Bus. Prof. Code § 17200. 26 58. A business act or practice is "unfair" under the UCL if the reasons, justifications 27 and motives of the alleged wrongdoer are outweighed by the gravity of the hann to the alleged 28 victims. 15 62. Plaintiffs incorporate the preceding paragraphs as if fully set f01ih herein. 16 9. Wise Company specializes in the manufacture and sale of "survival food." Operating under the moniker "Be Wise. Be Ready," Wise Company claims to be the "nation's leader in emergency preparedness." The mainstays of Wise Company's product offerings are "Long Tenn Food Kits" sold in incremental sizes ranging from a "72 Hour Food Supply" to a "12 Month Food Supply." ADR Information and forms are posted on the ADR website: hltp:/lriverside.courts.ca.gov/adr/adr.shtml General Policy: Parties in most general civil cases are expected to participate in an ADR process before requesting a trial date and to participate in a settlement conference before trial. (Local Rule 3200) Court~Ordered ADR: Certain cases valued at uhder $50,000 may be ordered to judicial arbitration or mediation. This order is usually made at the Case Management Conference. See the "Court-Ordered Mediation Information Sheet" on the ADR website for more information. Private ADR (for cases not ordered to arbitration or mediation}: Parties schedule and pay for their ADR process without Court involvement. Parties may schedule private ADR at any time; there is no need to wait until the Case Management Conference. See the "Private Mediation Information Sheet" on the ADR website for more information. CHAVEZ & GERTLER LLP 42 Miller Ave., Mill Valley, CA 94941 FEB 15 2017 D Banning • 311 E. Ramsey Street, Banning, CA 92220 D Hemet - 880 N. State Street, Hemet, CA 92543 D Indio -46-200 Oasis Street, Indio, CA 92201 D Riverside - 4050 Main Street, Riverside, CA 92501 D Temecula - 41002 County Center Drive, Bldg. C - Suite 100, Temecula, CA 92591

win

26.   Defendant offers a wide variety of human resources services and software designed to meet its clients’ payroll and benefits needs. 27.   To assist its clients during the process of implementing these services and software, Defendant employed Plaintiffs and other similarly situated employees to work as Implementation Coordinators and Implementation Project Managers (collectively, “Implementation Rep(s)”). 28.   Despite their titles, Plaintiffs’ and other Implementation Reps’ duties were non- managerial in nature. Their work largely consisted of providing non-technical support and routine customer service. 29.   Plaintiffs and others similarly situated served as liaisons between Defendant’s clients and the development teams responsible for implementing Defendant’s products. Plaintiffs’ and other Implementation Reps’ duties centered on maintaining routine communications with clients for purposes of answering any questions they had. This primarily consisted of conveying general information in reference to a client’s service plans and providing updates regarding all service requests. There were basic protocols aligned with all of the tasks they performed. 30.   Plaintiffs and others similarly situated were responsible for handling numerous ongoing projects specific to Defendant’s clients. The expectation was that Plaintiffs and other Implementation Reps would have thirty (30) to thirty-five (35) clients at one time. However, in reality, Plaintiffs and others similarly situated were responsible for significantly more than that. 31.   Plaintiffs and other Implementation Reps were required to schedule a “welcome call” with a customer within twenty-four (24) hours of being assigned to a new project. Plaintiffs and other Implementation Reps were required to discuss specific scripted topics on each call. 33.   Plaintiffs were not involved with managing or coordinating the implementation of Defendant’s software. There were specialized teams managed by Defendant’s other employees who were responsible for these tasks. 34.   The focus of Plaintiffs’ and other Implementation Reps’ tasks was customer service. From the initial welcome call until the completion of the implementation process, Plaintiffs were responsible for all customer service related duties. Only when a client’s software was fully implemented were Plaintiffs’ and other Implementation Reps’ customer service duties complete. 35.   While performing their duties, Plaintiffs and other implementation personnel did not require any specialized training or advanced knowledge. All of their tasks were basic in nature. They did not have any true decision-making authority. 36.   Rather than make substantive determinations, Plaintiffs and others similarly situated were solely responsible for conveying basic information between Defendant’s customers and Defendant’s development teams. 37.   In their roles as Implementation Project Managers and Implementation Coordinators (collectively, “Implementation Rep(s)”), Plaintiffs and others similarly situated did not perform any analysis. 38.   Plaintiff and other Implementation Reps lacked discretion altogether; the performance of their duties did not require independent judgement. 40.   Plaintiffs and other Implementation Reps did not have any input in regard to Defendant’s employment policies or procedures. 41.   Plaintiffs and other Implementation Reps did not have the authority to hire or fire employees. 42.   Plaintiffs and other Implementation Reps were not responsible for any supervisory tasks. 43.   Plaintiffs and others similarly situated satisfied the requirements of their positions and adequately performed their duties to benefit Defendant. 44.   Plaintiffs and other Implementation Reps were all paid a salary. They received the same bi-weekly payments regardless of the number of hours they worked each week. 45.   During her time as an Implementation Project Manager, Plaintiff Errickson received an annual salary of approximately sixty-two thousand five hundred dollars ($62,500.00). She was paid the same bi-weekly salary regardless of the number of hours she worked each week. 46.   During his time as an Implementation Coordinator, Plaintiff Trovato received an annual salary of approximately forty-five thousand dollars ($45,000.00). His bi-weekly payments did not change, regardless of the number of hours he worked each week. 47.   Plaintiffs and others similarly situated were scheduled to work forty (40) hours each week. They were scheduled to work five (5) days a week, Monday through Friday. However, the hours they actually worked far exceeded this schedule. 49.   Having to always remain available to answer customer inquiries also caused Plaintiffs and other Implementation Reps to work hours outside of their schedule. The strict deadlines imposed by Defendant in regard to when Plaintiff and other Implementation Reps had to respond to each inquiry forced them to work before and after their scheduled shifts. 50.   Understaffing also contributed to Plaintiffs and others similarly situated having to work more than their scheduled hours. Defendant failed to provide an adequate number of personnel to meet the demands of its business. This includes not staffing the requisite number of customer service representatives to meet its clients’ needs. 51.   As a result, Plaintiffs and others similarly situated were required to handle tasks that should have been completed by Defendant’s customer service representatives. Having to perform tasks that should have been completed by other employees significantly increased Plaintiffs’ and other Implementation Reps’ workload. 52.   Due to the demands of their workload, it was common for Plaintiffs and others similarly situated to work early in the morning, late in the evening, as well as on weekends. The demands of their employment also required them to work remotely in order to keep up with their daily tasks. The volume of their assignments left no other choice. 53.   Due to all of these conditions, Plaintiffs and others similarly situated worked well over forty (40) hours each week. Working overtime was integral to their employment. Plaintiffs consistently worked fifty (50) to sixty (60) hours each week. There were times when they worked even more. 55.   Defendant accomplished this illegal act by willfully misclassifying Plaintiffs and other Implementation Reps as salaried employees. Accordingly, Plaintiffs and others similarly situated failed to receive overtime wages. 56.   There is no bona fide dispute that Plaintiffs and other similarly situated employees are owed overtime wages for all hours worked over forty (40) in a week. 57.   The duties performed by Plaintiffs and others similarly situated did not implicate any exemptions contained within the FLSA or NYLL. 58.   Defendant was well aware that the nature of the tasks performed by Plaintiffs and others similarly situated entitled them to overtime wages. 59.   Defendant knew of the excessive overtime hours worked by Plaintiffs and others similarly situated. 60.   Defendant’s upper management officials were well aware that Plaintiffs and other Implementation Reps had to consistently work well over forty (40) hours a week to complete their assigned tasks. 61.   In bad faith, Defendant suffered, permitted and/or required Plaintiffs and others similarly situated to work these overtime hours. 62.   Pursuant to 29 U.S.C. § 216(b), Plaintiffs brings this action on behalf of themselves and all other similarly situated employees. 64.   As Implementation Coordinators and Implementation Project Managers (collectively, “Implementation Reps”), Plaintiffs and the FLSA collective are or were employed by Defendant within the meaning of the FLSA. 65.   Plaintiffs and other Implementation Reps were all paid a salary. 66.   The proposed FLSA collective class is defined as: All persons who work or worked as salaried Implementation Coordinators, Implementation Project Managers, or in other positions with similar job duties for Defendant at any time during the last three (3) years prior to the filing of this Complaint through the entry of judgment (the “FLSA collective”).1 67.   Pursuant to 29 U.S.C. § 216(b), Plaintiffs have consented to be a part of this action. Plaintiffs’ signed consent forms are attached as Exhibit A. As this case proceeds, it is likely that additional individuals will file consent forms and join as “opt-in” Plaintiffs. 68.   At all times relevant to this Complaint, Plaintiffs and other members of the FLSA collective worked as non-exempt employees eligible for overtime pay. 69.   The duties assigned to Plaintiffs and other similarly situated employees do not satisfy the duties tests contained within any of the exemptions specified in the FLSA. 70.   Defendant operated under a common policy of suffering, permitting and/or requiring Plaintiffs and the FLSA collective to work unpaid overtime hours. 71.   Defendant knew, or should have known, that Plaintiffs and the FLSA collective routinely worked unpaid overtime hours. 73.   Plaintiffs and the FLSA collective regularly worked over forty (40) hours per workweek to meet Defendant’s production requirements. 74.   Defendant failed to pay Plaintiff and the FLSA collective for the overtime hours they worked. 75.   Defendant’s unlawful conduct was widespread, repetitious and consistent, affecting Plaintiffs and all members of the FLSA collective equally. 76.   Defendant’s conduct was willful and in bad faith. 77.   Defendant’s conduct has caused significant damages to Plaintiffs and the FLSA collective. 78.   Defendant is liable under the FLSA for failing to properly compensate Plaintiffs and the FLSA collective. 79.   There are numerous similarly situated current and former employees of Defendant who have been denied proper overtime compensation, in violation of the FLSA. 80.   These similarly situated employees would benefit from the issuance of court- supervised notice of this lawsuit by providing an opportunity to join. 81.   Notice of this action should be sent to all similarly situated Implementation Coordinators and Implementation Project Managers. 82.   These similarly situated employees are known to Defendant and are readily identifiable through Defendant’s records. 84.   The class Plaintiff seeks to represent is defined as: All individuals who are or were employed by Defendant as salaried “Implementation Coordinators,” “Implementation Project Managers” and/or in similar positions in the state of New York and who have been denied, overtime and meal and rest period compensation as required by the respective state labor laws and implementing regulations at any time within six (6) years prior to the filing date of this action through the date of final disposition. 85.   The proposed class is so numerous that joinder of all members is impracticable. During the relevant period, Defendant employed dozens of Implementation Coordinators and/or Implementation Project Managers in the state of New York. 86.   The claims of the named Plaintiff are typical to the members of the proposed class. The named Plaintiff and those similarly situated regularly worked more than forty (40) hours per week, including working through meal and rest periods, and were denied overtime compensation. Each member of the class was paid a salary that remained unchanged, regardless of the amount of hours they worked each week. As a result, each and every class member suffered the same harm. 88.   Pursuant to Fed. R. Civ. P. 23(b)(1)(A), a class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual plaintiffs lack the financial resources and incentives to prosecute separate lawsuits against their employer. The damages suffered by the individual class members are small compared to the expense and burden of individual prosecutions of this litigation. Prosecuting hundreds of identical, individual lawsuits would not promote judicial efficiency or equity, nor result in consistent results. Class certification will eliminate the need for duplicate litigation. 89.   Pursuant to Fed. R. Civ. P. 23(b)(2), Defendant has acted, or has refused to act, on grounds generally applicable to the Rule 23 class, thereby making appropriate final injunctive relief, or corresponding declaratory relief, with respect to the class as a whole. 90.   Plaintiff will fully and adequately protect the interests of the class. Plaintiff seeks the same recovery as the class, predicated upon the same violations of law and the same damage theory. Plaintiff has retained counsel who are qualified and experienced in the prosecution of statewide wage and hour class actions. Neither Plaintiff nor his counsel have interests that are contrary to, or conflicting with, the interests of the class. 91.   Plaintiffs allege and incorporate by reference the allegations in the preceding paragraphs. 93.   Plaintiffs and the FLSA collective are non-exempt employees entitled to FLSA overtime compensation for all hours worked in excess of forty (40). 94.   Plaintiffs and the FLSA collective work(ed) in excess of forty (40) hours per week, but did not receive appropriate overtime compensation. 95.   Defendant failed to accurately record the actual hours worked by Plaintiffs and the FLSA collective. 96.   Defendant willfully and intentionally failed to compensate Plaintiffs and the FLSA collective for the overtime hours they worked. 97.   There is no bona fide dispute that Plaintiffs and other similarly situated employees are owed overtime wages for the work they performed for Defendant. 98.   The foregoing conduct constitutes a willful violation of the FLSA, within the meaning of 29 U.S.C. § 255(a). 99.   As a direct and proximate result of Defendant’s unlawful conduct, Plaintiffs and those similarly situated have suffered and will continue to suffer a loss of income and other damages. COUNT I – Violation of the FLSA: Failure to Pay Overtime Wages to Plaintiffs and the FLSA Collective

win

29 U.S.C. §§ 206(a)(1)(C), 216(b) - Failure to Pay Minimum Wage 101. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 102. At all relevant times, Defendants together constituted a single integrated enterprise that was engaged in commerce or in the production of goods for commerce within the meaning of the FLSA. 103. Alternatively, Defendants were associated and joint employers within the meaning of the FLSA 104. At all relevant times, Defendants employed Plaintiffs within the meaning of the 29 U.S.C. §§ 206(a)(1)(C), 216(b) - Failure to Pay Minimum Wage 29 U.S.C. §§ 207, 216(b) - Failure to Pay Overtime Wages 167. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 168. At all relevant times, Defendants together have constituted a single integrated enterprise that was engaged in commerce or in the production of goods for commerce within the meaning of the FLSA. 169. Alternatively, Defendants have been associated and joint employers of Plaintiffs and members of the putative collective within the meaning of the FLSA. 25 170. At all relevant times, Defendants employed Plaintiffs and members of the putative collective within the meaning of the FLSA. 171. Plaintiffs and members of the putative collective are non-exempt employees within the meaning of the FLSA. 172. Defendants failed to pay Plaintiffs and the members of the putative collective at least the federal statutory minimum wage for all hours worked, as required under the FLSA. 173. Defendants failed to pay Plaintiffs and the members of the putative collective time-and-a-half for all hours worked each week in excess of forty, as required under the FLSA. 174. Defendants’ conduct and practices, described herein, were/are willful, intentional, unreasonable, arbitrary and in bad faith. 175. Because Defendants willfully violated the FLSA, a three-year statute of limitations applies to such violation, pursuant to 29 U.S.C. § 255. 176. As a result of the foregoing, Plaintiffs and members of the putative collective were illegally denied proper compensation earned, in such amounts to be determined at trial, and are entitled to recovery of total unpaid amounts, liquidated damages, prejudgment interest, costs, reasonable attorney’s fees and other compensation pursuant to 29 U.S.C. § 216(b). 29 U.S.C. §§ 207, 216(b) - Failure to Pay Overtime Wages 112. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 18 113. At all relevant times, Defendants together constituted a single integrated enterprise that was engaged in commerce or in the production of goods for commerce within the meaning of the FLSA. 114. Alternatively, Defendants were associated and joint employers within the meaning of the FLSA 115. At all relevant times, Defendants employed Plaintiffs within the meaning of the 33. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 34. At all relevant times, the Individual Defendants, acting through the Corporate Defendants, have operated the Diners. 35. At all relevant times, Defendants’ operations have been interrelated and unified. 36. At all relevant times, the Diners have shared a common management, and have been centrally controlled and/or owned by Defendants. 7 37. At all relevant times, Defendants have centrally controlled the labor and employment relations of the Diners. 38. At all relevant times, Defendants have maintained one central payroll office, and have imposed and enforced common employee guidelines and procedures in both Diners. 39. At all relevant times, Defendants have maintained control, oversight, and direction over Plaintiffs and all other similarly situated employees at both Diners, including timekeeping, payroll, and other practices and policies that applied to them. 40. At all relevant times, Defendants have applied the same employment policies, practices, and procedures to all their non-exempt workers at both Diners, including the policies, practices, and procedures complained of herein. 41. At all relevant times, Defendants have constituted a single integrated enterprise that employed Plaintiffs and all similarly situated individuals. 42. In the alternative, at all relevant times, Defendants have been associated and joint employers of Plaintiffs and all other similarly situated individuals at both Diners, within the meaning of the FLSA and the NYLL. 43. At all relevant times, Defendants acted in the interests of each other with regard to their employees, paid their employees by the same methods, and shared control over their employees. 44. At all relevant times, Defendants have: a. exercised or delegated the authority to hire and fire Plaintiffs and other similarly situated employees; b. supervised and controlled the work schedules of Plaintiffs and other similarly situated employees; c. determined the rate and method of payment for Plaintiffs and other similarly situated employees; and 8 d. maintained time and payroll records pertaining to Plaintiffs and other similarly situated employees. Plaintiff Lima 45. Plaintiff Lima began working for Defendants sometime in 2007. He was terminated on or about January 11, 2015. 46. Defendants never provided Plaintiff Lima a written notice, in English and Spanish, containing the information enumerated in NYLL § 195(1)(a). 47. Plaintiff Lima worked for Defendants as a cook at the Mohegan Diner. 48. While employed by Defendants, Plaintiff Lima did not perform any job duties typical of exempt employees. 49. While employed by Defendants, Plaintiff Lima performed only job duties typical of non-exempt employees. 50. Plaintiff Lima generally worked six days per week (every day except Wednesdays) for twelve hours per day, for a total of seventy-two hours per week. 51. During 2010, Plaintiff Lima was paid $500 per week, meaning he was paid at an effective rate of $6.94 per hour for his typical workweek of seventy-two hours. The statutory minimum wage at the time, under both federal and New York law, was $7.25 per hour. 52. At some point in 2011 a co-worker at the Mohegan Diner complained to the Department of Labor. An investigation ensued and, following that investigation, Defendants temporarily eliminated overtime hours for Plaintiff Lima and most, if not all, of his co-workers. 53. By 2012 Plaintiff Lima was once again working, on average, seventy-two hours per week – still for $500. 54. Sometime in 2013 Plaintiff Lima’s pay was raised to $550 per week, or an effective rate of $7.64 per hour for his typical workweek of seventy-two hours. 9 55. By 2014, Plaintiff Lima was being paid $600 per week, or an effective rate of $8.33 per hour for his typical workweek of seventy-two hours. On December 31, 2014, the New York statutory minimum wage was increased to $8.75 per hour. 56. Plaintiff Lima’s pay remained at $600 per week until he was terminated on or about January 11, 2015. 57. Except for the brief period in 2011 following the New York Department of Labor’s investigation at the Mohegan Diner, Plaintiff Lima worked more than forty hours virtually every week he worked. 58. He was never paid time-and-a-half for hours he worked in excess of forty in a week, as required under the FLSA and the NYLL. 59. Plaintiff Lima worked more than ten hours virtually every day that he worked. He was never paid an additional hour’s worth of pay at the minimum wage rate, as required under 83. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 84. During the time Plaintiffs were employed by Defendants, other individuals were employed in non-exempt positions at the Diners. 13 85. Like Plaintiffs, some of these other employees would sometimes work over forty hours per week. 86. Like Plaintiffs, some of these other employees would sometimes work days in which their spread of hours exceeded ten. 87. Plaintiffs and these other employees were not paid time-and-a-half for overtime, nor were they paid spread-of-hours pay. 88. At all relevant times, Plaintiffs and other persons employed by Defendants in non- exempt positions were and are similarly situated, in that they were and are subjected to Defendants’ common policies of: failing to pay their employees at least the New York statutory minimum wage, whether with or without the “tip credit,” for all hours worked; failing to pay their non-exempt employees time-and-a-half for all hours worked in excess of forty as required under the FLSA and the NYLL; failing to pay their non-exempt employees one additional hour of pay at the basic minimum hourly rate on those days when their spread of hours exceeded ten, as required under the NYLL; failing to provide to their non-exempt employees, within ten business days of the commencement of their respective employments, a written notice containing the information enumerated in NYLL § 195(1)(a); and/or failing to provide to their non-exempt employees, with every payment of wages, written statements containing the information required by NYLL § 195(3). 89. Plaintiffs bring their FLSA claims as a collective action pursuant to 29 U.S.C. § 216(b), on behalf of themselves and all other current and former non-exempt employees of Defendants within the applicable statutory period. 90. The proposed FLSA Collective is defined as: All non-managerial employees of JONMAROS FOOD CORP. (d/b/a the MOHEGAN DINER), ABC CORPORATION (d/b/a the CARMEL DINER), 14 JOHN ARGYROS, MARIA ARGYROS, and/or JOHN DOES 1-5 at the Diners at any time within the three years prior to the filing of this Complaint. 91. Plaintiffs bring their NYLL claims as a class action under Rule 23 of the Federal Rules of Civil Procedure and the NYLL, on behalf of themselves and all other current and former non-exempt employees of Defendants within the applicable statutory period. 92. The proposed Rule 23 Class is defined as: All non-managerial employees of JONMAROS FOOD CORP. (d/b/a the MOHEGAN DINER), ABC CORPORATION (d/b/a the CARMEL DINER), JOHN ARGYROS, MARIA ARGYROS, and/or JOHN DOES 1-5 at the Diners at any time within the six years prior to the filing of this Complaint. 93. This action is properly brought as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 94. The class is so numerous that joinder of all members is impractical. While the exact number and identities of class members are unknown at this time and can only be ascertained through appropriate discovery, Plaintiffs believe that at least forty class members have worked for Defendants at the Diners during the applicable statutory period without receiving appropriate minimum wage, overtime, and/or spread-of-hours compensation, as required by the NYLL. 95. This litigation is properly brought as a class action because of the existence of questions of fact and law common to the class which predominate over any questions affecting only individual members, namely whether Defendants are liable for failure to pay Plaintiffs and other members of the putative class at least the statutory New York minimum wage, whether tipped or untipped, for all hours worked; whether Defendants are liable for failure to pay Plaintiffs and other members of the putative class time-and-a-half for hours worked each week in excess of forty; whether Defendants are liable for failure to pay Plaintiffs and other members of 15 the putative class for failure to pay Plaintiffs and other members of the putative class one additional hour of pay at the basic minimum hourly rate on those days when their spread of hours exceeded ten; for failure to provide to Plaintiffs and other members of the putative class, within ten business days of the commencement of their respective employments, a written notice containing the information enumerated in NYLL § 195(1)(a); and for failure to provide to Plaintiffs and other members of the putative class, with every payment of wages, accurate written statements containing the information required by NYLL § 195(3). 96. This litigation is properly brought as a class action because Plaintiffs’ claims are typical of the claims of the members of the class, inasmuch as all such claims arise from Defendants’ standard policies and/or practices, as alleged herein. Like all class members, Plaintiffs were damaged by Defendants’ common policies of failing to pay proper compensation for all hours worked, and failing to provide timely and accurate notices and statements as required under NYLL §§ 195(1) and 195(3). 97. Plaintiffs have no interests antagonistic to the interests of the other members of the class. Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel experienced in class action litigation. Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interests of the class. 98. A class action is an appropriate and superior method for the fair and efficient adjudication of the present controversy given the following factors: a. Common questions of law and/or fact predominate over any individual questions which may arise, and, accordingly, there would accrue significant savings to both the Court and the class in litigating the common issues on a classwide instead of on a repetitive individual basis; b. Because of the relatively small size of individual class members’ claims, class treatment would provide economies of scale that will enable this case to be litigated on a cost-effective basis, when compared with repetitive individual litigation; and 16 c. No unusual difficulties are likely to be encountered in the management of this class action in that all questions of law and/or fact to be litigated at the liability stage of this action are common to the class. 99. Class certification is also fair and efficient because prosecution of separate actions by individual class members would create a risk of differing adjudications with respect to such individual members of the class, which as a practical matter may be dispositive of the interests of other members not parties to the adjudication, or substantially impair or impede the ability of those other parties to protect their interests. 100. Plaintiffs anticipate that there will be no difficulty in the management of this litigation. This litigation presents FLSA and NYLL claims of a type that have often been prosecuted on a classwide basis, and the class may be easily identified, and any recovery may be easily provided to its members, using Defendants’ records. Defendants Constitute A Single Integrated Enterprise That Jointly Employed Plaintiffs And All Similarly Situated Individuals NYCRR § 142-2.2 - Failure to Pay Overtime Wages 132. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 133. At all relevant times, Defendants employed Plaintiffs within the meaning of the NYCRR § 142-2.4 - Failure to Pay Spread-of-Hours Compensation 141. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 142. At all relevant times, Defendants employed Plaintiffs within the meaning of the NYLL § 652 - Failure to Pay Minimum Wage NYCRR § 142-2.2 - Failure to Pay Overtime Wages NYCRR § 142-2.4 - Failure to Pay Spread-of-Hours Compensation NYLL § 195(1)(a) - Failure to Provide Written Pay Notice NYLL § 195(3) - Failure to Provide Written Pay Statements 177. Plaintiffs repeat and reallege all the preceding paragraphs of this Complaint, as if fully set forth herein. 26 178. At all relevant times, Defendants employed Plaintiffs and members of the putative class within the meaning of the NYLL. 179. Plaintiffs and members of the putative class are non-exempt employees within the meaning of the NYLL. 180. Defendants failed to always pay Plaintiffs and members of the putative class at least the New York statutory minimum wage for all hours worked. 181. Defendants failed to pay Plaintiffs and the members of the putative class time- and-a-half for all hours worked each week in excess of forty, as required under the NYLL. 182. Defendants failed to pay Plaintiffs and the members of the putative class one additional hour of pay at the basic minimum hourly rate on those days when their spread of hours exceeded ten, as required under NYCRR § 146-1.6. 183. Defendants failed to provide Plaintiffs and all other similarly situated employees, within ten business days of the commencement of their respective employments, a written notice containing the information enumerated in NYLL § 195(1)(a). 184. Defendants failed to provide to Plaintiffs and all other similarly situated employees, with every payment of wages, written statements containing the information required by NYLL § 195(3). 185. Defendants’ conduct and/or practices, as described above, was and/or is willful, intentional, unreasonable, arbitrary and in bad faith. 186. A six-year statute of limitations applies to each such violation, pursuant to NYLL §§ 198(3), 663(3). 187. As a result of the foregoing, Plaintiffs and the members of the putative class were illegally denied proper compensation earned, in such amounts to be determined at trial, and are 27 entitled to recovery of such total unpaid amounts, liquidated damages, pre-judgment interest, costs, reasonable attorney’s fees, statutory penalties, and other compensation pursuant to NYLL §§ 198(3), 663(3). NYLL § 195(1)(a) - Failure to Provide Written Pay Notice 151. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 152. At all relevant times, Defendants employed Plaintiffs within the meaning of the NYLL § 195(3) - Failure to Provide Written Pay Statements 159. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 160. At all relevant times, Defendants employed Plaintiffs within the meaning of the NYLL § 652 - Failure to Pay Minimum Wages 124. Plaintiffs repeat and reallege all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 125. At all relevant times, Defendants employed Plaintiffs within the meaning of the

win

11. Millennium is a for-profit provider of prescription and illegal drug testing and monitoring products and services, including pharmacogenetic, urine, and oral fluid test kits and cloud based predictive analytics and software. 12. Defendant sent advertisements by facsimile to Plaintiff and a class of similarly-situated persons. Whether Defendant did so directly or with the assistance of a third party (yet unknown to PlaintifD, Defendant is directly liable for violating the TCP A. 14. Exhibit A is a one-page document Defendant sent by fax promoting Defendant's medication monitoring webinar. 15. One of the topics of Defendant's webinar is the "role of medication monitoring as a valuable tool that provides objective, actionable information during the care" of the patient. Exhibit A. 16. The speaker for Defendant's webinar is Millennium employee, Maria Chianta. Ms. Chianta's duties for Defendant include developing "tools and services supporting appropriate utilization of Millennium Health's offerings." Exhibit A. 17. In order to register for Defendant's webinar advertised in Exhibit A, one must provide a full name, email address, practice name, practice address, work telephone, and National Provider Identifier ("NPI"), a unique 10-digit identification number issued to health care providers by the Centers for Medicare and Medicaid Services ("CMS"). Exhibit B. 18. Defendant's webinar 1s a pretext to advertise Defendant's drug monitoring products and services, either during the webinar or by additional contact using the required registration contact information after the webinar. 20. Defendant sells urine drug testing for profit. See http://www.millenniumhealth.com/services/urine-drug-testing/ 21. Defendant's website explains the "advanced" technology that Defendant uses for urine drug testing and then invites those who are "Ready to get started" to "contact their sales support." See http://www.millenniumhealth.com/services/test-offerings/ 22. Exhibit A contains Millennium Health's name and logo. 23. Exhibit A does not include the opt-out notice required by the TCPA. See 47 U.S.C. § 227 (b) (2) (D) & (E) and 47 C.F.R. § 64.1200 (a) (4) (iii) & (v). 24. On information and belief, Defendant sent advertisements by facsimile to Plaintiff and more than 39 other persons in violation of the TCPA. 25. Plaintiff and the other class members owe no obligation to protect their fax machines from Defendant. Their fax machines are ready to send and receive their urgent communications, or private communications about patients' medical needs, not to receive Defendant's unlawful advertisements. 27. Excluded from the class are Defendant, Defendant's officers, directors, legal representatives, heirs, successors, and assigns, any entity in which Defendant has a controlling interest, any parent, subsidiary or affiliated company of Defendant, and any Judge assigned to this action, including his or her immediate family. 28. In this action, Plaintiff intends to discover, include, and resolve the merits of claims about all advertisements Defendant sent by fax. Exhibit C, a Demand for Preservation of All Tangible Documents Including Electronically Stored Information. 29. This action is brought and may properly be maintained as a class action pursuant to Fed. R. Civ. P. 23. This action satisfies Rule 23 (a)'s numerosity, commonality, typicality, and adequacy requirements. Furthermore, the questions of law or fact that are common in this action predominate over any individual questions of law or fact making class representation the superior method to adjudicate this controversy under Rule 23 (b) (3). 3. Private right of action. A person may, if otherwise permitted by the laws or rules of court of a state, bring in an appropriate court of that state: (A) An action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) An action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) Both such actions. 47 u.s.c. § 227 (b) (3). 32. Typicality of claims. Plaintiffs claims are typical of the claims of the other class members, because Plaintiff and all class members were injured by the same wrongful practices. Plaintiff and the members of the class were sent Defendant's advertisements by facsimile and those advertisements did not contain the opt-out notice required by the TCPA. Under the facts of this case, because the focus is upon Defendant's conduct, if Plaintiff prevails on its claims, then the other putative class members will prevail as well. 33. Adeguacy of representation. Plaintiff is an adequate representative of the class because its interests do not conflict with the interests of the class it seeks to represent. Plaintiff has retained undersigned counsel, who are competent and experienced in complex class action litigation, and in TCPA litigation in particular, and Plaintiff intends to vigorously prosecute this action. Plaintiff and its counsel will fairly and adequately protect the interest of members of the class. 35. A class action is the superior method of adjudicating the common questions of law or fact that predominate over individual questions. A class action is superior to other available methods for the fair and efficient adjudication of this lawsuit, because individual litigation of the claims of all class members is economically unfeasible and procedurally impracticable. The likelihood of individual class members prosecuting separate claims is remote, and even if every class member could afford individual litigation, the court system would be unduly burdened by individual litigation of such cases. Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. Relief concerning Plaintiffs rights under the laws herein alleged and with respect to the class would be proper. Plaintiff envisions no difficulty in the management of this action as a class action. 36. Plaintiff incorporates the preceding paragraphs as though fully set forth herein. 37. Plaintiff brings Count I on behalf of itself and a class of similarly situated persons against Defendant. 39. The TCPA 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 express invitation or permission." 47 U.S.C. § 227 (a) (4). 40. The TCPA provides a private right of action as follows: 41. The Court, in its discretion, may treble the statutory damages if it determines that a violation was knowing or willful. 47 U.S.C. § 227 (b) (3). 42. The TCP A requires that every advertisement sent by facsimile must include an opt-out notice clearly and conspicuously displayed on the bottom of its first page. 47 U.S.C. § 227 (b) (2) (D) and (E); 47 C.F.R. § 64.1200 (a) (4). 44. Defendant violated 47 U.S.C. § 227 (b) (2) (D) and (E) and 47 C.F.R. § 45. Facsimile advertising imposes burdens on recipients that are distinct from the burdens imposed by other types of advertising. The required opt·out notice provides recipients the necessary information to opt·out of future fax transmissions, including a notice that the sender's failure to comply with the opt·out request will be unlawful. 47 C.F.R. § 64.1200 (a) (4) (iii). 46. Exhibit A does not state that Defendant's failure to comply with an opt·out request within 30 days is unlawful. 47. Exhibit A does not inform the recipient that he/she/it has a legal right to request that Defendant not send any future fax. 48. Exhibit A does not inform the recipient that the opt·out request will be valid only unless and until the person making the request subsequently provides express invitation or permission to the sender, in writing or otherwise, to send such advertisement to such person at such telephone facsimile machine. 49. The TCPA is a strict liability statute and Defendant 1s liable to Plaintiff and the other class members even if Defendant's actions were negligent. 47 U.S.C. § 227 (b) (3). 51. If Defendant's actions were knowing or willful, then the Court has the discretion to increase the statutory damages up to 3 times the amount. 47 U.S.C. § 227 (b) (3). 52. Defendant is liable for the fax advertisements at issue because it sent the faxes, caused the faxes to be sent, participated in the activity giving rise to or constituting the violation, or the faxes were sent on their behalf. 54. Plaintiff incorporates by reference all preceding paragraphs as though fully set forth herein. 55. Plaintiff brings Count II on behalf of itself and a class of similarly situated persons and against Defendant. 56. By sending advertisements to their fax machines, Defendant improperly and unlawfully converted the class's fax machines to Defendant's own use. Where printed (as in Plaintiffs case), Defendant also improperly and unlawfully converted the class members' paper and toner to Defendant's own use. Defendant also converted Plaintiffs time to Defendant's own use, as it did with the valuable time of the other class members. 58. By sending them unsolicited faxes, Defendant permanently misappropriated the class members' fax machines, toner, paper, and employee time to their own use. Such misappropriation was wrongful and without authorization. 59. Defendant knew or should have known that their misappropriation of paper, toner, and employee time was wrongful and without authorization. 60. Plaintiff and the other class members were deprived of the use of the fax machines, paper, toner, and employee time, which could no longer be used for any other purpose. Plaintiff and each class member thereby suffered damages as a result of their receipt of unsolicited fax advertisements from Defendant. 64.1200 (a) (4) (iii) & (v) by failing to include a compliant opt·out notice. Exhibit A. CONVERSION TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227

lose

21. Plaintiff Garcia is a consumer obligated to pay a residential mortgage debt that arose from the transaction to purchase her personal family home. 22. Nationstar did not originate this consumer debt and instead independently solicited and acquired the servicing rights to collect payments on this debt. 23. Plaintiff’s debt is owed to another entity, the Federal National Mortgage Association; and Nationstar, having solicited and acquired the servicing rights, now collects payments on that entity’s behalf. Pursuant to these collection efforts, Nationstar sends Plaintiff monthly statements that state, “This is an attempt to collect a debt.” 24. Pursuant to its Washington Collection Agency license, Nationstar acts as a collection agency with regards to Plaintiff and her residential mortgage debt. 25. Nationstar began servicing Plaintiff’s consumer debt at a time when Plaintiff had missed making payments for several consecutive months and was in default. Nationstar is a debt collector with regards to Plaintiff and her residential mortgage debt. 26. Within the past year, Plaintiff has paid several “convenience” fees to make payments on her residential mortgage debt. All or a part of these fees were collected by Nationstar incidentally to Plaintiff’s debt but were not expressly authorized by the original agreement creating this debt or otherwise specifically permitted by law. 27. The “convenience” fees that Nationstar collected from Plaintiff to make debt payments exceeded any actual pass-through costs that Nationstar paid to third parties, if any, to process such payments. 36. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 37. Plaintiff and the CPA Class members are individuals obligated for the payment of money concerning debts incurred primarily for personal, family, and/or household purposes and as such are consumer “debtors” owing non-commercial “claims” within the meaning of RCW § 19.16.100(2), (7). 38. Defendant acts as a “collection agency” within the meaning of RCW § 19.16.100(4). Defendant has a Washington collection-agency license and is a “licensee” under the Washington Collection Agency Act within the meaning of RCW § 19.16.100(9). Defendant regularly solicits claims for collection and otherwise engages in collection efforts. With respect to the debts that it does not own but merely services, Defendant routinely collects and attempts to collect claims owed or due (or asserted to be owed or due) to another. With respect to debts that Defendant does own, it generally bought such debts pursuant to its business of purchasing delinquent or charged off claims for collection purposes. Regardless of ownership, Defendant furnishes regular account forms for residential mortgage debts that proclaim to be “attempt[s] to collect a debt” and which thus represent to be part of a collection system intended to be used to collect debts. 49. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 50. Plaintiff and the members of the FDCPA Class and Washington Subclass are natural persons obligated or allegedly obligated to debts incurred for personal, family, and/or household purposes, and as such are “consumers” within the meaning of 15 U.S.C. § 1692a(3). Violations of the CPA, RCW ch. 19.86 (on behalf of Plaintiff and the CPA Class) Violations of the FDCPA, 15 U.S.C. § 1692 et seq. (on behalf of Plaintiff, the FDCPA Class, and the Washington Subclass)

win

26. Having heard about the benefits of kombucha drinks, and specifically that they are known to contain beneficial probiotic bacteria, Plaintiff was looking to buy several kombucha drink products for himself. 27. Beginning in or around 2016, Plaintiff compared several different kombucha drinks, including Defendant’s kombucha drink products at the Costco store located in Coeur d’Alene, Idaho. 44. Plaintiff hereby incorporates the above allegations by reference as though fully set forth herein. 45. Through its product labeling and advertising, Defendant expressly warranted to Plaintiff and the other members of the Class and Subclass that its kombucha drink products contained “billions” of probiotic bacteria. 46. These affirmations of fact and promises regarding the probiotic content of its kombucha drink products were part of the basis of the bargain between Defendant and Plaintiff and the other members of the Class and Subclass. Plaintiff and the other members of the Class and Subclass would not have purchased the kombucha drink products that they bought, or would have paid materially less for them, had they known that these affirmations and promises were false. 50. Plaintiff hereby incorporates the above allegations by reference as though fully set forth herein. 51. The implied warranty of merchantability is codified in Section 2-314 of the Uniform Commercial Code (“UCC”) and requires that goods have to have adequate labeling and conform to any promises or affirmations made on any product label. 59. Plaintiff hereby incorporates the allegations set forth in Paragraphs 1–43 above. 60. Plaintiff and the other members of the Class and Subclass conferred a benefit on Defendant by purchasing its kombucha drink products. 61. It is inequitable and unjust for Defendant to retain the revenues obtained from Plaintiff’s and the other Class and Subclass members’ purchases of Defendant’s kombucha drink products because Defendant knowingly misrepresented the qualities of its kombucha drink products and Plaintiff and the other members of the Class and Subclass would not have purchased the products that they bought, or would have paid materially less for them, had Defendant not made these misrepresentations. Breach of Express Warranty (on behalf of the Class and the subclass) Breach of Implied Warranty (on behalf of the Class and Subclass) COMPLAINT Breach of Warranty 28 U.S.C. § 1332 Defendant is a manufacturer of various kombucha drink products that are sold in stores across Oregon, Idaho, and elsewhere throughout the country. Plaintiff is a frequent shopper at Costco and Fred Meyer stores, two stores that carry kombucha drink products. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. OAK STREET, SUITE 500 PORTLAND, OREGON 97204 Unjust Enrichment (in the alternative to the First and Second Claims For Relief and on behalf of the Class and Subclass)

win

2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is a clothing and accessories company that owns and operates www.bobbyjones.c3style.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions, inquire about pricing, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 25. Many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. Such issues were predominant in the section where Plaintiff was attempting, but was unsuccessful, in making a purchase. 26. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff and similarly situated visually impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This is a problem for the visually impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 29. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 30. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered to the general public. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from equal access to the Website. 33. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 34. Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 37. Because Defendant’s Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.1 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.1 guidelines; b. Regularly check the accessibility of the Website under the WCAG 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 50. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)- (2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 56. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 59. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 60. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 62. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 64. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

lose

10. In contrast, the non-Zip Fitbit devices – the Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge (herein “Fitbit devices”) – charge at least an additional $30 for the 'sleep tracker' function which is not available on the Fitbit Zip. The Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge all claim to “track hours slept,” track “times woken up”, and track the “quality of sleep” of the wearer. These claims are on Fitbit Inc.’s website (www.fitbit.com) as well as on the actual physical packaging of the device itself. 11. On its always-available website, www.fitbit.com, Fitbit Inc. advertises claims that these sleep-tracking devices will “measure your sleep quality. Once the data syncs, graphs on your (device) dashboard will reveal how long you slept and the number of times you woke up, giving you a ‘sleep quality score.’” 12. Even more, the functional displays of information (see below) present even further detail and specific claims. These images claim to identify exactly what time and for how long the Case4:15-cv-02077-DMR Document1 Filed05/08/15 Page3 of 29 37. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 38. Plaintiff brings this action on behalf of himself and all other similarly situated persons (hereinafter referred to as “putative class members”), to wit: All individuals who have purchased a Fitbit Force, a Fitbit Flex, a Fitbit One, a Fitbit Ultra, a Fitbit Charge, a Fitbit Charge HR, and/or a Fitbit Surge within the applicable statute of limitations. 39. The class numbers over one-hundred (100) persons and is so numerous that joinder of all members is impracticable, and it is further impracticable to bring all such persons before this Court. 40. The injuries and damages to these class members present questions of law and fact that are common to each class member, and that are common to the class as a whole. 41. Defendant has engaged in the same conduct regarding all of the other members of the classes asserted in this suit. 42. The claims, defenses, and injuries of the representative Plaintiff is typical of the claims, defenses, and injuries of all those in the class he represents, and the claims, defenses, and injuries of each class member are typical of those of all other members in the class. 43. The representative Plaintiff will fully and adequately protect and represent the entire class, and all of its putative class members. 44. The identity of all members of the class cannot be determined at this time, but will be so determined at a later time upon obtaining discovery from Defendant and others. 45. The prosecution of separate actions by each member of these classes would create a substantial risk of inconsistent or varying adjudications with regard to individual members of the class that would establish incompatible standards of conduct for Defendant. 46. The prosecution of separate actions would also create a substantial risk of adjudication with respect to individual members of the class which, as a practical matter, would be dispositive of the interest of other members not parties to the adjudication, thereby substantially impairing and impeding their ability to protect these interests. Further, the maintenance of this suit Case4:15-cv-02077-DMR Document1 Filed05/08/15 Page8 of 29 47. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 48. At all times relevant hereto, Defendant’s alleged actions constitute a business practice under California law. 49. The California Unfair Competition Law (“UCL”) defines unfair business competition to include “unlawful, unfair, or fraudulent” acts or practices, as well as any unfair, deceptive, untrue, or misleading advertising. Bus & Prof. Code, § 17200. 50. The California Supreme Court has emphasized that the “[s]ubstantive right extended to the public by the UCL is the right to protection from fraud, deceit, and unlawful conduct, and the focus of the statute is on the defendant’s conduct.” a. “Unlawful” Prong of the UCL 51. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 52. A business act or practice is “unlawful” if it violates any established state or federal law. 53. The Federal Trade Commission Act prohibits unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce, which includes, inter alia, false advertising. 15 U.S.C. § 41 et seq.; 15 U.S.C. § 52(a) & (b). 54. Defendant has violated and continues to violate the “unlawful” prong of the UCL by violating the FTC Act’s prohibition on false advertising and deceptive acts and practices when it represented to consumers that the sleep-tracking function of its Fitbit devices can and does make specific, mathematical measurements and calculations as to the amount and quality of the wearer’s sleep, as stated above. Case4:15-cv-02077-DMR Document1 Filed05/08/15 Page9 of 29 7. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 76. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 77. The California False Advertising Law (FAL) prohibits unfair, deceptive, untrue, or misleading advertising. Case4:15-cv-02077-DMR Document1 Filed05/08/15 Page12 of 29 8. Defendant markets and sells to consumers, directly and through large retail stores throughout the country, distinctly branded personal fitness-tracking devices. These are called the Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Zip, and Fitbit Ultra; as well as Fitbit’s second-generation products, the Fitbit Charge, Fitbit Charge HR, and Fitbit Surge. 81. Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint. 82. At all relevant times hereto, including at all times during the transactions between Plaintiff Brickman and Defendant, and the consumer transactions between the putative class members and Defendant, Plaintiff Brickman and each of the putative class members were “consumers”, and the transactions were “consumer transactions”, within the meaning of the CLRA. 83. In connection with the consumer transactions alleged herein, including the consumer transaction between Plaintiff and Defendant, and the consumer transactions between the putative class members and Defendant, Defendant’s representations, acts, and/or practices regarding the Fitbit sleep-tracking function’s purported abilities were unfair and deceptive, to wit: a. Defendant made very specific representations that the Fitbit sleep function will precisely track, to the minute, the amount a user sleeps and the quality and efficiency, to an exact percentage point, of that sleep. Case4:15-cv-02077-DMR Document1 Filed05/08/15 Page13 of 29 9. The basic model of the devices, the Fitbit Zip, does not have the 'sleep-tracking function' and the price for this base-model device does not reflect any extra charge for that function. California’s Unfair Competition Law Bus & Prof. Code, § 17200 et seq. California False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq. Consumer Legal Remedies Act, Cal Civ. Code § 1750 et seq.

win

41. Plaintiff brings this action derivatively in the right and for the benefit of Entropic to redress injuries suffered, and to be suffered, by Entropic as a direct result of the breaches of fiduciary duty by the Individual Defendants. 42. Plaintiff will adequately and fairly represent the interests of Entropic and its shareholders in enforcing and prosecuting their rights. 43. Plaintiff is and was an owner of the stock of Entropic during all times relevant to the Individual Defendants' wrongful course of conduct alleged herein. 45. Plaintiff brings this action individually and as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of all public holders of Entropic 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 defendant. 46. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23. 47. The Class is so numerous that joinder of all members is impracticable. According to Entropic's U.S. Securities and Exchange Commission filings, as of October 31, 2014, there were more than 90 million shares of Entropic common stock outstanding. 49. Plaintiff's claims are typical of the claims of the other members of the Class and plaintiff does not have any interests adverse to the Class. 50. Plaintiff is an adequate representative of the Class, has retained competent counsel experienced in litigation of this nature, and will fairly and adequately protect the interests of the Class. 52. Plaintiff anticipates that there will be no difficulty in the management of this litigation. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 53. Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. 54. Plaintiff incorporates by reference and realleges each and every allegation set forth above. 55. The Individual Defendants have violated fiduciary duties of care, loyalty, candor, good faith, and independence owed to Entropic and have acted to put their personal interests ahead of the interests of Entropic. 56. By the acts, transactions and courses of conduct alleged herein, the Individual Defendants, individually and acting as a part of a common plan, have violated their fiduciary duties by entering into a merger transaction with MaxLinear without regard to the fairness of the transaction to Entropic. 58. Because the Individual Defendants dominate and control the business and corporate affairs of Entropic, and are in possession of private corporate information concerning Entropic's assets, business and future prospects, there exists an imbalance and disparity of knowledge and economic power between them and the public shareholders of Entropic which makes it inherently unfair for them to pursue any proposed transaction wherein they will reap disproportionate benefits to the exclusion of maximizing stockholder value. 59. By reason of the foregoing acts, practices and course of conduct, the Individual Defendants have failed to exercise ordinary care and diligence in the exercise of their fiduciary obligations toward Entropic. 60. The Individual Defendants are engaging in self dealing, are not acting in good faith toward Entropic, and have breached and are breaching the fiduciary duties owed to Entropic. 61. Unless enjoined by this Court, the Individual Defendants will continue to breach their fiduciary duties owed to the Company, and may consummate the Proposed Acquisition without providing the Company and its shareholders a full and fair sales process. 62. As a result of the Individual Defendants' actions, the Company has and will be irreparably harmed. 63. The Company has no adequate remedy at law. 64. Plaintiff repeats and realleges each allegation set forth herein. 66. By the acts, transactions and courses of conduct alleged herein, defendants, individually and acting as a part of a common plan, knowingly or recklessly and in bad faith are attempting to unfairly deprive plaintiff and the other members of the Class of the true value of their investment in Entropic. 67. The Individual Defendants have knowingly or recklessly and in bad faith violated their fiduciary duties by entering into the Proposed Acquisition without regard to the fairness of the transaction to Entropic's shareholders. MaxLinear, Inc., Merger Sub One and Merger Sub Two aided and abetted the Individual Defendants' breaches of fiduciary duties owed to plaintiff and the other holders of Entropic stock. 68. As demonstrated by the allegations above, the Individual Defendants knowingly or recklessly and in bad faith failed to exercise the care required, and breached their duties of loyalty, good faith, candor and independence owed to the shareholders of Entropic because, among other reasons, they failed to ensure a fair process and maximization of shareholder value. 69. Because the Individual Defendants dominate and control the business and corporate affairs of Entropic, and are in possession of private corporate information concerning Entropic's assets, business and future prospects, there exists an imbalance and disparity of knowledge and economic power between them and the public shareholders of Entropic which makes it inherently unfair for them to pursue any proposed transaction wherein they will reap disproportionate benefits to the exclusion of maximizing stockholder value. 71. As a result of the actions of defendants, plaintiff and the Class have been and will be irreparably harmed. 72. Unless the Proposed Acquisition is enjoined by the Court, defendants will continue to knowingly or recklessly and in bad faith breach their fiduciary duties owed to plaintiff and the other members of the Class, will not engage in arm's-length negotiations on the Proposed Acquisition's terms, and will not supply to Entropic's shareholders sufficient information to enable them to make informed decisions regarding the tender of their shares in connection with the Proposed Acquisition, and may consummate the Proposed Acquisition, all to the irreparable harm of the members of the Class. 73. Plaintiff and the other members of the Class have no adequate remedy at law. Only through the exercise of this Court's equitable powers can plaintiff and the Class be fully protected from the immediate and irreparable injury which defendants' actions threaten to inflict. Class Claim for Breach of Fiduciary Duties and Aiding and Abetting Against All Defendants Derivative Claim Against the Individual Defendants for Bread of Fiduciary Duties

lose

11. Defendants allege Plaintiff owes a debt (“the Debt”). 12. The Debt was primarily for personal, family or household purposes and is therefore a “debt” as defined by 15 U.S.C. § 1692a(5). 13. Sometime after the incurrence of the Debt Plaintiff fell behind on payments owed. 132. Plaintiff brings this action individually and as a class action on behalf of all persons similarly situated in the State of New York from whom Defendants attempted to collect a consumer debt using a collection letter substantially similar to the Letter herein, from one year before the date of this Complaint to the present. 133. 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. 134. Defendants regularly engage in debt collection. 135. The Class consists of more than 35 persons from whom Defendants attempted to collect delinquent consumer debts using a collection letter substantially similar to the Letter herein. 136. Plaintiff's claims are typical of the claims of the Class. Common questions of law or fact raised by this class action complaint 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. This class action is superior to other available methods for the fair and efficient adjudication of this controversy. 137. 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. 138. Plaintiff will fairly and adequately protect and represent the interests of the Class. The management of the class action proposed is not extraordinarily difficult, and the factual and legal issues raised by this class action complaint 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 12 14. Thereafter, at an exact time known only to Defendants, the debt was assigned or otherwise transferred to Defendants for collection. 15. In their efforts to collect the debt, Defendants contacted Plaintiff by letter (“the Letter”) dated April 30, 2018. (“Exhibit 1.”) 16. The letter was the initial communication Plaintiff received from Defendants. 17. The letter is a “communication” as defined by 15 U.S.C. § 1692a(2). 18. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 3 84. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 85. As previously set forth, the Letter sets forth a “Current Balance Claimed Due.” 86. As previously set forth, Plaintiff was always charged interest on any balance carried on the account. 87. As previously set forth, Plaintiff was always charged late fees on any payments due but not timely made by Plaintiff. 88. As previously set forth, Plaintiff was never informed by anyone that the terms and conditions of the credit card were changed. 89. The Letter fails to disclose whether the amount stated may increase due to additional interest. 90. The Letter fails to disclose whether the amount stated may increase due to additional late fees. 91. The Letter fails to indicate whether the creditor will accept payment of the amount stated in full satisfaction of the debt if payment is made by a specified date. 8 Violation of 15 U.S.C. § 1692e Violation of 15 U.S.C. § 1692g Validation of Debts 9 Violation of 15 U.S.C. § 1692g 5 BARSHAY | SANDERSPLLC Violation of 15 U.S.C. § 1692e

win

(Violation of the “Fraudulent” Prong of the UCL) (Violation of the California False Advertising Law, California Business & Professions Code Sections 17500, et seq.) (Violation of the “Unfair” Prong of the UCL) (Violation of the Consumers Legal Remedies Act, California Civil Code Sections 1750, et seq.: Injunctive Relief) (Violation of the “Unlawful” Prong of the UCL) 1. Violation of the “Unfair” Prong of the UCL 2. Violation of the “Fraudulent” Prong of the UCL 23. Traditionally, retail outlet stores were located in remote areas and typically maintained an inventory of defective and excess merchandise. Customers often flocked to these outlets in hopes of finding steep discounts and bargains. See http://www.forbes.com/sites/investopedia/2012/12/29/7-tips-for-outlet-mall-shopping/ (last visited August 11, 2014). 26 DATED: October 10, 2014 LAW OFFICES OF WAYNE S. KREGER, 3. Violation of the “Unlawful” Prong of the UCL 36. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if set forth herein in full. 37. Plaintiff brings this action on behalf of himself and the members of the proposed Class. The proposed Class consists of: All individuals residing in the State of California who, within the applicable statute of limitations preceding the filing of this action, purchased Nordstrom Rack Products. 38. Excluded from the Class are Nordstrom, its parents, subsidiaries, affiliates, officers and directors, any entity in which Nordstrom has a controlling interest, all customers who make a timely election to be excluded, governmental entities, and all judges assigned to hear any aspect of this litigation, as well as their immediate family members. 39. The members of the Class are so numerous that joinder is impractical. The Class consists of thousands of members, the precise number which is within the knowledge of and can be ascertained only by resort to Nordstrom’s records. 4. Violation of the California False Advertising Law, California Business & Professions Code Sections 17500, et seq. 46. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 47. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Business & Professions Code § 17200. 48. A business act or practice is “unfair” under the UCL if the reasons, justifications and motives of the alleged wrongdoer are outweighed by the gravity of the harm to the alleged victims. 53. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 54. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Pro. Code § 17200. 55. A business act or practice is “fraudulent” under the UCL if it is likely to deceive members of the consuming public. 56. The labels on the Nordstrom Rack Products and advertising materials concerning false former prices were fraudulent within the meaning of the UCL because they deceived Plaintiff, and were likely to deceive members of the class, into believing that Nordstrom was offering value, discounts or bargains at Nordstrom Rack stores from the prevailing market value or worth of the products sold that did not, in fact, exist. 57. Nordstrom deceived consumers into believing that it was offering value, discounts or bargains at Nordstrom Rack stores from the prevailing market value or worth of the Nordstrom Rack products sold that did not, in fact, exist. 62. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 63. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Business & Professions Code § 17200. 64. A business act or practice is “unlawful” under the UCL if it violates any other law or regulation. 65. California statutory and regulatory law also expressly prohibits false former pricing schemes. Business & Professions Code § 17501, entitled “Value determinations; Former price advertisements,” states: For the purpose of this article the worth or value of anything advertised is the prevailing market price, wholesale if the offer is at wholesale, retail if the offer at retail, at the time of publication of such advertisement in the locality wherein the advertisement is published. No price shall be advertised as a former price of any advertised thing, unless the alleged former price was the prevailing market price as above defined within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly and conspicuously stated in the advertisement. [Emphasis added.] 72. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 73. California’s Business and Professions Code §§ 17500, et seq. prohibits unfair, deceptive, untrue, or misleading advertising, including, but not limited to, false statements as to worth, value and former price. 76. Plaintiff incorporates and realleges by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 77. This cause of action is brought pursuant to the CLRA. ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

lose

65. Plaintiffs brings the First Cause of Action on behalf of themselves and the following collective: an opt-in collective pursuant to 29 U.S.C. § 216(b) of all employees Premier classified as non-exempt from overtime, employed by Premier as in-house staff (and who did not supervise other in-house staff) within the State of New York, for the period of time of such non-exempt classification, within the three years prior to opting into the instant action through the resolution of their FLSA claims (the “In-House Staff Collective”). 66. Defendant is liable under the FLSA for, inter alia, failing to properly compensate Plaintiffs and other similarly situated members of the In-House Staff Collective with overtime premium compensation. 67. At all times relevant, consistent with Defendant’s policy, practice, and/or procedure, Plaintiffs and the other members of the FLSA In-House Staff Collective, were not paid all overtime premium compensation due when they worked over 40 hours in a workweek. 69. At all times relevant, as part of its regular business practice, Premier has intentionally, willfully, and/or not in good faith engaged in a policy, practice, and/or procedure of violating the FLSA with respect to Plaintiffs and the members of In-House Staff Collective. This policy, practice, and/or procedure included willfully failing to pay Plaintiffs and the members of the In-House Staff Collective all overtime premium wages due for hours that they worked in excess of 40 hours in a workweek. 70. Premier is aware, or should have been aware, that federal law required Premier to pay Plaintiffs and the members of the In-House Staff Collective overtime premiums for all hours worked in excess of 40 per workweek. 71. The In-House Collective consists of many similarly situated individuals to whom Premier has not paid all of the required overtime premiums due, who would benefit from the issuance of a court-supervised notice of the lawsuit and the opportunity to join the lawsuit. 72. Those similarly situated collective members are known to Premier, are readily identifiable, and can be located through Premier’s records. 73. Upon information and belief, at all times relevant, Defendant’s annual gross volume of sales made or business done was not less than $500,000. 74. Notice should be sent to the members of the In-House Staff Collective pursuant to 29 U.S.C § 216(b). 75. Plaintiffs bring the second and third causes of action under Rule 23 of the Federal Rules of Civil Procedure. 77. Excluded from the In-House Staff Class are Defendant, Defendant’s legal representatives, officers, directors, assigns, and successors, or any individual who has, or at any time during the class period has had, a controlling interest in Defendant; the Judge(s) to whom this case is assigned and any member of the Judge’s immediate family; all current or former in- house staff employees of Premier with claims against Defendant filed in state or federal court prior to the filing of this Class and Collective Action Complaint, and all persons who will submit timely and otherwise proper requests for exclusion from the In-House Staff Class. 78. Plaintiffs are members of the class that they seek to represent. 79. The members of the In-House Staff Class identified herein are so numerous that joinder of all members is impracticable. Although Plaintiffs do not know precisely how many In-House Class Staff Class members Premier has employed during the relevant time period, upon information and belief, their number is far greater than can be feasibly addressed through joinder. 81. The Representative Plaintiffs’ claims are typical of the claims of the class. 82. Plaintiffs and the In-House Staff Class were subject to the same or very similar compensation policies and practices and have sustained the same or similar types of damages as a result of Defendant’s violations of the NYLL. 84. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendant has acted and/or refused to act on grounds generally applicable to the class, making declaratory and/or injunctive relief appropriate with respect to Plaintiffs and the class as a whole. The class members are entitled to declaratory and/or injunctive relief as to Defendant’s violations, including, but not limited to, pursuant to NYLL § 198(1)(1-b), (1)(1-d). 85. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The members of the class have been injured and are entitled to recovery as a result of common illegal practices. 87. Those similarly situated members of the In-House Staff class are known to Premier, are readily identifiable, and can be located through Premier’s records. 88. The members of the class have been injured and are entitled to damages, necessitating the resolution of common issues regarding the calculation of class damages. 89. Upon information and belief, at all times relevant, Defendant had a policy, practice, and/or procedure of classifying Plaintiffs and the members of the In-House Staff Collective and In-House Class as non-exempt hourly workers entitled to overtime. 90. At all times relevant, Defendant had a policy, practice, and/or procedure of failing to pay Plaintiffs, and members of the In-House Staff Collective and In-House Staff Class, overtime premiums for all hours worked over forty hours a week. 91. This policy, practice, and/or procedure of failing to pay all overtime wages due included, as stated in Defendant’s employee manual applicable to New York Premier employees for all or some of the relevant period, that: “[a]n employee must work over 43.75 hours in order to be eligible for overtime pay during a normal work [sic] with no time off other than meal breaks.” (emphasis added). 92. Premier’s employee manual applicable to New York employees for all or some of the relevant period also stated that “time off for lunch breaks, holidays, sick leave, vacation leave, or any leave of absence will not be considered time worked for purposes of overtime calculations.” 94. Upon information and belief, the only year that Defendant even attempted to provide a notice required by NYLL § 195(1) to Plaintiffs, or members of the In-House Staff Class, was during 2014. 95. At all times relevant, Defendant had a policy, practice, and/or procedure of failing to provide Plaintiffs and the members of the In-House Staff Class, with compliant NYLL § 195(3) wage statements with each payment of wages, including because such wage statements, did not contain the telephone number of Defendant (and/or its predecessors) and/or did not provide accurate statements of the amount of straight time hours actually worked, the amount of overtime hours actually worked, and/or the amount of vacation time actually taken. 96. Plaintiffs re-allege and incorporate by reference all allegations in the preceding paragraphs. 97. At all times relevant, Plaintiffs and the members of the In-House Staff Collective were employed and/or jointly employed by Defendant within the meaning of the FLSA. 98. The overtime wage provisions set forth in §§ 201 et seq. of the FLSA applies to Plaintiff and the members of the In-House Collective. Fair Labor Standards Act - Overtime Violations (Brought on behalf of Plaintiffs and the Members of the In-House Staff Collective)

win

(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.) 15. In 1991, Congress enacted the TCPA in response to a growing number of consumer complaints regarding certain telemarketing practices. 32. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully stated herein. 33. 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. 34. As a result of Defendants’ knowing and/or willful violations of 47 U.S.C. § 227 et seq., Plaintiffs and members of the proposed class 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)(C). 35. Plaintiffs and members of the proposed class are also entitled to and do seek injunctive relief prohibiting such conduct violating the TCPA by Defendants in the future. 37. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully stated herein. 38. 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. 39. As a result of Defendants’ violations of 47 U.S.C. § 227 et seq., Plaintiffs and members of the proposed class 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). 40. Plaintiffs and members of the proposed class are also entitled to and do seek injunctive relief prohibiting such conduct violating the TCPA by Defendants in the future. 41. Plaintiffs and members of the proposed class are also entitled to an award of attorneys’ fees and costs. A. The Telephone Consumer Protection Act Of 1991

lose

(Overtime under the FLSA) (Overtime under the NYLL) (Wage Payment Statements under the NYLL) 20. Defendant RCI Plumbing Corp. has been in operation since 2002 and currently employs fifty (50) or more workers consisting of plumbers, mechanics and laborers. Plaintiff Alvaro Dector 21. Plaintiff Dector worked for Defendants as a plumber and junior mechanic from on or about June 24, 2016 through January 24, 2017. 22. As a plumber and junior mechanic, Plaintiff Dector’s duties, included, without limitation, installing drains, pipes and performing tapwork. 23. Throughout his employment, Plaintiff Dector worked 7:00 a.m. to 3:30 p.m., Monday through Saturday, with a half hour lunch break each workday, for an approximate total of forty-eight (48) hours per week. 24. Plaintiff Dector was paid $22.00 per hour during his employment. 25. Irrespective of the number of hours he worked per week, Plaintiff Dector was paid his straight hourly rate and was not paid one and one half times his regular hourly rate for hours worked in excess of forty (40) hours per week. 26. Plaintiff Dector was paid for his first forty (40) hours worked by check and was paid at his regular rate of pay for his overtime hours by cash. Plaintiff Wilson Romero 27. Plaintiff Romero worked for Defendants as a plumber and junior mechanic from on or about February 2, 2016 through November 27, 2016. 29. From on or about February 3, 2016 through April 2016, Plaintiff Romero worked 7:00 a.m. to 7:00 p.m. Monday through Friday, and 7:00 a.m. to 2:30 p.m. on Saturday, with a half hour lunch break each workday, for an approximate total of sixty-four and one half (64.5) hours per week. 30. From February 2016 through April 2016, Plaintiff Romero was paid $15.00 per hour. 31. From in or around May 2016 through November 27, 2016, Plaintiff Romero worked 7:00 a.m. to 3:30 p.m., Monday through Saturday, with a half hour lunch break each workday, for an approximate total of forty-eight (48) hours per week. 32. From in or around May 2016 through November 27, 2016, Plaintiff Romero was paid $17.00 per hour. 33. Irrespective of the number of hours he worked per week, Plaintiff Romero was paid his straight hourly rate and was not paid one and one half times his regular hourly rate for hours worked in excess of forty (40) hours per week. 34. Plaintiff Romero was paid for his first forty (40) hours worked by check and was paid at his regular rate of pay for his overtime hours by cash. Violations 35. At all relevant times, Defendant Christopher Chierchio was responsible for hiring and firing, supervising, creating work schedules, determining rates of pay and assigning work tasks for the workers and Plaintiffs at RCI Plumbing Corp. 37. At all relevant times, each of the Defendants maintained control, oversight and authority over Plaintiffs in the terms and conditions of Plaintiffs’ employment and payment of wages, and were therefore Plaintiffs’ employer as defined under the FLSA and NYLL. 38. The work performed by Plaintiffs was non-exempt work, as that term is used and defined in the U.S. Department of Labor's (DOL) regulations promulgated under the FLSA and 45. Employees are "similarly situated" for purposes of FLSA collective wage suits if they are subject to a common policy, plan, or design. 46. Plaintiffs bring the FLSA claims on behalf of themselves and others similarly situated, namely employees of Defendants who worked as plumbers, mechanics and laborers from the period of January 1, 2014 to the date of final judgment in this matter, who were not paid their full overtime wages for hours worked in excess of forty (40) hours per week, and who do not opt into this action (hereinafter referred to as the “RCI Collective”). 47. Upon information and belief, the RCI Collective consists of approximately two hundred (200) similarly situated individuals who have not been paid their full overtime wages and who would benefit from the issuance of a court-supervised notice of the lawsuit and the opportunity to join the lawsuit. 48. Defendants have failed to pay all overtime wages owed to employees other than those in the RCI Collective, and Plaintiffs reserve the right to broaden the definition of the collective group and/or add subgroups to this claim as additional members are discovered. 49. Defendants are liable under the FLSA for, inter alia, failing to properly compensate Plaintiffs and others similarly situated. 50. Those similarly situated potential collective members are known to Defendants, are readily identifiable, and can be located through Defendants’ records. 51. Plaintiffs bring this case a representative of a class of all other persons similarly situated. 53. Upon information and belief, the RCI Class includes over two hundred (200) similarly situated individuals who have not been paid overtime wages, have not received wage payment statements, and who would benefit from the issuance of a court-supervised notice of the lawsuit and the opportunity to join the lawsuit. 54. The RCI Class is so numerous as to make it impracticable to join all members of the class as Plaintiffs. 55. There are questions of law and fact common to all members of the RCI Class and those questions predominate over any question affecting only individual class members. Defendants have acted on grounds generally applicable to all class members, in that Defendants’ acts and omissions constitute a violation of the wage laws of the State of New York. 57. Plaintiffs’ wage and hour claims and Defendants’ anticipated affirmative defenses thereto are typical of the claims of all class members and of Defendants’ anticipated affirmative defenses thereto. 58. Plaintiffs will fairly and adequately protect the interests of all class members in the prosecution of this action and in the administration of all matters relating to the claims of the class. Plaintiffs are similarly situated with, and have suffered similar injuries as, the members of the class they seek to represent. 59. Plaintiffs have retained counsel capable of handling class action suits. Neither Plaintiffs nor their counsel have an interest which is in conflict with the class or which might cause them not to vigorously pursue this action. 60. Class certification is appropriate here because the prosecution of separate actions by class members could result in either inconsistent adjudications establishing incompatible pay practices, or could as a practical matter dispose of the legal claims of class members not parties to such separate adjudications. 61. Class certification is appropriate here because questions of law or fact common to members of the class predominate over any questions affecting only individual members and because a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 63. As part of their ongoing business practice, Defendants have intentionally, willfully and repeatedly harmed Plaintiffs and the RCI Class by engaging in a pattern, practice and/or policy of violating the NYLL. 64. Defendants have substantially benefitted and profited from the work that Plaintiffs and the RCI Class have performed. 65. Defendants failed to keep any records of the hours worked by the Plaintiffs and the RCI Class. 66. Defendants’ unlawful conduct, policies and practices have been widespread, repeated, and consistent. 67. Defendants’ conduct, policies, and practices as described herein are ongoing and continuing. 68. Defendants’ conduct, policies and practices have been intentional, willful, and in bad faith, and has caused significant damages to the Plaintiffs and the RCI Class. 69. Plaintiffs repeat and reallege each and every allegation in the preceding paragraphs with the same force and effect as if fully set forth herein. 70. At all relevant times, Plaintiffs and the RCI Collective were employees of the Defendants within the meaning of 29 U.S.C. § 203(e) and Defendants employed Plaintiffs within the meaning of 29 U.S.C. § 203(g). 72. At all relevant times, Defendants annual volume of business exceeds $500,000.00 and thus subjects Defendants to the requirements of the FLSA. 73. As the Defendants shared control of the services of the Plaintiffs and the RCI Collective, Defendants are a single “employer” as defined by the Fair Labor Standards Act. 74. At all relevant times, Defendants were subject to the overtime wage requirements set forth in the FLSA, 29 U.S.C. § 201 et seq. 75. Defendants expected Plaintiffs and the RCI Collective to work more than forty (40) hours a week, and Plaintiffs and the RCI Collective regularly worked more than forty (40) hours a week throughout their employment. 76. At no time have the Defendants paid Plaintiffs and the RCI Collective a rate of one and one half times their hourly rate of pay for all of the hours they worked in excess of forty (40) hours per week. 77. Defendants willfully, knowingly and intentionally did not compensate Plaintiffs and the RCI Collective for overtime at a rate of one and one half times their hourly rate of pay for all of the hours they worked in excess of forty (40) hours a week. 78. As a result of Defendants’ violations of the law and failures to pay Plaintiffs and the RCI Collective required overtime wages, Plaintiffs and the RCI Collective have been damaged and are entitled to recover from Defendants all wages due, along with all reasonable attorneys’ fees, interest, and costs, pursuant to 29 U.S.C. § 216(b). 80. Plaintiffs repeat and reallege each and every allegation in the preceding paragraphs with the same force and effect as if fully set forth herein. 81. At all relevant times, Plaintiffs and the RCI Class were employees and Defendants were their employers within the meaning of NYLL §§ 190, 651 and 652. 82. At all relevant times, Defendants were subject to the overtime wage requirements set forth in Article 19 of the NYLL. 83. Pursuant to NYLL § 650 et seq. and 12 NYCRR 142-2.2, non-exempt employees are required to be paid one and one-half times the employees' regular rate of pay for any hours in excess of forty (40) worked in any workweek. 84. Defendants expected Plaintiffs and the RCI Class to work more than forty (40) hours a week, and Plaintiffs and the RCI Class regularly worked more than forty (40) hours a week throughout their employment. 85. At no time have the Defendants paid Plaintiffs and the RCI Class a rate of one and one-half times their hourly rate of pay for all of the hours they worked in excess of forty (40) hours per week. 86. Defendants willfully, knowingly and intentionally did not compensate Plaintiffs and the RCI Class for overtime at a rate of one and one half times their hourly rate of pay for all of the hours they worked in excess of forty (40) hours a week. 88. As Defendants did not have a good faith basis to believe that their failure to pay overtime wages to Plaintiffs and the RCI Class was in compliance with the law, Plaintiffs and the RCI Class are entitled to additional liquidated damages equal to one hundred percent of the total amount of wages due, pursuant to NYLL§ 198. 89. Plaintiffs repeats and realleges each and every allegation in the preceding paragraphs with the same force and effect as if fully set forth herein. 90. At all relevant times, Defendants failed to provide Plaintiffs and the RCI Class with the proper statements with every payment of wages, as required by NYLL § 195(1).

win

14. Clovis is a biopharmaceutical company focused on acquiring, developing, and commercializing cancer treatments in the United States, Europe, and other international markets. The Company’s development programs are targeted at specific subsets of cancer, combining personalized medicine with companion diagnostics to direct therapeutics to those patients most likely to benefit from them. Clovis has three product candidates in clinical development: rociletinib (CO-1686), which is in Phase II development for the treatment of non-small cell lunch cancer; recaparib, which is in Phase II and Phase III clinical trials for the treatment of ovarian cancer; and lucitanib, which is in Phase II clinical trials for the treatment of breast and lung cancers. Clovis has received Breakthrough Therapy designation from the FDA for rociletinib and rucaparib. The Company maintains global rights to rociletinib and rucaparib, and U.S. and Japanese rights to lucitanib. 16. Data from TIGER-X, combined with data from TIGER-2, were submitted by the Company as the basis of NDA and MAA submissions for rociletinib. 17. Throughout the Class Period, Clovis has misrepresented the nature of the TIGER program’s results. The Material Misrepresentations and Omissions 29. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all persons who purchased or otherwise acquired Clovis common stock during the Class Period (the “Class”). Excluded from the Class are Defendants and their families, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors, or assigns, and any entity in which Defendants have or had a controlling interest. 30. The members of the Class are so numerous that joinder of all members is impracticable, since Clovis has millions of shares of stock outstanding and because the Company’s shares were actively traded on the NASDAQ. As of October 30, 2015, Clovis had more than 38 million shares issued and outstanding. While the exact number of Class members in unknown to Plaintiff at this time and can only be ascertained through appropriate discovery, Plaintiff believes that there are thousands of members in the proposed Class and that they are geographically dispersed. 32. Plaintiff’s claims are typical of those of the Class because Plaintiff and the Class sustained damages from Defendants’ wrongful conduct in a substantially identical manner. 33. Plaintiff will adequately protect the interests of the Class and has retained counsel who are experienced in class action securities litigation. Plaintiff has no interests which conflict with those of the Class. 35. Plaintiff incorporates by reference each and every preceding paragraph as though fully set forth herein. 36. This Count is asserted by Plaintiff on behalf of himself and the Class against all Defendants and is based upon Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder. 37. During the Class Period, Defendants carried out a plan, scheme, and course of conduct that was intended to and, throughout the Class Period, did: (i) deceive the investing public, including Plaintiff and other Class members, as alleged herein; (ii) artificially inflate and maintain the market price of Clovis’s common stock; and (iii) cause Plaintiff and other members of the Class to purchase or otherwise acquire Clovis’s common stock at artificially inflated prices. In furtherance of this unlawful scheme, plan, and course of conduct, the Defendants, and each of them, took the actions set forth herein. 39. As a result of their making and/or their substantial participation in the creation of affirmative statements and reports to the investing public, Defendants had a duty to promptly disseminate truthful information that would be material to investors in compliance with the integrated disclosure provisions of the SEC, as embodied in SEC Regulation S-K (17 C.F.R. § 229.10, et seq.) and other SEC regulations, including accurate and truthful information with respect to the Company’s operations and performance so that the market prices of the Company’s publicly traded securities would be based on truthful, complete, and accurate information. Defendants’ material misrepresentations and omissions as set forth herein violated that duty. 40. Defendants engaged in the fraudulent activity described above knowingly and intentionally or in such a reckless manner as to constitute willful deceit and fraud upon Plaintiff and the Class. Defendants knowingly or recklessly caused their reports and statements to contain misstatements and omissions of material fact as alleged herein. 41. As a result of Defendants’ fraudulent activity, the market price of Clovis common stock was artificially inflated during the Class Period. 42. In ignorance of the true financial condition of Clovis, Plaintiff and other members of the Class, relying on the integrity of the market and/or on the statements and reports of Clovis containing the misleading information, purchased or otherwise acquired Clovis’s common stock at artificially inflated prices during the Class Period. 44. Throughout the Class Period, Defendants were aware of material non-public information concerning Clovis’s fraudulent conduct (including the false and misleading statements described herein). Throughout the Class Period, Defendants willfully and knowingly concealed this adverse information, and Plaintiff’s and the Class’s losses were the foreseeable consequence of Defendants’ concealment of this information. 45. As a direct and proximate cause of the Defendants’ wrongful conduct, Plaintiff and other members of the Class suffered damages in connection with their respective purchases and sales of Clovis common stock during the Class Period. 46. Plaintiff incorporates by reference and realleges each and every allegation above as though fully set forth herein. 48. Mahaffy was involved in drafting, producing, reviewing and/or disseminating the materially false and misleading statements complained of herein. Mahaffy was aware (or recklessly disregarded) that materially false and misleading statements were being issued by the Company and nevertheless approved, ratified, and/or failed to correct those statements, in violation of federal securities laws. Throughout the Class Period, Mahaffy was able to, and did, control the contents of the Company’s SEC filings, reports, press releases, and other public statements. Mahaffy was provided with copies of, reviewed and approved, and/or signed such filings, reports, releases and other statements prior to or shortly after their issuance and had the ability or opportunity to prevent their issuance or to cause them to be corrected. 50. Mahaffy acted as a controlling person of Clovis within the meaning of Section 20(a) of the Exchange Act. By reason of his position with the Company, Mahaffy had the power and authority to cause Clovis to engage in the wrongful conduct complained of herein. Mahaffy controlled Clovis and all of its employees. As alleged above, Clovis is a primary violator of Section 10(b) of the Exchange Act and SEC Rule 10b-5. By reason of his conduct, Mahaffy is liable pursuant to section 20(a) of the Exchange Act. 51. As a direct and proximate result of the wrongful conduct of Clovis and Mahaffy, Plaintiff and members of the Class suffered damages in connection with their respective purchases and sales of the Company’s common stock during the Class Period. Background Violation of Section 10(b) of the Exchange Act and SEC Rule 10b-5 (Against All Defendants) Violation of Section 20(a) of the Exchange Act (Against Mahaffy)

win

1. Defendants have been involved in oilfield casing services in oilfields throughout the United States over the last three years. Defendants employ non-exempt employees to directly and indirectly provide Defendants’ casing and other services to Defendants’ customers (“Casing Employees” or “CEs”), but Defendants fail to provide them proper overtime as required under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”). 18. Plaintiff incorporates all of the allegations previously made in this Complaint. Plaintiff brings his collective action allegations individually and on behalf of those similarly situated. 19. Defendants have been involved in oilfield casing services in oilfields throughout the Williston Basin over the last three years. Defendant Gerald Lapp was the sole owner, director and president of RMCC during the relevant time period. During all relevant times, Gerald Lapp exerted operational control over RMCC’s business operations, including among other things, making hiring and firing decisions, establishing pay rates, determining methods of payment and compensation policies and practices, and controlling/establishing company rules. 20. Defendants employed CEs to directly and indirectly provide Defendants’ casing and other services to Defendants’ customers. For some types of work, Defendants paid CEs based on the quantity of work performed. This quantity of work/piece rate basis of pay included, but may not be limited to, payments made on a per foot of pipe laid basis for “longstring” work (Pipe-Laid Pay) and per job basis for “short string” work (Per-Job Pay). 23. Plaintiff and the FLSA Class Members performed the same or similar job duties. Specifically, they all directly or indirectly helped provide Defendants’ casing and other services to Defendants’ clients. Plaintiff and the FLSA Class Members were also subjected to the same illegal pay provisions: The Uncounted Hours and Overtime Miscalculation Policies that respectively failed to pay Casing Employees (1) overtime for all hours worked in excess of 40 per workweek, and (2) one-and-one-half times their regular rates of pay for all overtime hours worked. Accordingly, the FLSA Class Members are similarly situated to Plaintiff in terms of job duties and pay provisions. 25. Plaintiff incorporates all allegations previously made in this Complaint. 26. Plaintiff brings his class action on behalf of the ND Class Members. 27. The ND Class Members are so numerous that their joinder is impracticable. While the precise number of the ND Class Members is unknown, at least 100 Casing Employees worked at least one workweek of more than 40 hours within the relevant statutory period in or out of North Dakota within the past two years. 28. Common questions of law and fact for the ND Class Members predominate over any questions affecting any individual member, including: a. Whether Defendants violated applicable ND Wage Law by failing to pay the Rule 23 Class Members overtime compensation for all hours worked in excess of forty in an individual workweek; b. Whether Defendants violated applicable State Wage Law by failing to incorporate all required remuneration, including but not limited to Additional Pay, to calculate overtime for the ND Class Members; c. The proper measure of damages sustained by ND Class Members; d. Whether Defendants should be enjoined for such violations in the future. 34. Plaintiff and the ND Class Members are entitled to unpaid overtime in an amount equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek pursuant to the formula outlined in N.D. Admin. Code § 46-03-01-01. During the relevant time period, Defendants violated and continue to violate ND Wage Law by employing employees and regularly and repeatedly failing to pay employees for all hours worked and pay overtime wages at a rate of at least one-and-a-half times their regular rates of pay. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiff and the ND Class Members have suffered and will continue to suffer from a loss of income and other damages. Plaintiff and the ND Class Members are entitled to their unpaid wages, prejudgment interest, and all costs in bringing this action that are recoverable under North Dakota Law. X. ACCORDANCE WITH THE FAIR LABOR STANDARS ACT Plaintiff Joseph McClure (“Plaintiff”) brings this collective and class action individually, on behalf of those similarly situated, and on behalf of the proposed Rule 23 North Dakota Class Members to recover overtime compensation from his former employers, Rocky Mountain Casing Crews, Inc. (“RMCC”) and Gerald Lapp (collectively, “Defendants”), and in support shows as follows:

win

1. The amount of the debt; 13. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 15. 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. 16. 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. 17. 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. §§ 1692e, 1692g. 2. The name of the creditor to whom the debt is owed; 20. 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. 21. 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). 22. 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. 23. Some time prior to November 4, 2020, an obligation was allegedly incurred to creditor CITIBANK, N.A. 24. The CITIBANK, N.A. obligation arose out of transactions involving medical services obtained by Plaintiff from CITIBANK, N.A. and was incurred primarily for personal, family or household purposes. 25. The alleged CITIBANK, N.A. obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 27. CITIBANK, N.A. purportedly sold the alleged debt to Defendant Cavalry, a debt collector, who contracted with Defendant FRS to collect the alleged debt. Violation – November 4, 2020 Collection Letter 28. On or about November 4, 2020, Defendant FRS sent the Plaintiff a collection letter (the “Letter”) regarding the alleged debt owed to CITIBANK, N.A. See a true and correct copy of the letter attached at Exhibit A. 29. The top of the letter reads: 3. 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; 42. 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. 43. 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. 44. 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. 46. 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. 47. 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. 48. 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 – 49. Defendant violated 15 U.S.C. §1692g by failing to clearly communicate the amount of the debt allegedly owed by Plaintiff. 5. 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. 50. 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. 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.

win

26. The Defendants are a temporary employment agency whose business is dependent upon successfully placing its employees on assignments with its clients. 27. The interviews arranged by Defendants between its employees and its clients are essential to a successful job placement and paramount to the success of its business. Defendants must ensure that the employees selected for the interview are qualified for the position and prepared for the interview. 28. Defendants maintain near-total control over the Class Members’ engagement with the working world. This process begins when Defendants first recruit the Class Members to become its employees. 29. Defendants recruit its employees in the same manner as any other company. Potential employees are first screened through a robust qualification process — including resume matching and behavioral interviews for technical, business, and cultural fits, as well as detailed supervisory reference checks. If the screening process goes well, Class Members are then required to go to one of Defendants’ offices to complete its new hire employee orientation process. 30. As a part of its employee orientation, the Defendants provide the candidate with its new hire paperwork. 58. Plaintiff brings this action on his own behalf, as well as on behalf of each and all other persons similarly situated, and thus seeks class certification under Federal Rules of Civil Procedure, Rule 23. 66. Plaintiff incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through 65. 67. California Labor Code § 218 authorizes employees to sue directly for any wages or penalties due to them under the Labor Code. 68. California Code of Regulations Title 8, §11000(2) and the IWC Wage Orders §4(A) "Every employer shall pay to each employee ... wages not less than [the applicable minimum wage] per hour for all hours worked...". "Hours worked" is defined as means the time during which an employee is subject to the control of an employer, including all the time the employee is suffered or permitted to work, whether or not required to do so. 69. California Labor Code § 1194(a) provides that notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of the applicable minimum wage, including interest thereon, reasonable attorney’s fees, and costs of suit. 79. Plaintiff incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through 78. 84. Plaintiff incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through 83. 85. California Labor Code section 218 authorizes employees to sue directly for any wages or penalties due to them under the California Labor Code. 86. California Labor Code section 223 provides that it is unlawful for an employer to secretly pay a lower wage while purporting to pay the wage designated by contract. 87. During the relevant time period Plaintiff and the other Class Members contracted with Defendant to be paid an hourly wage for all time worked. 91. Plaintiff incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through 90. 92. At all times herein set forth, California Labor Code § 201 provided that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. 93. At all times herein set forth, California Labor Code §§ 202(a) provided that if an employee quits his or her employment, the wages earned and unpaid at the time of discharge “become payable not later than 72 hours thereafter…” 94. During the relevant time period, Defendant failed to pay Plaintiff and those Class Members whose employment with the Defendants was either voluntarily or involuntarily terminated their wages, earned and unpaid, in accordance with Labor Code §§ 201, 201.3 & 202. 95. Defendants’ failure to pay Plaintiff and those Class Members who are no longer employed by Defendants their wages earned and unpaid at the time of discharge or voluntary termination violates California Labor Code §§ 201, 201.3 & 202. 98. Plaintiff incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through 97. Violation of California Labor Code § 223 (Failure to Pay Agreed Upon Wages) Against All Defendants and on Behalf of Plaintiff and the Class Members Violation of California Labor Code § 1194(a) (Failure to Pay Minimum Wages) Against All Defendants and on Behalf of Plaintiff and the Class Members Violation of California Labor Code § 226(a) (Improper Wage Statements) Against All Defendants and on Behalf of Plaintiff and the Class Members Violation of California Labor Code §§ 201, 201.3, 202 & 203 (Wages Not Paid Upon Termination) Against All Defendants and on Behalf of Plaintiff and the Waiting Time Subclass Members Violation of California Business & Professions Code § 17200, et seq. (Unfair Competition) Against All Defendants and on Behalf of Plaintiff and the Class Members

lose

10. When Plaintiff answered Defendant’s call, Plaintiff heard nothing until he repeatedly asked who was calling, then heard a click before a live person began talking in order to gather Plaintiff’s information and try to solicit Plaintiff to purchase Defendant’s services. 8. Beginning in or around September 2017, Defendant contacted Plaintiff on Plaintiff’s cellular telephone number ending in -0810, in an attempt to solicit Plaintiff to purchase Defendant’s services. 9. Defendant used an “automatic telephone dialing system” as defined by 47 U.S.C. § 227(a)(1) to place its call to Plaintiff seeking to solicit its services. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(b)  As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiff and the ATDS Class members are entitled to and request treble damages, as provided by statute, up to $1,500, for each and every violation, pursuant to 47 U.S.C. §227(b)(3)(B) and 47 U.S.C. §227(b)(3)(C).  Any and all other relief that the Court deems just and proper. Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(c)  As a result of Defendant’s negligent violations of 47 U.S.C. §227(c)(5), Plaintiff and the DNC Class members are entitled to and request $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(c)(5).  Any and all other relief that the Court deems just and proper.

win

15. Plaintiffs bring this action on behalf of themselves and on behalf of all others similarly situated (“The Class”). 16. Plaintiffs represent, and are members of, “The Class” defined as follows: “All persons in California whose inbound and outbound telephone conversations were monitored, recorded, eavesdropped upon and/or wiretapped without their consent by Defendant within the four years prior to the filing of the original Complaint in this action.” 17. Defendant, and its employees and agents are excluded from The Class. Plaintiffs do not know the number of members in The Class, but believe this number to be in the tens of thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 26. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 27. Californians have a constitutional right to privacy. Moreover, the California Supreme Court has definitively linked the constitutionally protected right to privacy within the purpose, intent and specific protections of the Privacy Act, including specifically, Penal Code § 632. “In addition, California’s explicit constitutional privacy provision (Cal. Const., 1 § 1) was enacted in part specifically to protect California from overly intrusive business practices that were seen to pose a significant and increasing threat to personal privacy. (Citations omitted). Thus, Plaintiffs believe that California must be viewed as having a strong and continuing interest in the full and vigorous application of the provisions of section 632 prohibiting the recording of telephone conversations without the knowledge or consent of all parties to the conversation. 28. California Penal Code § 632 prohibits one party to a telephone call from intentionally recording the conversation without the knowledge or consent of the other party. Penal Code § 632 is violated the moment the recording is made without the consent of all parties thereto, regardless of whether it is subsequently disclosed that the telephone call was recorded. The only intent required by Penal Code § 632 is that the act of recording itself be done intentionally. There is no requisite intent on behalf of the party doing the surreptitious recording to break California law or any other law, or to invade the privacy right of any other person. 36. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 37. Defendant invaded Plaintiffs and the members of The Class’ right to privacy by intentionally allowing the unauthorized eavesdropping, wiretapping, recording, and listening of the telephone conversation with Plaintiffs and the members of The Class and negligently maintaining the confidentiality of the information of Plaintiffs and the members of The Class, as set for above. 38. The intrusion through the unauthorized eavesdropping, wiretapping, recording, and listening of the telephone conversations with Plaintiffs and the members of The Class and the negligently maintaining of the confidentiality of the information of Plaintiffs and The Class, was offensive and objectionable to Plaintiffs, the Class, and to a reasonable person of ordinary sensibilities. 39. The intrusion was into a place or thing which was private and which is entitled to be private, in that Plaintiffs and The Class’ personal conversations and information provided to Defendant were made privately, were intended not to be recorded, and were intended to be kept confidential and protected from unauthorized disclosure. 43. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 44. Defendant, as aforesaid herein, has various statutory and common law duties not to engage in the aforementioned wire-tapping, eavesdropping, recording, and listening conduct such that Plaintiffs and The Class’ rights to privacy were invaded and breached. 45. Defendant negligently and recklessly engages in the aforementioned eavesdropping, wiretapping, recording, and listening conduct of Plaintiffs and The Class. 48. Plaintiffs incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein. 49. As a result of Defendant’s violations of California Penal Code §§ 631(a) and/or 632.6(a), as set forth above, and Defendant’s violation of California Business and Professions Code § 17200, as set forth below, Plaintiffs and The Class have suffered an injury in fact by, among other things, having their personal information recorded without their prior permission or consent, as required by California Penal Code § 630 et seq. Additionally, Plaintiffs and The Class have lost property in that Plaintiffs and The Class suffered and are each entitled to the greater of statutory damages of $5,000 per violation pursuant to Penal Code § 637.2(a), or three times actual damages per violation pursuant to Penal Code § 637.2(a). Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause: VII. REQUESTED IN INVASION OF PRIVACY: COMMON LAW INVASION OF PRIVACY: VIOLATION OF PENAL CODE § 630 ET SEQ. NEGLIGENCE UNLAWFUL, FRAUDULENT AND UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE § 17200, ET SEQ.

win

44. Plaintiffs bring this action individually, and on behalf of all persons with mobility disabilities who use or will use the pedestrian right of way in the City of Portland, as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 45. Each member of the class is a “qualified person with a disability” and/or a person with a “disability” pursuant to 42 U.S.C. § 12131(2) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq. The persons in the class are so numerous that the joinder of all such persons is impracticable and that the disposition of their claims in a class action rather than in individual actions will benefit the parties and the Court. The class consists of tens of thousands of persons with mobility disabilities. 46. Defendant has failed and continues to fail to comply with the ADA and Section 504 in its implementation of the City’s administrative methods, policies, procedures, and practices with regard to the construction, remediation, and maintenance of curb ramps that provide access to the City’s pedestrian right of way. 47. Defendant has not adopted and does not enforce appropriate administrative methods, policies, procedures, and/or practices to ensure that it is in compliance with the ADA and Section 504 to ensure nondiscrimination against persons with mobility disabilities and equal access to facilities, programs, services, and activities for persons with mobility disabilities. 54. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs. 55. Title II of the ADA provides in pertinent part: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 56. At all times relevant to this action, the City was and is a “public entity” within the meaning of Title II of the ADA and provides a pedestrian right of way program, service, or activity to the general public. 70. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs. 71. Section 504 of the Rehabilitation Act of 1973 provides in pertinent part: “[N]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .” 29 U.S.C. § 794(a). 72. Plaintiffs are otherwise qualified to participate in the services, programs, or activities that are provided to individuals in the City. See 29 U.S.C. § 794(b). 73. The City is a direct recipient of federal financial assistance sufficient to invoke the coverage of Section 504, and has received such federal financial assistance at all times relevant to the claims asserted in this Complaint. 74. Defendant and its agents and employees have violated and continue to violate the Rehabilitation Act and the regulations promulgated thereunder by excluding Plaintiffs from participation in, denying Plaintiffs the benefits of, and subjecting Plaintiffs based solely by reason of their disability to, discrimination in the benefits and services of the City’s pedestrian right of way and for the reasons set forth above. Section 504 of the Rehabilitation Act of 1973 29 U.S.C. § 794 et seq. Title II of the Americans with Disabilities Act of 1990 42 U.S.C. § 12101 et seq.

win

13. Cory is in the business of providing the delivery of appliances, furniture, and other merchandise to its customers. Cory provides delivery services throughout the United States, and in Illinois specifically, for companies such as Bob’s Discount Furniture, Ethan Allen, Rooms to Go, Crate & Barrel, Carson Pirie Scott, and Wayfair.com. In order to carry out this central function, Cory purports to contract with individuals, such as Plaintiffs, to drive a delivery truck and to deliver merchandise to customers’ homes. 14. Cory provides delivery services in Illinois from various warehouses at which Cory’s employees oversee and manage Defendant’s deliveries. 15. Plaintiffs and other delivery drivers performed delivery services for Cory. In order to receive such work, Cory required its delivery drivers to sign an agreement drafted by Cory, which stated that they were independent contractors. 17. Plaintiffs worked full-time for Cory, often working six to seven days per week and 12 to 16 hours per day making deliveries for Cory. Though Plaintiffs and other class members routinely worked more than 40 hours per week for Cory, they did not receive an overtime premium for those hours worked over forty in a workweek. 18. Plaintiffs, as well as the other class plaintiffs, performed work which is in the usual course of business of Cory – i.e., they performed delivery services and Cory is engaged in the business of providing delivery services to its customers. 20. Cory deducted certain expenses directly from Plaintiffs’ and the other class plaintiffs’ checks, including deductions for insurance, any related insurance claims, truck rentals, and uniforms. 21. Cory required Plaintiffs and other class members to provide a safety deposit to Cory at the outset of their work relationship. Cory did not return the safety deposit to Plaintiffs upon their contracts terminating. 22. When Cory determined that a delivery had been made in a manner it deemed to be unsatisfactory (e.g., damaged goods, damage to customer property), Cory would deduct the costs of such damage from Plaintiffs’ and the proposed class members’ pay checks. Plaintiffs and the proposed class could not appeal such deductions. 23. Cory did not get Plaintiffs’ and other class members’ freely given express written consent at the time it made deductions from their pay. 24. The deductions taken by Cory per paycheck were not for a uniform amount, but rather varied with each paycheck. 25. Cory compelled Plaintiffs and other class members to incur certain other expenses that would normally be borne by an employer, such as for workers’ compensation or similar insurance coverage. 27. The Illinois Class and the Nationwide Class are together referred to as the “Class.” Plaintiffs reserve the right to redefine the Class prior to class certification, or thereafter, as necessary. 28. The members of the Class are so numerous that joinder of all members of the Class is impracticable. Plaintiffs believe that the Class numbers exceed forty (40) members. 29. Common issues of law and fact predominate the claims of the entire Class. Specifically, all claims are predicated on a finding that Cory misclassified its drivers as independent contractors when they were in fact employees. In short, the claims of the named Plaintiffs are identical to the claims of the class members. 30. The named Plaintiffs are adequate representative of the class because all potential plaintiffs were subject to Cory’s uniform practices and policies. Further, Plaintiffs and the Class have suffered the same type of economic damages as a result of Cory’s practices and policies. 31. Plaintiffs will fairly and adequately represent and protect the interests of the Class. Plaintiffs’ counsel is competent and experienced in litigating large wage and hour class and collective actions. 33. Plaintiffs incorporate Paragraphs 1- 31 herein. 34. At all relevant times, Plaintiffs and the Illinois Class were “employees” of Cory as defined by the IWPCA. 35. At all relevant times, Cory was an employer of Plaintiffs and the Illinois Class as defined by the IWPCA. 36. The IWPCA, 820 Ill. Comp. Stat. 115/9, prohibits employers from making deductions from employees’ wages. 37. Cory violated the IWPCA, 820 Ill. Comp. Stat. 115/9, by making unlawful deductions from Plaintiffs and the Illinois Class’ wages. 38. Plaintiffs, individually and on behalf of the Illinois Class, seek all reimbursement for all unlawful deductions taken by Cory from Plaintiffs’ and the Illinois Class’ wages. Count II New Jersey Wage Payment Law (N.J. Stat. §§ 34:11-4.2, 24:11-4.4) (Class Action on behalf of the Nationwide Class) (In the alternative to Count I) 39. Plaintiffs incorporate Paragraphs 1- 31 herein. 40. As employees of Cory, Plaintiffs and members of the Nationwide Class are entitled to the protections of the New Jersey Wage Payment Law (“NJWPL”). 41. The NJWPL requires that Plaintiffs and members of the Nationwide Class receive all wages owed. See N.J. Stat. § 34:11-4.2. 43. As set forth herein, Cory has misclassified Plaintiffs and members of the Nationwide Class as independent contractors when they are actually employees under the NJWPL, who are entitled to the protection and benefits of these laws. 44. Cory violated the NJWPL by failing to pay Plaintiffs and members of the Nationwide Class all their wages due, and subjecting them to wage deductions and withholdings that are not specifically permitted by the NJWPL, including deductions for workers’ compensation, equipment rental, insurances, and other business costs of Cory. 45. Plaintiffs and members of the Nationwide Class are entitled to damages in an amount to be proved at trial. Count III New Jersey Wage and Hour Law (N.J. Stat. §§ 34:11-56a(4)) (Class Action on behalf of the Nationwide Class) 46. Plaintiffs incorporate Paragraphs 1- 31 herein. 47. Plaintiffs and members of the Nationwide Class are employees entitled to the protections of the New Jersey Wage and Hour Law (“NJWHL”). 48. Cory is an employee covered by the NJWHL. 49. The NJWHL provides that employees who work over 40 hours in a workweek shall receive “1 ½ times such employee’s regular hourly wage for each hour of working time in excess of 40 hours in any week.” N.J. Stat. § 34.11-56a4. 50. Plaintiffs and members of the Nationwide Class routinely worked in excess of 40 hours per week without any overtime compensation. 51. Cory fails to accurately track all hours that Plaintiffs and members of the Nationwide Class work. 53. Plaintiffs incorporate Paragraphs 1-31 herein. 54. As a result of Cory’s mischaracterizing of Plaintiffs and the Nationwide Class as “independent contractors,” Plaintiffs and the Nationwide Class were forced to pay substantial sums of money for work-related expenses, including but not limited to costs associated with the purchase of worker’s compensation or similar insurance. 55. Further, by mischaracterizing Plaintiffs and the Nationwide Class as “independent contractors” Cory evades its own employment-related obligations, such as providing workers’ compensation coverageby illegally shifting these costs to Plaintiffs and the Nationwide Class. 56. By misclassifying their employees as “independent contractors,” and by requiring those employees to pay its expenses, Cory has been unjustly enriched. Prayer for Relief WHEREFORE, Plaintiffs request that the Court enter the following relief: A. Certification of this case as a class action pursuant to Fed. R. Civ. P. 23(b)(3); B. Restitution for all deductions taken from Plaintiffs and the Class’ pay and all other appropriate compensatory relief; C. Prejudgment interest on the unpaid wages in accordance with, 815 Ill. Comp. Stat. 205/2; D. Statutory damages pursuant to the formula set forth in the IWPCA, 820 Ill. Comp. Stat. 115/14(a); E. Reasonable Attorney’s fees, costs, and interest; F. Any other relief to which Plaintiff and the Class members may be entitled.

win

NEW BALANCE: $3,690.81 MINIMUM PAYMENT DUE: $381.00 REFERENCE NUMBER.. 47 53 Office Hours (Central Time) Monday-Thursday: 8am-8pm Friday: 8am-5pm Saturday: 7am-11am Sunday: Closed

lose

32. Each defendant is an "employer" as defined by 29 U.S.C. § 203(d). 33. Defendants were joint employers within the meaning of the FLSA. For example, hourly employees drove or rode in trucks with logos and branding of RSI, were required to purchase and wear RSI uniforms, but were paid by Bobcat Disposal, and had their conditions of employment controlled by Bobcat North America. 34. Defendants have employees subject to the provisions of the FLSA, 29 U.S.C. § 207, in the facilities where Mr. Huff performed work. 36. Mr. Huff avers that at all times relevant to the violations of the Fair Labor Standards Act, the Defendants are an enterprise whose annual gross volume of sales made or business done was not less than $500,000, in accordance with 29 U.S.C. § 203(s)(1)(A)(ii). 37. Mr. Huff was employed by Defendants from 2014 until 2018. 38. Mr. Huff performed work for Defendants in Central Florida and operated out of their base facility in Ocoee, Florida. 39. Mr. Huff also performed work for Defendants’ customers at their local construction sites. 40. Mr. Huff’s job duties included, but were not limited to inspecting vehicles, operating heavy equipment, loading and unloading equipment, driving trucks, delivering equipment to customers, and performing manual labor in service to Defendants’ clientele. 41. At all times relevant to employment, Mr. Huff regularly used the instrumentalities of interstate commerce while performing work. 42. At all times relevant to employment, Mr. Huff also regularly used the channels of commerce while performing work. 43. Throughout his employment, Mr. Huff was paid an hourly rate plus overtime for some but not all hours worked by Defendants. 45. Mr. Huff was routinely required to come into work before the official start of business to inspect his vehicle for the day’s work. 46. Throughout his employment, Mr. Huff was subjected to Defendants’ timesheet manipulation practice. 47. Defendants’ regularly and routinely adjusted or manipulated Mr. Huff’s timesheets to reflect a later start time of 6 a.m. in order to reduce overtime compensation. 48. Defendants implemented a practice whereby Mr. Huff’s timesheets were manipulated, without his knowledge, after work had been completed to reflect that he worked less time. 49. At the Ocoee location, Defendants “officially” opened for business at 6 am each workday, but Mr. Huff regularly commenced work at 5:30 a.m. When work before 6 am was performed, Defendants adjusted the timesheets to reflect a later start time. 50. Defendants implemented a common practice wherein work performed before or after their “official hours of operation”, would not be compensated, although Defendants required employees perform the uncompensated work before and after the hours of operation. 51. Defendants’ timesheet manipulation practice was not limited to any job title, but was applied across hourly employees with similar job duties as Mr. Huff. 53. Despite knowing that meal breaks were not taken, Defendants automatically deducted thirty-minute meal breaks from Mr. Huff’s timesheets. 54. Defendants knew or should have known that Mr. Huff was not breaking for lunch. 55. Mr. Huff was not able to have a meal break on most days, and usually worked through lunch, but was not compensated for this time as a result of Defendants’ policy. 56. Mike Russo and Marilyn Russo had actual knowledge that employees, including Mr. Huff, were working overtime without proper compensation. 57. Mike Russo and Marilyn Russo could have forced compliance with FLSA rules and regulations, but decided against complying with the FLSA. 58. Mr. Huff brings Count II under the Fair Labor Standards Act as a collective action, and will request the Court to grant conditional class certification under 29 U.S.C. § 216(b). 59. Mr. Huff, as Class Representative, seeks to prosecute this matter on behalf of himself and similarly situated employees who were all subject to the same common plan and practices complained of herein. 61. While working for Defendants, Mr. Huff and other similarly situated employees, were subject to the same practice of denying proper overtime compensation to its employees because of two policies and practices: a. the timesheet manipulation practice, where employees’ timesheets were manipulated, without their knowledge, after work had been completed to reflect that less time was worked; and/or b. the automatic lunch deduction practice, where Defendants automatically subtracted thirty minutes daily off employee timesheets even though a lunch break was not taken or the lunch break was interrupted. 62. Throughout their employment, Mr. Huff, and other similarly situated employees were subjected to Defendants’ timesheet manipulation practice. 63. Throughout their employment, Mr. Huff, and other similarly situated employees were routinely required to come into work before the official start of business to inspect vehicles for the day’s work. 64. Throughout their employment, Mr. Huff, and other similarly situated employees had their timesheets manipulated and adjusted, without their knowledge, to reflect less time worked. 66. Throughout their employment, Mr. Huff, and other similarly situated employees were subject to Defendants’ practice of subtracting thirty minutes off employee timesheets on a daily basis even though a lunch break was not taken or the lunch break was interrupted. 67. Defendants’ payroll system automatically deducted thirty minutes each day during the workweek (Monday – Friday) from Mr. Huff’s, and other similarly situated employees’ timesheets and payroll records, regardless of whether an uninterrupted lunch break was taken. 68. Defendants had knowledge that Mr. Huff and other similarly situated employees were working overtime without proper compensation. 69. As a result of the Defendants’ unlawful practices, throughout their employment, Mr. Huff, and other similarly situated employees worked numerous workweeks where their hours exceeded forty but they were not paid time-and-a-half for each overtime hour worked. 70. Defendants failed to make a good faith effort to determine if Mr. Huff and similarly situated employees were compensated appropriately pursuant to the FLSA. 71. Defendants failed to maintain and keep accurate time records as required by the FLSA. 72. Defendants also failed to post the required notice pursuant to the FLSA. 74. Mr. Huff, as Class Representative for a group of similarly situated individuals, will seek conditional certification of two classes of employees with similar job duties who were paid hourly while working at the Ocoee location, during the relevant claim period, and were subject to either or both of the following common policies: a. the timesheet manipulation practice, where employees’ timesheets were manipulated, without their knowledge, after work had been completed to reflect that less time was worked; and/or b. the automatic deduction practice, where Defendants automatically subtracted thirty minutes daily off employee timesheets even though a lunch break was not taken or the lunch break was interrupted. 75. The allegations contained in paragraphs 1-57 above are realleged herein. 76. By way of tolling agreement between the Parties, the applicable statute of limitations extends back two or three years (upon a finding of willfulness) from March 8, 2019. 77. Defendants actions were willful and thus the claim period for Mr. Huff extends to March 8, 2016. 79. Specifically, Mr. Huff worked numerous weeks in excess of forty (40) hours a week, yet was not compensated for all work in excess of forty (40) hours at a rate not less than one and one-half times the regular rate at which he was employed. 80. Defendants willfully failed to maintain and keep accurate time records as required by the Fair Labor Standards Act. 81. Defendants failed to post the required notice pursuant to the Fair Labor Standards Act. WHEREFORE, Mr. Huff, individually, demands judgment against Defendants, jointly and severally, for the following: (a) Unpaid overtime wages found to be due and owing; (b) An additional equal amount equal to the unpaid overtime wages found to be due and owing as liquidated damages; (c) Prejudgment interest; (d) A reasonable attorney’s fee and costs; and, (e) Such other relief as the Court deems just and equitable. 82. Mr. Huff, as Class Representative, re-alleges and incorporates herein the allegations contained in paragraphs 1-74 above. 83. By way of tolling agreement between the Parties, the applicable statute of limitations extends back two or three years (upon a finding of willfulness) from March 8, 2019. 84. Defendants actions were willful and thus the claim period for Mr. Huff, as Class Representative, and all other similarly situated employees, extends to March 8, 2016. 85. Mr. Huff, as Class Representative, and all other similarly situated employees, were employed by Defendants during the relevant limitations period. 86. Throughout the employment of Mr. Huff, as Class Representative, and all other similarly situated employees, Defendants repeatedly and willfully violated § 7 and § 15 of the Fair Labor Standards Act by failing to compensate the Class Representative and all other similarly situated employees, at a rate not less than one and one-half times the regular rate at which they were employed for workweeks longer than forty (40) hours. 88. Defendants failed to maintain and keep accurate time records as required by the FLSA. 89. Defendants failed to post the required notice pursuant to the FLSA. WHEREFORE, Mr. Huff, as Class Representative, on behalf of himself and similarly situated employees, demands judgment against Defendants, jointly and severally, for the following: (a) Unpaid overtime wages found to be due and owing; (b) An additional equal amount equal to the unpaid overtime wages found to be due and owing as liquidated damages; (c) Prejudgment interest; (d) Reasonable attorney’s fee and costs; and, (e) Such other relief as the Court deems just and equitable. COLLECTIVE ACTION BY CLASS REPRESENTATIVE FOR VIOLATIONS OF THE OVERTIME PROVISION OF THE FAIR LABOR STANDARDS ACT PLAINTIFF’S INDIVIDUAL CLAIM AGAINST DEFENDANTS FOR VIOLATIONS OF THE OVERTIME PROVISION OF THE FAIR LABOR STANDARDS ACT

win

10. On or around October, 27, 2014, Plaintiff and Defendant agreed to settle the debt for $1,554.30 over the phone 11. Without written permission from Plaintiff, Defendant withdrew money from Plaintiff’s account multiple times. 12. In or around October of 2014, Plaintiff began to notice re-occurring charges being deducted from his personal banking account by Defendant. 13. On October 27, 2014, Defendant first deducted $499 from Plaintiff’s account, then $501 from Plaintiff’s account, and then finally another $554.30. 14. After some investigation, Plaintiff discovered that Defendant was deducting sums from his account in order to make payments towards the orally agreed settlement agreement. 15. Plaintiff never provided Defendant with any written authorization to deduct any sums of money on a regular recurring basis from Plaintiff’s banking account. 19. Plaintiff brings this action on behalf of himself and all others similarly situated, as a member of the proposed class (hereafter “The Class”) defined as follows: All persons in the United States whose bank accounts were debited on a reoccurring basis by Defendant without Defendant obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers within the one year prior to the filing of this Complaint. 20. Plaintiff represents, and is a member of, The Class, consisting of all persons within the United States whose bank account was debited on a recurring basis by Defendant without Defendant obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers within the one year prior to the filing of this Complaint. 21. Defendant, their employees and agents are excluded from The Class. Plaintiffs do not know the number of members in The Class, but believe the Class members number in the hundreds, if not more. Thus, this matter should be certified as a Class Action to assist in the expeditious litigation of the matter. 43. Section 907(a) of the EFTA, 15 U.S.C. §1693e(a), provides that a “preauthorized electronic fund transfer from a consumer’s account may be authorized by the consumer only in writing, and a copy of such authorization shall be provided to the consumer when made.” 44. Section 903(9) of the EFTA, 15 U.S.C. § 1693a(9), provides that the term “preauthorized electronic fund transfer” means “an electronic fund transfer authorized in advance to recur at substantially regular intervals.” 45. Section 205.l0(b) of Regulation E, 12 C.F.R. § 205.l0(b), provides that “[p]reauthorized electronic fund transfers from a consumer’s account may be authorized only by a writing signed or similarly authenticated by the consumer. The person that obtains the authorization shall provide a copy to the consumer.” 46. Section 205.10(b) of the Federal Reserve Board's Official Staff Commentary to Regulation E, 12 C.F.R. § 205.l0(b), Supp. I, provides that “[t]he authorization process should evidence the consumer’s identity and assent to the authorization.” Id. at ¶10(b), comment 5. The Official Staff Commentary further provides that “[a]n authorization is valid if it is readily identifiable as such and the terms of the preauthorized transfer are clear and readily understandable.” Id. at ¶10(b), comment 6. 9. Starting on or around 2014, Plaintiff was contacted by Defendant in relation to an alleged debt. DEFENDANT VIOLATED THE ELECTRONIC FUNDS TRANSFER ACT (On Behalf of Plaintiff and the Class)

win

3.02, 3.05(1), 3.05(2), 3.16(2), 3.16(3) and 3.16(4). 44. Plaintiff brings this action on behalf of himself and on behalf of all other members of the Class (“Class”), defined as all persons who called a telephone number that was disseminated or disclosed in the Advertisement and who signed a Fee Agreement. The Class Period is limited to statute of limitations applicable to each cause of action. Plaintiff brings this Class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(1) and 23(b)(2) (the latter cited statute because each Defendant has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole). 45. Excluded from the Class are the following: Defendants and their employees, principals, affiliated entities, legal representatives, successors and assigns of all of the foregoing. 47. Common questions of law or fact exist as to all members of the Class (including Plaintiff). These questions predominate over the questions affecting only individual class members. These common legal or factual questions include: a Whether Defendants’ Advertisement is likely to deceive Class Members or the general public; b Whether publication or dissemination of Defendants’ Advertisements constitute an unfair method of competition, or an unfair or deceptive act or practice; c Whether Defendants’ representations are unconscionable; d Whether Defendants’ representations are otherwise unlawful; e Whether Defendants have been or will be unjustly enriched; and f. The appropriate relief that should be granted to Plaintiff and the Class. 48. Plaintiff’s claims are typical of the claims of the Class in that Plaintiff was an Uber driver who called the telephone number disseminated or disclosed in the Advertisement and signed a Fee Agreement. Plaintiff, therefore, is no different in any relevant respect from any other Class member, and the relief sought is common to the Class. 49. Plaintiff is an adequate representative of the Class because his interests do not conflict with the interests of the Class Members he seeks to represent, and he has retained counsel competent to conduct complex class action litigation. Plaintiff and his counsel will adequately protect the interests of the Class. 51. The Class may be certified because Defendants have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate preliminary and final equitable relief with respect to the Class. 52. Plaintiff re-alleges and incorporates by reference the allegations contained in the preceding paragraphs of this Complaint as though fully set forth therein. 53. Defendants’ conduct, as alleged herein, constitutes unfair or deceptive acts or practices and unfair methods of competition in trade or commerce in violation of M.G. L. c. 93A, § 2 and the regulations promulgated thereunder, including without limitation, 940 C.M.R. §§ 54. M.G.L., c. 93A, § 2 provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” 55. M.G.L., c. 93A, § 9 permits any consumer injured by a violation of M.G.L., c. 93A, §2 to bring a civil action, including a class action, for damages and injunctive relief. 57. Defendants engaged in unfair and deceptive acts and/or practices in the conduct of trade or commerce in violation of M.G.L., c. 93A, § 2 by disseminating the Advertisement which was false and misleading for at least the reasons alleged in paragraphs 25, 31 and 32. 58. Defendants’ unfair and deceptive scheme to mislead Plaintiff and the Class fraudulently induced the Plaintiff and the Class to agree to an arbitration provision in the Fee Agreement pursuant to which Defendants would arbitrate wage act claims having nothing whatever to do with the FTC court settlement Fund. This fraud and resultant unfair and deceptive act and practice has the capacity, tendency, and/or likelihood to deceive or mislead reasonable consumers and others, who are non-consumers, entitled to bring an action under M.G.L. c. 93A, Sec 11. 60. Pursuant to 940 C.M.R. § 3.16(3) and § 3.16(4), violations of the foregoing provisions are also violations of c. 93A, § 2. 61. Defendant’s violations of M.G.L., c. 93A were willful and knowing. 62. As a direct and proximate result of Defendant’s unfair and deceptive acts, Plaintiff and the Class were injured. The injuries suffered by Plaintiff and the Class include, but are not limited to agreeing to pay outrageous, oppressive and unconscionable legal fees for services to be rendered by Defendants under the Fee Agreement. 63. Had Plaintiff and the Class not heard the Advertisement, they would have not have known to call an 800 number and not, therefore, entered into the Fee Agreement. 65. Plaintiff and the other members of the Class are entitled to injunctive relief in the form of an order directing Defendants to cease their false and misleading Advertisement and to void or reform the Fee Agreement as the Court shall approve or order. 66. Plaintiff repeats and re-alleges the allegations of the preceding paragraphs as if fully set forth herein. 67. Defendants’ Advertisement is untrue, deceptive, and misleading, in violation of M.G.L. c. 266, § 91. 68. At all times relevant to this action, Defendants knew, or could, upon reasonable investigation, have ascertained that their Advertisement was untrue, deceptive, and misleading. 69. Defendants’ untrue, deceptive and misleading Advertisement has been promulgated during the Class Period. 70. As a person who is aggrieved by Defendants’ false and misleading Advertisement, Plaintiff brings this class action to seek all available remedies under M.G.L. c. 266, § 91, including injunctive relief. The injunctive relief would include, without limitation, an order directing Defendants to cease their false and misleading Advertisement, and publish corrective advertising. 71. Plaintiff re-alleges and incorporates by reference the allegations contained in the preceding paragraphs of this Complaint as though fully set forth therein. 73. As a direct and proximate result of Defendants’ misconduct as set forth above, Defendants have been unjustly enriched. Specifically, by Defendants’ misconduct described herein, Defendants have accepted a benefit (the ability to collect excess, outrageous, oppressive and unconscionable fees). Defendants have an appreciation or knowledge of the benefit conferred on it by Plaintiff and the Class. 74. It would be inequitable for Defendants to profit from Defendants’ wrongful conduct. 75. Plaintiff, on behalf of himself and all others similarly situated (i.e., the Class), seeks primarily, among other relief, to void the Fee Agreement and/or reform that Fee Agreement, as the Court shall determine proper and appropriate. 76. Defendants should also disgorge any profits realized from the Fee Agreement. Untrue and Misleading Advertising under M.G.L. c. 266, § 91 VIOLATION OF MASSACHUSETTS GENERAL LAWS (“M.G.L.”), CHAPTER 93A, § 2

lose

COMMON LAW FRAUD NEGLIGENCE STRICT TORT LIABILITY 1.5 liters, minimum blowing time of 4.5 seconds, minimum flow rate of 2.5 liters, and the IR measurement reading achieves a plateau. 15. All persons arrested in Union County for drunk driving who blew into the Alcotest 7110 where a result was reported and said result was used as part of the proofs of guilt and the plaintiffs plead guilty or were convicted after trial of drunk driving pursuant to N.J.S.A. 39:4-50 or all persons arrested in Union County for drunk driving who blew into the Alcotest 7110 where a result which was under the minimums necessary for a reported result and the plaintiffs plead guilty or were convicted after trial of drunk driving pursuant to N.J.S.A. 39:4-50 or of refusal to submit to chemical test pursuant to N.J.S.A. 39:4-50.4a will be part of a Sub Class whose representative will be Edwin Aguaiza, who will be represented by separate counsel. 31. Paragraphs 1 through 30 are realleged and incorporated by reference. 32. The Alcotest must report four minimums for a breath sample: minimum volume of 33. Since breath testing always relies on the extrapolation of BAC through testing of breath, precision is critical. 34. Draeger was negligent in designing/manufacturing the Alcotest in that there is no provision to calibrate the pulmonary function reported. Moreover, the equipment is not standardized by design at frequent intervals. 35. The defect existed at the time the article left the control of the manufacturer and did not undergo substantial change. 36. The Plaintiffs and other Class members were foreseeable users or consumers, or were within the area exposed to the risk. 37. The defect was the proximate cause of the harm to Plaintiffs and other Class members who faced prosecution with tainted evidence on a per se basis. 39. Paragraphs 1 through 38 are realleged and incorporated by reference. 40. The Plaintiffs claim that the Alcotest was defectively designed in that there is no provision to calibrate the pulmonary function reported. Moreover, the equipment is not standardized by design at frequent intervals. 41. The defect existed at the time the article left the control of the manufacturer and did not undergo substantial change. 42. The Plaintiffs claim that the Alcotest did not safely perform the job or function for which it was made, contrary to the consumer’s/user’s reasonable expectations. 43. The Plaintiffs claim that Draeger was not reasonably careful in the manner in which it designed, marketed, and sold the Alcotest. 44. The Plaintiffs and other Class members were foreseeable users or consumers, or were within the area exposed to the risk. 45. The defect was the proximate cause of the harm to Plaintiffs and other Class members who faced prosecution with tainted evidence on a per se basis. 47. Paragraphs 1 through 46 are realleged and incorporated by reference. 48. On various dates between October 5, 2006 and December 12, 2006, Hansueli Ryser, Vice President of Draeger Safety Diagnostic, Inc., gave testimony as an expert witness in electrical engineering for his employer, Draeger under oath before the Honorable Michael P. King, who presided over the Chun Fact Finding Hearing. Since 1991, Ryser was continuously employed by Draeger. 49. Ryser graduated with a degree in electronic engineering from the Federal College of Technology in Zurich, Switzerland. Ryser continued his education at the University of Colorado where he took courses related to quality control and quality assurance. Ryser received training at the Center for Studies of Law and Action at the University of Indiana where he was certified for supervision and expert testimony. 50. Ryser testified, “So no maintenance needed other than verifying, of course, proper operating – that it’s operating properly at the time when the unit is calibrated. And after that you do not have to maintain it or it’s going to stay alive without doing anything to it.” He continued that this was the conclusion of Draeger. See PA 5-6. 52. Ryser testified that he was 100 percent convinced that the Alcotest accurately reads alcohol in human breath. See PA 8-9. 53. Ryser testified, “We all along said that breath analyzer is accurate if it’s within NHTSA specifications.” See PA 10-11. 54 Ryser testified that Draeger maintained quality assurance and quality control. See PA 12-13. 55. The Plaintiffs allege that the representations mentioned above were false when Ryser made them, in that he knew the Alcotest was not a calibrated scientific instrument, but that it was designed to appear to be calibrated. By walling off its pulmonary functions from the operator, Draeger made the automated control testing appear to calibrate the entire operating system, but in fact the pulmonary readings are reported randomly by the unit. Moreover, the equipment is not standardized by design at frequent intervals. 56. The Plaintiffs allege that Ryser knew that the representations about quality were false, in that the Quality Assurance Plan that Draeger filed in 2001 pursuant to 49 CFR, Part 40 with the U.S. Department of Transportation (DOT) would not assure that the device could accurately record the minimums reported. See PA 14-15. 57. Ryser knew that the Food and Drug Administration (FDA) regulates breath-alcohol testing systems pursuant to 21 CFR862.3050. Ryser knew that Draeger did not comply with said regulations. Consequently, Ryser knew that Draeger maintained a self- serving assurance plan. See PA 16-30. 59. Draeger made the representations mentioned above with the intent and the purpose of deceiving the State of New Jersey and to induce the State of New Jersey into relying on the representations. 60. The State of New Jersey, in reliance on the representations mentioned above, was induced to contract with Draeger. The State of New Jersey’s reliance on the representations mentioned above was reasonable under the circumstances, in that Draeger had a long history and professional credentials in the field of engineering. 61. The Plaintiffs and other Class members were foreseeable users or consumers, or were within the area exposed to the risk. 62. The fraud was the proximate cause of the harm to Plaintiffs and other Class members who faced prosecution with tainted evidence on a per se basis. 63. Solely as a consequence of Draeger’s fraudulent conduct, the Plaintiffs have been damaged in the amount not yet determined, but which exceed the jurisdictional amount; and each member of the Class has been similarly damaged in amounts not yet determined, but which exceed the jurisdictional amount for each such member of the Class, exclusive of interest and costs.

lose

10. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A). 11. Defendant’s calls were placed to 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). 13. Plaintiff brings this action on behalf of himself and all others similarly situated, as a member of the proposed class (hereafter “The Class”) defined as follows: All persons within the United States who received any telephone calls from Defendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint 14. Plaintiff represents, and is a member of, The Class, consisting of All persons within the United States who received any telephone calls from Defendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously not provided their cellular telephone number to Defendant within the four years prior to the filing of this Complaint. 15. Defendant, its employees and 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 thousands, if not more. Thus, this matter should be certified as a Class Action to assist in the expeditious litigation of the matter. 8. Beginning in or around August 2016, Defendant contacted Plaintiff on his cellular telephone ending in -5080, in an effort to sell or solicit its services. Defendant called, including but not limited to around August 8, 2016 at 9:32 a.m., August 12, 2016 at 3:19 p.m., August 15, 2016 at 9:41 a.m., August 16, 2016 at 4:35 p.m., and August 17, 2016 at 10:55 a.m. Defendant often called from telephone numbers (646) 604-9033, (202) 813-9371, (646) 600-8266, and (202) 599-9203. 9. Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to place its calls to Plaintiff seeking to sell or solicit its business services. Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. §227 et seq.  As a result of Defendant’s negligent violations of 47 U.S.C. §227(b)(1), Plaintiff and the Class members are entitled to and request $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(b)(3)(B); and  Any and all other relief that the Court deems just and proper. /// /// /// /// /// /// /// /// /// /// /// /// /// ///

win

10. Here, Plaintiff alleges that Defendant recklessly violated FACTA by failing to comply with the truncation requirement, specifically by printing more than the last five digits of credit and debit cards. 11. Defendant invaded the privacy of Plaintiff and other class members by printing their protected, private information on receipts and permitting Defendant’s employees access to that private information. 12. Defendant also imposed an unnecessary risk of identity theft, and a burden of vigilance to make certain identity thieves did not take advantage of Defendant’s reckless actions, wasting Plaintiff’s time. 13. Plaintiff brings this action against Defendant based on Defendant’s violation of 15 U.S.C. §1681p et seq. Plaintiff seeks class-wide statutory damages, attorneys’ fees, costs, and such other relief as the Court deems proper, including punitive damages when the evidence shows them appropriate. 19. FACTA’s final truncation requirement went into effect on December 4, 2006. 20. On April 12, 2016 and May 25, 2016, more than 9 years after the truncation requirement became effective, Plaintiff purchased meals at the Luby’s Cafeteria located at 3434 Hwy 6 South, Sugarland, Texas, 77478. 21. Plaintiff used his VISA debit card to pay for the meals. 22. The debit card Plaintiff used is a VISA card. 24. The receipt that Plaintiff received did not display in printed text the type of card that was used (e.g., “VISA”). 25. Subsequently, Plaintiff noticed that the subject receipt was not 26. Plaintiff has been required to check his debit card bank statements and his credit report to confirm that he was not the victim of identity theft – causing Plaintiff unnecessary stress and wasting Plaintiff’s time. 27. Plaintiff brings this action on behalf of a class pursuant to Fed.R.Civ.P.23(a) and (b)(3). 28. The class is defined as: All persons to whom Luby’s provided an electronically-printed receipt at the point of a sale or transaction after the applicable statutory deadline (after December 4, 2006 for machines in use before January 1, 2005 or immediately for machines first used after January 1, 2005) and which receipt displayed more than the last five digits of the purchaser’s credit card or debit card number. 29. On information and belief, the class is so numerous that joinder of all individual members in one action would be impracticable. The proposed class includes more than 100 persons.1 31. Plaintiff’s claims are typical of the claims of the other class members. Every class member’s claims are based on the same legal theories and arise from the same unlawful and reckless conduct. 32. Plaintiff will fairly and adequately represent the class members. Plaintiff has no interests that conflict with the interests of the class members. Plaintiff has retained experienced counsel. 33. A class action is superior to other available methods for the fair and efficient adjudication of the claims of class members. Individual actions are economically unfeasible and impractical. 40. Defendant knew or should have known of FACTA’s truncation requirement. 42. For example, in response to earlier state legislation enacting a similar truncation requirement, on March 6, 2003, the CEO of Visa USA, Carl Pascarella, explained that “Today, I am proud to announce an additional measure to combat identity theft and protect consumers. Our new receipt truncation policy will soon limit cardholder information on receipts to the last four digits of their accounts. The card’s expiration date will be eliminated from receipts altogether…. The first phase of this new policy goes into effect July 1, 2003 for all new terminals….” “Visa USA Announces Account Truncation Initiative to Protect Consumers from ID Theft; Visa CEO Announces New Initiative at Press Conference with Sen. Dianne Feinstein,” PR Newswire, March 6, 2003. 43. Within 24 hours, MasterCard and American Express announced that they were imposing similar requirements. 44. The card issuing organizations started requiring compliance with 46. Defendant accepts Visa cards and on information and belief is a party to a contract requiring compliance with the above-quoted requirement. 47. On July 9, 2003, L. Richard Fischer of VISA USA presented a statement to the House Committee on Financial Services supporting the truncation requirements of what ultimately became FACTA. Mr. Fischer stated: Although Visa generally believes that the details of preventing identity theft should be left to financial institutions that are best suited to address ever evolving fraud techniques, Title II could provide important benefits to consumers and financial institutions alike by establishing workable identity theft provisions and ensuring that these provisions benefit from national uniformity. For example, Section 203 of Title II would prohibit any merchant or other entity that accepts credit cards and debit cards from printing more than the last four digits of the card account number or the expiration date upon receipts provided to cardholders at the point of sale. 48. The Office of Thrift Supervision of the Treasury Department (the “OTS”) is responsible for, inter alia, compliance with FACTA by federal savings banks. Toward this end, the OTS publishes an Examination Handbook for OTS field personnel to use when they perform an examination, or compliance audit, of a given financial institution. The February 2006 edition of the Handbook states: Truncation of Credit and Debit Card Account Numbers Ensure that electronically generated receipts from ATM and POS terminals or other machines do not contain more than the last five digits of the card number and do not contain the expiration dates. 50. In 2006, Heartland broadly disseminated a second pamphlet including the following statement: Make every transaction a safe one. **** • The cardholder’s receipt should not include the card’s expiration date and should only include the last 4 or 5 digits of the card number. **** 51. Commerce Bank, another credit card processor, sent “Merchant Compliance Awareness” notices to its customers during 2004. Those notices stated that all but the last four digits of the cardholder’s account number and the entire expiration date must be suppressed from and not displayed on the receipt. 52. The Winter 2007 edition of Texas Business Today featured an article titled “An Introduction to the Fair and Accurate Credit Reporting Act [FACTA]” What Business Owners Must Know Now.” A bullet entry in the Overview section states, “Businesses must leave off all but the final five digits of a credit card number on electronically printed store receipts as of December 1, 2006.” 54. In the April 23, 2003 edition of the monthly magazine for the National Association of Convenience Stores, an article titled “Visa USA Targets Identity Theft” appeared, and included the following statement: [A]t a press conference held last month with Sen. Dianne Feinstein (D-CA), Visa announced its account truncation security policy. This protects consumers from identity theft by limiting cardholders’ information on receipts to the last four digits of their accounts. The policy will also eliminate the card’s expiration date from receipts altogether. Feinstein has introduced legislation to combat identity theft. 55. The April 2005 edition of the Food Industry Advisor, the newsletter for the Pennsylvania Food Merchants Association and Pennsylvania Convenience Store Council, included an article regarding FACTA’s truncation requirements and including the following language: [A]ccording to the FACTA Act, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction…. The same article appeared in the April 2005 Edition of the NACS Magazine, published by the National Association of Convenience Stores. 57. After FACTA’s enactment, the Wisconsin Restaurant Association issued a “Credit Card Transaction” Alert to its members, which stated: You may have been hearing about credit card truncation lately. This is what you need to know. Credit card truncation removes all but the last four (or five) digits of a credit card account number and the expiration date from the sales receipt. For example: A non-truncated receipt would list: Acct. # 1234 5678 7654 3210 Exp. 10/05 while a truncated receipt would show: Acct. #: **** **** **** 3210 Exp **** …. The federal Fair and Accurate Credit Transaction Act of 2003, prohibits any person that accepts credit cards or debit cards from printing expiration date and more than the last five digits of the card number upon any terminal-generated receipt provided to the cardholder at the point of sale…. 58. An article appeared in the January 2005 edition of the Massachusetts Restaurant Association Newsletter notifying Association members that both Visa and MasterCard require truncation of the entire expiration date and all but the last four digits of the cardholder account number. 59. Similar information was disseminated by the Ohio Restaurant Association, the Oklahoma Restaurant Association and a significant number of other restaurant trade associations and retail merchant trade associations. 61. The Independent Insurance Agents & Brokers of America circulated a report to its members dated June 5, 2005 titled: “Overview of the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, and the Drivers Privacy Protection Act.” In relevant part, this publication stated: Under the FACTA Act, businesses and others accepting credit or debit cards for payment may not print more than the last five digits of the card number nor may they print the expiration date upon any receipt provided to the cardholder at the point of sale. 62. The November 18, 2004 edition of the Compliance Challenge, published by the Credit Union National Association News, stated, “FACTA prohibits anyone that accepts credit/debit cards to print more than the last 5 digits of the card number or expiration date on any receipt at the point of sale or transaction….” 64. Credit and debit card account numbers are not randomly generated. Instead, account numbers reflect an internal coding scheme set forth by the International Organization for Standardization (“ISO”) 7812, which defines the content in the cards’ magnetic strips. Consistent with this standard, every credit card number consists of the following: (a) a single digit Major Industry Identifier (“MII”); (b) an issuer identification number (“IIN”); (c) a number unique to the card; and (d) a check digit. 65. The MII identifies the industry of the issuer of the card. 66. The IIN consists of the first six digits of the card number and identifies the specific issuer of the card. 67. The seventh through next to the last digits, up to a maximum of 12 digits, are the numbers unique to the card. 68. The last digit is a “check digit” that is not randomly assigned, but instead calculated by a defined algorithm. Therefore, the “check digit” is derivative of the other numbers in the credit card number. 70. The FTC issued rules governing interpretation of FACTA, including the following: According to the federal Fair and Accurate Credit Transaction Act (FACTA), the electronically printed credit and debit card receipts you give your customers must shorten – or truncate – the account information. You may include no more than the last five digits of the card number, and you must delete the card’s expiration date. For example, a receipt that truncates the credit card number and deletes the expiration date could look like this: 73. Defendant made known to its staff and possibly others Plaintiff’s private credit card information, violating Plaintiff’s right of privacy. Stated differently, by publishing Plaintiff’s private credit card information to Defendant’s staff and possibly others, Defendant violated Plaintiff’s right of privacy. Defendant similarly violated the privacy rights of the other class members. 74. Defendant also burdened Plaintiff with the obligation to consistently check whether receipts created by Defendant’s point-of-sale devices were FACTA- complaint. 76. Defendant also wrongfully transferred its responsibility for safeguarding Plaintiff’s financial information to Plaintiff, requiring that Plaintiff adequately protect or fully destroy the receipt. 77. Defendant recklessly disregarded FACTA’s requirements by continuing to employ improperly programmed machines, that print receipts in violation of Plaintiff’s debit card number. debit cards up to three years to comply with its requirements, mandating compliance for all machines no later than December 4, 2006. use before January 1, 2005, must have been brought into full compliance before December 4, 2006; and (2) machines first used after January 1, 2005 were required to fully comply immediately.

lose

1. On October 17, 2011, plaintiff Leslie Golba (“Plaintiff”) commenced this action in the Superior Court of the State of California in and for the County of San Diego. Plaintiff served Defendant with a copy of the Complaint on October 31, 2011. 2. As required by 28 U.S.C. § 1446(a), attached to this Notice of Removal as Exhibit A are true and correct copies of the Summons and Complaint, Civil Case Cover Sheet, Notice of Case Assignment, ADR Information Package, and Notice of Assignment to Imaging Department, which constitute all process, pleadings and orders served on Defendant in the action. Additionally, attached to this Notice of Removal as Exhibit B is a true and correct filed copy of Defendant’s Answer to Plaintiff’s Complaint filed with the California State Court on November 29, 2011. 3. This Notice of Removal is timely pursuant to 28 U.S.C. §§ 1446(b) and 1453(b) because it has been filed within thirty days after service of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based. Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause: VII. REQUESTED IN

lose

25. Defendant operates multiple stores throughout the United States, including its store located at 1408 Larimer St. #102 Denver, CO 80202. 26. Defendant offers its Website in connection with its physical locations. The goods and services offered by Defendant through its Website include but are not limited to the following: store locations and hours, contact information, the ability to make an online purchase, and related goods and services available both online and in stores. 27. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually impaired users, access to Defendant’s Website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s stores. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually impaired persons have been and are still being denied equal access to Defendant’s stores and the numerous goods, services and benefits offered to the public through its Website. 28. Plaintiff is a visually impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen- reader user and uses it to access the Internet. 30. Due to Defendant’s failure to build its Website in a manner that is compatible with screen reader programs, Plaintiff is and was unable to understand, and thus is denied the benefit of, much of the content and services he wishes to access or use. For example: a. Many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. b. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. c. The Website also contains a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. 33. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s stores on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 34. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. In fact, Plaintiff intends to return to the Website when it is equally accessible for visually-impaired consumers in order to complete his intended transaction, as it is more convenient for Plaintiff to access the Website to make a purchase than to travel to a physical location to make the same purchase. However, as long as the Access Barriers continue to exist on the Website, Plaintiff is prevented from making such a purchase. 35. These barriers, and others, deny Plaintiff full and equal access to all of the services the Website offers, and now deter him from attempting to use the Website and/or visit Defendant physical stores. Still, Plaintiff would like to, and intends to, attempt to access Defendant’s Website in the future to research the services the Website offers, or to test the Website for compliance with the ADA. 37. If the Website were accessible, i.e. if Defendant removed the access barriers described above, Plaintiff could independently research the Website’s offerings, including store locations and hours and promotions available at the its physical locations. 38. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually impaired people. 39. Though Defendant may have centralized policies regarding the maintenance and operation of its Website, upon and information and belief, Defendant has never had a plan or policy that is reasonably calculated to make its Website fully accessible to, and independently usable by, individuals with vision related disabilities. As a result, the complained of access barriers are permanent in nature and likely to persist. 40. The law requires that Defendant reasonably accommodate Plaintiff’s disabilities by removing these existing access barriers. Removal of the barriers identified above is readily achievable and may be carried out without much difficulty or expense. 41. Plaintiff’s above request for injunctive relief is consistent with the work performed by the United States Department of Justice, Department of Transportation, and U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”), all of whom have relied upon or mandated that the public-facing pages of website complies with an international compliance standard known as Web Content Accessibility Guidelines version 42. Plaintiff and the Class have been, and in the absence of an injunction will continue to be, injured by Defendant’s failure to provide its online content and services in a manner that is compatible with screen reader technology. 43. Defendant has long known that screen reader technology is necessary for individuals with visual disabilities to access its online content and services, and that it is legally responsible for providing the same in a manner that is compatible with these auxiliary aids. 44. Indeed, the Disability Rights Section of the DOJ reaffirmed in a 2015 Statement of Interest before the United States District Court for the District of Massachusetts that it has been a “longstanding position” of the Department of Justice “that the ADA applies to website of public accommodations.” See National Association of the Deaf v. Massachusetts Institute of Technology, No. 3:15-cv-300024-MGM, DOJ Statement of Interest in Opp. To Motion to Dismiss or Stay, Doc. 34, p. 4 (D. Mass. Jun. 25, 2015) (“MIT Statement of Interest”); see also National Association of the Deaf. v. Harvard University, No. 3:15-cv-30023- MGM, DOJ Statement of Interest of the United States of America, Doc. 33, p.4 (D. Mass. Jun. 25, 2015) (“Harvard Statement of Interest”). 45. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 47. While DOJ has rulemaking authority and can bring enforcement actions in court, Congress has not authorized it to provide an adjudicative administrative process to provide Plaintiff with relief. 48. Plaintiff alleges violations of existing and longstanding statutory and regulatory requirements to provide auxiliary aids or services necessary to ensure effective communication, and courts routinely decide these types of matters. 49. Resolution of Plaintiff’s claims does not require the Court to unravel intricate, technical facts, but rather involves consideration of facts within the conventional competence of the courts, e.g. (a) whether Defendant offers content and services on its Website, and (b) whether Plaintiff can access the content and services. 50. Without injunctive relief, Plaintiff and other visually impaired consumers will continue to be unable to independently use the Website, thereby violating their rights. 51. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 53. Plaintiff’s claims are typical of the Class. The Class, like Plaintiff, are visually impaired or otherwise blind, and claim that Defendant has violated the ADA by failing to remove access barriers on its Website so it can be independently accessible to the Class. 54. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. 55. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to the Class as a whole. 56. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 57. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits throughout the United States. 58. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. Defendant’s physical locations are a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 61. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 62. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 63. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 65. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 66. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 67. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq. prohibiting discrimination against the blind. 68. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

(Disparate Impact – Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.) (On behalf of Plaintiff and similarly situated individuals) (Disparate Impact – Fair Employment and Housing Act, Cal. Gov. Code § 12940 et seq.) (On behalf of Plaintiff and similarly situated individuals) (Disparate Treatment – Fair Employment and Housing Act, Cal. Gov. Code § 12940 et seq.) (On behalf of Plaintiff and similarly situated individuals) 18. From 2006 to 2011, Ms. Tavres served as a Community Relations Manager (“CRM”) at a Barnes & Noble bookstore located in Oakland, California. From 2011 to 2014, she served in that position at a Barnes & Noble bookstore in Emeryville, California. In her role as a CRM, Ms. Tavres was responsible for planning events and activities designed to generate goodwill for Barnes & Noble within the community in which her assigned store was located, increase store traffic, and ultimately drive sales for that store. These events and activities included book fairs, literary readings, author meet-and-greets, book club meetings, children’s story times, and the like. Ms. Tavres and her CRM cohort’s other key responsibilities included making institutional sales, corporate sales, and sales to educators. 19. Ms. Tavres was a highly successful employee. She received glowing performance reviews and was consistently provided with annual raises to her base pay in recognition of her performance. Ms. Tavres was never subject to reprimand or discipline for any reason whatsoever during the period of her nearly 13-year employment with Barnes & Noble. On the contrary, she was a top performer. In her 2009-2010 performance review, her manager stated: “You have been in the top 3 stores for the past three years, and have always been a team player in assisting other stores and training new CRMs.” In her 2013-2014 performance review, her manager stated: “Barb has continued to do an outstanding job in delivering institutional sales. . . . Barb is a pleasure to work with and I look forward to many more years of success. . . . Year over year Barb has delivered excellent results with her institutional sales.” 20. Effective June 29, 2014, Barnes & Noble changed the job title of its CRMs. Going forward, CRMs became known as Community Business Development Managers (“CBDMs”). 34. With respect to her ADEA claims and pursuant to 29 U.S.C. § 216(b), Ms. Tavres brings this case as a collective action on behalf of herself and all other similarly situated individuals: i.e., any individual employed by Barnes & Noble in the U.S., was terminated by Barnes & Noble, was age 40 or older at the time of termination, and whose termination became effective during the Class Period (defined below). Together, these individuals were the targets and/or victims of a decision, series of decisions, policy, practice, or plan infected by discrimination. 35. Barnes & Noble has engaged in a systematic pattern and practice of intentionally discriminating against individuals, including Ms. Tavres, who are age 40 or older by terminating their employment because of their age. 36. Barnes & Noble has also implemented policies and practices that have a disparate impact on workers age 40 and older, such that workers age 40 or older are terminated from employment at a disproportionate rate compared with workers who are under 40 years old. 37. With respect to her FEHA claims and pursuant to Fed. R. Civ. P. 23, Ms. Tavres brings this lawsuit as a class action on behalf of herself and all similarly situated former Barnes & Noble employees in California. The proposed class is defined as: All employees of Barnes & Noble who were actually or constructively discharged within the Class Period and who were 40 years of age or older when so discharged (“Class Members” or the “Class”). Defendant, its subsidiaries, officers, directors, managing agents and members of those persons’ immediate families, the Court, Court personnel, and legal representatives, heirs, successors or assigns of any excluded person or entity are excluded from the Class. 53. Plaintiff re-alleges and incorporates the above paragraphs by reference as fully set forth herein. 54. The ADEA claims herein are brought by Plaintiff and all similarly situated individuals. 60. Plaintiff re-alleges and incorporates the above paragraphs by reference as fully set forth herein. 61. The FEHA claims herein are brought by Plaintiff and all similarly situated individuals. 62. The FEHA, Cal. Gov. Code § 12940 et seq., prohibits an employer from discriminating on the basis of age. 63. Barnes & Noble is an employer covered by FEHA. 71. Plaintiff re-alleges and incorporates the above paragraphs by reference as fully set forth herein. 72. The FEHA claims herein are brought by Plaintiff and all similarly situated individuals. 73. The FEHA, Cal. Gov. Code § 12940 et seq., prohibits an employer from discriminating on the basis of age. 74. Barnes & Noble is an employer covered by FEHA. 75. Plaintiff and similarly situated individuals were employees of Barnes & Noble. 76. Barnes & Noble has and had an employment policy, practice, and/or procedure that had a disproportionate, adverse effect on its employees age 40 and older. 77. Plaintiff and similarly situated individuals are age 40 and older.

lose

24. Plaintiff brings Count I of this Complaint as a collective action on behalf of herself and all other current and former hourly employees of Defendants who Defendants required to perform the Unpaid Study Work described herein. 25. 25. Plaintiff’s Counsel seeks to send notice of this lawsuit to the following described persons: All persons who worked for Defendants as employees who were compensated, in part or in full, on an hourly basis in Illinois at any time between November 11, 2013 and the present who did not receive the full amount of minimum wages and/or overtime wages earned and owed to them as a result of Defendants’ Unpaid Study Work practice. 6 26. There are questions of law or fact common to the employees described in paragraph 27. Plaintiff is similarly situated to the employees described in paragraph 25, as Plaintiff’s claims are typical of the claims of those persons. 28. Plaintiff’s claims or defenses are typical of the claims or defenses of the persons described in paragraph 25. 29. This is not a collusive or friendly action. Plaintiff has retained counsel experienced in complex employment litigation, and Plaintiff and her counsel will fairly and adequately protect the interests of the persons described in paragraph 25. 30. A collective action is the most appropriate method for the fair and efficient resolution of the matters alleged in Count I. 31. At all relevant times, Defendants employed Plaintiff and the persons described in paragraph 25. 32. At all relevant times, Defendants paid Plaintiff and the persons described in paragraph 25 to work. 33. At all relevant times, each Defendant has been an “employer” as defined by Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 34. At all relevant times, Plaintiff and the persons described in paragraph 25 have been “employees” of Defendants as defined by Section 3(e) of the FLSA, 29 U.S.C. § 203(e). 35. Plaintiff brings Count II as a class action pursuant to Fed. R. Civ. P. 23 on behalf of herself and all other current and former hourly employees of Defendants who worked for Defendants in Illinois and were required to perform the Unpaid Study Work described herein. 7 36. Plaintiff seeks certification of the following class pursuant to Count II: All persons who worked for Defendants as employees who were compensated, in part or in full, on an hourly basis in Illinois at any time between November 11, 2013 and the present who did not receive the full amount of minimum wages and/or overtime wages earned and owed to them as a result of Defendants’ Unpaid Study Work practice (the “IMWL Class”). 36. 37. There are questions of law or fact common to the employees described in paragraph 38. Plaintiff is similarly situated to the employees in paragraph 36 as Plaintiff’s claims are typical of the claims of those persons. 39. Plaintiff believes that the number of employees who fall within the class definition as set forth in paragraph 36 exceeds 40. Therefore, the number of persons in the putative IMWL Class is so numerous that joinder of all members is impracticable. 40. Plaintiff’s claims or defenses are typical of the claims or defenses of the persons described in paragraph 36. 41. This is not a collusive or friendly action. Plaintiff has retained counsel experienced in complex employment litigation, and Plaintiff and her counsel will fairly and adequately protect the interests of the persons described in paragraph 36. 42. A class action is the most appropriate method for the fair and efficient resolution of the matters alleged in Counts II. 43. At all relevant times, Defendants employed Plaintiff and the persons described in paragraphs 36. 44. At all relevant times, Defendants paid Plaintiff and the persons described in paragraph 36 to work. 8 45. Plaintiff re-alleges and incorporates by reference Paragraphs 1 through 34 as Paragraph 45 of this Count I. 46. Plaintiff and the members of the class described in paragraph 25 seek to recover from Defendants unpaid minimum wages and/or overtime wages, liquidated damages, attorneys’ fees, and costs pursuant to Section 16 of the FLSA, 29 U.S.C. § 216. 47. During the relevant period, and at Defendants’ request, Plaintiff and the other members of the class described in paragraph 25 performed labor for Defendants. 48. In exchange for said labor, Defendants promised to pay and were otherwise obligated to pay Plaintiff and each other member of the class described in paragraph 25 the applicable minimum wage for all hours worked up to forty hours in any given workweek, and time and a half for all hours worked in excess of forty hours in any given workweek. 49. Plaintiff and the other members of the class described in paragraph 25 are entitled to be paid at least minimum wage for all hours worked and time and a half for all hours worked in excess of forty hours per workweek pursuant to Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206, 207. 50. Defendants have failed to pay Plaintiff and the other members of class described in paragraph 25 minimum wage and the full amount due for all overtime hours worked, because Defendants did not pay them for the Unpaid Study Work described herein, in violation of Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206, 207. 51. Defendants’ violation of the FLSA was willful. 52. Plaintiff and the other members of the class described in paragraph 25 have been damaged by not being paid minimum wage and/or overtime wages due to them for all time worked 9 in excess of forty hours per workweek, in an amount not presently ascertainable, for the relevant time period. WHEREFORE, Plaintiff demands a trial by jury on this and all counts so triable, and prays that this Court award her the following relief under Count I: (a) grant Plaintiff’s counsel leave to send notice of this lawsuit to the members of the class described in paragraph 25 and allow them the opportunity to opt-in as party plaintiffs pursuant to Section 16 of the FLSA, 29 U.S.C. § 216; (b) award Plaintiff and all persons who opt-in all unpaid minimum or overtime wages they earned, plus liquidated damages; (c) award Plaintiff and all persons who opt-in their attorneys’ fees and costs; and (d) grant such further relief as this Court deems equitable and just. 53. Plaintiff re-alleges and incorporates by reference Paragraphs 1 through 23 and 35 through 44 as Paragraph 53 of this Count II. 54. Plaintiff, individually and on behalf of all others similarly situated, seeks to recover from Defendants unpaid minimum and overtime wages, statutory penalties, attorneys’ fees, and costs pursuant to Section 12(a) of the Illinois Minimum Wage Law, 820 ILCS § 105/12(a). 55. At all times relevant, each Defendant has been an “employer” as that term is defined by Section 3(c) of the IMWL, 820 ILCS § 105/3(c). 56. At all times relevant, Plaintiff and the members of the putative IMWL Class have been “employees” of Defendants, as that term is defined by Section 3(d) of the IMWL, 820 ILCS § 105/3(d). 57. At all times relevant, and at Defendants’ request, Plaintiff and the members of the putative IMWL Class performed labor for Defendants. 10 58. Defendants’ practice of requiring Plaintiff and the members of the putative IMWL Class to work for Defendants but failing to pay the full amount of minimum wages for such time worked up to forty hours per workweek has resulted in Plaintiff and the members of the putative IMWL Class not being paid the full amount of minimum wages owed to them, in violation of Section 4 of the IMWL, 820 ILCS § 105/4. 59. Defendants’ practice of requiring Plaintiff and the members of the putative IMWL Class to work for Defendants in excess of forty hours per workweek but failing to pay them 1.5 times their hourly rate for such time worked has resulted in Plaintiff and the members of the putative IMWL Class not being paid the full amount of overtime wages owed to them, in violation of Section 4a of the IMWL, 820 ILCS § 105/4a. 60. Plaintiff and the members of the putative IMWL Class have been damaged by not being paid the proper amount of minimum and/or overtime wages due to them, in an amount not presently ascertainable, for the relevant time period. WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, demands a trial by jury on this and all counts so triable, and prays that this Court award her the following relief under Count II: (a) certify the class defined in paragraph 36 pursuant to Fed. R. Civ. p. 23; (b) award Plaintiff and the members of the putative IMWL Class all unpaid minimum and overtime wages they earned, plus statutory penalties; (c) award Plaintiff and the members of the putative IMWL Class their attorneys’ fees and costs; and (d) grant such further relief as this Court deems equitable and just. Dated: November 11, 2016 11 ROBIN RAPAI, individually and on behalf of a class of persons similarly situated /s/ James X. Bormes One of Plaintiff’s Attorneys James X. Bormes Catherine P. Sons Law Office of James X. Bormes, P.C. 8 South Michigan Avenue Suite 2600 Chicago, Illinois 60603 (312) 201-0575

win

26. In approximately June 2016, Defendant hired Plaintiff into the position of Member Relations Advisor. 27. On or about November 8, 2018, Plaintiff’s employment with Defendant ended. 29. The vast majority of Defendant’s employees during the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1) were hourly-paid, non-exempt employees. 30. During Plaintiff’s employment with Defendant, Plaintiff’s usual and customary weekly work schedule was: Mondays, Tuesdays, Wednesdays, and Fridays, from 8:30 a.m. to 5:00 p.m.; Thursdays, from 8:30 a.m. to 6:00 p.m.; and occasional weekends. 31. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), the usual and customary weekly work schedules and hours of work of the vast majority of Defendant’s hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff, was Mondays, Tuesdays, Wednesdays, and Fridays, from 8:30 a.m. to 5:00 p.m.; Thursdays, from 8:30 a.m. to 6:00 p.m.; and occasional weekends. 32. Within the three (3) years immediately preceding the filing of this Complaint (ECF No. 1), Defendant operated approximately six (6) physical locations in the State of Wisconsin: Kaukauna; Appleton; Kimberly; Little Chute; Grand Chute; and Freedom. Each location had the same business (lobby) hours: Monday, Tuesday, Wednesday, and Friday, from 8:30 a.m. to 5:00 p.m.; and Thursday, from 8:30 a.m. to 6:00 p.m. 33. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees often worked at least and/or in excess of five (5) days per workweek. 35. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant compensated its hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff, bi-weekly via check. 36. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant’s workweek for FLSA and WWPCL purposes was Wednesday through Tuesday. 37. On a daily basis during Plaintiff’s employment with Defendant, Plaintiff worked alongside other hourly-paid, non-exempt Member Relations Advisor employees. 38. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant provided Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees with a written “Employee Manual.” 39. Defendant’s “Employee Manual” contained the terms and conditions of employment for its hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff. 40. Defendant’s “Employee Manual” contained the company-wide, uniform policies applicable to its hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff. 42. Defendant’s “Employee Manual” contained a “Wages and Salary Administration” policy that applied to its hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff. 43. Defendant’s “Wages and Salary Administration” policy as contained in its “Employee Manual” stated: “Member Relations Representatives are required to report in adequate time to have their work station operable prior to their scheduled shift, by at least 7:20 when working the early shift, and 8:25 when working the later shift.” 44. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant’s expectations and directives as communicated to its hourly- paid, non-exempt Member Relations Advisor employees, including Plaintiff, was to arrive to work prior to their respective scheduled shift start times “in adequate time to have their work station[s] operable prior to their scheduled shift, by at least 7:20 when working the early shift, and 8:25 when working the later shift.” 45. Defendant’s “Wages and Salary Administration” policy as contained in its “Employee Manual” further stated: “All full time, non-exempt employees are paid based on the time worked in the week consisting of Wednesday through Tuesday. Overtime pay will be paid to an employee for time worked beyond 40 hours in the work week (Wednesday through Tuesday). 47. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), it was the common practice of all hourly-paid, non-exempt Member Relations Advisor employees, including Plaintiff, to perform compensable work prior to their respective scheduled shift start times in the furtherance of performing their respective job duties at Defendant. 48. Immediately after arriving to work at Defendant each workday at the beginning of their shift, Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees performed compensable work. 49. Immediately prior to leaving work at Defendant each workday at the end of their shift, Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees performed compensable work. 50. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant compensated Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees with, in addition to their hourly or regular rates of pay, other non-discretionary forms of compensation, such as performance bonuses, commissions, incentives, and/or other monetary rewards. 52. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), the forms of compensation that Defendant compensated Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees with in addition to their hourly or regular rates of pay were non-discretionary in nature: they were based on Plaintiff’s and all other hourly-paid, non-exempt Member Relations Advisor employees’ hours worked and/or work performance. 53. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant failed to include all non-discretionary forms of compensation in Plaintiff’s and all other hourly-paid, non-exempt Member Relations Advisor employees’ regular rates of pay for overtime calculation purposes. 54. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant did not properly and lawfully compensate Plaintiff and all other hourly-paid, non-exempt employees for all hours actually worked each workday and each workweek. 55. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant’s practice was to unlawfully and impermissibly shave time and recorded hours of work from the timesheets of Plaintiff and all other hourly-paid, non- exempt Member Relations Advisor employees for its own benefit and to the detriment of said employees. 57. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1), Defendant’s practice was to unlawfully and impermissibly fail to compensate Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees for all hours actually worked each workweek, including but not limited to at an overtime rate of pay. 58. During the three (3) year period immediately preceding the filing of this Complaint (ECF No. 1) and during weeks when no overtime was due, if any, Defendant suffered or permitted Plaintiff and all other hourly-paid, non-exempt Member Relations Advisor employees to work without being paid appropriate and lawful compensation for all hours worked. 59. Defendant was or should have been aware that it was shaving time from Plaintiff’s and all other hourly-paid, non-exempt Member Relations Advisor employees’ timesheets by rounding recorded hours of work for its own benefit and to the detriment of said employees each work day, thus failing to compensate said employees when compensable work commenced and/or ceased. 61. Plaintiff brings this action on behalf of herself and all other similarly situated employees as authorized under the FLSA, 29 U.S.C. § 216(b). The similarly situated employees include: FLSA Collective (Timeshaving): All hourly-paid, non-exempt Member Relations Advisor employees who are or have been employed by Defendant within three (3) years immediately prior to the filing of this Complaint (ECF No. 1) who have not been compensated for all hours worked in excess of forty (40) hours in a workweek as a result of impermissible and unlawful time shaving and rounding by Defendant. FLSA Collective (Non-Discretionary Compensation): All hourly-paid, non-exempt Member Relations Advisor employees who are or have been employed by Defendant within three (3) years immediately prior to the filing of this Complaint (ECF No. 1) who received non-discretionary forms of compensation in addition to regular wages that were not included in their regular rates of pay for overtime calculation purposes. 62. Defendant, as a matter of policy and practice, did not compensate its employees for all hours of compensable work performed by the FLSA Collective (Timeshaving) during a workweek. These practices resulted in Plaintiff and the FLSA Collective (Timeshaving) being denied overtime compensation by Defendant at the rate of one and one-half times their regular hourly rate of pay for hours worked in excess of forty (40) in a workweek. 63. Defendant suffered or permitted Plaintiff and the FLSA Collective (Timeshaving) to perform work during the workweek without proper compensation for all hours of work. The effect of such a practice was for Defendant to deny the FLSA Collective (Timeshaving) their agreed upon wages, including overtime compensation at one and one-half times the regular rate, for the hours worked that were not counted as work. 65. The First and Second Claims for Relief are brought under and maintained as an opt-in Collective Actions pursuant to § 216(b) of the FLSA, 29 U.S.C. 216(b), by Plaintiff on behalf of the FLSA Collectives. 66. The FLSA Collective claims may be pursued by those who affirmatively opt in to this case, pursuant to 29 U.S.C. § 216(b). 67. Plaintiff and the FLSA Collectives are and have been similarly situated, have and have had substantially similar job requirements and pay provisions, and are and have been subject to Defendant’s decisions, policies, plans and programs, practices, procedures, protocols, routines, and rules willfully failing and refusing to compensate them for each hour worked including overtime compensation. The claims of Plaintiff stated herein are the same as those of the FLSA Collectives. 68. Plaintiff and the FLSA Collectives seek relief on a collective basis challenging, among other FLSA violations, Defendant’s practice of failing to properly and lawfully compensate employees for all hours worked, including overtime compensation, and to include all non-discretionary compensation, such as bonuses, commissions, incentives, and/or other rewards, in the employees’ regular rates of pay for overtime calculation purposes. 70. Defendant’s conduct, as set forth in this Complaint, was willful and in bad faith, and has caused significant damages to Plaintiff and the putative FLSA Collectives. 71. Plaintiff brings this action on behalf of herself and all other similarly situated employees pursuant to the WWPCL, under Fed. R. Civ. P. 23. The similarly situated employees include: Wisconsin Class (Timeshaving): All hourly-paid, non-exempt employees who are or have been employed by Defendant within two (2) years immediately prior to the filing of this Complaint (ECF No. 1) who have not been compensated for all hours worked in a workweek, including at an overtime rate of pay for those hours worked in excess of forty (40) hours in a workweek, as a result of impermissible and unlawful time shaving and rounding by Defendant. Wisconsin Class (Non-Discretionary Compensation): All hourly-paid, non-exempt employees who are or have been employed by Defendant within two (2) years immediately prior to the filing of this Complaint (ECF No. 1) who received non- discretionary forms of compensation in addition to regular wages that were not included in their regular rates of pay for overtime calculation purposes. 73. The proposed Wisconsin Classes are so numerous that joinder of all members is impracticable, and more importantly the disposition of their claims as a class will benefit the parties and the Court. Although the precise number of such persons is unknown, upon information and belief, there are over fifty (50) members of each of the Wisconsin Classes. 74. Plaintiff’s claims are typical of those claims which could be alleged by any members of the Wisconsin Classes, and the relief sought is typical of the relief which would be sought by each member of the Wisconsin Classes in separate actions. All of the members of the Wisconsin Classes were subject to the same corporate practices of Defendant, as alleged herein. Defendant’s corporate-wide policies and practices affected all members of the Wisconsin Classes similarly, and Defendant benefited from the same type of unfair and/or wrongful acts as to each member of the Wisconsin Classes. Plaintiff and other members of the Wisconsin Classes sustained similar losses, injuries and damages arising from the same unlawful policies, practices and procedures. 75. Plaintiff is able to fairly and adequately protect the interests of the Wisconsin Classes and has no interests antagonistic to the Wisconsin Classes. Plaintiff is represented by counsel who are experienced and competent in both collective/class action litigation and employment litigation and have previously represented plaintiffs in wage and hour cases. 77. Important public interests will be served by addressing the matter as a class action. The adjudication of individual litigation claims would result in a great expenditure of Court and public resources; however, treating the claims as a class action would result in a significant saving of these costs. The prosecution of separate actions by individual members of the Wisconsin Classes would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Wisconsin Classes, establishing incompatible standards of conduct for Defendant and resulting in the impairment of class members’ rights and the disposition of their interests through actions to which they were not parties. The issues in this action can be decided by means of common, class-wide proof. In addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently manage this action as a class action. 78. Defendant has violated the WWPCL regarding payment of wages and overtime premium wages. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because doing so can harm their employment, future employment, and future efforts to secure employment. Class actions provide class members who are not named in the Complaint a degree of anonymity which allows for the vindication of their rights while eliminating or reducing these risks. 80. The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency, economy, efficiency, fairness and equity, to other available methods for the fair and efficient adjudication of the state law claims. 81. Plaintiff, on behalf of herself and the FLSA Collective (Timeshaving), reasserts and incorporates by reference all paragraphs set forth above as if restated herein. 82. At all times material herein, Plaintiff and the FLSA Collective (Timeshaving) have been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. § 201 et seq. 84. At all times material herein, Plaintiff and the FLSA Collective (Timeshaving) were employees of Defendant as provided under the FLSA. 85. Plaintiff and the FLSA Collective (Timeshaving) are victims of uniform compensation policy and practice in violation of the FLSA. 86. Defendant violated the FLSA by failing to account for and compensate Plaintiff and the FLSA Collective (Timeshaving) for overtime premium pay for each hour they worked in excess of forty (40) hours each workweek. 87. Defendant suffered or permitted Plaintiff and the FLSA Collective (Timeshaving) to perform work without being properly or lawfully compensated for each hour worked. The effect of such a practice was for Defendant to deny Plaintiff and the FLSA Collective (Timeshaving) their agreed upon wage for the hours worked that were not counted as work, including overtime wages for hours worked in excess of forty (40) in a workweek. 88. The FLSA regulates, among other things, the payment of an overtime premium by employers whose employees are engaged in commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. § 207(a)(1). 89. Defendant was and is subject to the overtime pay requirements of the FLSA because Defendant is an enterprise engaged in commerce and/or its employees are engaged in commerce, as defined in FLSA, 29 U.S.C. §203(b). 91. As a result of the aforesaid willful violations of the FLSA’s provisions, overtime compensation has been unlawfully withheld by Defendant from Plaintiff and the FLSA Collective (Timeshaving) for which Defendant is liable pursuant to 29 U.S.C. § 216(b). 92. Plaintiff and the FLSA Collective (Timeshaving) are entitled to damages equal to the mandated overtime premium pay within the three (3) years preceding the date of filing of this Complaint, plus periods of equitable tolling because Defendant acted willfully and knew or showed reckless disregard of whether its conduct was prohibited by the FLSA. 94. Plaintiff, on behalf of herself and the FLSA Collective (Non-Discretionary Compensation), reasserts and incorporates by reference all paragraphs set forth above as if restated herein. 95. At all times material herein, Plaintiff and the FLSA Collective (Non- Discretionary Compensation) have been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. § 201 et seq. 96. At all times material herein, Defendant was an employer of Plaintiff and the FLSA Collective (Non-Discretionary Compensation) as provided under the FLSA. 97. At all times material herein, Plaintiff and the FLSA Collective (Non- Discretionary Compensation) were employees of Defendant as provided under the FLSA. 98. Plaintiff and the FLSA Collective (Non-Discretionary Compensation) are victims of uniform compensation policy and practice in violation of the FLSA. Violation of the FLSA – Unpaid Overtime (Plaintiff on behalf of herself and the FLSA Collective (Non-Discretionary Compensation)) Violation of the FLSA – Unpaid Overtime (Plaintiff on behalf of herself and the FLSA Collective (Timeshaving))

win

10. The TCPA prohibits companies, such as LifeEnergy, from placing calls using an artificial or prerecorded voice (“prerecorded calls”) when making calls to cellular telephones without first obtaining consent. 11. LifeEnergy has violated, and continues to violate, the TCPA and its implementing regulations by placing, or having placed on its behalf, prerecorded calls to cellular telephone subscribers (a) who have not expressly consented to receiving such calls and/or (b) who have expressly requested not to receive such calls. 2 On September 30, 2019, LifeEnergy filed an application with the Public Utility Commission of Ohio to stop offering electric service in Ohio. According to its application, “LifeEnergy is ceasing operations because it entered into as [sic] asset sale of its customer contracts with NRG Retail, Inc. on June 7, 2019.” See http://dis.puc.state.oh.us/TiffToPDf/A1001001A19J01A92046J00202.pdf. Effective December 29, 2019, LifeEnergy ceased offering electric services in Ohio. See http://dis.puc.state.oh.us/TiffToPDf/A1001001A19L30B45024I00048.pdf 4 12. As Congress recognized: Many customers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers…. Banning 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.3 13. Senator Larry Pressler, one of the original drafters of the TCPA, explained the need for the TCPA by observing that “[u]nlike other communications media, the telephone commands our instan[t] attention. Junk mail can be thrown away. Television commercials can be turned off. The telephone demands to be answered.” 137 Cong. Rec. S18785 (daily ed. Nov. 27, 1991) (statement of Sen. Pressler). 14. As explained by the Federal Communications Commission (“FCC”)4, the TCPA requires “prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02-278, FCC 12-21, 27 FCC Rcd. 1830 ¶ 2 (Feb. 15, 2012). 15. Yet, in violation of this rule, Defendants fail to obtain any prior express written consent to place prerecorded calls to consumers’ cellular telephone numbers. 16. Consumer complaints about LifeEnergy’s invasive and repetitive calls are legion. As a sample, consumers have complained as follows: • “The scam is being run by Life Energy. If you give them your account number (as seen on you [sic] electric bill), you will be ‘slammed,’ that is they will change your electric provider to Life Energy. They lie about this, claiming that want to show you your ‘savings.’”5 3 Pub. L. No. 102-243 § 2(6, 12) (1991), codified at 47 U.S.C. § 227. 4 The FCC is the federal agency given the administrative authority to interpret and enforce the TCPA. 47 U.S.C. § 227(b)(2). 5 https://800notes.com/Phone.aspx/1-866-311-9541 5 • “actually a fishing call from Life Energy out of Texas wanting to switch your energy provider.”6 • “These calls are actually coming from Lifeenergy LLC,, a licensed electric supplier by the PUC (PA Utility Commission). Regardless of whether they're allowed to make an initial marketing call, the tactics of their robocalls are questionable, specifically, not identifying their company name, and intentionally garbling any customer name.”7 • “I finally picked up after two calls with no message. They said they were from Life Energy.”8 • “A rep stated he can save us money on our energy bill. His company, Life Energy is who he is working for. I said that I couldn't talk now but would call back. He said to ask for Miss Lucas. A lot of talk in the background as this is a call center for "scammers.”9 • “Caller ID indicated Life Energy. Said he was calling regarding our electric bill. Asked him if this was regarding actual bill or rates. He just kept saying its regarding "electric utility" and would not answer question. Life Energy is not our electric provider. So sick of these phony callers pretending to be your electric or gas company.”10 17. In response to the liability risk associated with the TCPA, numerous commercially available services exist to help companies, such as Defendants, that call others using prerecorded voices, identify cellular subscribers and otherwise ensure that calls are only made to consenting consumers. For instance, companies such as Infutor, Nextmark List, and Contact Center Compliance advertise their ability to instantly identify and flag disconnected telephone numbers from cellular telephone number data lists on a recurring basis (such as weekly or monthly). This type of service can identify disconnected numbers before they are recycled, thereby alerting mobile marketers that any consent associated with those telephone numbers has been terminated. 6 https://800notes.com/Phone.aspx/1-440-209-5683/2 7 https://800notes.com/Phone.aspx/1-855-314-9868/2 8 https://800notes.com/Phone.aspx/1-223-456-7890 9 https://800notes.com/Phone.aspx/1-855-314-9869 10 https://800notes.com/Phone.aspx/1-330-346-3412 6 18. Despite the FCC’s ruling, the industry guidelines, and the commercial availability of programs that help callers filter out non-consenting numbers, Defendants fail to take the necessary steps to ensure that their prerecorded calls are placed only to consenting recipients. 19. Rather, in an effort to increase revenue and skirt additional costs, Defendants simply ignore the law when contacting individuals via prerecorded calls to their cellular telephones. 20. Indeed, LifeEnergy has been sued at least twice for alleged TCPA violations.11 21. LifeEnergy’s marketing practices have long been under scrutiny. In 2019, LifeEnergy entered into a settlement with Pennsylvania’s Attorney General after it placed illegal calls with pre-recorded messages.12 Under the settlement, LifeEnergy agreed to stop their unlawful practices and pay civil penalties and costs.13 Since 2018, LifeEnergy has been under investigation for various compliance failures with regard to marketing practices in Illinois.14 22. Defendants know or should know that their prerecorded calls are placed to non- consenting cellular telephone subscribers. Ultimately, Defendants are responsible for verifying telephone number ownership and obtaining consent before placing prerecorded calls to cellular telephone subscribers. 11 See e.g. Heffelfinger v. LifeEnergy, LLC, Case No. 5:16-cv-05259 (E.D. Pa. filed Oct.5, 2016); Lechuga v. LifeEnergy, LLC, Case No. 1:19-cv-02180 (N.D. Ill. filed March 29, 2019). 12 See Pennsylvania Office Of Attorney General’s “Do Not Call Report for Fiscal Year 2018- 2019” at Page 7, available at www.reppickett.com/Display/SiteFiles/401/OtherDocuments/2019/DNCReportToLegislature201 8-19.pdf 13 See https://www.inquirer.com/business/robocalls-pennsylvania-attorney-general-josh-shapiro- 20190625.html 14 See Illinois Commerce Commission v. LifeEnergy, LLC, Docket No. 18-1540 Investigation of Compliance with 83 Ill. Admin. Code 412, Obligations of Retail Electric Suppliers, available at https://www.icc.illinois.gov/docket/P2018-1540 7 23. Defendants were, and are, aware that their unsolicited prerecorded calls were, and are, unauthorized as they fail to obtain prior express written consent before placing those calls to consumers. Ultimately, consumers are forced to bear the costs of receiving these unsolicited prerecorded calls. 24. By placing the unsolicited prerecorded calls at issue in this Complaint, Defendants caused Plaintiff and the other members of the Class actual harm and cognizable legal injury. This includes the aggravation, nuisance, and invasions of privacy that result from the sending and receipt of such prerecorded calls, a loss of value realized for the monies consumers paid to their carriers for the receipt of such prerecorded calls, and a loss of the use and enjoyment of their phones, including wear and tear to the related data, memory, software, hardware, and battery components, among other harms. 25. In response to Defendants’ unlawful conduct, Plaintiff filed this action seeking (a) an injunction requiring Defendants to cease all unsolicited prerecorded calling activities and, (b) an award of actual or statutory damages to the members of the Class under the TCPA, together with costs and reasonable attorneys’ fees. 26. Plaintiff Rogers is the registered account owner and regular user of a cellular telephone number 216-xxx-8687. 27. On January 14, 2019 at approximately 6:39 pm, Plaintiff received an unsolicited, pre-recorded phone call on his cellular telephone. 28. The January 14, 2019 call used a pre-recorded voice and stated that John Doe Corporation was calling to offer Plaintiff discounted electricity. 8 29. Plaintiff pressed “1” to speak with a live person and was connected with one of John Doe Corporation’s telephone representatives. 30. John Doe Corporation’s phone representative asked Plaintiff for his electricity billing account number and stated that Defendant LifeEnergy would be the supplier. 31. John Doe Corporation’s phone representative gave Plaintiff Defendant LifeEnergy’s toll-free number, 844-662-1222, as a call back number for any customer service related issues. 32. Plaintiff has never provided prior express written consent to Defendants to receive prerecorded calls to him on the 216-xxx-8687 number. 33. Defendants failed to obtain prior express written consent that included, as required by 47 C.F.R. § 64.1200(f)(8)(i) a “clear and conspicuous” disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services. 34. By placing the prerecorded calls as alleged herein, Defendants have caused consumers actual harm in the form of annoyance, nuisance, and invasion of privacy. In addition, the prerecorded call disturbed Plaintiff’s use and enjoyment of his phone, in addition to the wear and tear on the phone’s hardware (including the phone’s battery) and the consumption of memory on Plaintiff’s phone. 9 35. In order to redress these injuries, Plaintiff, on behalf of himself and the other members of the Class, brings suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., which prohibits unsolicited prerecorded calls to cellular telephones. 36. On behalf of the Class, Plaintiff seeks an injunction requiring Defendants to cease all unsolicited pre-recorded calling activities and an award of actual or statutory damages to the class members, together with costs and reasonable attorneys’ fees. 58. Plaintiff brings this action pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of himself and all others similarly situated and seeks certification of the following Class: Robocall No Consent Class: All persons in the United States who from a date four years prior to the filing of the initial complaint to the present: (1) Defendants (or a third person acting on behalf of Defendants) called; (2) on the person’s cellular telephone number using an artificial or prerecorded voice; and (3) for whom Defendants lacked prior express consent to call that cellular telephone number at the time the call was made. 59. 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) 13 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. 60. Plaintiff anticipates the need to amend the definition of the Class following class discovery, including discovery revealing the manner by which Defendants claim they obtained prior express consent to place artificial and/or pre-recorded voice calls to the Plaintiff. 61. Numerosity: The exact number of members within the Class is unknown and not available to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendants have placed unsolicited calls to hundreds or thousands of consumers who fall into the definition of the Class. Members of the Class can be identified through Defendants’ records. 62. Typicality: Plaintiff’s claims are typical of the claims of other members of the Class in that Plaintiff and the members of the Class sustained damages arising out of Defendants’ uniform wrongful conduct, namely their unauthorized telemarketing calls. Plaintiff is a member of the Class defined herein, and if Plaintiff is able to recover for the claims set forth in this Complaint, then the other members of the Class will have a right to recover as well. 63. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class and has retained counsel competent and experienced in complex class actions, including class actions under the TCPA and related statutes. Plaintiff has no conflicts with, or interests antagonistic to, those of the Class, and Defendants have no defenses unique to Plaintiff. 64. 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 14 questions that may affect individual members of the Class. Common questions for the Class include, but are not necessarily limited to the following: a) Whether LifeEnergy is liable for the conduct of their third-party vendor; b) Whether John Doe Corporation made calls with a prerecorded message; c) Whether Defendants’ conduct constitutes a violation of the TCPA; d) Whether Defendants utilized an artificial or prerecorded voice to place calls to members of the Class; e) Whether members of the Class are entitled to statutory and treble damages based on the willfulness of Defendants’ conduct; f) Whether Defendants obtained prior express consent to contact any class members; g) Whether Defendants’ calls constitute telemarketing or were dual purpose messages; and h) To the extent Defendants’ conduct does not constitute telemarketing, whether Defendants obtained prior express oral consent to contact any class members. 65. 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. Joinder of all parties is impracticable, and 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 Defendants’ actions. Thus, it would be virtually impossible for the individual members of the Class to obtain effective relief from Defendants’ misconduct. Even if members of the Class could sustain such individual litigation, it would still not be preferable to a class action. 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 15 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. 66. Adequate notice can be given to the members of the Class directly using information maintained in Defendants’ records or through notice by publication. 67. Plaintiff incorporates by reference the foregoing allegations as if fully set forth herein. 68. Defendants and/or their agents placed unsolicited calls to cellular telephone numbers belonging to Plaintiff and the other members of the Robocall No Consent Class. 69. These calls were made without the prior express written consent of the Plaintiff and the other members of the Robocall No Consent Class to receive such calls. 7. LifeEnergy is a certified supplier in the Ohio Energy Choice Program, offering electricity2 and natural gas to consumers in Ohio. 70. These calls, including those to Plaintiff, utilized an artificial or prerecorded voice. 71. To the extent prior written express consent was required, Defendants failed to obtain prior written express consent that disclosed to the consumer that agreeing to receive pre- recorded calls was not a condition of purchase or use of any goods or service. Neither was oral consent provided. 72. To the extent LifeEnergy’s agent, John Doe Corporation, placed the calls at issue, LifeEnergy’s agent acted with actual or apparent authority and/or in accordance with a contract between LifeEnergy and its agent, John Doe Corporation. LifeEnergy’s agent acted under LifeEnergy’s control and for LifeEnergy’s benefit and/or with LifeEnergy’s knowledge and approval. LifeEnergy controlled its agent and knew about, and received the benefits of, the 16 agent’s calling activities. LifeEnergy ratified the agent’s conduct with respect to the placing of such calls. 73. Defendants have, therefore, violated 47 U.S.C. § 227(b)(1)(B). As a result of Defendants’ conduct, Plaintiff and the other members of the Robocall No Consent Class are each entitled to, under 47 U.S.C. § 227(b)(3)(B), a minimum of $500.00 in damages for each violation of such act. 74. In the event that the Court determines that Defendants’ conduct was willfull and knowing, it may, under 47 U.S.C. § 227(b)(3)(C), treble the amount of statutory damages recoverable by Plaintiff and the other members of the Robocall No Consent Class. 8. In recent years, energy suppliers such LifeEnergy as have turned to unsolicited telemarketing as a way to increase their customer base. Widespread telemarketing is a primary method by which LifeEnergy solicits new customers. 9. John Doe Corporation initiated a prerecorded telemarketing call to the cellular telephone numbers of Plaintiff and the Class to promote LifeEnergy in violation of the TCPA. LifeEnergy, or one of LifeEnergy’s vendors, hired John Doe Corporation to originate new customers and is liable for its illegal telemarketing conduct. Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Robocall No Consent Class)

lose

(Declaratory Relief) 112. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 111 of this Complaint as though set forth at length herein. 113. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that Travelonbags.com contains access barriers denying blind customers the full and equal access to the goods, services and facilities of Travelonbags.com, which Travelon owns, operates and/or controls, fails to comply with applicable laws including, but not limited to, Title III of the American with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind. 114. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. 26 (Violation of New York State Human Rights Law, N.Y. Exec. Law Article 15 (Executive Law § 292 et seq.)) (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.)) 21 (Violation of 42 U.S.C. §§ 12181 et seq. – Title III of the Americans with Disabilities Act) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) 100. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 99 of this Complaint as though set forth at length herein. 101. N.Y.C. Administrative Code § 8-107(4)(a) provides that “it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 102. Travelonbags.com is a sales establishment and public accommodation within the definition of N.Y.C. Administrative Code § 8-102(9). 103. Defendant is subject to City Law because it owns and operates Travelonbags.com. Defendant is a person within the meaning of N.Y.C. Administrative Code § 8-102(1). 104. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Travelonbags.com, causing Travelonbags.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. Specifically, Defendant is required to “make reasonable accommodation to the needs of 24 persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Administrative Code § 8- 107(15)(a). 105. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 106. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 107. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Travelonbags.com under N.Y.C. Administrative Code § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 25 108. The actions of Defendant were and are in violation of City law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 109. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 110. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 111. Pursuant to N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 25. Defendant, Travel Caddy, Inc., controls and operates Travelonbags.com in New York State and throughout the United States and the world. 26. Travelonbags.com is a commercial website that offers products and services for Online sale. The online store allows the user to browse bags, wallets, cases, and accessories, make purchases, and perform a variety of other functions. 27. Among the features offered by Travelonbags.com are the following: (a) Consumers may use the website to connect with Travelon on social media, using such sites as Facebook, Twitter, Instagram, and Pinterest; (b) an online store, allowing customers to purchase the various lines of bags, wallets, cases, and accessories; and (c) learning about career opportunities, promotions, and about the company. 28. This case arises out of Travelon’s policy and practice of denying the blind access to the goods and services offered by Travelonbags.com. Due to Travelon’s failure and refusal to remove access barriers to Travelonbags.com, blind individuals have been and are being denied equal access to Travelon, as well as to the numerous goods, services and benefits offered to the public through Travelonbags.com. 29. Travelon denies the blind access to goods, services and information made available through Travelonbags.com by preventing them from freely navigating Travelonbags.com. 30. Travelonbags.com contains access barriers that prevent free and full use by Plaintiff and blind persons using keyboards and screen-reading software. These barriers are pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible drop-down menus, the lack of navigation links, the lack of adequate prompting and labeling, the denial of 9 keyboard access, empty links that contain no text, redundant links where adjacent links go to the same URL address, and the requirement that transactions be performed solely with a mouse. 31. Alternative text (“Alt-text”) is invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that a screen-reader can speak the alternative text while sighted users see the picture. Alt-text does not change the visual presentation except that it appears as a text pop-up when the mouse moves over the picture. There are many important pictures on Travelonbags.com that lack a text equivalent. The lack of alt-text on these graphics prevents screen readers from accurately vocalizing a description of the graphics (screen-readers detect and vocalize alt-text to provide a description of the image to a blind computer user). As a result, Plaintiff and blind Travelonbags.com customers are unable to determine what is on the website, browse the website or investigate and/or make purchases. Specifically, Plaintiff was unable to learn about any specific product. She was unable to learn about the material and the dimensions. 32. Travelonbags.com also lacks prompting information and accommodations necessary to allow blind shoppers who use screen-readers to locate and accurately fill-out online forms. On a shopping site such as Travelonbags.com, these forms include search fields to locate bags, wallets, cases, and accessories, fields that specify the color, and fields used to fill-out personal information, including address and credit card information. Due to lack of adequate labeling, Plaintiff and blind customers cannot make purchases or inquiries as to Defendant’s merchandise, nor can they enter their personal identification and financial information with confidence and security. When Plaintiff attempted to select a color, the screen-reader would not recognize the selection and would not allow her to continue to checkout. Consequently, Plaintiff was unable to view any of the products, unable to learn about any of the products, unable to “add to cart”, unable to proceed to checkout and unable to complete a transaction. 10 33. Similarly, Travelonbags.com lacks accessible drop-down menus. Drop-down menus allow customers to locate and choose products as well as specify the color of certain items. On Travelonbags.com, blind customers are not aware if the desired products, such as wallets, have been added to the shopping cart because the screen-reader does not indicate the type of product. Moreover, blind customers are unable to select the color of the product they desire. Therefore, blind customers are essentially prevented from purchasing any items on Travelonbags.com. 34. Furthermore, Travelonbags.com lacks accessible image maps. An image map is a function that combines multiple words and links into one single image. Visual details on this single image highlight different “hot spots” which, when clicked on, allow the user to jump to many different destinations within the website. For an image map to be accessible, it must contain alt-text for the various “hot spots.” The image maps on Travelonbags.com’s menu page do not contain adequate alt-text and are therefore inaccessible to Plaintiff and the other blind individuals attempting to make a purchase. When Plaintiff tried to access the menu link in order to make a purchase, she was unable to access it completely. 35. Travelonbags.com also lacks accessible forms. Color boxes allow customers to specify the color of certain items. On Travelonbags.com, blind customers are unable to select specific color because the screen-reader does not indicate the function of the box. As a result, blind customers are denied access to the color box. Furthermore, Plaintiff is unable to locate the shopping cart because the shopping cart form does not specify the purpose of the shopping cart. As a result, blind customers are denied access to the shopping cart. Consequently, blind customers are unsuccessful in adding products into their shopping carts and are essentially prevented from purchasing items on Travelonbags.com. 11 36. Moreover, the lack of navigation links on Defendant’s website makes attempting to navigate through Travelonbags.com even more time consuming and confusing for Plaintiff and blind consumers. 37. Travelonbags.com requires the use of a mouse to complete a transaction. Yet, it is a fundamental tenet of web accessibility that for a web page to be accessible to Plaintiff and blind people, it must be possible for the user to interact with the page using only the keyboard. Indeed, Plaintiff and blind users cannot use a mouse because manipulating the mouse is a visual activity of moving the mouse pointer from one visual spot on the page to another. Thus, Travelonbags.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently navigate and/or make purchases on Travelonbags.com. 38. Due to Travelonbags.com’s inaccessibility, Plaintiff and blind customers must in turn spend time, energy, and/or money to make their purchases at traditional brick-and-mortar retailers. Some blind customers may require a driver to get to the stores or require assistance in navigating the stores. By contrast, if Travelonbags.com was accessible, a blind person could independently investigate products and make purchases via the Internet as sighted individuals can and do. According to WCAG 2.1 Guideline 2.4.1, a mechanism is necessary to bypass blocks of content that are repeated on multiple webpages because requiring users to extensively tab before reaching the main content is an unacceptable barrier to accessing the website. Plaintiff must tab through every navigation bar option and footer on Defendant’s website in an attempt to reach the desired service. Thus, Travelonbags.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently make purchases on Travelonbags.com. 12 39. Travelonbags.com thus contains access barriers which deny the full and equal access to Plaintiff, who would otherwise use Travelonbags.com and who would otherwise be able to fully and equally enjoy the benefits and services of Travelonbags.com in New York State and throughout the United States. 40. Plaintiff, Rasheta Bunting, has made numerous attempts to complete a purchase on Travelonbags.com, most recently in August 2018, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused Travelonbags.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. Amongst other access barriers experienced, Plaintiff was unable to purchase a zip wallet. 41. As described above, Plaintiff has actual knowledge of the fact that Defendant’s website, Travelonbags.com, contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually-impaired persons. 42. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Travelonbags.com. 43. Defendant engaged in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 13 44. Defendant utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 45. Because of Defendant’s denial of full and equal access to, and enjoyment of, the goods, benefits and services of Travelonbags.com, Plaintiff and the class have suffered an injury-in-fact which is concrete and particularized and actual and is a direct result of defendant’s conduct. 46. Plaintiff, on behalf of herself and all others similarly situated, seeks certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally blind individuals in the United States who have attempted to access Travelonbags.com and as a result have been denied access to the enjoyment of goods and services offered by Travelonbags.com, during the relevant statutory period.” 47. Plaintiff seeks certification of the following New York subclass pursuant to Fed.R.Civ.P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally blind individuals in New York State who have attempted to access Travelonbags.com and as a result have been denied access to the enjoyment of goods and services offered by Travelonbags.com, during the relevant statutory period.” 48. There are hundreds of thousands of visually-impaired persons in New York State. There are approximately 8.1 million people in the United States who are visually- impaired. Id. Thus, the persons in the class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 49. This case arises out of Defendant’s policy and practice of maintaining an 14 inaccessible website denying blind persons access to the goods and services of Travelonbags.com. Due to Defendant’s policy and practice of failing to remove access barriers, blind persons have been and are being denied full and equal access to independently browse, select and shop on Travelonbags.com. 50. There are common questions of law and fact common to the class, including without limitation, the following: (a) Whether Travelonbags.com is a “public accommodation” under the ADA; (b) Whether Travelonbags.com is a “place or provider of public accommodation” under the laws of New York; (c) Whether Defendant, through its website, Travelonbags.com, denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the ADA; and (d) Whether Defendant, through its website, Travelonbags.com, denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the law of New York. 51. The claims of the named Plaintiff are typical of those of the class. The class, similar to the Plaintiff, is severely visually-impaired or otherwise blind, and claims Travelon has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, Travelonbags.com, so it can be independently accessible to the class of people who are legally blind. 52. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the class. Class certification of the claims is appropriate pursuant to Fed. R. 15 Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 53. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to Class members clearly predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 54. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 55. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 56. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 55 of this Complaint as though set forth at length herein. 57. Title III of the American with Disabilities Act of 1990, 42 U.S.C. § 12182(a) provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Title III also prohibits an entity from “[u]tilizing standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.” 42 U.S.C. § 12181(b)(2)(D)(I). 16 58. Travelonbags.com is a sales establishment and public accommodation within the definition of 42 U.S.C. §§ 12181(7). 59. Defendant is subject to Title III of the ADA because it owns and operates Travelonbags.com. 60. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 61. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 62. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful discrimination includes, among other things, “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.” 63. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful discrimination also includes, among other things, “a failure to take such steps as may be necessary to ensure that no individual with disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter 17 the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 64. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their websites accessible, including but not limited to ensuring adequate prompting and accessible alt-text. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 65. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Patrons of Travelon who are blind have been denied full and equal access to Travelonbags.com, have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 66. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 67. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Travelonbags.com in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing regulations. 68. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the proposed class and subclass will continue to suffer irreparable harm. 18 69. The actions of Defendant were and are in violation of the ADA, and therefore Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 72. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 71 of this Complaint as though set forth at length herein. 73. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.”. 74. Travelonbags.com is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 75. Defendant is subject to the New York Human Rights Law because it owns and operates Travelonbags.com. Defendant is a person within the meaning of N.Y. Exec. Law. § 292(1). 76. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to Travelonbags.com, causing Travelonbags.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons the full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 19 77. Specifically, under N.Y. Exec. Law § unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 78. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 79. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 8 80. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or 20 (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 81. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 82. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Travelonbags.com under N.Y. Exec. Law § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 83. The actions of Defendant were and are in violation of the New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 84. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 85. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 86. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 87. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 86 of this Complaint as though set forth at length herein. 88. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 89. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 90. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 91. Travelonbags.com is a sales establishment and public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). 92. Defendant is subject to New York Civil Rights Law because it owns and operates Travelonbags.com. Defendant is a person within the meaning of N.Y. Civil Law § 40- c(2). 93. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to Travelonbags.com, causing Travelonbags.com to be completely 22 inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 94. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 95. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 96. Specifically, under N.Y. Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside . . .” 97. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 98. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability are 23 being directly indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 99. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Rights Law § 40 et seq. for each and every offense.

win

(New York Labor Law – Wage Theft Prevention Act) (Fair Labor Standards Act – Minimum Wage) (Fair Labor Standards Act - Overtime) (New York Labor Law – Minimum Wage) (New York Labor Law – Spread of Hours) (New York Labor Law - Overtime) 16. Pursuant to 29 U.S.C. § 206 and § 207, Mr. Marcial seeks to prosecute his FLSA claims as a collective action on behalf of a collective group of persons defined as follows: All persons who are or were formerly employed by defendants in the United States at any time since January 9, 2015, to the entry of judgment in this case (the “Collective Action Period”), who were restaurant employees, and who were not paid statutory minimum wages and/or overtime compensation at rates at least one-and-one-half times the regular rate of pay for hours worked in excess of forty hours per workweek (the “Collective Action Members”). 18. They are further similarly situated in that defendants had a policy and practice of knowingly and willfully refusing to pay them the minimum wage or overtime. 19. Mr. Marcial and the Collective Action Members perform or performed the same or similar primary duties, and were subjected to the same policies and practices by defendants. 20. The exact number of such individuals is presently unknown, but is known by defendants and can be ascertained through appropriate discovery. 21. At all relevant times herein, defendants owned and operated a Chinese restaurant under the name Hudson Buffet. 22. Mr. Marcial was employed at Hudson Buffet from approximately May 2016 through July 2017. 23. Mr. Marcial was employed as a food preparer. 24. Mr. Marcial’s work was performed in the normal course of defendants’ business and was integrated into the business of defendants, and did not involve executive or administrative responsibilities. 26. Mr. Marcial regularly worked six days per week for defendants – three days of 12½ hours, and three days of 13 hours. 27. As a result, Mr. Marcial routinely worked roughly 76½ hours per week for defendants. 28. Defendants did not provide a time clock, sign in sheet, or any other method for employees to track their time worked. 29. Mr. Marcial was paid on a salary basis throughout his employment; he was paid $1,000 semi-monthly, for a total of $2,000 per month. 30. Mr. Marcial received these amounts for all hours he worked, regardless of the number of hours he worked each day or week. 31. As a result, Mr. Marcial’s effective rates of pay were always below the statutory federal and state minimum wages in effect at relevant times. 33. Mr. Marcial was paid in cash throughout his employment, and he received no paystubs or wage statements of any sort with his pay. 34. In addition, defendants failed to pay Mr. Marcial any overtime “bonus” for hours worked beyond 40 hours in a workweek, in violation of the FLSA, the New York Labor Law, and the supporting New York State Department of Labor regulations. 35. Defendants’ failure to pay Mr. Marcial the overtime bonus for overtime hours worked was willful, and lacked a good faith basis. 36. Mr. Marcial worked six shifts per week that lasted in excess of ten hours from start to finish, yet defendants willfully failed to pay him one additional hour’s pay at the minimum wage for each such day, in violation of the New York Labor Law and the supporting New York State Department of Labor regulations. 38. Defendants failed to provide Mr. Marcial with weekly records of his compensation and hours worked, in violation of the Wage Theft Prevention Act. 39. Upon information and belief, throughout the period of Mr. Marcial’s employment, both before that time (throughout the Collective Action Period) and continuing until today, defendants have likewise employed other individuals like Mr. Marcial (the Collective Action Members) in positions at defendants’ restaurant that required little skill, no capital investment, and with duties and responsibilities that did not include any managerial responsibilities or the exercise of independent judgment. 40. Defendants applied the same employment policies, practices, and procedures to all Collective Action Members, including policies, practices, and procedures with respect to the payment of minimum wages and overtime. 42. Upon information and belief, these other individuals have worked in excess of forty hours per week, yet defendants have likewise failed to pay them overtime compensation of one-and-one-half times their regular hourly rate in violation of the FLSA and the New York Labor Law. 43. Upon information and belief, these other individuals were not paid a “spread of hours” premium on days when they worked shifts lasting in excess of ten hours from start to finish. 44. Defendants violated the frequency of pay requirements of New York Labor Law § 191 by paying Mr. Marcial and these other individuals semi-monthly. 45. Defendants’ policy of paying Mr. Marcial and these other individuals on a semi-monthly basis rather than on an hourly basis also violated 12 N.Y.C.R.R. § 146-2.5. 46. Upon information and belief, these other individuals were not provided with required wage notices or weekly wage statements as specified in New York Labor Law §§ 195.1, 195.3, and the Wage Theft Prevention Act. 48. Mr. Marcial, on behalf of himself and all Collective Action Members, repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 49. At all relevant times, defendants employed Mr. Marcial and the Collective Action Members within the meaning of the FLSA. 50. Defendants failed to pay a salary greater than the minimum wage to Mr. Marcial and the Collective Action Members for all hours worked. 51. As a result of defendants’ willful failure to compensate Mr. Marcial and the Collective Action Members at a rate at least equal to the federal minimum wage for each hour worked, defendants have violated, and continue to violate, the FLSA, 29 U.S.C. §§ 201 et seq., including 29 54. Mr. Marcial repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 55. At all relevant times, Mr. Marcial was employed by defendants within the meaning of the New York Labor Law, §§ 2 and 651. 56. Defendants willfully violated Mr. Marcial’s rights by failing to pay him compensation in excess of the statutory minimum wage in violation of the New York Labor Law §§ 190-199, 652 and their regulations. 57. Defendants’ failure to pay compensation in excess of the statutory minimum wage was willful, and lacked a good faith basis, within the meaning of New York Labor Law § 198, § 663 and supporting regulations. 59. Mr. Marcial, on behalf of himself and all Collective Action Members, repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 60. At all relevant times, defendants employed Mr. Marcial and each of the Collective Action Members within the meaning of the FLSA. 61. At all relevant times, defendants had a policy and practice of refusing to pay overtime compensation to their employees for hours they worked in excess of forty hours per workweek. 63. The foregoing conduct, as alleged, constituted a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a), and lacked a good faith basis within the meaning of 29 U.S.C. § 260. 64. Due to defendants’ FLSA violations, Mr. Marcial and the Collective Action Members are entitled to recover from defendants their unpaid overtime compensation, liquidated damages, interest, reasonable attorneys’ fees, and costs and disbursements of this action, pursuant to 29 U.S.C. § 216(b). 65. Mr. Marcial repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 66. At all relevant times, Mr. Marcial was employed by defendants within the meaning of the New York Labor Law, §§ 2 and 651. 68. Defendants’ failure to pay overtime was willful, and lacked a good faith basis, within the meaning of New York Labor Law § 198, § 663 and supporting regulations. 69. Due to defendants’ New York Labor Law violations, Mr. Marcial is entitled to recover from defendants his unpaid overtime compensation, liquidated damages, interest, reasonable attorneys’ fees, and costs and disbursements of the action, pursuant to New York Labor Law § 198, and § 663(1). 70. Mr. Marcial repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 71. At all relevant times, Mr. Marcial was employed by defendants within the meaning of the New York Labor Law, §§ 2 and 651. 73. Defendants’ failure to pay the “spread of hours” premium was willful, and lacked a good faith basis, within the meaning of New York Labor Law § 198, § 663 and supporting regulations. 74. Due to defendants’ New York Labor Law violations, Mr. Marcial is entitled to recover from defendants his unpaid compensation, liquidated damages, interest, reasonable attorneys’ fees, and costs and disbursements of the action, pursuant to New York Labor Law § 198, and § 663(1). 75. Mr. Marcial repeats, realleges, and incorporates by reference the foregoing allegations as if set forth fully and again herein. 76. At all relevant times, Mr. Marcial was employed by defendants within the meaning of the New York Labor Law, §§ 2 and 651. 77. Defendants willfully violated Mr. Marcial’s rights by failing to provide him with the wage notices required by the Wage Theft Prevention Act when he was hired, or at any time thereafter. 79. Due to defendants’ New York Labor Law violations relating to the failure to provide paystubs, Mr. Marcial is entitled to recover from the defendants statutory damages of $250 per day throughout his employment, up to the maximum statutory damages. 80. Due to defendants’ New York Labor Law violations relating to the failure to provide a wage notice, Mr. Marcial is entitled to recover from the defendants statutory damages of $50 per day throughout his employment, up to the maximum statutory damages.

win

28. Plaintiff is a young professional who works as a surgical technologist at a Hospital in Los Angeles, California. 30. The telephone number ending in 2824 was assigned to a cellular telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii). 31. On July 11, 2020, Plaintiff went to the Empire Twin Palms dispensary located at 9806 Mission Blvd, Jurupa Valley, California (Riverside County). Plaintiff made a product purchase at the dispensary. 32. Shortly thereafter, Defendants started sending telemarketing text messages to Plaintiff’s cellular telephone number ending in 2824. These text messages encouraged Plaintiff to use and purchase Defendants’ products. 33. Defendants’ text messages were transmitted to Plaintiff’s cellular telephone number, and within the time frame relevant to this action. 34. Defendants’ text messages constitute telemarketing because they encourage the future purchase or investment in property, goods, or services, i.e., selling Plaintiff cannabis products. 35. The information contained in the text messages advertised various promotions and discounts, which Defendants sent to promote their business. 36. The TCPA defines an 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.” 47 U.S.C. § 227(b)(1)(A)(iii). 37. Upon information and belief, and based upon the content and volume of text messages, the text messages sent to the phone number ending in 2824 from several different numbers were sent using an ATDS as defined of 47 U.S.C. § 227(b)(1)(A)(iii). 39. Plaintiff has not provided “prior express consent,” as used in the TCPA, to receive any telephonic or text message communication from Defendants. 40. Plaintiff suffered concrete harm when he received unwanted and unsolicited marketing text messages from Defendants, including in the form of lost time spent reviewing the text messages while at work. 41. The text messages described herein were not made “for emergency purposes” as described in 47 U.S.C § 227(b)(1)(A). VI. 42. Plaintiff brings this action on behalf of himself and all other persons similarly situated. 43. Plaintiff proposes the following Class definition, subject to amendment as appropriate: “All persons in the United States who (1) received a text message to their cellular phone number from Defendants, (2) within four years prior to the filing of this action, (3) which text message was sent without the recipient’s prior express consent, and (4) which text message(s) (a) advertised Defendants or (b) encouraged the recipient to make a purchase from Defendants.” 44. The following individuals are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendants, their subsidiaries, parents, successors, predecessors, and any entity in which Defendants or their parent companies have a controlling interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and timely file a request for exclusion from the Class; (5) the legal representatives, successors or assigns of any such excluded persons; and (6) persons whose claims against Defendants have been fully and finally adjudicated and/or released. Plaintiff reserves the right to amend the class definition based upon facts learned in discovery. 46. Numerosity. On information and belief, there are thousands of members of the Class such that joinder of all members is impracticable. 47. Commonality and Predominance. There are well defined, nearly identical, questions of law or fact common to all members of the Class, which common issues predominate over any issues involving only individual class members. Factual and/or legal common questions include, but are not limited to, the following: a. Whether the text messages sent to Plaintiff and members of the Class were made by Defendants; b. Whether the text messages sent to Plaintiff and members of the Class by Defendants are governed by the TCPA; c. Whether the text messages sent to Plaintiff and members of the Class by Defendants were advertisements and/or made for telemarketing purposes; d. Whether Defendants had prior express consent from Plaintiff or any member of the Class to receive such text messages; e. Whether Defendants’ conduct violated the TCPA; and f. Whether sending text messages to Plaintiff and members of the Class was knowing and/or willful, giving rise to treble damages. 48. Typicality. Plaintiff’s claims are typical of the Class who, like Plaintiff, received unsolicited text message advertisements for Empire Cannabis from Defendants. 50. Superiority. Certification pursuant to Federal Rule of Civil Procedure 23(b)(3) is appropriate because class adjudication is superior to other available methods for fairly and efficiently adjudicating this controversy. Specifically, the damages suffered by individual members of the Class will likely be small relative to the burden and expense of individual prosecution of the complex litigation necessitated by Defendants’ actions. Thus, it would be virtually impossible for members of the Class to obtain effective relief from Defendants’ misconduct on an individual basis. Moreover, given the relatively small individual relief, class treatment is essential to compel Defendants to comply with the TCPA. A class action provides the benefits of a single adjudication, economies of scale, and comprehensive supervision by a single court. 51. Conduct generally applicable to the Class. Certification of the Class under Federal Rule of Civil Procedure 23(b)(2) is also appropriate in that Defendants have acted on grounds generally appliable to each member of the Class, thereby making relief appropriate with respect to the Class as a whole. 52. Plaintiff requests that the Class be certified as a hybrid class under Rule 23(b)(3) for monetary damages and injunctive relief pursuant to Rule 23(b)(2). 53. Plaintiff repeats and realleges paragraphs 1 through 52 of this Complaint as though fully set forth herein. 54. Defendants and/or their agents sent unwanted solicitation text messages to cellular phone numbers belonging to Plaintiff and other members of the Class using an 60. Plaintiff repeats and realleges paragraphs 1 through 59 of this Complaint as though fully set forth herein. 61. Defendants and/or their agents sent unwanted solicitation text messages to cellular phone numbers belonging to Plaintiff and other members of the Class using an Negligent Violation of §227(b) of the TCPA (Plaintiff Individually and On Behalf of the Class Against All Defendants) Willful Violation of §227(b) of the TCPA (Plaintiff Individually and On Behalf of the Class Against All Defendants)

lose

61. The allegations contained in the previous paragraphs are incorporated by reference. 68. The allegations contained in the previous paragraphs are incorporated by reference. 69. “‘Place of public accommodation’ means a business, educational institution, refreshment, entertainment, recreation, health, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” MCL § 37.1301(a). 70. Defendant owns or operates a “place of public accommodation” as that term is defined in § 37.1301(a). 71. The PDCRA provides that: “The opportunity to obtain employment, housing, and other real estate and full and equal utilization of public accommodations, public services, and educational facilities without discrimination because of a disability is guaranteed by this act and is a civil right.” MCL § For Violation Of The ADA, 42 U.S.C. § 12101 et seq. (On Behalf of Plaintiff and the Members of the Rule 23(b)(2) Class) For Violation Of The PDCRA, MCL §§ 37.1101 et seq. (On Behalf of Plaintiff and the Members of the Rule 23(b)(2) Class and the Rule 23(b)(3) Class)

lose

38. The proposed FLSA PM Collective is defined as follows: All Practice Managers employed by Banfield at any location throughout the United States, and who were classified as exempt, on or after June 12, 20151, until about October 2016, when the position was reclassified to non- exempt, hourly status, who have not been paid for their overtime hours worked. 39. The proposed FLSA Training Collective is defined as follows: All Practice Managers employed by Banfield while in training at any location throughout the United States, and who were classified as exempt during their training period on or after June 12, 2015, until about October 2016, when the position was reclassified to non-exempt, hourly status, who have not been paid for their overtime hours worked. 41. The proposed California Class is defined as follows: All Practice Managers employed by Banfield at any location throughout the State of California, and who were classified as exempt, on or after June 12, 2014, until about October 2016, when the position was reclassified to non- exempt, hourly status, who have not been paid for their overtime hours worked. 42. Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class, consistently worked more than 40 hours per workweek during their employment as PMs. 43. Defendant was aware that Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class worked more than 40 hours per workweek, yet failed to pay them any overtime compensation for any of the hours worked over 40 in a workweek during their employment as PMs. 44. The primary duties of Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class were non-exempt in nature. 45. The tasks that Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class regularly performed include but are not limited to answering phones, scheduling and verifying pet appointments, checking patients in and out of the hospital, and cleaning examination rooms between patients. 47. The primary duties of Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class did not differ substantially from the duties of non-exempt hourly paid employees. 48. Plaintiffs and the members of FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class did not exercise a meaningful degree of independent discretion with respect to the exercise of their duties. 49. Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class did not have the discretion or authority to make any decisions with respect to matters of significance and were required to follow the policies, practices, and procedures set by Defendant. 50. Plaintiffs and the members of the FLSA PM Collective, the FLSA Training Collective, the New York Class, and the California Class did not have any independent authority to deviate from these policies, practices, and procedures. FLSA PM Collective and FLSA Training Collective Allegations 51. Plaintiffs bring the First Cause of Action on behalf of the FLSA PM Collective. 52. Defendant is liable under the FLSA for, inter alia, failing to properly pay overtime wages to Plaintiffs and the putative FLSA PM Collective members. 54. Those similarly situated employees are known to Defendant, are readily identifiable and can be located through Defendant’s records. 55. Plaintiffs and the putative FLSA PM Collective members, all of whom regularly worked more than 40 hours in a workweek, were employed as PMs by Defendant. 56. Defendant failed to pay Plaintiffs and the putative FLSA PM Collective members overtime compensation for the hours they worked over 40 in a workweek. 57. Defendant failed to keep accurate records of all hours worked by Plaintiffs and the putative FLSA PM Collective members. 58. Throughout the relevant period, it has been Defendant’s policy, pattern, or practice to require, suffer, or permit the Plaintiffs and the Putative FLSA PM Collective members to work in excess of 40 hours per workweek without paying them overtime wages for all overtime hours worked. 59. Defendant assigned the work that the Plaintiffs and the putative FLSA PM Collective members have performed or Defendant was aware of the work they performed. 60. The work performed by the Plaintiffs and the putative FLSA PM Collective members constitutes compensable work time under the FLSA and was not preliminary, postliminary or de minimis. 61. Defendant was aware, or should have been aware, that the FLSA requires it to pay the Plaintiffs and the putative FLSA PM Collective members an overtime premium for hours worked in excess of 40 hours per workweek. 63. In addition to the foregoing, Plaintiff Bruno brings the Second Cause of Action on behalf of himself and the FLSA Training Collective. 64. Banfield requires all newly-hired PMs to participate in a training program which lasts between approximately (4) and eight (8) weeks. 65. Banfield’s training program consisted of computer modules, and hands on training with another PM. 66. The computer training included written modules and videos from which PMs learned: (a) how to interact with animals; (b) how to handle aggressive pets; (c) checking in patients; (d) using Banfield’s computer systems; (e) taking vital signs; and (f) the various wellness plans Banfield offered and how to sell them to customers. 67. Banfield classified Plaintiff Bruno and the FLSA Training Collective members as exempt during their initial training periods. 68. During training, the FLSA Training Collective members worked five (5) days per week, and typically worked 45 to 50 hours per week. However, Banfield did not pay them overtime compensation. New York Class Action Allegations 70. Excluded from the New York Class are Defendant’s legal representatives, officers, directors, assigns, and successors, or any individual who has, or who at any time during the class period has had, a controlling interest in Defendant; the Judge(s) to whom this case is assigned and any member of the Judge’s immediate family; and all persons who will submit timely and otherwise proper requests for exclusion from the New York Class. 71. The persons in the New York Class identified above are so numerous that joinder of all members is impracticable. Although the precise number of such persons is not known to Plaintiff Belich, the facts on which the calculation of that number can be based are presently within the sole control of Defendant. 72. Upon information and belief, the size of the New York Class is at least 100 workers. 73. Defendant acted or refused to act on grounds generally applicable to the New York Class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the New York Class as a whole. 75. Plaintiff Belich’s claims are typical of the claims of the New York Class sought to be represented. Plaintiff Belich and the other New York Class members work or have worked for Defendant and have been subjected to their policy and pattern or practice of failing to pay overtime wages for hours worked in excess of 40 hours per workweek failing to maintain and provide accurate wage statements. Defendant acted and/or refused to act on grounds generally applicable to the New York Class, thereby making injunctive and/or declaratory relief with respect to the New York Class appropriate. 77. Plaintiff Belich has retained the Shavitz Law Group, P.A., which is competent and experienced in complex class action employment litigation. 78. A class action is superior to other available methods for the fair and efficient adjudication of this litigation – particularly in the context of wage litigation like the present action, where individual Plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant. The members of the New York Class have been damaged and are entitled to recovery as a result of Defendant’s common and uniform policies, practices, and procedures. Although the relative damages suffered by individual members of the New York Class are not de minimis, such damages are small compared to the expense and burden of individual prosecution of this litigation. In addition, class treatment is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments about Defendant’s practices. 79. This action is properly maintainable as a class action under Federal Rules of Civil Procedure 23(b)(3). California Class Action Allegations 80. Plaintiff Taye brings the Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Causes of Action under Rule 23 of the Federal Rules of Civil Procedure, on behalf of the California Class. 81. Excluded from the California Class are Defendant’s legal representatives, officers, directors, assigns, and successors, or any individual who has, or who at any time during the class period has had, a controlling interest in Defendant; the Judge(s) to whom this case is assigned and any member of the Judge’s immediate family; and all persons who will submit timely and otherwise proper requests for exclusion from the California Class. 83. Upon information and belief, the size of the California Class is at least 100 workers. 84. Defendant acted or refused to act on grounds generally applicable to the California Class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the California Class as a whole. 86. Plaintiff Taye’s claims are typical of the claims of the California Class sought to be represented. Plaintiff Taye and the other California Class members work or have worked for Defendant, and have been subjected to their policy and pattern or practice of failing to pay overtime wages for all hours worked in excess of 40 hours per workweek. Defendant acted and/or refused to act on grounds generally applicable to the California Class, thereby making injunctive and/or declaratory relief with respect to the California Class appropriate. 87. Plaintiff Taye will fairly and adequately represent and protect the interests of the California Class. Plaintiff Taye understands that, as a class representative, one assumes a fiduciary responsibility to the California Class to represent its interests fairly and adequately. Plaintiff Taye recognizes that as a class representative, one must represent and consider the interests of the California Class just as one would represent and consider one’s own interests. Plaintiff Taye understands that in decisions regarding the conduct of the litigation and its possible settlement, one must not favor one’s own interests over those of the California Class. Plaintiff Taye recognizes that any resolution of a class action lawsuit, including any settlement or dismissal thereof, must be in the best interests of the California Class. Plaintiff Taye understands that in order to provide adequate representation, one must remain informed of developments in the litigation, cooperate with class counsel by providing them with information and any relevant documentary material in one’s possession, and testify, if required, in a deposition and in trial. 89. A class action is superior to other available methods for the fair and efficient adjudication of this litigation – particularly in the context of wage litigation like the present action, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant. The members of the California Class have been damaged and are entitled to recovery as a result of Defendant’s common and uniform policies, practices, and procedures. Although the relative damages suffered by individual members of the California Class are not de minimis, such damages are small compared to the expense and burden of individual prosecution of this litigation. In addition, class treatment is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments about Defendant’s practices. 90. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(3). 91. Plaintiffs Metzler, Belich, Taye and Bruno reallege and incorporate by reference all allegations in all preceding paragraphs. 92. Defendant has engaged in a widespread pattern and practice of violating the FLSA, as described in this Collective and Class Action Complaint. 93. Plaintiffs have consented in writing to be a party to this action, pursuant to 29 U.S.C. § 216(b). 94. At all relevant times, Plaintiffs and the FLSA PM Collective members were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 96. Defendant is an employer engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 97. At all relevant times, Plaintiffs and the FLSA PM Collective members are, or were, employees within the meaning of 29 U.S.C. §§ 203(e) and 207(a). 98. Defendant failed to pay Plaintiffs and the FLSA PM Collective members the overtime wages to which they were entitled under the FLSA. 99. Defendant failed to keep, make, preserve, maintain, and furnish accurate records of time worked by Plaintiffs and the FLSA PM Collective. 100. Defendant’s violations of the FLSA, as described in this Complaint, have been willful and intentional. Defendant failed to make a good faith effort to comply with the FLSA with respect to their compensation of Plaintiffs and other similarly situated current and former employees. 101. Because Defendant’s violations of the FLSA have been willful, a three-year statute of limitations applies to this Cause of Action, pursuant to 29 U.S.C. § 255. 102. As a result of Defendant’s willful violations of the FLSA, Plaintiffs and the FLSA PM Collective members have suffered damages by being denied overtime wages in accordance with 29 U.S.C. §§ 201 et seq. 103. As a result of the unlawful acts of Defendant, Plaintiffs and the FLSA PM Collective members have been deprived of overtime compensation and other wages in amounts to be determined at trial, and are entitled to recovery of such amounts, liquidated damages, prejudgment interest, attorneys’ fees, costs and other compensation pursuant to 29 U.S.C. § 216(b). Fair Labor Standards Act – Overtime Wages (On Behalf of Plaintiffs Metzler, Belich, Taye, Bruno and the FLSA PM Collective) The FLSA Collectives & The Rule 23 Classes

win

13. Defendant TurnCo, LLC is an oilfield services company that provides specialized inspection services to its clients in the oil and gas industry. 14. This lawsuit presents the fourth time in the last three years when Defendant has been sued by an employee in its inspector workforce for failing to pay overtime. Despite being repeatedly sued by its inspectors for failing to pay overtime and being made aware of the law on multiple occasions, Defendant continues to ignore the requirement under the law to pay overtime when its employees work more than 40 hours in a workweek. 15. Plaintiff worked for Defendant as an inspector from approximately April of 2013 to August of 2015. 4 16. Defendant’s inspectors are responsible for performing inspections on drilling equipment such as motors and drill collars. Their work is primarily performed in the warehouses or yards of Defendant’s customers. 17. Inspectors commonly work in excess of 12 hours each day. 18. Inspectors usually work five to six days each week. Defendant also required mandatory, alternating Saturdays to be worked. 19. Inspectors are paid a salary for their labor and do not receive overtime for those hours worked in excess of 40 in a workweek. 20. No exemption under the FLSA law shelters Defendant from paying overtime to its inspectors. 21. Inspectors do not supervise other employees or manage a customarily recognized department of Defendant’s company. 22. Inspectors have no authority to hire or fire other employees. 23. Inspectors are field employees, not office employees. The perform work related to Defendant’s core business, not the management of the company’s operations. 24. The primary duty of an inspector does not require independent judgment or discretion. Instead, inspectors are required to carry out their inspections according to detailed step-by-step procedures promulgated by Defendant or Defendant’s customers. 25. The FLSA’s regulations even provide that inspection work is non-exempt work: Ordinary inspection work generally does not meet the duties requirements for the administrative exemption. Inspectors normally perform specialized work along standardized lines 5 involving well-established techniques and procedures which may have been catalogued and described in manuals and other sources. Such inspectors rely on techniques and skills acquired by special training or experience. They have some leeway in the performance of their work but only within closely prescribed limits. 29 C.F.R. 541.203(g). 26. Inspectors are not computer-systems analysts, computer programmers, software engineers, or other similar employees. 27. Despite these facts, Defendant misclassified its inspectors as exempt from overtime pay. 28. As a result of Defendant’s pay policies, Plaintiff and other inspectors were denied overtime pay. 29. Defendant knew, or showed reckless disregard for whether Plaintiff and the other inspectors were entitled to overtime pay under the law. In fact, Defendant knew the requirement to pay overtime to Plaintiff and Class Members but intentionally chose not to do so. 30. Defendant has effectively turned a “blind eye” to paying overtime to the Plaintiff and Class Members. Again, This is the fourth lawsuit that has been brought against Defendant for misclassifying its inspector workforce as exempt from overtime. The first lawsuit was brought in November 2013 alleging that Defendant misclassified its inspector workforce as exempt. The second and third lawsuits were filed in 2015, again claiming that Defendant misclassified its inspector workforce as exempt. Defendant settled each of these cases. Nevertheless, Defendant continues to violate the law. 6 Turning a blind-eye to paying overtime to Plaintiff and Class Members constitutes willfulness as a matter of law under the standard articulated by the Fifth Circuit in Ramos v. Bataineh, 2015 WL 1412628 (5th Cir. Mar. 30, 2015). 31. Plaintiff incorporates all allegations contained in the foregoing paragraphs. 32. Defendant’s practice of failing to pay Plaintiff time-and-a-half for all hours worked in excess of forty (40) per workweek violates the FLSA. 29 U.S.C. § 207. 33. None of the exemptions provided by the FLSA regulating the duty of employers to pay overtime at a rate not less than one and one-half times the regular rate at which its employees are paid are applicable to Defendant, Plaintiff, or the FLSA Class Members. 34. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 35. Plaintiff has actual knowledge that FLSA Class Members have also been denied overtime pay for hours worked over forty (40) hours in a workweek as a result of Defendant’s misclassification of its employees. 36. Plaintiff’s knowledge is based on his personal work experience and through communications with other workers of Defendant. Plaintiff personally worked with other inspectors under the same compensation structure at multiple job sites for Defendant. 7 37. Other workers similarly situated to the Plaintiff worked for Defendant throughout the United States, but were not paid overtime at the rate of one and one-half their regular rates of pay when those hours exceeded forty (40) hours in a workweek. 38. Although Defendant permitted and/or required FLSA Class Members to work in excess of forty (40) hours in a workweek, Defendant denied them full compensation for their hours worked over forty (40). 39. Defendant misclassified and continues to misclassify FLSA Class Members as exempt employees. 40. FLSA Class Members perform or have performed the same or similar work as Plaintiff and were misclassified as exempt by Defendant. 41. FLSA Class Members are not exempt from receiving overtime pay under the FLSA. 42. As such, FLSA Class Members are similar to Plaintiff in terms of relevant job duties, pay structure, misclassification as exempt employees and/or the denial of overtime pay. 43. Defendant’s failure to pay overtime compensation at the rate required by the FLSA results from generally applicable policies or practices, and does not depend on the personal circumstances of any FLSA Class Member. 44. The experiences of Plaintiff, with respect to his pay, hours, and duties are typical of the experiences of the FLSA Class Members. 45. The specific job titles or precise job responsibilities of each FLSA Class Member does not prevent collective treatment. 8 46. All FLSA Class Members, irrespective of their particular job requirements, are entitled to overtime compensation for hours worked in excess of forty (40) in a workweek. 47. Although the exact amount of damages may vary among the FLSA Class Members, the damages for the FLSA Class Members can be easily calculated by a simple formula. The claims of all FLSA Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by Defendants that caused harm to all FLSA Class Members. 48. As such, the class of similarly situated Plaintiffs for the FLSA Class is properly defined as follows: All current and former inspectors, and all employees with substantially similar duties, who worked for Defendant at any time during the three-year period before the filing of this Complaint.

lose

26. Foot odor is caused by bacteria and fungus that grow in a humid environment. Products that retard this process do so by reducing moisture, killing the bacteria and fungus, acting against the odor, or covering up the odor. Moisture can be reduced by increasing ventilation, wicking away sweat, or absorbing sweat. 27. Insoles work by increasing ventilation and wicking away sweat to reduce the moisture that allows odor causing bacteria and fungus to grow. Many insoles also contain elements that absorb odorous molecules that drift into them. Odor Eaters® Insoles 28. BLISTEX INC. manufactures, distributes, markets, advertises and sells Odor Eaters® odor destroying Products. The Products are available at convenience stores, drug stores, and other retail outlets throughout the United States, including online retailers such as Amazon.com. 29. Plaintiffs and the Class members have purchased Odor Eaters® odor destroying Products in the lines listed below (together, the “Products”): Product Quantity Per Package Packages Per Order Price Link Odor- Eaters Odor Destroy ing Ultra Comfort Insoles 1 pair 1 $39.33 https://www.amazon.com/Odor-Eaters- Deodorising-Comfort-Insoles- Personal/dp/B01HQVEKKQ/ref=sr_1_15_a_it?srs =3037290011&ie=UTF8&qid=1470165580&sr=8- 15 2 $38.98 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles- Pack/dp/B01082XOM0/ref=sr_1_62_a_it?srs=3037 290011&ie=UTF8&qid=1470167955&sr=8-62 9 5 Unava ilable https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-Pair- pack/dp/B01JFVETCE/ref=sr_1_3_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-3 6 $22.29 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-pair- Pack/dp/B00FFIJ8N2/ref=sr_1_71_a_it?srs=30372 90011&ie=UTF8&qid=1470168280&sr=8-71 2 pair 1 $65.15 https://www.amazon.com/Twin-Eaters-Ultra- Comfort-Odor- Eaters/dp/B01HQV4WNQ/ref=sr_1_16_a_it?srs=3 037290011&ie=UTF8&qid=1470165580&sr=8-16 3 pair 1 $21.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSN9O2M/ref=sr_1_10_a_it?srs =3037290011&ie=UTF8&qid=1470168559&sr=8- 10&keywords=Odor- Eaters+Odor+Destroying+Ultra+Comfort+Insoles 3 $69.10 https://www.amazon.com/Odor-Eaters-Comfort- Odor-Destroying-Insoles- Economy/dp/B01BL49LKS/ref=sr_1_45_a_it?srs= 3037290011&ie=UTF8&qid=1470167619&sr=8- 45 4 Unava ilable https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles- pack/dp/B01JFVM97Q/ref=sr_1_4_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-4 11 $84.20 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-Pack- 11/dp/B01IAIICKI/ref=sr_1_7_a_it?srs=30372900 11&ie=UTF8&qid=1470165580&sr=8-7 Odor- Eaters Odor Destroy ing Ultra Comfort Insoles, Expand ed Fit 1 pair 1 $5.90 https://www.amazon.com/Odor-Eaters-Destroying- Ultra-Comfort- Insoles/dp/B000052XW2/ref=sr_1_89_a_it?srs=30 37290011&ie=UTF8&qid=1470168403&sr=8-89 3 $21.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSN9O2M/ref=sr_1_41_a_it?srs =3037290011&ie=UTF8&qid=1470167619&sr=8- 41 6 $38.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSNAB0G/ref=sr_1_40_a_it?srs =3037290011&ie=UTF8&qid=1470167619&sr=8- 40 Odor- 1 pair 1 $15.99 https://www.amazon.com/Odor-Eaters-Ultra- 10 Eaters Ultra Durable Insoles Durable-Odor-Destroying-Insoles- Trim/dp/B01CI03AXI/ref=sr_1_38_a_it?srs=30372 90011&ie=UTF8&qid=1470167619&sr=8-38 3 $63.64 https://www.amazon.com/Odor-Eaters-Destroying- Insoles-Durable-3- Pack/dp/B018KT8BVW/ref=sr_1_57_a_it?srs=303 7290011&ie=UTF8&qid=1470167955&sr=8-57 5 Unava ilable https://www.amazon.com/Odor-Eaters-Ultra- Durable-Odor-Destroying-Insoles- Size/dp/B01JFVFO50/ref=sr_1_5_a_it?srs=303729 0011&ie=UTF8&qid=1470165580&sr=8-5 10 $47.49 https://www.amazon.com/Odor-Eaters-Ultra- Durable-Odor-Destroying-Insoles- Size/dp/B01IAIL7SW/ref=sr_1_8_a_it?srs=303729 0011&ie=UTF8&qid=1470165580&sr=8-8 Odor- Eaters Super Tuff Insoles 1 pair 1 $45.27 https://www.amazon.com/Odor-Eaters-Insoles- Super-Tuff- Pr/dp/B01HNCVDM6/ref=sr_1_13_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-13 6 $96.90 https://www.amazon.com/Eaters-Super-Destroying- Insoles-Odor- Eaters/dp/B01HNCV8ZI/ref=sr_1_12_a_it?srs=303 7290011&ie=UTF8&qid=1470165580&sr=8-12 Odor- Eaters Trainer Tamers 1 pair 1 $45.77 https://www.amazon.com/Odor-Eaters-Trainer- Tamers- Pair/dp/B01HNCKV60/ref=sr_1_13_a_it?srs=3037 290011&ie=UTF8&qid=1470167433&sr=8-13 3 $62.27 https://www.amazon.com/Odoreaters-Trainer- Tamers-Pack-Odor- Eaters/dp/B01HNCUWJG/ref=sr_1_14_a_it?srs=3 037290011&ie=UTF8&qid=1470165580&sr=8-14 6 $89.59 https://www.amazon.com/Odoreaters-Trainer- Tamers-Pack-Odor- Eaters/dp/B01CZ60EM0/ref=sr_1_29_a_it?srs=303 7290011&ie=UTF8&qid=1470167512&sr=8-29 Odor- Eaters Foot Warmer s 1 pair 1 $61.98 https://www.amazon.com/OdorEaters-Foot- Warmers-by-Odor- Eaters/dp/B01CZ64VNS/ref=sr_1_22_a_it?srs=303 7290011&ie=UTF8&qid=1470167245&sr=8-22 Odor- Eaters Stink Stopper s for Kids & 1 pair 1 $10.99 https://www.amazon.com/Odor-Eaters-Stink- Stoppers-Teens- Insoles/dp/B01DTM39PS/ref=sr_1_20_a_it?srs=30 37290011&ie=UTF8&qid=1470167245&sr=8-20 2 $24.99 https://www.amazon.com/Odor-Eaters-Stink- Stoppers-Teens- 11 Teens Insoles Insoles/dp/B01DTM445W/ref=sr_1_19_a_it?srs=3 037290011&ie=UTF8&qid=1470167245&sr=8-19 30. Defendant actively promotes the odor eliminating capabilities of Odor Eaters® odor destroying Products, claiming that each “stops” or “destroys” odor with “all-day effectiveness guaranteed.” 31. Defendant’s claims are false, misleading and deceptive because its Products have very little, if any, odor-eliminating capabilities. 32. In determining the meaning of the statements challenged herein, a court may reference dictionary definitions. See Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 391 (8th Cir. 2004) (referencing a dictionary definition of “favorite”). Webster’s Dictionary provides that the word “destroy” means “1: to ruin the structure, organic existence, or condition of” or “2 a: to put out of existence: KILL b: NEUTRALIZE c: ANNIHILATE, VANQUISH.” Webster Ninth New Collegiate Dictionary 345 (d9th ed. 1988). Thus, the word “destroy” denotes a complete removal and not a mere reduction.1 33. Even if Defendant were to claim that its label means the Products “reduce” odor, Defendant’s label is nonetheless false, misleading and deceptive. Product packaging that purports to “destroy” what it can only slightly “reduce” is literally false. Additionally, Defendant fails to provide any qualifying/clarifying language to its label claim that the Products destroy odor, and Defendant’s label falsely indicates that the Products completely end odor. The Products can only reduce odor, not end it, and the Products have very little effectiveness against existing odors. 1 The Third Circuit addressed a similar factual scenario when an advertisement stated that a product could “eliminate” a medical condition. Belmont Labs., Inc. v. Fed. Trade Comm’n, 103 F.2d 538, 540-41 (3d Cir. 1939). When the evidence demonstrated that the product could only “alleviate” the condition for a period of time, the advertisement was found to be false. Id. 12 34. Defendant’s deceptive representations and omissions are material in that a reasonable person would attach importance to such information and would be induced to act upon such information in making purchase decisions. Thus, Plaintiffs’ and the other Class members’ reliance upon Defendant’s misleading and deceptive representations may be presumed. The materiality of those representations and omissions also establishes causation between Defendant’s conduct and the injuries sustained by Plaintiffs and the Class. 35. Reasonable consumers, such as Plaintiffs and the Class members, rationally expect a product that claims it “destroys odors” to perform as promised and end all existing odor and prevent all future odor, rather than to merely slightly reduce some preexisting odors and prevent most new odors from being created. The Products are not capable of actively stopping preexisting odor as claimed, only of reducing some preexisting odor by eliminating the few odor particles that happen to drift into the Product. Reasonable consumers also rationally expect a product that promises “all-day effectiveness guaranteed” to actually provide the promised odor destruction in the first place. The presence of the “Destroys Odor” statement on the labeling is false, misleading and likely to deceive a reasonable consumer. 36. Plaintiffs and the Class members reasonably relied to their detriment on Defendant’s false and misleading “Destroys Odor” misrepresentations. 37. Reasonable consumers (including Plaintiffs and the Class members) must and do rely on manufacturers of household products such as Defendant to honestly report on its Products’ capabilities and mechanisms, and companies such as Defendant intend and know that consumers rely upon labeling statements in making their purchasing decisions. Such reliance by consumers is also eminently reasonable, since companies are prohibited from engaging in deceptive acts or practices in the conduct of any business, trade or commerce under New York state law. 13 38. While Defendant labeled and advertised that its Products eliminate existing and prospective odor, the Products fail to perform as promised. The misrepresentation was significant and material given the prominent “Destroys Odor” statement on the front of the Product packaging and throughout Defendant’s marketing, including its Odor Eaters® website. This representation is materially different from a true description of the Products: that they can “Reduce some existing odor” and “Reduce most new odor.” 39. Defendant knew that it made the “Destroys Odor” representation in regard to the Odor Eaters® odor destroying Products, as the statement appears on the Products’ packaging. Defendant also knew that the claim was false and misleading, because the Products cannot eliminate odor or kill any bacteria and fungi that cause odor. Upon information and belief, Defendant retains expert chemists, other scientists, regulatory compliance personnel, and attorneys, and thus had the ability to know, and did know, that the Odor Eaters® odor destroying Products are incapable of completely eliminating odor. 40. As a result of Defendant’s deception, consumers – including Plaintiffs and members of the proposed Class – have purchased Products that claim to eliminate odor in reliance on Defendant’s labels. Moreover, Plaintiffs and Class members have paid a premium for the Products over other similar products sold on the market. Plaintiff IZQUIERDO Relied on Defendant’s Claims and Was Injured 41. Within the last twelve months, Plaintiff IZQUIERDO was attracted to Odor Eaters® odor destroying Products because he preferred to consume and use effective and powerful insoles capable of completely eliminating unpleasant odors. Plaintiff IZQUIERDO believed that the Products performed as promised by Defendant’s packaging and marketing campaign. As a 14 result, the Odor Eaters® odor destroying Products with their deceptive claims on the Product packaging had no value to Plaintiff IZQUIERDO. 42. New York has placed requirements on companies that are designed to ensure that the claims they are making about their products to consumers are truthful and accurate. 43. Defendant’s labeling and advertising of the Products violates New York consumer protection laws against deceptive acts and practices in the conduct of business. 44. Although Defendant marketed the Products as an odor eliminator with “all-day effectiveness guaranteed,” it failed to also disclose material information about the Products; the fact that they could not eliminate odor or kill the bacteria and fungi that cause odor, and that they incompletely reduce future odor and have little effect on existing odor. This non-disclosure, in light of the Products’ bearing the claim “Destroys Odor,” was deceptive and likely to mislead a reasonable consumer. 45. Plaintiffs did, and a reasonable consumer would, attach importance to whether Defendant’s Products are deceptive or misleading and therefore unlawful. 46. Plaintiffs did not know, and had no reason to know, that the Products were not capable of completely destroying unpleasant foot-related odors. 47. Defendant’s Product labeling was a material factor in Plaintiffs’ and Class members’ decisions to purchase the Products. Relying on Defendant’s Product labeling and misleading website, Plaintiffs and Class members believed that they were getting Products that were superior to other foot deodorizers. Had Plaintiffs and the Class known Defendant’s Products could not function as promised, they would not have purchased them. 15 48. Defendant’s Product labeling as alleged herein is deceptive and misleading and was designed to increase sales of the Products. Defendant’s misrepresentations are part of its systematic product packaging practice. 49. As a result of Defendant’s misrepresentations, Plaintiffs and thousands of others throughout the United States purchased the Products. 50. At the point of sale, Plaintiffs and Class members did not know, and had no reason to know, that the Products were deceptive as set forth herein, and would not have bought the Product had they known the truth about it. Accordingly, Plaintiffs and Class members should be reimbursed for the full purchase price of the Products purchased by them. 51. Plaintiffs and the Classes (defined below) have been damaged by Defendant’s deceptive and unfair conduct in that they purchased a Product with false and deceptive labeling and paid premium prices they otherwise would not have paid over other comparable products. 52. Alternatively, Plaintiffs and Class members should be reimbursed the premium price they were misled into paying. 53. Plaintiff IZQUIERDO seek relief in his individual capacity and as representative of all others who are similarly situated. Pursuant to Rule 23(a), 23(b)(2) and/or 23(b)(3) of the Federal Rules of Civil Procedure, Plaintiff IZQUIERDO seeks certification of the following Classes: i. The Nationwide Class All persons in the United States who have made retail purchases of the Odor Eaters® odor destroying insoles with deceptive labels, as set forth herein, during the applicable limitations period, and/or such subclasses as the Court may deem appropriate. ii. The New York Class 16 All persons in New York who have made retail purchases of the Odor Eaters® odor destroying insoles with deceptive labels, as set forth herein, during the applicable limitations period, and/or such subclasses as the Court may deem appropriate. 54. Excluded from these Classes are current and former officers and directors of Defendant, members of the immediate families of the officers and directors of Defendant, Defendant’s legal representatives, heirs, successors, assigns, and any entity in which they have or have had a controlling interest. Also excluded from the Class is the judicial officer to whom this lawsuit is assigned. 55. Plaintiffs reserve the right to revise the Class definitions based on facts learned in the course of litigating this matter. 56. Certification of Plaintiffs’ claims for class-wide treatment is appropriate because Plaintiffs can prove the elements of their claims on a class-wide basis using the same evidence as would be used to prove those elements in individual actions alleging the same claims. 57. Numerosity: Each Class is so numerous that individual joinder of all class members is impracticable. The precise number of members of the Classes is unknown to Plaintiffs, but it is clear that the number greatly exceeds the number that would make joinder practicable, particularly given Defendant’s comprehensive nationwide distribution and sales network. Members of the Classes may be notified of the pendency of this action by recognized, Court- approved notice dissemination methods, which may include U.S. mail, electronic mail, Internet postings, and/or published notice. 58. Commonality and Predominance: This action involves common questions of law and fact, which predominate over any questions affecting individual members of the Classes. All members of the Classes were exposed to Defendant’s deceptive and misleading advertising and 17 marketing claim that Odor Eaters® odor destroying Products because that claim was on every Product label. Furthermore, common questions of law or fact include: a. whether “Destroys Odor” and “all-day effectiveness guaranteed” labeling on the Products was false and misleading; b. whether Defendant engaged in a marketing practice intended to deceive consumers; c. whether Defendant deprived Plaintiffs and the other members of the Classes of the benefit of the bargain because the Products purchased were different than what Defendant warranted; d. whether Defendant deprived Plaintiffs and the other members of the Classes of the benefit of the bargain because the Products they purchased had less value than what was represented by Defendant; e. whether Defendant caused Plaintiffs and the other members of the Classes to purchase a substance that was other than what was represented by Defendant; f. whether Defendant caused Plaintiffs and the other members of the Classes to purchase Products that are incapable of substantially reducing existing odor or eliminating all future odor; g. whether Defendant caused Plaintiffs and the other members of the Classes to purchase Products that are incapable of entirely eliminating future odor; h. whether Defendant has been unjustly enriched at the expense of Plaintiffs and other Class members by its misconduct; i. whether Defendant must disgorge any and all profits it has made as a result of its misconduct; and 18 j. whether Defendant should be enjoined from marketing that each Odor Eaters® odor destroying Product “Destroys Odor” with “all-day effectiveness guaranteed” and ordered to recall mislabeled Products and issue corrective advertising stating that the Products reduce only some existing odor and cannot eliminate all future odor. 59. Defendant engaged in a common course of conduct in contravention of the laws sought to be enforced by Plaintiffs individually and on behalf of the other members of the Classes. Similar or identical statutory and common law violations, business practices, and injuries are involved. Individual questions, if any, pale by comparison, in both quality and quantity, to the numerous common questions that dominate this action. Moreover, the common questions will yield common answers. 60. Typicality: Plaintiffs’ claims are typical of those of the members of the Classes because Plaintiffs and the other Class members sustained damages arising out of the same wrongful conduct, as detailed herein. Plaintiffs purchased Defendant’s Product and sustained similar injuries arising out of Defendant’s conduct in violation of New York State law. Defendant’s unlawful, unfair and fraudulent actions concern the same business practices described herein irrespective of where they occurred or were experienced. The injuries of the Classes were caused directly by Defendant’s wrongful misconduct. In addition, the factual underpinning of Defendant’s misconduct is common to all Class members and represents a common thread of misconduct resulting in injury to all members of the Classes. Plaintiffs’ claims arise from the same practices and course of conduct that give rise to the claims of the members of the Classes and are based on the same legal theories. 19 61. Adequacy: Plaintiffs will fairly and adequately represent and pursue the interests of the Class and has retained competent counsel experienced in prosecuting nationwide class actions. Plaintiffs understand the nature of his claims herein, has no disqualifying conditions, and will vigorously represent the interests of the Classes. Neither Plaintiffs nor Plaintiffs’ counsel have any interests that conflict with or are antagonistic to the interests of the Classes. Plaintiffs have retained highly competent and experienced class action attorneys to represent their interests and those of the Classes. Plaintiffs and Plaintiffs’ counsel have the necessary resources to adequately and vigorously litigate this class action, and Plaintiffs and Plaintiffs’ counsel are aware of their fiduciary responsibilities to the Classes and will diligently discharge those duties by vigorously seeking the maximum possible recovery for the members of the Classes. 62. Superiority: A class action is superior to any other available means for the fair and efficient adjudication of this controversy, and no unusual difficulties are likely to be encountered in the management of this class action. The damages or other financial detriment suffered by Plaintiffs and the other members of the Classes are relatively small compared to the burden and expense that would be required to individually litigate their claims against Defendant, so it would be impracticable for members of the Classes to individually seek redress for Defendant’s wrongful conduct. Even if the members of the Classes could afford individual litigation, the court system could not. Individualized litigation creates a potential for inconsistent or contradictory judgments, and increases the delay and expense to all parties and the court system. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court. Given the similar nature of the members of the Classes’ claims and the absence of material or dispositive differences in the statute and common laws upon which the claims are based when 20 such claims are grouped as proposed above and below, the Nationwide Class and New York Class will be easily managed by the Court and the parties. 63. Declaratory and Injunctive Relief: The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(2) are met, as Defendant has acted or refused to act on grounds generally applicable to the Classes, thereby making appropriate final injunctive or equitable relief with respect to the Classes as a whole. 64. The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Classes predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 65. Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiffs seek, inter alia, equitable remedies with respect to the Classes as a whole. As such, Defendant’s systematic policies and practices make declaratory relief with respect to the Class as a whole appropriate. 66. Further, in the alternative, the Classes may be maintained as class actions with respect to particular issues, pursuant to Fed.R.Civ.P. 23(c)(4). 67. Plaintiff IZQUIERDO realleges and incorporates by reference the allegations contained in all preceding paragraphs of this Complaint and further alleges as follows: 21 68. Plaintiff IZQUIERDO brings this claim on behalf of himself and the other members of the New York Class for an injunction for violations of New York’s Deceptive Acts or Practices Law, Gen. Bus. Law § 349 (“NY GBL § 349”). 69. NY GBL § 349 provides that “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.” 70. To establish a claim under NY GBL § 349, it is not necessary to prove justifiable reliance. (“To the extent that the Appellate Division order imposed a reliance requirement on General Business Law [§] 349 … claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. App. Div. 2012) (internal citations omitted).) 71. Any person who has been injured by reason of any violation of NY GBL § 349 may bring an action in their own name to enjoin such unlawful act or practice, an action to recover their actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may also award reasonable attorney's fees to a prevailing plaintiff. 72. The practices employed by Defendant, whereby Defendant advertised, promoted, and marketed that each Odor Eaters® odor destroying Product “Destroys Odor,” were unfair, deceptive, and misleading to Plaintiff and other New York Class members and in violation of NY GBL § 349 for, inter alia, one or more of the following reasons: a. Defendant engaged in deceptive, unfair and unconscionable commercial practices in failing to reveal material facts and information about the Products, which did, 22 or tended to, mislead Plaintiff and the New York Class about facts that could not reasonably be known by them; b. Defendant knowingly and falsely represented and advertised that each Odor Eaters® insole “Destroys Odor” and provides “all day effectiveness guaranteed” with an intent to cause Plaintiff and members of the New York Class to believe that they could function as promised; c. Defendant failed to reveal facts that were material to the transactions in light of representations of fact made in a positive manner; d. Defendant caused Plaintiff and the New York Class to suffer a probability of confusion and a misunderstanding of legal rights, obligations and/or remedies by and through its conduct; e. Defendant failed to reveal material facts to Plaintiff and the New York Class with the intent that Plaintiff and the New York Class members rely upon the omission; f. Defendant made material representations and statements of fact to Plaintiff and the New York Class that resulted in Plaintiff and the New York Class reasonably believing the represented or suggested state of affairs to be other than what they actually were; and g. Defendant intended that Plaintiff and the members of the New York Class rely on its misrepresentations and omissions, so that Plaintiff and New York Class members would purchase the Products. 73. The foregoing deceptive acts and practices were directed at customers. 23 74. Under all of the circumstances, Defendant’s conduct in employing these unfair and deceptive trade practices was malicious, willful, wanton and outrageous such as to shock the conscience of the community and warrant the imposition of punitive damages. 75. Defendant’s actions impact the public interest because Plaintiff and members of the New York Class were injured in exactly the same way as thousands of others purchasing the Product as a result of and pursuant to Defendant’s generalized course of deception. 76. Plaintiff and the Class members seek to enjoin such unlawful, deceptive acts and practices as described above. Each of the Class members will be irreparably harmed unless the unlawful, deceptive actions of Defendant are enjoined in that Defendant will continue to falsely and misleadingly advertise that Odor Eaters® odor destroying Products can “[Destroy] Odor” with “all-day effectiveness guaranteed.” Plaintiff IZQUIERDO believed Defendant’s representation that the Products would function as promised. Plaintiff IZQUIERDO would not have purchased the Products had he known that they could not actually eliminate odor. 77. Plaintiff IZQUIERDO was injured in fact and lost money as a result of Defendant’s conduct of improperly describing the Products as described herein. Plaintiff IZQUIERDO paid for products that could eliminate odor, but did not receive such a product. The Product he received was worth less than the Product for which he paid. 78. Plaintiff IZQUIERDO and New York Class members seek declaratory relief, restitution for monies wrongfully obtained, disgorgement of ill-gotten revenues and/or profits, injunctive relief ordering corrective advertising and recall of mislabeled Products, injunctive relief barring Defendant from continuing to disseminate its false and misleading statements, and other relief allowable under NY GBL § 349. 24 79. This claim is brought on behalf of Plaintiff IZQUIERDO and members of the New York Class against Defendant. 80. Plaintiff IZQUIERDO and members of the New York Class reallege and incorporate by reference the allegations contained in all preceding paragraphs, and further allege as follows: 81. Defendant has been and/or is engaged in the "conduct of...business, trade or commerce" within the meaning of N.Y. Gen. Bus. Law § 350. 82. New York Gen. Bus. Law § 350 makes unlawful "[f]alse advertising in the conduct of any business, trade or commerce." False advertising includes "advertising, including labeling, of a commodity … if such advertising is misleading in a material respect," taking into account "the extent to which the advertising fails to reveal facts material in light of … representations [made] with respect to the commodity …" N.Y. Gen. Bus. Law § 350-a(1). 83. Defendant caused to be made or disseminated through New York, through advertising, marketing and other publications, statements that were untrue or misleading, and that were known, or which by the exercise of reasonable care should have been known to Defendant, to be untrue and misleading to consumers and New York Class. 84. Defendant’s affirmative misrepresentations and misrepresentations by way of omission, as described in this Complaint, were material and substantially uniform in content, presentation, and impact upon consumers at large. Consumers purchasing the products were and continue to be exposed to Defendant’s material misrepresentations. 25 85. Defendant has violated N.Y. Gen. Bus. Law § 350 because the misrepresentations and/or omissions regarding the Odor Eaters® odor destroying Products, as set forth above, were material and likely to deceive a reasonable consumer. 86. Plaintiff IZQUIERDO and members of the New York Class have suffered an injury, including the loss of money or property, as a result of Defendant’s false and misleading advertising. In purchasing the Defective Products, Plaintiff IZQUIERDO and members of the New York Class relied on the misrepresentations and/or omissions relating to the ability of the Products to destroy odor. Those representations were false and/or misleading because the Products cannot destroy odor or kill the bacteria and fungi that cause odor. Had the New York Class known this, they would not have purchased their Defective Products or paid as much for them. 87. Pursuant to N.Y. Gen. Bus. Law § 350-e, Plaintiff IZQUIERDO and members of the New York Class seek monetary damages, injunctive relief, restitution and disgorgement of all monies obtained by means of Defendants' unlawful conduct, interest, and attorneys' fees and costs. 88. Plaintiffs reallege and incorporate by reference the allegations contained in all preceding paragraphs and further allege as follows: 89. Plaintiffs bring this claim on behalf of themselves and the other members of the New York Class for breach of express warranty under New York law. 90. Defendant provided Plaintiffs and other members of the New York Class with written express warranties, including, but not limited to, a warranty that each Odor Eaters® Product 26 “Destroys Odor” with “all-day effectiveness guaranteed.” The claims made by Defendant were an affirmation of fact that became part of the basis of the bargain and created an express warranty that the good would conform to the stated promise. 91. Plaintiffs and other members of the New York Class placed importance on Defendant’s odor destroying claims in deciding to purchase the Products. 92. Defendant breached its warranties by manufacturing, selling and/or distributing Products to consumers that are prominently labeled “Destroys Odor” with “all-day effectiveness guaranteed” but that cannot function as promised by eliminating all past and prospective odor. 93. Defendant previously knew or should have known of the falsity of its odor elimination claims as manufacturer of the Products. Thus, Defendant had actual and/or constructive notice that its claims are false and to date has taken no action to remedy its breach of express warranty. 94. As a proximate result of Defendant’s breach of warranties, Plaintiffs and the New York Class members have suffered damages in an amount to be determined by the Court and/or jury, in that, among other things, they purchased and paid for products that did not conform to what Defendant promised in its promotion, marketing, advertising, packaging and labeling, and they were deprived of the benefit of their bargain and spent money on a product that did not have any value or had less value than warranted or a product that they would not have purchased and used had they known the true facts about it. 95. As a result of the breach of these warranties, Plaintiffs and the New York Class members are entitled to legal and equitable relief including damages, costs, attorneys’ fees, rescission, and/or other relief as deemed appropriate by the Court. 27 96. Plaintiffs reallege and incorporate by reference the allegations contained in all preceding paragraphs and further allege as follows: 97. Plaintiffs bring this claim individually, as well as on behalf of members of the Nationwide Class. 98. In the alternative, Plaintiffs bring this claim individually as well as on behalf of the New York Class under New York law. 99. Defendant, directly or through its agents and employees, made false representations, concealments, and nondisclosures to Plaintiffs and members of the Class. Defendant has negligently represented that each Odor Eaters® odor destroying Products “Destroys Odor” with “all-day effectiveness guaranteed” when, in fact, they do not entirely eliminate past or prospective odor. 100. In making the representations of fact to Plaintiffs and members of the Classes described herein, Defendant has failed to fulfill its duties to disclose the material facts set forth above. The direct and proximate cause of this failure to disclose was Defendant’s negligence and carelessness. 101. Defendant, in making the misrepresentations and omissions, and in doing the acts alleged above, knew or reasonably should have known that the representations were not true. Defendant made and intended the misrepresentation to induce the reliance of Plaintiffs and members of the Classes. 28 102. Plaintiffs and members of the Classes relied upon these false representations and nondisclosures by Defendant when purchasing the Product, which reliance was justified and reasonably foreseeable. 103. As a result of Defendant’s wrongful conduct, Plaintiffs and members of the Classes have suffered and continue to suffer economic losses and other general and specific damages, including but not limited to the amounts paid for the Product, and any interest that would have been accrued on those monies, all in an amount to be determined according to proof at time of trial. BREACH OF EXPRESS WARRANTIES (Brought on Behalf of the New York Class) INJUNCTION AND DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349 (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT) (Brought on Behalf of the New York Class) Insole Products NEGLIGENT MISREPRESENTATION (Brought on Behalf of the Nationwide Class or, Alternatively, the New York Class) (Pleaded in the Alternative) UNJUST ENRICHMENT (Brought on Behalf of the Nationwide Class or, Alternatively, the New York Class) (Pleaded in the Alternative) 104. Plaintiffs reallege and incorporate by reference the allegations contained in all preceding paragraphs and further allege as follows: 105. Plaintiffs assert this claim in the alternative in the event that the Court concludes that Plaintiffs lack an adequate remedy at law. 106. Plaintiffs bring this claim individually, as well as on behalf of members of the Nationwide Class. Although there are numerous permutations of the elements of the unjust enrichment cause of action in the various states, there are few real differences. In all states, the focus of an unjust enrichment claim is whether the defendant was unjustly enriched. At the core of each state’s law are two fundamental elements – the defendant received a benefit from the plaintiff and it would be inequitable for the defendant to retain that benefit without compensating the plaintiff. The focus of the inquiry is the same in each state. Since there is no material conflict relating to the elements of unjust enrichment between the different jurisdictions from which class members will be drawn, New York law may be applied to the claims of the Nationwide Class. 29 107. In the alternative, Plaintiffs bring this claim individually as well as on behalf of the New York Class under New York law. 108. At all times relevant hereto, Defendant deceptively labeled, marketed, advertised that each Odor Eaters® Product “Destroys Odor” with “all-day effectiveness guaranteed” to Plaintiffs and the Classes. 109. Plaintiffs and members of the Classes reasonably relied on Defendant’s odor and freshness representations, and in reasonable reliance thereon, purchased the Products. 110. Plaintiffs and members of the Classes conferred upon Defendant non-gratuitous payments for the Products that they would not have due to Defendant’s deceptive labeling, advertising, and marketing. Defendant accepted or retained the non-gratuitous benefits conferred by Plaintiffs and members of the Classes, with full knowledge and awareness that, as a result of Defendant’s deception, Plaintiffs and members of the Classes were not receiving a product of the quality, nature, fitness, or value that had been represented by Defendant and reasonable consumers would have expected. 111. Defendant has been unjustly enriched in retaining the revenues derived from purchases of Defendant’s Products by Plaintiffs and members of the Class, which retention under these circumstances is unjust and inequitable because Defendant misrepresented that each Odor Eaters® Product “Destroys Odor” with “all-day effectiveness guaranteed” even though they do not eliminate all odor, which caused injuries to Plaintiffs and members of the Classes because they paid a price premium due to the mislabeling of the Product. 112. Retaining the non-gratuitous benefits conferred upon Defendant by Plaintiffs and members of the Classes under these circumstances made Defendant’s retention of the non- 30 gratuitous benefits unjust and inequitable. Thus, Defendant must pay restitution to Plaintiffs and members of the Classes for its unjust enrichment, as ordered by the Court. VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §§ 350 AND 350-a(1) (FALSE ADVERTISING) (Brought on Behalf of the New York Class)

lose

9. Plaintiff worked as a waiter at the Manny’s restaurant located at 3521 Oak Grove, Dallas, Texas. Plaintiff was hired during the period of July 2016. In or around December 2019, he was transferred to Manny’s restaurant in Heath, Texas located at 469 Laurence Dr, Heath, TX 75032. On or about February 8, 2020, Plaintiff resigned his employment. 10. As a waiter, Defendants paid Plaintiff, and other similarly situated employees a direct hourly wage of $2.13 per hour. 12. In accordance with Defendants’ mandatory policy or practice, Plaintiff and other tipped employees were permitted to keep some, but not all, of the tips they received from restaurant patrons. Rather, they were required to contribute an amount of their total sales to a tip pool from which other restaurant employees shared. 13. Defendants’ tip pool did not meet the requirements of a valid tip pool under Section 203(m) of the FLSA because they failed to inform Plaintiff of their intention to take a “tip credit” against their minimum wage obligations and failed to inform Plaintiff of the provisions of Section 203(m) prior to taking the tip credit. Therefore, Defendants violated the tip credit requirements of Section 203(m) and the minimum wage provisions of the FLSA. As a result, Defendants forfeit the tip credit for each and every hour that Plaintiff and other similarly situated employees worked as tipped employee. 14. Further, Defendants deleted hundreds of hours worked by Plaintiff which resulted in Plaintiff not getting paid for all of the hours they worked. In doing so, Defendants violated the minimum and overtime wage provisions of the FLSA. Accordingly, Plaintiff and other similarly situated employees are entitled to recover the minimum wage ($7.25/hour) and/or overtime wage ($10.88/hour) for each and every hour they worked for Defendants and for which he and other similarly situated employees were not paid.

win

10. Harpersville contracted with JCS which operates a “for profit” enterprise that markets its services to various municipal governments and has previously contracted with over 100 cities and towns throughout Alabama. JCS’s marketing approach emphasizes that its fees will be paid by the “offender” before the municipal court and that its efforts will improve collection of court fines and costs at no cost to the city. 11. The City of Harpersville did not seek bids for this contract. Rather, it granted JCS this exclusive contract in violation of Ala. Const. Art. I, § 22 and Ala. Code 1975, §41-16-50. 12. The fees required to be paid to JCS under the contract with Harpersville, are not permissible court cost and are charged to individuals in addition to fines adjudicated. 13. The JCS approach is highly systemized and uniform throughout the Alabama municipal courts in which it operates, including Harpersville. 15. Harpersville, by contract and practice, unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees. 16. The agreement between Harpersville and JCS and signed by the City mayor Theoangelo Perkins attests that the Harpersville municipal “court agrees that each court order shall provide for the following: a probation fee of $35.00 per month flat fee one time probationer set up fee of $10.00. . . . " (emphasis added). (Exhibit 2) 17. Harpersville, through its mayor and council, approved the JCS contract on March 3, 2006 and continued the relationship thereafter fully aware of the practices and system of JCS and jointly participating and approving in those practices. The City of Harpersville also approved the employment of Larry Ward as a part time judge of its municipal court. 19. In their initial complaint, the state court plaintiffs brought the lawsuit to obtain declaratory and injunctive relief for themselves and for those similarly treated. 20. On July 17, 2012, the plaintiffs in CV-2010-900183 filed an amended complaint asserting class claims and requesting damages as well as injunctive relief. 21. The state court has not yet certified a damage class in CV-2010-900183 and that case is still pending without a class certification scheduling deadline. 22. The collection system at Harpersville continued unabated until an order of the Shelby County Circuit Court was entered on July 11, 2012 enjoining many actions of Harpersville which are more specifically set out below. (Exhibit 3). That order was followed by a decision of the Harpersville city council on August 8, 2012 to dissolve the Harpersville Municipal Court. 23. Thereafter, on December 27, 2012, Assistant District Attorney Alan Miller filed a motion in the District Court of Shelby County requesting that the Court ‘remit all outstanding fees, fines and costs and to establish this account as “Paid in Full”’ for all the then existing traffic cases. (Exhibit 4). That motion was granted on December 27, 2012 by Judge Ronald Jackson, Presiding District Judge of Shelby County, who ordered that all traffic cases listed in the motion were declared PAID IN FULL and ordered that any warrant associated with the case was recalled, set aside and held for naught. 24. Since the dissolution of the municipal court, however, Harpersville has taken no action to reimburse the many people it forced to pay illegal fees or who were imprisoned or otherwise damaged by the unlawful collection system at Harpersville. 27. Once on probation to collect the fines, “offenders” who could not keep up their payments at Harpersville were arrested typically based upon FTA or FTOCO rather than probation violation. These codes stand for “Failure to Appear” and “Failure to Obey Court Order.” Warrants were issued by the City based upon JCS’s report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests resulted from JCS reporting that the “offender” failed to comply with their probation order – that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occurred without any determination of contempt or willfulness in these arrests and the additional costs were added without any finding whatsoever. Under this system, the “offender” arrested was jailed for an undetermined period of time with bond set by the city magistrate to approximate the money JCS claimed the person owed, which included fines, court costs, fees for time spent in jail, and JCS fees. Unlike legitimate probation systems where a probationer would be entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Harpersville ignored all those safeguards focusing instead on the money it could demand. 29. The City Council and Mayor control the policy making for Harpersville and also hired the municipal court judge and contracted for services of JCS at the municipal court. The decision to use this JCS system was an administrative decision of Harpersville, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts (‘AOC’). 30. Harpersville, through its contract, pattern and practice, clothed JCS with the appearances of state authority and has previously even allowed JCS employees to carry badges.3 The JCS employees attended each municipal court session and were referred to as “probation officers” in the operation of the municipal court and city clerk’s office, though none had such authority under Alabama statutes. Under this system, “offenders” were not permitted to pay fines at the city clerk’s office, but were instead required by Harpersville to make all payments, including those for fines, restitution, fees for being in jail, ‘probation’ fees and court costs, to JCS at the JCS office. 32. This system, as a matter of routine, violated the rights of persons such as the Plaintiff and the class she seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time for which they were also charged. 33. As a policy and practice, the Harpersville court did not conduct Bearden hearings or inquire into the offender’s ability to pay, or allow the offenders to fill out hardship forms requesting community service or other alternatives due to their client’s poverty.4 34. Despite the lack of authority to do so, Harpersville allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes of collection. Under the system operated by Harpersville, JCS’s determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency or appointment of counsel before taking such punitive action and despite the fact that both Harpersville and JCS have a significant financial stake in the proceedings. 36. After improperly imposing probation even when no jail sentence was involved, incarceration then followed if the fine, together with the fees added by JCS, were not paid as dictated. The collection purpose of this system was emphasized by the fact that probation was terminated once full payment was made. 37. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments. That policy did not consider the person’s ability to pay5 – even when the City or its agent, JCS, had knowledge that the person was indigent and/or disabled – all without providing notice or validly summoning the person to court for a hearing. 38. Instead, City policy was to issue and execute warrants,6 and for its police officers go to the homes of traffic debtors to arrest them. The City policy and practice were also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt was owed, actually unpaid, or still valid. 40. Under the Harpersville system, JCS had a monetary interest to conduct its role as “probation officer” in a way that maximized its personal profit and not as a neutral court officer. 41. Under the scheme implemented by Harpersville, the town allowed its agent JCS to initiate probation revocation proceedings, to make recommendations to the city judge about that revocation, and to initiate charges of failure to appear or failure to obey court order – all while financially interested in the outcome of these strong-arm collection efforts. Under the system at Harpersville, Judge Ward routinely signed “orders” in blank allowing JCS to fill in terms, amounts and requirements with many such “orders” never being filed with the court clerk and kept only in the computer records of JCS. 42. Under the scheme implemented by Harpersville, neither Harpersville nor JCS undertook any determination of the reasons for nonpayment, and did not consider such things as the Plaintiffs’ disability, unemployment, or assets in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments. As a result, juveniles and hundreds of persons on disability and social security were illegally also placed on ”probation” with the required monthly costs. 43. Under the scheme implemented by Harpersville, both Harpersville and JCS denied any responsibility to determine indigency, and provided no instruction to its employee’s for the consideration of indigency. 45. Under the scheme implemented by Harpersville, after simple fines were converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule. This Harpersville system used JCS’s conclusion of a “probation violation” or “failure to obey court order” to incarcerate individuals who, had they been financially able to pay at the point of adjudication, would have paid only a fine with no probation whatsoever. 46. The amount of the fine announced to debtors by the judge in open court often differed from the amount listed on the probation paperwork JCS created. The JCS papers usually showed an amount higher than the fine and court costs set by City ordinance. In addition, Harpersville also charged people for each day it confined the person to jail.8 47. Under its scheme, Harpersville, which was also financially interested, took advantage of its control over its police force and jail facilities to deny these “offender”/debtors the statutory and constitutional protections that every other Alabama debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of the City with arrest and jail as coercion for payment. 49. Harpersville arrested "offenders" and jailed them for an undetermined period of time. The cash bond was set by the city magistrate to approximate the money JCS claimed the person owed. Unlike legitimate probation systems where a probationer would be entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Harpersville ignored all those safeguards. 8. The Plaintiff brings this action because the policy and practices of Harpersville have violated the Plaintiff’s statutory and constitutional rights and those of persons similarly situated. 92. The Classes which the named Plaintiff seeks to represent consist of: All individuals who were assigned by the Harpersville Municipal Court to “probation” with JCS for the collection of fines. AND All individuals who, despite their indigency, were incarcerated without consideration of their indigency for failure to pay fines, charges and fees from the Harpersville Municipal Court. 93. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable. 94. As of this time, the exact number in the Classes is unknown but would be more than one thousand and the class is ascertainable. 95. Plaintiff’s treatment by the Defendant is typical of the members of the Classes and subclasses. 96. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes.

win

14. Yet, Defendant kept making robocalls and subsequently settled two additional TCPA class actions, including another one in this District. See Gehrich v. Chase, No. 12-cv- 5510 (N.D. Ill. 2016) ($34 million TCPA class settlement); Connor v. Chase, No. 10 CV 01284 GPC BGS (S.D. Cal. Feb. 5, 2015) ($11,268,058 TCPA class settlement). 15. Despite at least three class settlements and numerous individual TCPA claims, Chase keeps making robocalls without consent. 16. Plaintiff is a natural person and citizen of the State of Indiana who resides in Michigan City, Indiana. 17. Plaintiff is the subscriber and regular user of the cellular telephone number at issue, (219) xxx-7061. 18. Thus, Plaintiff is the “called party” within the meaning of the TCPA. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir. 2012). 19. Defendant J.P. Morgan Bank, N.A. is a National Banking Association with its principal place of business at 270 Park Avenue, New York, New York 10017-2070. 20. In or around September 2019, Plaintiff began receiving numerous calls to her aforementioned cellular telephone number from Chase seeking to recover a debt relating to Robert Taschler, who was her deceased grandfather.. 22. Plaintiff answered the September 17, 2019 call, which had a caller ID of (847) 488-2001. There was a brief pause of dead air at the outset of the call, and the computer transferred Plaintiff to a Chase representative who asked for Robert Taschler. Plaintiff advised the Chase representative that this was her phone and Chase was calling the wrong number. 23. On October 15, 2019, Chase again called Plaintiff’s cellular telephone number seeking to recover her deceased grandfather’s debt. The caller ID for this call again displayed the number (847) 488-2001. 24. Plaintiff did not answer the October 15, 2019 call. Instead, the caller left the following message in Plaintiff’s voicemail, which message began with a brief pause of dead air: [pause of dead air] Good afternoon, this message is for, uh, Robert Taschler. My name is Casper. I’m calling from Chase card services. This is regarding an important matter with Chase. It is not a sales or solicitation call. Please call us on (888) 293-5321, I repeat, it’s (888) 293- 5321, between 8:00 AM to midnight eastern standard time. I really appreciate you listening to this message and I hope you have a lovely day. Thank you. 25. On October 15, 2019, Plaintiff returned Chase’s robocalls by calling (888) 293- 5321. An artificial or prerecorded voice answered: “Thank you for calling Chase card services and returning our call.” Plaintiff was then transferred to an artificial or prerecorded voice menu, which did not provide a way for Plaintiff to identify her number as a “wrong number” or opt out of further calls. 27. Yet, like clockwork, the following month on November 16, 2019, Chase placed yet another robo-call to Plaintiff’s cellular telephone number seeking to recover the same debt. The caller ID for this call displayed the number (847) 488-2001 28. On November 20, 2019, Chase placed another robo-call to Plaintiff’s cellular telephone number seeking to recover the same debt. This time the caller ID changed to (847) 488-3078, which tricked Plaintiff into answering the unwanted call. 29. When Plaintiff answered the November 20, 2019 call, there was a brief pause of dead air at the outset of the call, and the computer transferred Plaintiff to a Chase representative who asked for Robert Taschler. Plaintiff again advised the Chase representative that she had the wrong number, and the representative hung up. 30. Calls made to (847) 488-3078 are answered by an artificial or prerecorded voice stating: “Thank you for calling Chase card services.” 31. The initial pause of dead air at the start of the October 15 voicemail and the November 20 call indicates that the calls were automatically initiated, without human intervention, from a machine that has the capacity to store or produce telephone numbers to be called and to dial such numbers. 33. During the aforementioned phone conversations with Defendant’s agents/representatives, Plaintiff expressly revoked any consent Defendant may have mistakenly believed it had to call Plaintiff’s aforementioned cellular telephone number using an ATDS. 34. Defendant made numerous calls to Plaintiff’s cellular telephone number, (219) xxx-7061, using an ATDS which has the capacity: to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers, as defined by 47 U.S.C. § 227(a)(1). 35. Because the calls to Plaintiff did not start until after her grandfather passed away, and Plaintiff and her grandfather at one time resided at the same address, it appears Chase obtained Plaintiff’s cellular telephone from a third party skip-tracing service. 36. By effectuating these unlawful phone calls, Defendant caused Plaintiff the very harm that Congress sought to prevent—namely, a “nuisance and invasion of privacy.” 37. Defendant’s aggravating and annoying phone calls trespassed upon and interfered with Plaintiff’s rights and interests in her cellular telephone and cellular telephone line, and intruded upon Plaintiff’s seclusion. 38. Defendant’s phone calls harmed Plaintiff by wasting her time, trespassing on her phone, invading her privacy as well as causing aggravation and inconvenience. 39. Moreover, “wireless customers [like Plaintiff] are charged for incoming calls whether they pay in advance or after the minutes are used.” 2008 FCC Ruling ¶ 7. Defendant’s phone calls harmed Plaintiff by depleting the battery life on her cellular telephone, and by using minutes allocated to Plaintiff by her cellular telephone service provider. 41. None of Defendant’s telephone calls to Plaintiff’s cellular telephone number were for “emergency purposes” as specified in 47 U.S.C. § 227(b)(1)(A). 42. Defendant violated the TCPA with respect to the Plaintiff and members of the class. 43. Defendant willfully or knowingly violated the TCPA with respect to the Plaintiff and members of the class. 44. Plaintiff re-alleges and incorporates by reference the allegations contained in all other paragraphs as if fully stated herein. Plaintiff, individually and on behalf of all others similarly situated, brings the above claims on behalf of a Class and numerous Subclasses. 46. Defendant has caused the Class and Subclasses actual harm, not only because they were subjected to the aggravation that necessarily accompanies these calls, but also because they frequently have to pay their cellphone service providers for the receipt of such calls. 47. These calls also intruded upon the Class and Subclass Members’ seclusion, trespassed on their telephones, diminish cellular battery life, and wasted their time. 48. Plaintiff represents and is a member of the Class and Subclasses. Excluded from the Class and Subclasses is Defendant and any entities in which Defendant has a controlling interest, Defendant’s employees and agents, the Judge to whom this action is assigned, and any member of the Judge’s staff and immediate family. 49. Plaintiff is presently unaware of the exact number of members in each Class and Subclass, but based upon the size and scope of Defendant’s business, Plaintiff reasonably believes that the Class and Subclass members number, at a minimum, in the thousands. 50. Plaintiff and all members of each Class and Subclass have been harmed by Defendant’s actions. 51. This Class Action Complaint seeks money damages and injunctive relief. 52. The joinder of all Class and Subclass members is impractical due to the size and relatively modest value of each individual claim. 54. There are question of law and fact common to the members of each Class and Subclass, which common questions predominate over any questions that affect only individual class members. Those common questions of law and fact include, but are not limited to: a) Whether the system used to place the calls was an ATDS; b) Whether Defendant engaged in a pattern of using an ATDS to place calls to cellular telephone numbers without the prior express consent of the called party; c) Whether someone advising Defendant to cease contact revokes any prior express consent to call that may have previously existed; d) Whether someone advising Defendant it is calling the wrong number revokes any prior express consent to call even if it is not a true wrong number; e) Whether Defendant’s conduct was willful or knowing; and f) Whether Defendant’s actions violated the TCPA. 55. As a person who received calls that were made using an ATDS without prior express consent, all within the meaning of the TCPA, Plaintiff asserts claims that are typical of the members of each Class and Subclass. 56. Plaintiff will fairly and adequately represent and protect the interests of the Class and each Subclass, and Plaintiff does not have an interest that is antagonistic to any member of any Class or Subclass. 57. Plaintiff has retained counsel experienced in handling class action claims involving violations of federal and state consumer protection statutes such as the TCPA. 59. Class-wide relief is essential to compel Defendant to comply with the TCPA. The interest of class members in individually controlling the prosecution of separate claims against Defendant is small because the statutory damages in an individual action for violation of the TCPA are small. 60. Management of these claims as a class action is likely to present significantly fewer difficulties than are presented by many class claims because the calls at issue are all automated and the Class and Subclass members, by definition, did not provide the prior express consent required under the statute to authorize calls to their cellular telephones. 61. Defendant has acted on grounds generally applicable to each Class and Subclass, thereby making final injunctive relief and corresponding declaratory relief with respect to each Class and Subclass as a whole appropriate. 62. Moreover, the TCPA violations complained of herein are substantially likely to continue in the future if an injunction is not entered. 63. Plaintiff re-alleges and incorporates by reference the allegations contained in paragraphs 1 through 61. 64. Defendant violated the TCPA with respect to Plaintiff each time Defendant or someone acting on its behalf called Plaintiff’s cellular telephone number using an ATDS without having prior express consent. 66. Defendant knowingly violated the TCPA for each call to a number after consent was revoked. 67. Defendant repeatedly placed non-emergency telephone calls to Plaintiff’s cellular telephone number using an ATDS without Plaintiff’s prior express consent, in violation of federal law including 47 U.S.C. § 227(b)(1)(A)(iii). 68. As a result of Defendant’s illegal conduct, Plaintiff and the members of the class suffered actual damages and, under 47 U.S.C. § 227(b)(3)(B), are entitled to, inter alia, a minimum of $500.00 in damages for each such violation of the TCPA. Violation of the TCPA

lose

10. Prior to October 4, 2019, Plaintiff had an account with Defendant and/or Indiana University Hospital. 11. On October 4, 2019, Plaintiff filed a Chapter 7 bankruptcy petition (hereinafter, the “Bankruptcy Petition”) in the United States Bankruptcy Court for the Southern District of Indiana (hereinafter, the “Bankruptcy Court”), commencing bankruptcy case number 19-07435-RLM-7. 12. At the time Plaintiff filed her Bankruptcy Petition, she owed a debt to Indiana University Hospital (hereinafter, “the Debt”). 13. The Debt was assigned to and/or purchased by Defendant for collection from Plaintiff. 15. Plaintiff scheduled the Debt in her Bankruptcy Petition. 16. At the time Plaintiff filed her bankruptcy petition, she owed no other debt to Defendant. 17. At the time Plaintiff filed her bankruptcy petition, she had no other accounts with Defendant. 18. On or about January 14, 2020, the Bankruptcy Court entered an order discharging Plaintiff’s debts, thereby extinguishing her liability for the Debt (hereinafter, “the Discharge Order”). 19. When the Bankruptcy Court entered the Discharge Order, the debtor-creditor relationship ended between Plaintiff and Defendant as to the Debt 20. Moreover, at the time of Plaintiff’s discharge, there were no assets in the bankruptcy estate from which to make any distribution to Plaintiff’s potential creditors. 21. Given that Plaintiff’s bankruptcy discharge resulted in a Report of No Distribution (i.e., Plaintiff had no assets in her estate to distribute to any creditors), any unsecured debts that were incurred prior to the filing of Plaintiff’s bankruptcy petition are considered discharged, irrespective of whether the debt was specifically listed in Plaintiff’s schedule of creditors, filed as part of her Bankruptcy Petition. 22. The Debt, and any other account(s) Plaintiff had with Defendant, or that had been assigned to Defendant, and that had been incurred prior to the date Plaintiff filed her Bankruptcy Petition, were effectively discharged as of the date of the Discharge Order. 24. As of January 16, 2020, Defendant was effectively put on notice that any debt incurred prior to the filing of Plaintiff’s Bankruptcy Petition was discharged. 25. Defendant was aware that any debt incurred by Plaintiff prior to October 4, 2019, which was assigned to Defendant for collection, was discharged in bankruptcy. 26. At no time since January 14, 2020 has Plaintiff owed any debt to Defendant. 27. At no time since January 14, 2020 has Plaintiff opened any accounts with Defendant. 28. At no time since January 14, 2020 has Plaintiff had any personal business relationship with Defendant. 29. Given the facts delineated above, at no time since January 14, 2020 has Defendant had any information in its possession to suggest that Plaintiff owed a debt to Defendant. 30. Given the facts delineated above, at no time since January 14, 2020 has Defendant had any information in its possession to suggest that Plaintiff was responsible to pay a debt to Defendant. 31. Experian Information Solutions, Inc., (hereinafter, “Experian”) is a consumer reporting agency as that term is defined by 15 U.S.C. § 1681a(f). Experian is a data repository that assembles and stores information on consumers for the purpose of furnishing consumer reports to third parties. 33. Given the overwhelming scope of the information available when one procures a consumer report about another, in 1970 Congress enacted the FCRA to protect consumer privacy by requiring consumer reporting agencies to, inter alia, limit the furnishing of consumer reports to statutorily enumerated purposes only. See TRW Inc., v. Andrews, 534 U.S. 19, 23 (2001). 34. The statute was created in response to “concerns about corporations’ increasingly sophisticated use of consumers’ personal information in making credit and other decisions.” Syed v. M-I, LLC et al., 846 F.3d 1034, 1037 (9th Cir. 2017) (citing the FCRA, Pub.L. 91-508, Section 602, 84 Stat. 1114, 1128). See also, United States v. Bormes, 568 U.S. 6, 7 (2012) (The Fair Credit Reporting Act has as one of its purposes to “protect consumer privacy” (quotation and citation omitted)); Cole v. U.S. Capital, 389 F.3d 719, 723 (7th Cir. 2004) (“In [§1681] Congress made it clear that the FCRA is designed to preserve the consumer's privacy in the information maintained by consumer reporting agencies.”). 35. When it enacted the FCRA, Congress found, among other things, that “[t]here is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy.” 15 U.S.C. § 1681(a)(4). 36. Tasked with protecting a consumer’s privacy, the FCRA governs who can access consumer report information from credit reporting agencies and for what purpose. To that end, the FCRA enumerates certain “permissible purposes” for accessing credit reports. 38. Defendant also furnishes data to Experian about its experiences with its customers and potential customers. 39. Defendant is a “furnisher” of information as contemplated by the FCRA, 15 U.S.C. § 1681s-2(a) & (b), that regularly and in the ordinary course of its business furnishes information to one or more consumer reporting agency about its transactions and/or other experiences with consumers. 40. Defendant has a symbiotic relationship with Experian such that it furnishes information to Experian regarding its transactions and/or other experiences with consumers while also purchasing from Experian information about its customers and other consumers. 41. On or about January 28, 2020, despite being cognizant of the facts as delineated above, Defendant procured from Experian a copy of Plaintiff’s consumer report at which time, Defendant made a general or specific certification to Experian that Defendant sought the consumer report in connection with a business transaction initiated by Plaintiff, to review an account to determine whether Plaintiff continued to meet the terms of said account, or for some other permissible purpose enumerated by the FCRA. 42. The certification made by Defendant to Experian was false. 43. Despite certifying to Experian that it had a permissible purpose for procuring Plaintiff’s consumer report, Defendant had no such permissible purpose. 44. At no time on or prior to January 28, 2020 did Plaintiff consent to Defendant obtaining her consumer report. 46. On or about January 28, 2020, at the time Defendant impermissibly procured from Experian Plaintiff’s individual and personal credit report, Plaintiff’s Confidential Information was published to Defendant. 47. On or about January 28, 2020, at the time Defendant impermissibly procured from Experian Plaintiff’s individual and personal credit report, Defendant reviewed Plaintiff’s Confidential Information. 48. On or about January 28, 2020, at the time Defendant impermissibly procured from Experian Plaintiff’s individual and personal credit report, unknown employees, representative and/or agents of Defendant viewed Plaintiff’s Confidential Information. 49. On or about January 28, 2020, at the time Defendant impermissibly procured from Experian Plaintiff’s individual and personal credit report, Defendant obtained information relative to Plaintiff’s credit history and credit worthiness. 50. Plaintiff has a right to have her Confidential Information kept private. 51. No individual/entity is permitted to obtain and review Plaintiff’s personal and confidential information unless either Plaintiff provides her consent for the release of the information or the individual/entity has a permissible purpose to obtain the confidential information as enumerated by the FCRA. 52. Defendant procured from Experian Plaintiff’s consumer report without her knowledge or consent. 53. Defendant procured from Experian Plaintiff’s consumer report without a permissible purpose. 55. By its actions, when Defendant impermissibly procured from Experian Plaintiff’s individual and personal credit report, Defendant effectively intruded upon the seclusion of Plaintiff’s private affairs. 56. When Plaintiff discovered that Defendant had procured her personal, private and confidential information from Experian, Plaintiff was extremely angry, frustrated and suffered emotional distress resulting from Defendant’s invasion of her privacy. 57. When Plaintiff discovered that Defendant had procured her personal, private and confidential information from Experian, Plaintiff was extremely worried, concerned and frustrated that Defendant’s impermissible access of her personal, private and confidential information from one or more consumer reporting agency could continue indefinitely. 58. When Plaintiff discovered that Defendant had procured her Confidential Information from Experian, Plaintiff was concerned about the continued security and privacy of her Confidential Information. 59. When Plaintiff received her Discharge Order from the Bankruptcy Court, she rightfully believed that her business relationship with Defendant had come to an end. When Plaintiff discovered that Defendant had procured her Confidential Information after it had been sent notice of Plaintiff’s bankruptcy discharge, Plaintiff believed that Defendant would continue to act with impunity and continue to procure her Confidential Information indefinitely. 61. Plaintiff brings this action pursuant to the Federal Rules of Civil Procedure 23(a) and 23(b)(3) on behalf of the following class of individuals: All persons about whom, during the two (2) year period prior to the filing of the Complaint in this matter, Defendant obtained a consumer report pertaining to a consumer after that consumer had obtained a bankruptcy discharge of any debt said consumer owed to Defendant and/or any debt that was being collected from Plaintiff by Defendant, and for any secured debts, after said consumer had been dispossessed of any property securing such a debt (hereinafter, the “Class”). 62. Plaintiff reserves the right to amend the definition of the Class based on discovery or legal developments. 63. Numerosity. Fed. R. Civ. P. 23(a)(1). The Class members are so numerous that joinder of all is impractical. Defendant sells thousands of consumer reports on consumers each year, and those persons’ names and addresses are identifiable through documents maintained by Defendant. 64. Common Questions of Law and Fact. Fed. R. Civ. P. 23(a)(2). 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: (i) Whether Defendant violated section 1681b(f) of the FCRA by procuring Plaintiff’s consumer report without a permissible purpose. 65. Typicality. Fed. R. Civ. P. 23(a)(3). Plaintiff’s claims are typical of the claims of each Class member, which all arise from the same operative facts and are based on the same legal theories. 67. Predominance and Superiority. Fed. R. Civ. P. 23(b)(3). Questions of law and fact common to the Class members predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication of the controversy. The statutory and punitive damages sought by each member are such that individual prosecution would prove burdensome and expensive given the complex and extensive litigation necessitated by Defendant’s conduct. It would be virtually impossible for the members of the Class individually to redress effectively the wrongs done to them. Even if the members of the Class themselves could afford such individual litigation, it would be an unnecessary burden on the courts. Furthermore, individualized litigation presents a potential for inconsistent or contradictory judgments and increases the delay and expense to all parties and to the court system presented by the complex legal and factual issues raised by Defendant’s conduct. By contrast, the class action device will result in substantial benefits to the litigants and the Court by allowing the Court to resolve numerous individual claims based upon a single set of proof in a unified proceeding. VI. 68. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein. 9. As alleged in this pleading, “credit reports” are “consumer reports” as that term is defined by 15 U.S.C. §1681a(d). On behalf of Plaintiff and the Class

win

1. Certify this matter to proceed as a class action; 2. Pursuant to 15 U.S.C. § 1692k(a), an award of the maximum statutory damages, costs and reasonable attorney’s fees; 3. Pursuant to Cal. Civil Code §§ 1788.17 and 1788.32, an award of the maximum statutory damages, costs and reasonable attorneys’ fees; 32. Paragraphs under the headings Parties, Facts Supporting Each Claim, and Class Allegations are incorporated by reference. 33. Plaintiff is a “consumer,” as defined at 15 U.S.C. § 1692a(3). 34. Defendants are each a “debt collector,” as defined at 15 U.S.C. § 1692a(6). 35. Defendants violated the FDCPA in the following ways: a. Violation of § 1692e by using a false, deceptive or misleading representation or means in connection with the collection of a debt. b. Violation of § 1692e(2)(A) by making the false representation of the character, amount or legal status of a debt. c. Violation of § 1692e(5) by making a threat to take any action that cannot legally be taken. d. Violation of § 1692e(10) by using a false representation or deceptive means to collect or attempt to collect any debt or to obtain any information concerning a consumer. e. Violation of § 1692f by the collection of any amount (including interest) that are not permitted by law. 37. Paragraphs under the headings Parties, Facts Supporting Each Claim, and Class Allegations are incorporated by reference. 38. Plaintiff incorporates the violations of the FDCPA, as alleged above, pursuant to Cal. Civil Code § 1788.17. WHEREFORE, plaintiff prays for judgment as follows: 4. And for such other and further relief as the court deems proper. Against all defendants Violating the Fair Debt Collection Practices Act Against all Defendants except William I. Goldsmith Violating the California Rosenthal Fair Debt Collection Practices Act

win

(Willful and Knowing Violation of 47 U.S.C. § 227, et seq. – Telephone Consumer Protection Act) (on behalf of Plaintiff and the Class) 15. In the fall of 2017, HIPNation retained AA Group to provide text message marketing services. 16. HIPNation and AA Group retained the now-defunct company DigDatDirect, LLC to supervise a HIPNation text campaign designed to reach individuals who might be interested in an alternative to individual health insurance. 17. AA Group purchased lists of consumer telephone numbers from consumer reporting agency Experian and data aggregator Nationwide Marketing. One of the lists included Mr. Acosta’s cellular telephone number ending in “-0467”. 18. On or about December 7, 2017 at approximately 7:20 p.m. CST, Plaintiff received the following text message at his “-0467” number from “(678) 707-8249”. Lose ur Healthcare? Many in Atlanta Have. Don’t Settle! Get Better Healthcare 4 Less. Call 678-796-6937 or visit hipnation.com or reply stop to cancel. 20. Prior to receiving the above-described text messages, Plaintiff was not informed orally or in writing that he would receive a telemarketing and/or advertising text message on his cellular phone from Defendants using an ATDS. Consequently, Defendants never obtained the requisite consent to send Plaintiff text messages. 21. Defendants used an ATDS to send the exact same (or substantially similar) text messages to all other members of the putative Class. 22. Defendants did not obtain prior express written consent from Class members to send the above-described text messages to their cellular telephones. 23. Plaintiff and Class members suffered injuries in the form of invasion of privacy and nuisance. 24. The text messages alleged herein were exclusively made by, or on behalf of Defendants. 25. Defendants were and are aware that they were sending the above-described text message on a widespread basis to consumers located nationwide, including Louisiana, who had not provided prior express written consent to receive them. 27. Numerosity: The exact number of Class members is unknown and not available to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendants have sent text messages to thousands of consumers who fall into the definition of the Class. Class members can be identified through Defendants’ records. 29. 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 text message calls. 30. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class, and has retained counsel competent and experienced in complex litigation and class actions. Plaintiff’s claims are representative of the claims of the other members of the Class. That is, Plaintiff and the Class members sustained damages as a result of Defendants’ conduct and received substantially the same text messages. Plaintiff also has no interests antagonistic to those of the Class, and Defendants have no defenses unique to Plaintiff. Plaintiff and his counsel are committed to vigorously prosecuting this action on behalf of the members of the Class, and have the financial resources to do so. Neither Plaintiff nor his counsel has any interest adverse to the Class. 32. Plaintiff reserves the right to revise the foregoing "Class Allegations" and "Class Definition" based on facts learned through additional investigation and in discovery. 33. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 34. Defendants made unwanted, unsolicited text message calls to Plaintiff and the Class members’ cellular telephones without their prior express written consent. 35. Defendants sent these text messages to Plaintiff and the Class' cellular telephone numbers using equipment with the ability to store or produce cellular telephone numbers to be called using a random or sequential number generator and to dial such numbers without human intervention. 36. The equipment used by Defendants to send text messages to Plaintiff and Class’ cellular telephone numbers qualifies as an ATDS as defined by 47 C.F.R. § 64.1200(f)(2) and 47 U.S.C. § 227(a)(1). 38. As a result of Defendants’ unlawful conduct, Plaintiff and the members of the putative Class suffered have had their rights to privacy adversely impacted. Plaintiff and the Class are therefore entitled to, among other things, a minimum of $500 in statutory damages for each such violation under 47 U.S.C. § 227(b)(3)(B) and § 227(c)(5)(B). 39. Because Defendants’ misconduct was willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(b)(3) and/or § 227(c)(5), treble the amount of statutory damages recoverable by the Plaintiff and the other members of the putative Class. 40. Alternatively, because Defendants’ misconduct was negligent, the Court should, pursuant to 47 U.S.C. § 227(b)(3) and/or § 227(c)(5), award statutory damages recoverable by Plaintiff and the other members of the putative Class. 41. Additionally, as a result of Defendants’ unlawful conduct, Plaintiff and the other members of the Class are entitled to an injunction under 47 U.S.C. § 227(b)(3)(A) and § 227(c)(5)(A) to ensure that Defendants’ violations of the TCPA do not continue into the future.

lose

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is an Entertainment Venue and Casino that operates FAIRGROUNDS Casino as well as the FAIRGROUNDS website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. 22. Defendant operates FAIRGROUNDS (its “Casino”) in New York, at 5600 McKinley Parkway, Hamburg, NY 14075. 23. Its Casinos constitute places of public accommodation. Defendant’s Casinos provide to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including Casino locations and hours, access to its Player Login online portal, information pertaining to its raceway and casino, including information on the various slot machines and gaming platforms it offers at its physical locations, and related goods and services. 25. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s Casinos. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Casinos and the numerous goods and services and benefits offered to the public through the Website. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Casinos on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 32. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 34. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. Because Defendant’s Website have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Defendant’s Casinos are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Casinos. The Website is a service that is integrated with these locations. 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 77. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 78. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 82. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 89. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

win

10. As a follow up to the January 13th phone call, on January 14, 2016 FCS sent Mr. Munger a form based letter demanding payment on the Chase account in the total amount of $11,945.93. 11. Any payment Mr, Munger made to Chase Bank for a card other than his current Visa occurred more than 6 years prior to January 14, 2016. 12. FCS’ collection letter failed to inform Mr. Munger the date of last payment on the account it was attempting to collect, who currently owned the debt, and insinuated that “ARA Inc.” has the ability to report this stale debt to the credit bureau, when in fact debts over 7 years cannot reported on one’s credit report. In so doing, FCS created a sense 3 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 3 of 19 Pg ID 3 of urgency to payment of the debt. 13. The statute of limitations on a contract in Michigan is six years. 14. FCS regularly attempts to collect debts on which the statute of limitations has expired. 15. The collection letter, attached as Exhibit 1, neither informed Mr. Munger of the delinquent date of the debt nor did it report to him that the statute of limitations had run on the alleged debt. 16. Exhibit 1 did not and does not attach any support for the alleged debt so to give Mr. Munger the information regarding the staleness of the debt. 17. The FCS collection letter was seeking to collect a debt that went into default, and the last payment was made more than six years prior to the dates of the letter. 18. It is the policy and practice of FCS to send letters seeking to collect time- barred debts that do not disclose the fact that the debts are time-barred. 19. It is the policy and practice of FCS to send letters seeking to collect time- barred debts that do not disclose the dates of the transactions giving rise to the debts. 20. On February 15, 2016, an attorney for Mr. Munger contacted FCS and 4 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 4 of 19 Pg ID 4 spoke to a person who identified himself as Timothy Johnson. The attorney provided Mr. Johnson with his Michigan State Bar identifying professional number, putting FCS on notice that Mr. Munger was represented by counsel. 21. On February 26, 2016, a Timothy Johnson from FCS, without permission of Mr. Munger’s attorney, contacted Mr. Munger by telephone. He admitted receiving the telephone call from Mr. Munger’s attorney, and despite several requests from Mr. Munger to talk to his attorney, Johnson kept speaking. He asked Mr. Munger if he was going to pay, and when Mr. Munger referred him to his attorney, Johnson told Mr. Munger that he did not need an attorney to tell him to do the right thing, that he would classify Mr. Munger “as a refusal to pay” and that he would see him in court. 22. At the end of the conversation, Mr. Munger was extremely anxious, and sought medical treatment for elevated heart rate and blood pressure. 23. Plaintiff brings this action on his own behalf and on behalf of all other persons similarly situated. 5 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 5 of 19 Pg ID 5 24. The class consists of all individuals in Michigan to whom FCS sent a letter seeking to collect a debt that was a consumer debt on which the last payment had been made more than six years prior to the letter, and the letter was sent on or after a date six years prior to the filing of this action, and on or before a date 20 days after the filing of this action. 25. A subclass consists of all individuals in Michigan to whom FCS sent a letter seeking to collect a debt that was a consumer debt on which the last payment had been made more than six years prior to the letter, and the letter was sent on or after a date six years prior to the filing of this action and on or before a date 20 days after the filing of this action, and with whom FCS personally contacted after learning that the individual was represented by an attorney. 26. There are questions of law and fact common to the class, including, inter alia: a. Whether the statute of limitations had run on the alleged debt; and b. Whether the failure to report to the consumer that the statute of limitations had run on the alleged debt was a deceptive collection practice contrary to 15 U.S.C. § 1692e and M.C.L.A. 445.252(f) (i), 6 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 6 of 19 Pg ID 6 (ii) ; and c. Whether defendant attempts to collect time-barred debts without disclosure of that fact and whether such practice violates the FDCPA and the MDCA; and d. Whether FCS is strictly liable. 27. There are questions of law and fact common to the subclass, including, inter alia: a. Whether the statute of limitations had run on the alleged debt; and b. Whether the failure to report to the consumer that the statute of limitations had run on the alleged debt was a deceptive collection practice contrary to 15 U.S.C. § 1692e and M.C.L.A. 445.252(f) (i), (ii) ; and c. Whether defendant attempts to collect time-barred debts without disclosure of that fact and whether such practice violates the FDCPA and the MDCA; and d. Whether defendant contacted the individual after learning that the individual was represented by an attorney; and e. Whether FCS is strictly liable. 7 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 7 of 19 Pg ID 7 28. The claims of the representative party are typical of the claims of the class in that Plaintiff’s claims are aligned with and fairly encompass the claims of the class he seeks to represent, and, in pursuing his own claim, he will advance the interests of the class members. 29. Plaintiff will fairly and adequately protect the interests of the members of the class and subclass. Plaintiff has no interests which are contrary to or in conflict with those of the class and subclass he seeks to represent. Plaintiff has retained competent counsel experienced in class action litigation to further ensure such protection and to prosecute this action vigorously. 30. Prosecuting separate actions by class members would create the risk that incompatible standards of conduct would be imposed upon the Defendants as opposed to a uniform and collective resolution of the Defendants’ liability. 31. Questions of law or fact common to the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating this controversy, in that: 8 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 8 of 19 Pg ID 8 a. Individual actions are not economically feasible. b. Members of the class are likely to be unaware of their rights, and c. Congress intended class actions to be the principal enforcement mechanism under the FDCPA. 32. Absent a representative action, the members of the class will continue to be damaged by Defendants’ misrepresentations, thereby allowing these violations of law to proceed without remedy. 33. Defendants receive portfolios of debt in mass and send or cause to be sent letters in mass, and make telephone calls to consumers seeking to collect debts that have been extinguished by the running of the statutes of limitations. The class is so numerous to make class relief the best method of resolving this claim. 34. Plaintiff incorporates the preceding allegations by reference. 35. At all relevant times, FCS, in the ordinary course of its business, regularly engaged in the practice of collecting debts on behalf of itself or other individuals or entities. 9 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 9 of 19 Pg ID 9 36. Mr. Munger is a “consumer” for purposes of the FDCPA and the account at issue in this case is a consumer debt. 37. FCS claims Mr. Munger incurred a personal debt to Chase Bank on a Mastercard many years ago for which he was financially obligated to pay and failed to pay. 38. FCS is a “debt collector” under the FDCPA, 15 U.S.C. § 1692a(6). 39. FCS is a debt collector which receives debts from creditors or other debt collectors, and tries to collect them. The statute of limitations has run on some or many of those debts. 40. FCS is a debt collector which receives debts from debt purchaser(s) (also known as the “Owner”. FCS either collects the debts for a purchaser/owner or hires others to collect debts. The statute of limitations has run on some or many of those debts. 41. FCS knows or should know that the statute of limitations has run on the extinguished debts it is trying to collect yet proceeds to try to collect out of statute/out of stat debts. 42. FCS sends notices of extinguished debts to consumers en masse in an attempt to collect a discounted price for those debts. Mr. Munger received 10 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 10 of 19 Pg ID 10 such a notice for an extinguished debt on a Mastercard issued by Chasebank N.A. 43. FCS engages in and continues to engage in a pattern of deceptive collection practices contrary to 15 U.S.C. § 1692e by sending the letter to debtors, including the Plaintiff, and failing to inform them that the debt had been extinguished by the statutes of limitation and/or informing them the date of delinquency, and stating that it, has the ability to “report any derogatory information to the credit bureaus.” 44. FCS’ foregoing acts in attempting to collect this alleged debt violated 15 U.S.C. §§ 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f, by dunning consumers on time-barred debts without disclosures of that fact. 45. The nondisclosure is exacerbated by the terms also used in FCS’ letter stating “settlement” and “settled” and placing a 14-day expiration date on defendant’s settlement offer, and demanding that “If for any reason this settlement is not met, this offer becomes NULL and VOID and full balance of $11,945.93 will become due.” - this falsely represents that (a) the full balance is enforceable, (b) the settlement represents an improvement on the position that the consumer is in (when in fact he is not required to pay 11 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 11 of 19 Pg ID 11 anything on time-barred debt), and (c)failure to accept the settlement will lead to the enforcement of the full balance, and creates a sense of urgency to payment of the debt. 48. Mr. Munger has suffered damages as a result of these violations of the 49. Plaintiff incorporates the preceding allegations by reference. 5. Personal jurisdiction and venue are proper in the Eastern District of Michigan. 50. Pursuant to 15 U.S.C. 1692c (a)(2) a debt collector may not communicate with a consumer in connection with the collection of any debt if the debt 12 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 12 of 19 Pg ID 12 collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer. 51. FCS was placed on notice that Mr. Munger was represented by an attorney, and had the attorney’s number from which all contact information was available. 52. FCS never communicated with Mr. Munger’s attorney, except during the initial conversation. 53. FCS never obtained permission from Mr. Munger’s attorney to contact Mr. Munger. 54. 11 days elapsed between the initial conversation with Mr. Munger’s attorney and FCS’ telephone call to Mr. Munger, and it was not reasonable for Defendant to contact him. 55. FCS’ telephone call to Plaintiff on February 26, 2016 violated 15 U.S.C. 1692c(a)(3). 56. Mr. Munger has suffered damages as a result of these violations of the 13 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 13 of 19 Pg ID 13 57. Plaintiff incorporates the preceding allegations by reference. 58. FCS is a “Regulated Person” as that term is defined in the Michigan Collection Practices Act (“MCPA”), at M.C.L.A § 445.251. 59. Mr. Munger is a “Consumer” as that term is defined in M.C.L.A. § 445.251. 6. FCS purchases portfolios of old debts from other debt purchasers for less than face value. It then attempts to collect the old debts by sending consumers a form “fill-in the blank” letter offering to take a discount on the debt under a proposed payment plan or lump sum arrangement. Omitted from these form letters is the date a debt was incurred or the date of the consumer’s last payment on the alleged debt. 2 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 2 of 19 Pg ID 2 60. FCS’ foregoing acts in attempting to collect the alleged debt violated M.C.L.A. § 445.252(f)(i), (ii). a) FCS continually and intentionally misrepresented its right to collect 14 2:16-cv-11008-LJM-RSW Doc # 1 Filed 03/18/16 Pg 14 of 19 Pg ID 14 the debt by causing to be sent or by sending a letter to a consumer who no longer owed the debt sought to be collected. b) FCS continually and intentionally misrepresented its right to collect the debts by offering a lump sum payment or plan to a consumer who no longer owed the debt sought to be collected. c) FCS represented that if you ‘settle’ this account, “ARA Inc. will not report any derogatory information to the credit bureaus.” 61. Mr. Munger has suffered damages as a result of these violations of the 7. FCS contacted Mr. Munger via telephone on January 13, 2016. FCS demanded payment on a Mastercard account Mr. Munger was alleged to have with Chase Bank. 8. The only credit card that Mr. Munger has is a Visa card issued by Chase Bank to him in 2008. That card is current and in good standing. 9. Mr. Munger has had no other credit cards, since 2002, and has made no payments on any credit cards, other than his current Chase Bank Visa, since that time. VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT (COMMUNICATIONS BY LETTER) VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT (COMMUNICATIONS BY TELEPHONE AFTER INDIVIDUAL’S RETENTION OF COUNSEL) VIOLATION OF THE MICHIGAN COLLECTION PRACTICES ACT M.C.L.A. § 445.252(f)(i), (ii) (COMMUNICATIONS BY LETTER) VIOLATION OF THE MICHIGAN COLLECTION PRACTICES ACT M.C.L.A. § 445.252(h) (COMMUNICATIONS BY TELEPHONE AFTER INDIVIDUAL’S

lose

11. Plaintiff brings this action as a state wide class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure (hereinafter “FRCP”), on behalf of herself and all New York consumers and their successors in interest (the “Class”), who were sent debt collection letters and/or notices from the Defendants which are in violation of the FDCPA, as described in this Complaint. 12. This Action is properly maintained as a class action. The Class is initially defined as:  All New York consumers who were sent letters and/or notices from FRONTLINE concerning a debt owned by LVNV FUNDING, LLC (“LVNV”) where the original creditor was WEBBANK, which included the alleged conduct and practices described herein. The class definition may be subsequently modified or refined. The Class period begins one year to the filing of this Action. 13. The Class satisfies all the requirements of Rule 23 of the FRCP for maintaining a class action:  Upon information and belief, the Class is so numerous that joinder of all members is impracticable because there may be hundreds and/or thousands of persons who were sent debt collection letters and/or notices from the Defendants that violate specific provisions of the FDCPA. Plaintiff is complaining of a standard form letter and/or notice. (See Exhibit A, except that the undersigned attorney has, in accordance with Fed. R. Civ. P. 5.2 redacted the financial account numbers and/or personal identifiers in an effort to protect Plaintiff’s privacy);  There are questions of law and fact which are common to the Class and which predominate over questions affecting any individual Class member. These common questions of law and fact include, without limitation: a. Whether the Defendants violated various provisions of the FDCPA including but not limited to: 15 U.S.C. §§ 1692e; 1692e(2)(A); 1692e(5); 1692e(10); and 1692f et seq. b. Whether Plaintiff and the Class have been injured by the Defendants’ conduct; c. Whether Plaintiff and the Class have sustained damages and are entitled to restitution as a result of Defendants’ wrongdoing and if so, what is the proper measure and appropriate statutory formula to be applied in determining such damages and restitution; and d. Whether Plaintiff and the Class are entitled to declaratory and/or injunctive relief.  Plaintiff’s claims are typical of the Class, which all arise from the same operative facts and are based on the same legal theories.  Plaintiff has no interest adverse or antagonistic to the interest of the other members of the Class.  Plaintiff will fairly and adequately protect the interest of the Class and has retained experienced and competent attorneys to represent the Class.  A Class Action is superior to other methods for the fair and efficient adjudication of the claims herein asserted. Plaintiff anticipates that no unusual difficulties are likely to be encountered in the management of this class action.  A Class Action will permit large numbers of similarly situated persons to prosecute their common claims in a single forum simultaneously and without the duplication of effort and expense that numerous individual actions would engender. Class treatment will also permit the adjudication of relatively small claims by many Class members who could not otherwise afford to seek legal redress for the wrongs complained of herein. Absent a Class Action, class members will continue to suffer losses of statutory protected rights as well as monetary damages. If Defendants’ conduct is allowed to proceed without remedy, they will continue to reap and retain the proceeds of their ill-gotten gains.  Defendants have acted on grounds generally applicable to the entire Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 14. Plaintiff is at all times to this lawsuit, a "consumer" as that term is defined by 15 U.S.C. § 1692a(3). 15. Sometime prior to January 3, 2017, Plaintiff allegedly incurred a financial obligation to WEBBANK, LLC (“WEBBANK”). 16. The WEBBANK obligation arose out of a transaction, in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. 17. Plaintiff incurred the WEBBANK obligation by obtaining goods and services which were primarily for personal, family and household purposes. 18. Plaintiff did not incur the WEBBANK obligation for business purposes. 19. The WEBBANK obligation is a "debt" as defined by 15 U.S.C. § 1692a(5). 20. WEBBANK is a "creditor" as defined by 15 U.S.C. § 1692a(4). 21. At some time prior to January 3, 2017, the WEBBANK obligation was purchased by and/or sold to LVNV. 22. At the time the WEBBANK obligation was purchased by and/or sold to LVNV, the obligation was in default. 23. On or before January 3, 2017, LVNV referred the WEBBANK obligation to FRONTLINE for the purpose of collections. 24. At the time LVNV referred the WEBBANK obligation to FRONTLINE, the obligation was past due. 25. At the time LVNV referred the WEBBANK obligation to FRONTLINE, the obligation was in default. 26. Defendant caused to be delivered to Plaintiff a letter dated January 3, 2017, which was addressed to Plaintiff. Exhibit A, which is fully incorporated herein by reference. 27. The January 3, 2017 letter was sent to Plaintiff in connection with the collection of the WEBBANK obligation. 28. The January 3, 2017 letter is a “communication” as defined by 15 U.S.C. § 1692a(2). 29. The January 3, 2017 letter is the initial written communication sent from Defendant to the Plaintiff. 30. Upon receipt, Plaintiff read the January 3, 2017 letter. 31. The January 3, 2017 letter provided the following information regarding the WEBBANK obligation: Current Creditor to whom the debt is owed: LVNV FUNDING LLC Original Creditor: 42. Plaintiff, on behalf of herself and others similarly situated, repeats and realleges all prior allegations as if set forth at length herein. 43. Collection letters and/or notices, such as those sent by Defendants, are to be evaluated by the objective standard of the hypothetical “least sophisticated consumer.” 44. Defendant’s January 3, 2017 letter would lead the least sophisticated consumer to believe that Defendant stated that the amount due could increase due to additional interest or other charges. 45. The form, layout and content of Defendant’s letter would cause the least sophisticated consumer to be confused about his or her rights. 46. The form, layout and content of Defendant’s letter would cause the least sophisticated consumer to be confused as to whether the balance of the WEBBANK obligation could increase. 47. The form, layout and content of Defendant’s letter would cause the least sophisticated consumer to be confused as to whether the balance of the WEBBANK obligation could increase due to interest or other charges. 48. The form, layout and content of Defendant’s letter would cause the least sophisticated consumer to believe that the balance of the WEBBANK obligation could increase. 49. The form, layout and content of Defendant’s letter would cause the least sophisticated consumer to believe that the balance of the WEBBANK obligation could increase due to interest or other charges. 50. Defendant’s collection letters were designed to cause the least sophisticated consumer to believe that the balance of the WEBBANK obligation could increase due to interest or other charges. 51. Defendants violated 15 U.S.C. § 1692e of the FDCPA by using any false, deceptive or misleading representation or means in connection with their attempts to collect debts from Plaintiff and others similarly situated. 52. Defendants violated 15 U.S.C. § 1692e of the FDCPA in connection with their communications to Plaintiff and others similarly situated. 53. Defendants violated 15 U.S.C. § 1692e of the FDCPA by falsely representing that the balance could increase due to interest or other charges. 54. Defendant’s false, misleading and deceptive statement(s) is material to the least sophisticated consumer. 55. Section 1692e(2)(A) of the FDCPA prohibits a debt collector from making a false representation of the character, amount or legal status of a debt. 56. Defendants violated 15 U.S.C. § 1692e(2)(A) by making false representations of the character, amount and legal status of the debt. 57. Defendants violated 15 U.S.C. § 1692e(2)(A) by falsely representing that the balance could increase due to interest, late charges or other charges. 58. Defendants violated 15 U.S.C. § 1692e(2)(A) as Defendants were prohibited from charging or adding interest or other charges. 59. Defendants violated 15 U.S.C. § 1692e(2)(A) as Defendants never intended to charge or add interest or other charges. 60. Section 1692e(5) of the FDCPA prohibits a debt collector from threatening to take any action that cannot legally be taken or that is not intended to be taken. 61. Defendants violated 15 U.S.C. § 1692e(5) by stating that the amount due could increase due to additional interest or other charges when in fact the amount due would not and did not increase. 62. Defendants violated 15 U.S.C. § 1692e(5) by threatening to increase the amount due by adding additional interest or other charges when in fact the amount due would not and did not increase. 63. Section 1692e(10) prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt. 64. Defendants violated 15 U.S.C. § 1692e(10) by implying that the amount due could increase due to additional interest or other charges when in fact the amount due would not and did not increase. 65. Defendants’ implication that the amount due could increase due to additional interest or other charges when in fact the amount due would not and did not increase violated various provisions of the FDCPA including but not limited to: 15 U.S.C. §§ 1692e; 1692e(2)(A); 1692e(5); 1692e(10); and 1692f et seq. 66. Section 1692f et seq. of the FDCPA prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect any debt. 67. Defendants utilized unfair or unconscionable means to collect or attempt to collect the debt by representing that the amount due could increase due to additional interest or other charges when in fact the amount due would not and did not increase. 68. Defendants’ conduct as described herein constitutes unfair or unconscionable means to collect or attempt to collect any debt. 69. Congress enacted the FDCPA in part to eliminate abusive debt collection practices by debt collectors. 70. Plaintiff and others similarly situated have a right to free from abusive debt collection practices by debt collectors. 71. Plaintiff and others similarly situated have a right to receive proper notices mandated by the FDCPA. 72. Plaintiff and others similarly situated were sent letters which have the propensity to affect their decision-making with regard to the debt. 73. Plaintiff and others similarly situated have suffered harm as a direct result of the abusive, deceptive and unfair collection practices described herein. 74. Plaintiff has suffered damages and other harm as a direct result of the Defendants’ actions, conduct, omissions and violations of the FDCPA described herein. WHEREFORE, Plaintiff demands judgment against Defendants as follows: (a) Declaring that this action is properly maintainable as a Class Action and certifying Plaintiff as Class representative and her attorneys as Class Counsel; (b) Awarding Plaintiff and the Class statutory damages; (c) Awarding Plaintiff and the Class actual damages; (d) Awarding pre-judgment interest; (e) Awarding post-judgment interest. (f) Awarding Plaintiff costs of this Action, including reasonable attorneys' fees and expenses; and (g) Awarding Plaintiff and the Class such other and further relief as the Court may deem just and proper. Dated: November 9, 2017 s/ Joseph K. Jones Joseph K. Jones, Esq. FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. VIOLATIONS

lose

19. Beginning in or about the second half of 2013, Defendants called Plaintiff’s cellular telephone number. 20. Plaintiff’s telephone number is, and was at all relevant times, assigned to a cellular telephone service, as set forth in 47 U.S.C. 227(b)(1). 21. Plaintiff is the authorized and sole user of the cellular telephone number that Defendants called. 39. Plaintiff brings this action on behalf of herself and on behalf of all others similarly situated (“the Class”). 53. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 54. Plaintiff brings this cause of action against Defendants on behalf of herself and on behalf of the Class. 55. Defendants, either directly or through their agents, using an ADTS or an artificial or prerecorded voice, made calls to Plaintiff and the other Class Members at telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged or pays a monthly payment for the call. Defendants did not make the calls for emergency purposes and did not make the calls with the prior express consent of the called party. 56. The foregoing acts and omissions of Defendants and their agents constitute numerous and multiple negligent violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. §§ 227 et seq. 58. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 59. Plaintiff brings this cause of action against Defendants on behalf of herself and on behalf of the Class. 60. Defendants, either directly or through their agents, using an ADTS or an artificial or prerecorded voice, made calls to Plaintiff and the other Class Members at telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. Defendants did not make the calls for emergency purposes and did not make the calls with the prior express consent of the called party. 61. 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 and every one of the above-cited provisions of 47 U.S.C. §§ 227 et seq. 62. As a result of Defendants’ knowing and/or willful violations of 47 U.S.C. §§ 227 et seq., Plaintiff and the Class are entitled to 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). 64. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated therein. 65. Plaintiff brings this cause of action against Defendants on behalf of herself and on behalf of the Class or, in the alternative, the California Sub-Class. 66. Defendants are “persons” as defined by California Civil Code section 1761(c). 67. Plaintiff and the other Class Members are “consumers” within the meaning of California Civil Code § 1761(d). 68. The CLRA makes unlawful certain enumerated “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the lease of goods or services to any consumer[.]” Cal. Civ. Code § 1770(a). 69. Among those practices the CLRA expressly proscribes is “[d]isseminating an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone of the name of the caller or the organization being represented, and either the address or the telephone number of the caller, and without obtaining the consent of that person to listen to the prerecorded message.” Cal. Civ. Code § 1770(a)(22)(A). 70. Exempted from that proscription is “a message disseminated to a business associate, customer, or other person having an established relationship with the person or organization making the call, to a call for the purpose of collecting an existing obligation, or to any call generated at the request of the recipient.” Cal. Civ. Code § 1170(a)(22)(B). KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. §§ 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. §§ 227 ET SEQ. VIOLATIONS OF CALIFORNIA’S CONSUMERS LEGAL REMEDIES ACT CAL. CIV. CODE § 1770(a)(22). VIOLATIONS OF CALIFORNIA’S UNFAIR COMPETITION LAW CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.

lose

10. On October 12, 2011, Northland Group, Inc., sent plaintiff the letter attached as Exhibit A. 11. Exhibit A sought to collect a purported consumer debt incurred for personal, family or household purposes, and not for business purposes. 12. The debt went into default, and the last payment was made, more than six years prior to the date of the letter. 13. The statute of limitations on a contract in Michigan is six years. 14. Northland regularly attempts to collect debts on which the statute of limitations has expired. 15. Nothing in Exhibit A disclosed that the debt was barred by the statute of limitations. 16. Nothing in Exhibit A disclosed the date of the transactions giving rise to the claimed debt. 18. It is the policy and practice of Northland to send letters seeking to collect time-barred debts that do not disclose the dates of the transactions giving rise to the debts. 19. The Federal Trade Commission has determined that “Most consumers do not know their legal rights with respect to collection of old debts past the statute of limitations.... When a collector tells a consumer that she owes money and demands payment, it may create the misleading impression that the collector can sue the consumer in court to collect that debt.” (http://www.ftc.gov/opa/2012/01/asset.shtm) The FTC entered into a consent decree with Asset Acceptance, one of the largest debt buyers in the United States, requiring that it disclose to consumers when it is attempting to collect debts that are barred by the statute of limitations. United States v. Asset Acceptance LLC, Case No. 8 : 12 CV 182 T 27 EAJ (M.D.Fla.). 24. Plaintiff brings this claim on behalf of a class pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3). 25. The class consists of all individuals in Michigan to whom Northland Group, Inc. sent a letter seeking to collect a debt, which debt was a consumer debt on which the last payment had been made more than six years prior to the letter, and which letter was sent on or after a date one year prior to the filing of this action and on or before a date 20 days after the filing of this action. 26. On information and belief, the class is so numerous that joinder of all members is not practicable. 27. There are questions of law and fact common to the class members, which predominate over any questions relating to individual class members. The predominant common questions are (a) whether defendant attempts to collect time-barred debts without disclosure of that fact and (b) whether such practice violates the FDCPA. 28. Plaintiff’s claim is typical of the claims of the class members. All are based on the same factual and legal theories. 29. Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and FDCPA litigation.

win

16. More than a decade later, Commissioner Swindle’s comments ring truer than ever, as consumer data feeds an information marketplace that supports a $26 billion dollar per year online advertising industry in the United States.3 17. The FTC has also recognized that consumer data possesses inherent monetary value within the new information marketplace and publicly stated that: Most consumers cannot begin to comprehend the types and amount of information collected by businesses, or why their information may be commercially valuable. Data is currency. The larger the data set, the greater potential for analysis—and profit.4 18. In fact, an entire industry exists where companies known as data miners purchase, trade, and collect massive databases of information about consumers. Data miners then profit by selling this “extraordinarily intrusive” information in an open and largely unregulated market.5 20. Further, “[a]s use of the Internet has grown, the data broker industry has already evolved to take advantage of the increasingly specific pieces of information about consumers that are now available.”7 21. Recognizing the serious threat the data mining industry poses to consumers’ privacy, on July 25, 2012, the co-Chairmen of the Congressional Bi- Partisan Privacy Caucus sent a letter to nine major data brokerage companies seeking information on how those companies collect, store, and sell their massive collections of consumer data.8 22. In their letter, the co-Chairmen recognized that: By combining data from numerous offline and online sources, data brokers have developed hidden dossiers on every U.S. consumer. This large[-]scale aggregation of the personal information of hundreds of millions of American citizens raises a number of serious privacy concerns.9 24. Information disclosures like Defendant’s are particularly dangerous to the elderly. “Older Americans are perfect telemarketing customers, analysts say, because they are often at home, rely on delivery services, and are lonely for the companionship that telephone callers provide.”12 The FTC notes that “[t]he elderly often are the deliberate targets of fraudulent telemarketers who take advantage of the fact that many older people have cash reserves or other assets to spend on seemingly attractive offers.”13 26. Thus, as consumer data has become an ever-more valuable commodity, the data mining industry has experienced rapid and massive growth. Unfortunately for consumers, this growth has come at the expense of their most basic privacy rights. Consumers Place Monetary Value on their Privacy and Consider Privacy Practices When Making Purchases 27. As the data mining industry has grown, so too have consumer concerns regarding the privacy of their personal information. 28. A recent survey conducted by Harris Interactive on behalf of TRUSTe, Inc. showed that 89 percent of consumers polled avoid doing business with companies who they believe do not protect their privacy online.15 As a result, 81 percent of smartphone users polled said that they avoid using smartphone apps that they don’t believe protect their privacy online.16 29. Thus, as consumer privacy concerns grow, consumers are increasingly incorporating privacy concerns and values into their purchasing decisions and companies viewed as having weaker privacy protections are forced to offer greater value elsewhere (through better quality and/or lower prices) than their privacy- protective competitors. 31. These companies’ business models capitalize on a fundamental tenet underlying the personal information marketplace: consumers recognize the economic value of their private data. Research shows that consumers are willing to pay a premium to purchase services from companies that adhere to more stringent policies of protecting their personal data.18 32. Thus, in today’s economy, individuals and businesses alike place a real, quantifiable value on consumer data and corresponding privacy rights.19 As such, where a business offers customers a service that includes statutorily guaranteed privacy protections, yet fails to honor these guarantees, the customer receives a service of less value than the service paid for. Defendant Unlawfully Sells Its Customers’ PII 33. Every time a customer makes a purchase at a Yankee Candle retail store in Virginia, the cashier requests that the customer provide her PII, including her name and address. 35. Defendant then sells their mailing lists—which include customers’ PII, and can include the sensitive information obtained from data miners—to data miners, other consumer- facing businesses, non-profit organizations seeking to raise awareness and solicit donations, and to political organizations soliciting donations, votes, and volunteer efforts. (See Exhibits A–C). 36. As a result of Defendant’s data compiling and sharing practices, companies can purchase mailing lists from Defendant that identify Yankee Candle customers by their most intimate details: income, political affiliation, religious practice, and charitable donations. Defendant’s sale of such sensitive and personal information puts consumers, especially the more vulnerable members of society, at risk of serious harm from scammers. For example, Yankee Candle will sell—to anyone willing to pay for it—a list with the names and addresses of all Yankee Candle customers who are Jewish, over the age of 50, with an income of greater than $100,000, no children in the household, and a history of charitable donations. 37. Defendant does not seek their customers’ prior consent to any of these sales, nor do they notify their customers about these sales. Thus, their customers remain unaware that their PII and other sensitive personal information is being bought and sold on the open market. 38. As a result, Defendant sold and continues to sell their customers’ PII – including their purchasing habits and preferences – to anybody willing to pay for it. 40. Plaintiff seeks to represent a class defined as all Virginia residents who had their PII sold to third parties by Defendant without consent (the “Class”). Excluded from the Class is any entity in which Defendant have a controlling interest, and officers or directors of Defendant. 41. Members of the Class are so numerous that their individual joinder herein is impracticable. On information and belief, members of the Class number in the thousands. The precise number of Class members and their identities are unknown to Plaintiff at this time but may be determined through discovery. Class members may be notified of the pendency of this action by mail and/or publication through the distribution records of Defendant. 42. Common questions of law and fact exist as to all Class members and predominate over questions affecting only individual Class members. Common legal and factual questions include, but are not limited to: (a) whether Defendant obtained consent before selling to third parties Plaintiff’s and the Class’s PII; (b) whether Defendant provided notice before selling to third parties Plaintiffs’ and the Class’s PII; (c) whether Defendant’s sale of Plaintiff’s and the Class’s PII violated the Personal Information Privacy Act, Va. Code §§ 59.1-442, et seq.; and (d) whether Defendant’s sale of Plaintiff’s and the Class’s PIIconstitutes unjust enrichment. 43. The claims of the named Plaintiff are typical of the claims of the Class in that the named Plaintiff and the Class sustained damages as a result of Defendant’s uniform wrongful conduct, based upon Defendant’s sale of Plaintiff’s and the Class’s PII. 45. The class mechanism is superior to other available means for the fair and efficient adjudication of the claims of Class members. Each individual Class member may lack the resources to undergo the burden and expense of individual prosecution of the complex and extensive litigation necessary to establish Defendant’s liability. Individualized litigation increases the delay and expense to all parties and multiplies the burden on the judicial system presented by the complex legal and factual issues of this case. Individualized litigation also presents a potential for inconsistent or contradictory judgments. In contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court on the issue of Defendant’s liability. Class treatment of the liability issues will ensure that all claims and claimants are before this Court for consistent adjudication of the liability issues. 46. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set forth herein. 47. Plaintiff brings this claim individually and on behalf of members of the Class against Defendant. 48. Defendant is a “merchant” as that term is defined in the VPIPA. See Va. Code § 69. Plaintiff repeats the allegations contained in the paragraphs above as if fully set forth herein. 70. Plaintiff brings this claim individually and on behalf of the members of the Class against Defendant. 72. Because Defendant received and processed Plaintiff’s and the Class’s payments and PII, and because Defendant has employees handling customer accounts and billing as well as customer data, Defendant appreciates or has knowledge of such benefits. 73. Under the VPIPA, Plaintiff and the Class members were entitled to confidentiality in their PII as part of their Yankee Candle purchases. 74. Under principles of equity and good conscience, because Defendant failed to comply with the VPIPA, Defendant should not be allowed to retain the full amount of money Plaintiff and the Class paid for their Yankee Candle purchases or the money they received by selling Plaintiff’s and the Class’s PII. 75. Plaintiff and the other Class members have suffered actual damages as a result of Defendant’s unlawful conduct in the form of the value Plaintiff and the other Class members paid for and ascribed to the confidentiality of their PII. This amount is tangible and will be calculated at trial. 76. Additionally, Plaintiff and the Class members have suffered actual damages inasmuch as Defendant’s failure to inform them that they would sell their PII caused them to make purchases at Yankee Candle retail stores in Virginia when they otherwise would not have. 77. Further, a portion of the purchase price of each Yankee Candle product sold to Plaintiff and the other Class members was intended to ensure the confidentiality of Plaintiff’s and the other Class members’ PII, as required by the VPIPA. Because Plaintiff and the other Class members were denied services that they paid for and were entitled to receive—i.e., confidentiality of their PII—and because Plaintiff and the Class would have commanded a discount to voluntarily forego those benefits, they incurred actual monetary damages. 79. Accordingly, Plaintiff and the Class members seek an order declaring that Defendant’s conduct constitutes unjust enrichment, and awarding Plaintiff and the Class restitution in an amount to be calculated at trial equal to the amount of money obtained by Defendant through their sale and disclosure of Plaintiff’s and the Class’s PII. The Personal Information Market: Consumers’ Personal Information Has Real Value Unjust Enrichment Violation of the Personal Information Privacy Act (Va. Code §§ 59.1-442, et seq.)

lose

FLSA Overtime Violations, 29 U.S.C. §§ 201, et seq. (on behalf of Plaintiff and the FLSA Collective) 20. The claims in this Complaint arising out of the FLSA are brought by Plaintiff on behalf of himself and other similarly situated persons (vehicle cleaners, detailers and service parkers) who are current and former employees of Village Auto Wash since the date three years prior to the filing of this Complaint who elect to opt-in to this action (the “FLSA Collective”). 21. The FLSA Collective consists of approximately twenty (20) similarly situated current and former vehicle cleaners, detailers and service parkers who have been victims of Defendants’ common policy and practices that have violated their rights under the FLSA by, inter alia, willfully denying them overtime wages. 23. Defendants have engaged in their unlawful conduct pursuant to a corporate policy of minimizing labor costs and denying employees compensation. Defendants’ unlawful conduct has been intentional, willful and in bad faith, and has caused significant damage to Plaintiff and the FLSA Collective. 24. The FLSA Collective would benefit from the issuance of a court-supervised notice of the present lawsuit and the opportunity to join the present lawsuit. Those similarly situated employees are known to Defendants, are readily identifiable and locatable through their records. These similarly situated employees should be notified of and allowed to opt into this action, pursuant to 29 U.S.C. § 216(b). 25. The positions of vehicle cleaners, detailers and service parkers are not exempt positions and have never been exempt. Vehicle cleaners, detailers and service parkers were not paid the correct overtime for all hours worked in excess of forty (40) hours per week. 26. The FLSA require that employers pay all employees at least one and one-half (1.5) times the employee’s wage for all hours worked in excess of 40 during any workweek, unless they are exempt from coverage. 27. Defendants failed to compensate Plaintiff and members of the FLSA Collective at one and one-half (1.5) times the employee’s wage for all hours worked in excess of 40 during any workweek. The exact accounting of such discrepancy can only be determined through discovery. 29. Defendants paid Plaintiff and members of the FLSA Collective wages without any accompanying statement listing: the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or other; the regular hourly rate or rates of pay; the overtime hours worked; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages in accordance with the FLSA. 30. Plaintiff worked on behalf of Defendants from June 2016 until January 23, 2018 at two different locations. 31. From approximately 2014 through December 2017, Village Auto Wash was located at 152 S Broad St., Ridgewood, NJ, 07093. 32. Following the closure of the 152 S Broad St. location, Village Auto Wash LLC has continued to service customers at the location of the Teterboro Chrysler Jeep Dodge RAM at 469 Route 46, Little Ferry, NJ, 07643. 33. On information and belief, the address of the corporate office of Village Auto Wash LLC is 5601 JF Kennedy Blvd. East Apt 21H, West New York, NJ, 07093. 34. On information and belief, Defendant Alex Rodriguez owned and operated Village Auto Wash LLC at both locations (Ridgewood and Little Ferry, respectively). Plaintiff Velez’s Employment at 152 S Broad St. 36. Throughout Plaintiff’s employment at 152 S Broad St., Defendants Rodriguez and Village Auto Wash required Plaintiff to “clock in” at the start of his workday and “clock out” at the end of the workday, and Plaintiff complied with this directive. 37. However, throughout Plaintiff’s employment at 152 S Broad St., Plaintiff’s paystubs incorrectly listed his hours worked. 38. For example, Plaintiff’s paystub for the pay period between July 3, 2016 and July 9, 2016 indicates that Plaintiff worked 34 total hours. 39. However, his clock-in and clock-out records for that same time period indicates Plaintiff worked a total of 54 hours and 9 minutes. 40. Another example of the discrepancy between the hours reported on Plaintiff’s paystubs and the hours indicted on Plaintiff’s clock-in and clock-out records is the pay period spanning October 23, 2016 through October 29, 2016. 41. During this period, Plaintiff’s paystubs indicate that he worked only 38 hours. 42. However, his clock-in records show he actually worked 60 hours. 43. Plaintiff was paid no overtime premium for his work over 40 hours in this week. 44. The practice of falsely reporting Plaintiff’s hours on his paystubs continued throughout Plaintiff’s employment. 45. In the pay period between March 19, 2017 and March 25, 2017, Plaintiff’s paystubs indicate he was paid for 33.50 hours of work. 46. However, Plaintiff’s clock-in records indicate he worked 63 hours and 48 minutes during the same period. 48. The hours on the paystubs created by Defendants do not correspond to the hours on Plaintiff’s clock-in records in any given pay period throughout Plaintiff’s employment at the 152 S Broad St. location. Plaintiff Velez’s Work Schedule and Salary at 152 S Broad St. 49. From the beginning of Plaintiff’s employment with Defendants at 152 S Broad St. in June 2016 through March 2017, on average Plaintiff worked six (6) days per week. 50. Although Plaintiff’s work schedule varied, he worked approximately 52 hours per week for Defendants at 152 S Broad St. 51. Defendants did not provide Plaintiff with a scheduled meal break. 52. In fact, Plaintiff did not receive any scheduled breaks for that matter, during the time period Plaintiff worked 152 S Broad St. 53. Even though Plaintiff was not exempt, he was not paid time and one-half for all work performed after 40 hours on behalf of Defendants. 54. Therefore, throughout Plaintiff Velez’s employment at 152 S Broad St., he was paid between $9 and $10 per hour for all hours worked. 55. Although Plaintiff regularly worked more than 40 hours, Plaintiff’s paystubs always listed him as having worked less than 40 hours worked per week. 56. Each week, Plaintiff received additional pay in cash in addition to the hours listed in his paystub. The additional pay in cash included payment at straight time for the work performed after 40 hours, but no overtime premium. 58. By the end of March 2017, after the closure of Village Auto Wash LLC’s location at 152 S Broad St., Plaintiff was transferred to Village Auto Wash LLC’s location operating on the premises of Defendant Teterboro Automall at 469 Route 46 in Little Falls, NJ. 59. From the end of March 2017 through January 23, 2018, Plaintiff was jointly employed by all Defendants at 469 Route 46 in Little Falls, NJ. 60. Throughout Plaintiff’s employment at 469 Route 46, Defendants did not require Plaintiff to “clock in” or use any other formal method with respect to tracking his hours. 61. While employed at the Teterboro Automall location at 469 Route 46, Plaintiff received work assignments from employees of Teterboro Automall, and was supervised by Teterboro Automall employees, in addition to Rodriguez. 62. For example, “Tim”, the head car salesman at Teterboro Chrysler, “Dave” the son of the owner and “Dave”, the head of the mechanics all gave Plaintiff directions with respect to how to perform his job duties. 63. These job duties included, but were not limited to, the following: washing cars, cleaning showroom cars, taking out scratches from vehicles and other similarly car cleaning and detailing activities. 64. In fact, Alex Rodriguez was frequently not at Tereboro Chrystler. Usually, Rodriguez was just there on Wednesdays to pay Plaintiff. Plaintiff Velez’s Work Schedule and Salary at 469 Route 46 65. From the beginning of Plaintiff’s employment with Defendants at 469 Route 46 from the end of March 2017 through January 2018, Plaintiff worked six (6) days per week. 67. Defendants did not provide Plaintiff with scheduled meal breaks, or any scheduled breaks for that matter, during the time period Plaintiff worked for Defendants at 469 Route 46. 68. Throughout Plaintiff’s employment at 469 Route 46, Defendants paid Plaintiff by check with no notation indicating his hours worked, rate of pay, or deductions or withholdings. 69. Throughout Plaintiff’s employment at 469 Route 46, Defendants paid Plaintiff a flat weekly fee. 70. This flat weekly salary was $800 per week. 71. Even though Plaintiff was not exempt, he was not paid time and one-half for all work performed after 40 hours on behalf of Defendants. Village Auto Wash LLC Retaliated Against Plaintiff for Engaging in Protected Activity 72. On Tuesday, January 23, 2018, Plaintiff asked Defendant Rodriguez to be paid overtime for the work he performed after 40 hours. 73. Defendant Rodriguez answer to Plaintiff’s request stating that “I can’t pay you more, if you don’t like it you can leave.” 74. On Wednesday, January 24, 2018 Defendants’ attorney mailed a letter to Plaintiff stating that his employment with Defendants was terminated. 76. On information and belief, Defendants are incorrectly listing many of their employees as independent contractors. 77. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 78. Throughout the relevant time period, Plaintiff worked in excess of forty (40) hours per workweek. 79. At all relevant times throughout his employment, Defendants operated under a policy of willfully failing and refusing to pay Plaintiff one and one-half (1.5) times the regular hourly rate of pay for work in excess of forty (40) hours per workweek, and in willfully failing to keep records required by the FLSA, even though Plaintiff was entitled to receive overtime payments. 80. At all relevant times throughout Plaintiff’s employment, Defendants willfully, regularly and repeatedly failed to pay the required overtime rate of one and one-half (1.5) times his regular hourly rate for hours worked in excess of forty (40) hours per workweek. 81. Defendants’ decision not to pay overtime was willful. 82. Plaintiff seeks damages in the amount of his unpaid overtime compensation, liquidated damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. 84. 29 U.S.C. § 215(a)(3) makes it unlawful for an employer “to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceedings under or related to this chapter [of the Unlawful Retaliation in Violation of the FLSA § 215(a)(3) (on behalf of Plaintiff)

win

1. Plaintiff James L. Orrington, II, D.D.S., P.C., brings this action to secure redress for the actions of defendant Mesa Laboratories, Inc., in sending or causing the sending of unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”), the Illinois Consumer Fraud Act, 815 ILCS 505/2 (“ICFA”), and the common law. 10. Discovery may reveal the transmission of additional faxes as well. 2 11. Defendant Mesa Laboratories, Inc. as the entity who products or services were advertised in the fax, derived economic benefit from the sending of the fax. 12. Defendant Mesa Laboratories, Inc. is responsible for sending or causing the sending of the fax. 13. Defendant Mesa Laboratories, Inc. as the entity who products or services were advertised in the fax, derived economic benefit from the sending of the fax. 14. Defendant Mesa Laboratories, Inc either negligently or wilfully violated the rights of plaintiff and other recipients in sending the faxes. 15. Plaintiff had no prior relationship with defendant and had not authorized the sending of fax advertisements to plaintiff. 16. The fax does not contain an “opt out” notice that complies with 47 U.S.C. §227. 17. On information and belief, the fax attached hereto was sent as part of a mass broadcasting of faxes. It is a generic fax, not specifically addressed to any person. 18. The TCPA provides for affirmative defenses of consent or an established business relationship. Both defenses are conditioned on the provision of an opt out notice that complies with the TCPA. Holtzman v. Turza, 728 F.3d 682 (7th Cir. 2013); Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013). 19. On information and belief, defendant has transmitted similar unsolicited fax advertisements to at least 40 other persons in Illinois. 2. The TCPA expressly prohibits unsolicited fax advertising. Unsolicited fax advertising damages the recipients. The recipient is deprived of its paper and ink or toner and the use of its fax machine. The recipient also wastes valuable time it would have spent on something else. Unsolicited faxes prevent fax machines from receiving and sending authorized faxes, cause wear and tear on fax machines, and require labor to attempt to identify the source and purpose of 1 the unsolicited faxes. 20. There is no reasonable means for plaintiff or other recipients of defendant’s unsolicited advertising faxes to avoid receiving illegal faxes. Fax machines must be left on and ready to receive the urgent communications authorized by their owners. 3 21. Plaintiff incorporates ¶¶ 1-20. 22. The TCPA makes unlawful the “use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine ...” 47 U.S.C. §227(b)(1)(C). 23. The TCPA, 47 U.S.C. §227(b)(3), provides: Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State– (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the Court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the subparagraph (B) of this paragraph. 24. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result. Furthermore, plaintiff’s statutory right of privacy was invaded. 25. Plaintiff and each class member is entitled to statutory damages. 26. Defendant violated the TCPA even if its actions were only negligent. 27. Defendant should be enjoined from committing similar violations in the future. 4 36. Plaintiff incorporates ¶¶ 1-20. 37. Defendant engaged in unfair acts and practices, in violation of ICFA § 2, 815 ILCS 505/2, by sending unsolicited fax advertising to plaintiff and others. 38. Unsolicited fax advertising is contrary to the TCPA and also Illinois law. 720 ILCS 5/26-3(b) makes it a petty offense to transmit unsolicited fax advertisements to Illinois residents. 39. Defendant engaged in an unfair practice and an unfair method of competition by engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to recipients of their advertising. 40. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result. 41. Defendant engaged in such conduct in the course of trade and commerce. 42. Defendant’s conduct caused recipients of their advertising to bear the cost thereof. This gave defendant an unfair competitive advantage over businesses that advertise lawfully, such as by direct mail. For example, an advertising campaign targeting one million recipients would cost $500,000 if sent by U.S. mail but only $20,000 if done by fax broadcasting. The reason is that instead of spending $480,000 on printing and mailing his ad, the fax broadcaster misappropriates the recipients’ paper and ink. “Receiving a junk fax is like getting junk mail with the postage due”. Remarks of Cong. Edward Markey, 135 Cong Rec E 2549, Tuesday, July 18, 1989, 101st Cong. 1st Sess. 43. Defendant’s shifting of advertising costs to plaintiff and the class members in this 8 manner makes such practice unfair. In addition, defendant’s conduct was contrary to public policy, as established by the TCPA and Illinois statutory and common law. 44. Defendant should be enjoined from committing similar violations in the future. 52. Plaintiff incorporates ¶¶ 1-20. 53. By sending plaintiff and the class members unsolicited faxes, defendant converted to its own use ink or toner and paper belonging to plaintiff and the class members. 54. Immediately prior to the sending of the unsolicited faxes, plaintiff and the class members owned and had an unqualified and immediate right to the possession of the paper and ink or toner used to print the faxes. 55. By sending the unsolicited faxes, defendants appropriated to their own use the paper and ink or toner used to print the faxes and used them in such manner as to make them unusable. Such appropriation was wrongful and without authorization. 56. Defendant knew or should have known that such appropriation of the paper and ink or toner was wrongful and without authorization. 57. Plaintiff and the class members were deprived of the paper and ink or toner, which could no longer be used for any other purpose. Plaintiff and each class member thereby suffered damages as a result of receipt of the unsolicited faxes. 58. Defendant should be enjoined from committing similar violations in the future. 76. Plaintiff incorporates ¶¶ 1-20. 77. Defendant’s sending plaintiff and the class members unsolicited faxes was an unreasonable invasion of the property of plaintiff and the class members and constitutes a nuisance. 78. Congress determined, in enacting the TCPA, that the prohibited conduct was a “nuisance.” Universal Underwriters Ins. Co. v. Lou Fusz Automotive Network, Inc., 401 F.3d 876, 882 (8th Cir. 2005). 79. Defendant acted either intentionally or negligently in creating the nuisance. 80. Plaintiff and each class member suffered damages as a result of receipt of the 13 unsolicited faxes. 81. Defendant should be enjoined from continuing its nuisance. 89. Plaintiff incorporates ¶¶ 1-20. 9. On December 08, 2017, James L. Orrington, II, D.D.S., P.C., received an unsolicited fax advertisement attached as Exhibit A on its facsimile machine. The fax provided the name and address and telephone number of defendant Mesa Laboratories, Inc. 90. Plaintiff and the class members were entitled to possession of the equipment they used to receive faxes. 91. Defendant’s sending plaintiff and the class members unsolicited faxes interfered with their use of the receiving equipment and constitutes a trespass to such equipment. Chair King v. Houston Cellular, 95cv1066, 1995 WL 1693093 at *2 (S.D. Tex. Nov. 7, 1995) (denying a motion to dismiss with respect to plaintiff's trespass to chattels claim for unsolicited faxes), vacated on jurisdictional grounds 131 F.3d 507 (5th Cir. 1997). 92. Defendant acted either intentionally or negligently in engaging in such conduct. 93. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes. 94. Defendant should be enjoined from continuing trespasses. 95. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiff brings this claim on behalf of a class, consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant Mesa Labotories, promoting its goods or services for sale (d) which did not contain a compliant opt out notice. By “compliant opt out notice” is meant one (i) on the first page of the fax (ii) that states that the recipient may make a request to the sender not to send any future unsolicited advertisements to a telephone facsimile machine (iii) that states that failure to comply, within the shortest reasonable time, as determined by the Federal Communications Commission, is 16 unlawful; (iv) that provides instructions on how to submit an opt out request and (v) that includes a domestic contact telephone and facsimile machine number and a cost-free mechanism for the recipient to transmit such a request to the sender that permit a request to be made at any time on any day of the week. 96. The class is so numerous that joinder of all members is impractical. Plaintiff alleges on information and belief that there are more than 40 members of the class. 97. There are questions of law and fact common to the class that predominate over any questions affecting only individual class members. The predominant common questions include: a. Whether defendant engaged in a pattern of sending unsolicited fax advertisements; b. Whether defendant thereby committed a trespass to chattels. 98. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither plaintiff nor plaintiff’s counsel have any interests which might cause them not to vigorously pursue this action. 99. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 100. 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 prosecution of separate claims against defendant is small because it is not economically feasible to bring individual actions. 17 101. Management of this class action is likely to present significantly fewer difficulties that those presented in many class actions, e.g. for securities fraud. WHEREFORE, plaintiff requests that the Court enter judgment in favor of plaintiff and the class and against defendant for: a. Appropriate damages; b. An injunction against the further transmission of unsolicited fax advertising; c. Costs of suit; d. Such other or further relief as the Court deems just and proper. /s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Cathleen M. Combs James O. Latturner Dulijaza Clark INTRODUCTION

win

14. Plaintiff is, and at all times mentioned herein was, the subscriber of the cellular telephone number (602) ***-4581 (the “4581 Number”). The 4581 Number is, and at all times mentioned herein was, assigned to a cellular telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii). 27. Class Definition. Plaintiff brings this civil class action on behalf of herself individually and on behalf of all other similarly situated persons as a class action pursuant to Fed. R. Civ. P. 23. The “Class” which Plaintiff seeks to represent is comprised of and defined as follows: All persons within the United States who, between January 2, 2015 and the date of the Court’s order granting class certification, received one or more text message(s) from any of the Defendants or an affiliate, subsidiary, or agent of any of the Defendants, sent via technology provided by Opn Sesame, LLC. 47. Plaintiff incorporates by reference paragraphs 1-41 of this Class Action Complaint as if fully stated herein. 48. The foregoing acts and omissions by Defendants constitute knowing or willful violations of the TCPA, including but not limited to violations of each of the above-cited provisions of 47 U.S.C. § 227. 49. As a result of alleged knowing or willful violations of 47 U.S.C. § 227, Plaintiff and all Class members are entitled to, and do seek, injunctive relief prohibiting such conduct violating the TCPA in the future. 50. As a result of Defendants’ knowing or willful violations of 47 U.S.C. § 227, Plaintiff and all Class members are also entitled to, and do seek, treble damages of up to $1,500.00 for each and every text message transmitted in violation of the TCPA pursuant to 47 U.S.C. § 227(b)(3). 51. Plaintiff and Class members also seek an award of attorneys’ fees and costs. KNOWING AND/OR WILLFUL VIOLATION OF THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. § 227) VIOLATION OF THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. § 227)

lose

10. The Defendant is in the business of filing counterclaims and collecting debts. 11. The Sessions Firm are third party debt collectors pursuant to the FDCPA. 13. On December 29, 2016, Plaintiff filed a lawsuit against Credit One Bank in the Southern District of Florida asserting violations under the TCPA and FCCPA. 14. Nearly one month later, by letter dated January 19, 2017, Plaintiff was notified that his credit card account with Credit One Bank, ending in 0413, with a balance in the amount of $991.00 was sold on or about January 17, 2017, and all rights thereunder assigned to a new owner, LVNV Funding, LLC. (Attached hereto as Exhibit A) 15. Despite selling and assigning all of their rights to the amounts due on the credit card account, four months later, on May 18, 2017, Credit One Bank, by and through The Sessions Firm, LLC, filed a Counter-Claim against Plaintiff in AAA Case No. 01-17-0001-4954, in an effort to collect the same $991.00 alleged debt that was previously sold and assigned to a new owner. (hereinafter referred to as “the Counter-Claim”). 16. The Counter-Claim filed by The Sessions Firm seeks to collect an alleged debt when Defendants knew Plaintiff no longer owed any money to Credit One Bank as the debt was previously assigned, sold and Credit One Bank has no further rights to the debt or to enforce the debt. 17. Furthermore, Defendant seeks to collect an alleged debt that Sessions knows is not owed by Plaintiff, as the amount is based on unlawfully incurred fees and interest. 19. Further, the Counter-Claim brought by Sessions subjected Plaintiff to litigation unlawfully and unnecessarily, which caused significant stress, embarrassment, anxiety, and emotional distress. 20. The Counter-Claim was filed as a form of harassment and to leverage a settlement in Plaintiff’s original lawsuit against Credit One Bank that was defended by Sessions. 21. All conditions precedent to bringing this action have been satisfied. 22. Plaintiff incorporates Paragraphs one (1) through twenty-one (21). 23. At all times relevant to this action, Defendant is subject to and must abide by 15 U.S.C. § 1692 et seq. 24. Defendant engaged in an act or omission prohibited under 15 U.S.C. § 1692d(5) by willfully engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. 25. Defendant engaged in an act or omission prohibited under 15 U.S.C. § 1692e(2)(A) by using false, deceptive, or misleading representation or means to collect a debt, namely through the false representation of the character, amount, or legal status of the alleged debt. 26. Defendant engaged in an act or omission prohibited under 15 U.S.C. § 1692f(1) by using unfair and unconscionable means to collect or attempt to collect any debt. 28. Plaintiff incorporates Paragraphs one (1) through twenty-one (21). 29. At all times relevant to this action, Defendant is subject to and must abide by the law of Florida, including Florida Statute § 559.72. 30. Defendant has violated Florida Statute § 559.72(7) by willfully engaging in conduct which can reasonably be expected to abuse or harass the debtor or any member of his family. 31. Defendant violated Florida Statute § 559.72(9) by attempting to enforce a debt when Defendant knew that the debt is not legitimate or assert the existence of some legal right when Defendant knows that right does not exist. 33. Plaintiff restates each of the allegations in all other paragraphs as if fully stated herein. 34. Plaintiff, individually and on behalf of all others similarly situated, brings the above claims on behalf of a Class. 35. In this case, Plaintiff seeks to certify classes and sub-classes, subject to amendment, as follows: 36. The Proposed Class consists of: (1) All persons in the United States (2) against whom the Defendant has filed a claim or counterclaim in any legal proceeding (3) where the rights to the alleged claim or counterclaim were sold and/or assigned either prior to asserting the counterclaim, or after the counterclaim was asserted and where Defendant continued to pursue the claim after such sale and/or assignment, (4) within 2 years of the date of filing this complaint. 37. Excluded from the Proposed Class are any persons that have already been released as part of a prior release or judgment. 38. Defendant has caused the Class actual harm, not only because the Class was subjected to the aggravation that necessarily accompanies responding to a lawsuit, but also because said class members incur legal fees and costs in defending such claims. 40. Plaintiff is presently unaware of the exact number of members in the Class, but based upon the size and national scope of Defendant’s business, Plaintiff reasonably believes that the class members’ number at a minimum is in the thousands based upon the number of cases in which Defendant is involved in court and in arbitral proceedings. 41. Plaintiff and all members of the Class have been harmed by Defendant’s actions. 42. This Class Action Complaint seeks money damages and injunctive relief. 43. The joinder of all class members is impracticable due to the size and relatively modest value of each individual claim. 44. The disposition of the claims in a class action will provide substantial benefits to both the parties and the Court in avoiding a multiplicity of identical suits, and will avoid conflicting or inconsistent results or judgments with respect to identical transactions, parties and causes of action. The class can be easily identified through records maintained by Defendant. 46. As a person against whom Defendant asserted a claim which had been previously sold and assigned, Plaintiff asserts claims that are typical of the members of the Class. 47. Plaintiff will fairly and adequately represent and protect the interests of the Class, and Plaintiff does not have an interest that is antagonistic to any member of the Class. 48. Plaintiff has retained counsel experienced in handling class action claims involving violations of federal and state consumer protection statutes such as the FDCPA and FCCPA. 49. A class action is the superior method for the fair and efficient adjudication of this controversy. 50. Class-wide relief is essential to compel Defendant to comply with the FDCPA and FCCPA. The interest of class members in individually controlling the prosecution of separate claims against Defendant is small because the statutory damages in an individual action for violation of these statutes are small relative to the time, effort, and resources necessary to maintain an individual action. 51. Management of these claims is likely to present significantly fewer difficulties than are presented in many class claims because the liability of the Defendant can be readily ascertained from the records in the Defendant’s possession. 52. Defendant has acted on grounds generally applicable to the Class, thereby making final injunctive relief and corresponding declaratory relief with respect to the class as a whole appropriate. 6. Plaintiff is an “alleged debtor.” 7. The alleged debt arose out of a credit card transaction with Credit One Bank, a corporation which was formed in Nevada with its principal place of business at 585 Pilot Road, Las Vegas, NV 89119, and related to a Credit One Bank credit card account that was primarily used for Mr. Beitler’s personal, family, or household purposes. 8. The Defendant Sessions has filed counterclaims to collect debts on behalf of Credit One Bank and other creditors. 9. Sessions has filed counterclaims in other Credit One Bank and other Creditor cases, and regularly files counterclaims to collect debts. Violation of the FCCPA by The Sessions Firm, LLC Violation of the FDCPA by The Sessions Firm, LLC

win

26. Based in New Mexico, MVCI is an oil and gas service company providing flowback and well testing services to clients throughout the United States. 27. To provide these services, MVCI employs numerous Field Personnel who set up, operate, and break down MVCI’s equipment in the oilfield. 28. Field Personnel spend a majority of their time rigging up separators, connecting flow iron, installing manifolds, and building other oil and gas equipment. 29. Field Personnel also manually manipulate the equipment they set up to regulate pressure in the well, control various flow rates, and separate various drilling byproducts such as oil, gas, water, or condensate. 30. When the job is complete, Field Personnel rig down all the equipment they set up or were operating. 31. Field Personnel may also test various parts of the well using hydraulic wrenches, pressure gauges, or torque wrenches. 32. The job duties Field Personnel perform on a daily basis are significantly manual labor intensive. 33. Field Personnel do not require advanced skill or intense study to be able to do the job in accordance with MVCI’s policies or procedures. 34. Most Field Personnel learn how to flowback or well test through on the job training. 35. Further, Field Personnel do not perform high level decision making. 37. Field Personnel do not exercise independent judgment or discretion in the way they perform their job. In fact, MVCI requires Field Personnel to strictly comply with the its policies, procedures, and training. 38. Field Personnel do not supervise two or more employees for a total of 80 or more hours a week. 39. With these job duties, Field Personnel are clearly non-exempt under the FLSA and 53. As described above, Parra and all Class Members have been victimized by MVCI’s pattern, practice, and/or policy, which is in willful violation of the FLSA and NMMWA. 54. Many Class Members worked alongside Parra and reported that they were paid in the same manner and were not properly compensated for all hours worked as required by the FLSA and

win

FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681g(a) (PLAINTIFF v. LEXISNEXIS) 11. LexisNexis is among the biggest of this nation’s employment background screening companies, i.e., those that provide “consumer reports,” as defined by 15 U.S.C. § 1681a(d)(1)(B), to prospective employers. 13. The subscribing customer-participants in ESTEEM include some of the nation’s largest retail chains, such as CVS and Rite Aid. 14. Participation in the ESTEEM network is governed by an “ESTEEM Member Service Agreement,” executed by the individual corporate customer and LexisNexis. 15. ESTEEM is operated in accordance with operating standards which are called the “Rules of Participation.” 16. Under the Rules of Participation, and as a contractual quid pro quo for being able to initiate an ESTEEM “inquiry” for the purpose of checking on the background of a job applicant, ESTEEM subscribers such as CVS are required to “contribute” new records of theft incidents involving their own employees or customers. 17. The Rules of Participation define a reportable theft incident as containing the following four characteristics: • The incident must involve a theft of merchandise, cash or company property, but a termination for non-criminal reasons or as a result of a company loss not strictly related to theft or fraud committed by that consumer should not get reported. • The individual who is the subject of the report must be at least sixteen (16) years of age at the time of the incident. • The dollar value of the particular theft must be at least $5. • Unless the employer has actually referred the incident for criminal prosecution, it must obtain and send to LexisNexis a “signed admission statement.” 19. When an ESTEEM-participating employer customer “contributes” a new ESTEEM report to LexisNexis, this submission consists of two parts. The first is a data transmission, composed of several defined fields of information concerning the incident (name, address, birth date and Social Security number of the purported thief; the date and store location of the incident; and the amount of the theft). The second is an electronic copy of a “signed admission statement” regarding the incident. (LexisNexis refers to the statement as a Voluntary Admission Statement or “VAS” and that term will be used hereafter.) 20. LexisNexis creates an ESTEEM record in its system for each new incident report contributed by a customer employer. This record consists of data pertaining to the identity of the consumer subject of the report; data about the specific incident; a classification by LexisNexis of the type of theft described in the VAS; and an electronic image of the VAS. 21. LexisNexis permits its customers, such as CVS, to submit so-called “admission statements” without providing copies to the employee and without disclosing to the employee that they intend to furnish information about the incident to a nationwide theft database. In fact, LexisNexis knows that many of its customers would prefer not providing copies to employees at the time the “admissions” are procured and not disclosing the intended purpose of those statements, and has made a deliberate decision not to interfere with its customers’ discretion in this regard. 23. The first time LexisNexis receives an ESTEEM inquiry regarding an applicant for employment that yields a “match” with an ESTEEM record on file, it conducts a procedure it calls “verifying” the VAS. This “verification” activity is conducted by a small clerical unit located in Charlotte, North Carolina. The activity consists of comparing three electronic files in its system: (1) the personal data contained within the “inquiry” received from the customer that is considering the employment application; (2) the incident data originally provided by the contributing employer and (3) the VAS from the contributing employer supposedly supporting the incident report. 24. If the clerk conducting the “verification” confirms that the consumer named in the inquiry matches an incident report and that the date and amount of the supposed theft matches a VAS which contains the date and dollar amount listed in the report, she will reclassify the VAS in the ESTEEM system as a “verified” admission statement. 25. During the relevant time period, the ESTEEM verification clerks were also supposed to confirm that the text of the VAS includes some form of acceptance of responsibility by the consumer for an employer loss, but they did not have the discretion to judge whether the acceptance of responsibility in the VAS consituted an actual admission of theft. As a result, LexisNexis routinely has classified non-theft-related losses resulting, for example, from employee carelessness, inattention or work-rule violations, as thefts. 57. Plaintiff brings this action on behalf of a class defined as follows: All employees or applicants for employment of Defendant Rite Aid residing in the United States (including all territories and other political subdivisions of the United States) who were the subject of a Background Report obtained from LexisNexis that was used by Rite Aid to make an adverse employment decision regarding such employee or applicant for employment, within two years prior to the filing of this action, and for whom Rite Aid failed to provide the employee or applicant a copy of their consumer report or a copy of the FCRA summary of rights at least five business days before it took such adverse action. 59. Existence and Predominance of Common Questions of Law and Fact. FED. R. CIV. P. 23(a)(2). 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 Rite Aid failed to provide each employee or applicant for employment a copy of their consumer report at least five business days before it took an adverse action based upon the consumer report; b) Whether Rite Aid failed to provide each employee or applicant for employment a copy of their written notice of FCRA rights at least five business days before it took an adverse action based upon the consumer report; c) Whether Rite Aid acted willfully in disregard of the rights of employees and applicants in its failure to permit its employees and automated systems to send consumers their full consumer files and a written statement of their FCRA rights. 60. Typicality. FED. R. CIV. P. 23(a)(3). Plaintiff’s claims are typical of the claims of each Class member. Plaintiff has the same claims for statutory and punitive damages that she seeks for absent class members. 62. Predominance and Superiority. FED. R. CIV. P. 23(b)(3). Questions of law and fact common to the Class members predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication of the controversy. The statutory and punitive damages sought by each member are such that individual prosecution would prove burdensome and expensive given the complex and extensive litigation necessitated by Rite Aid’s conduct. It would be virtually impossible for the members of the Class individually to redress effectively the wrongs done to them. Even if the members of the Class themselves could afford such individual litigation, it would be an unnecessary burden on the courts. Furthermore, individualized litigation presents a potential for inconsistent or contradictory judgments and increases the delay and expense to all parties and to the court system presented by the complex legal and factual issues raised by Rite Aid’s conduct. By contrast, the class action device will result in substantial benefits to the litigants and the Court by allowing the Court to resolve numerous individual claims based upon a single set of proof in a unified proceeding. VI. 63. Plaintiff realleges and incorporates by reference all preceding allegations. 64. Plaintiff is a “consumer,” as defined by the FCRA, 15 U.S.C. § 1681a(c). 65. LexisNexis Background Reports are “consumer reports” within the meaning of 15 U.S.C. § 1681a(d). 67. For purposes of this requirement, an “adverse action” includes “any . . . decision . . . that adversely affects any current or prospective employee.” 15 U.S.C. § 1681a(k)(1)(B)(ii). 68. Defendant Rite Aid is a “person” that regularly uses LexisNexis Background Reports for employment purposes. 69. The FCRA requires Rite Aid, as a user of consumer reports for employment purposes, before taking adverse action based in whole or in part on the report, to provide to the consumer to whom the report relates, a copy of the report and a written description of the consumer’s rights under the FCRA. 15 U.S.C. § 1681b(b)(3)(A)(i), (ii). 71. Plaintiff realleges and incorporates by reference all preceding allegations. 72. Lexis Nexis is a “consumer reporting agency,” as defined by FCRA, 15 U.S.C. § 1681a(f). 73. At all times pertinent hereto, the Plaintiff was a “consumer” as that term is defined by 15 U.S.C. § 1681a(c). 74. At all times pertinent hereto, the above-mentioned consumer reports were “consumer reports” as that term is defined by 15 U.S.C. § 1681a(d). 75. Plaintiff realleges and incorporates all other factual allegations set forth in the Complaint. 76. LexisNexis violated 15 U.S.C. §1681e(b) by failing to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of Plaintiff’s consumer reports and the files it published and maintained. 77. As a result of LexisNexis violations of 15 U.S.C. §1681e(b), Plaintiff suffered actual damages including but not limited to: loss of employment income and benefits, damage to reputation, embarrassment, humiliation and other mental, physical and emotional distress. 78. The violations by LexisNexis were willful rendering Defendant liable for punitive damages in an amount to be determined by the Court pursuant to 15 U.S.C. §1681n. In the alternative, LexisNexis was negligent, which entitles Plaintiff to recovery under 15 U.S.C. §1681o. 80. Plaintiff realleges and incorporates by this reference all preceding allegations. 81. LexisNexis, in its capacity as a “consumer reporting agency,” is required by the FCRA, 15 U.S.C. § 1681g(a), to furnish to a requesting consumer “all information in the consumer’s file at the time of the request.” 82. The information that LexisNexis maintains regarding consumers in its ESTEEM database consists of (a) uniformly submitted electronic fields of information about the supposed theft incident and (b) the written VAS that the ESTEEM member who “contributes” the information represents to be a signed admission about the supposed theft. 83. Despite having received a request from Plaintiff for a copy of her individual file, LexisNexis willfully failed to provide her with a copy of her signed VAS. 85. The failure of LexisNexis to provide Plaintiff with the actual “admission statement” forming the basis of the ESTEEM theft report is particularly egregious in that, by such failure, LexisNexis systematically undermined the possibility of a meaningful consumer dispute by requiring Plaintiff to dispute the accuracy of an “admission statement” it did not let her see. 86. Plaintiff is entitled to recover actual damages, statutory damages, costs and attorney’s fees from LexisNexis in an amount to be determined by the Court pursuant to 15 U.S.C. §1681n and §1681o. WHEREFORE, Plaintiff seeks judgment in Plaintiff’s favor and damages against Defendant LexisNexis, for the following requested relief: A. Actual damages; B. Statutory damages; C. Punitive damages; D. Costs and reasonable attorney’s fees pursuant to 15 U.S.C. §§ 1681n and 1681o; and E. Such other and further relief as may be necessary, just and proper. 87. Plaintiff realleges and incorporates all other factual allegations set forth in the Complaint. 89. As a result of LexisNexis’ violations of 15 U.S.C. §1681i(a)(1), Plaintiff suffered actual damages, including but not limited to: loss of employment income and benefits, damage to reputation, embarrassment, humiliation and other emotional and mental distress. 90. LexisNexis’ violations were willful, rendering Defendant liable for punitive damages in an amount to be determined by the Court pursuant to 15 U.S.C. §1681n. In the alternative, LexisNexis was negligent which entitles Plaintiff to recovery under 15 U.S.C. §1681o. 91. Plaintiff is entitled to recover actual damages, statutory damages, costs and attorney’s fees from LexisNexis in an amount to be determined by the Court pursuant to 15 U.S.C. §1681n and §1681o. WHEREFORE, Plaintiff seeks judgment in Plaintiff’s favor and damages against Defendant LexisNexis, for the following requested relief: A. Actual damages; B. Statutory damages; C. Punitive damages; D. Costs and reasonable attorney’s fees pursuant to 15 U.S.C. §§ 1681n and 1681o; and E. Such other and further relief as may be necessary, just and proper. 92. Plaintiff realleges and incorporates by this reference all preceding allegations. 94. As a result of LexisNexis’ violations of 15 U.S.C. §1681i)a)(5)(A), Plaintiff suffered actual damages, including but not limited to: loss of employment, damage to reputation, embarrassment, humiliation and other mental and emotional distress. 95. LexisNexis’ violations were willful, rendering Defendant liable for punitive damages in an amount to be determined by the Court pursuant to 15 U.S.C. §1681n. In the alternative, LexisNexis was negligent, entitling Plaintiff to recover under 15 U.S.C. §1681o. A. Background: LexisNexis’s Screening Activities, Including ESTEEM FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681b(b)(3) (CLASS CLAIM v. RITE AID) FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681e(b) (PLAINTIFF v. LEXISNEXIS) FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681i(a)(1) (PLAINTIFF v. LEXISNEXIS) FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681i(a)(5)(A) (PLAINTIFF v. LEXISNEXIS)

lose

2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is an herb, aromatherapy and health company that owns and operates www.mountainroseherbs.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions, inquire about pricing, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 24. On multiple occasions, the last occurring in March of 2020, Plaintiff visited Defendant’s website, www.mountainroseherbs.com, to make a purchase. Despite her efforts, however, Plaintiff was denied a shopping experience similar to that of a sighted individual due to the website’s lack of a variety of features and accommodations, which effectively barred Plaintiff from being able to determine what specific products were offered for sale. 26. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff and similarly situated visually impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This is a problem for the visually impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 28. The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to her original search. 29. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from equal access to the Website. 32. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 33. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 43. Common questions of law and fact exist amongst the Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYCHRL. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 47. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 59. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 61. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 62. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 65. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 71. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant offers the commercial website www.doyle.com to the public. The website offers features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. The goods and services offered by Defendant include, but are not limited to the following, which allow consumers to: find information about auction house locations and hours of operation, the goods being auctioned, appraisal services, bidding, auction terms and conditions, and access to various other goods and services. 22. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s auction houses. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s auction houses and the numerous goods, services, and benefits offered to the public through the Website. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 26. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 27. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical auction house locations, and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical auction house on its Website and other important information, preventing Plaintiff from visiting the locations to view items, get appraisals or bid at auctions. 29. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 30. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 31. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 33. Because Defendant’s Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that their permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 34. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view auction items, locate Defendant’s auction house locations and hours of operation, shop for and otherwise research related goods, and make bids available via the Website. 36. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 39. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 41. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 42. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 44. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 45. Judicial economy will be served by maintaining their lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 46. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 47. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 49. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 50. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 51. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 53. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 54. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 56. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 58. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 59. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 60. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 62. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 64. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub- Class Members will continue to suffer irreparable harm. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 71. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of the state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 73. Defendant’s New York State physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s Website is a service, privilege or advantage of Defendant and its Website is a service that is by and integrated with these establishments. 74. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 75. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 76. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 78. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 79. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 80. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 81. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 83. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishments. 84. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 85. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. The inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 86. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 88. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 89. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 90. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 91. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 92. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 94. Plaintiff, on behalf of herself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 95. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 96. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL

win

(Willful and Knowing Violation of 47 U.S.C. § 227, et seq. – Telephone Consumer Protection Act) (on behalf of Plaintiff and the Class) 13. In early 2018, Nelly Garcia provided her cellular telephone number to Fashion Nova when she purchased clothing items at its website. 14. On or about June 20, 2018 at approximately 6:06 p.m. Central Standard Time (CST), Ms. Garcia received the following text message from Fashion Nova at her cellular telephone number ending in “-5462”: 16. None of the above-described text messages addressed her by name. 17. Ms. Garcia has never provided her consent, orally or in writing, to receive text advertisements from Fashion Nova on her cellular phone. 18. Class members received the same or similar unsolicited text advertisements. 19. Defendant did not obtain prior express written consent from Plaintiff or Class members to send the above-described text messages to their cellular telephones. 20. Plaintiff and Class members suffered injuries in the form of invasion of privacy, aggravation, and nuisance. 21. The text messages alleged herein were exclusively made by, or on behalf of Defendant. 22. Defendant was and is aware that it was making the above-described text message calls on a widespread basis to consumers who had not provided prior express written consent to receive them/ 24. Numerosity: The exact number of Class members is unknown and not available to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant has sent text messages to thousands of consumers who fall into the definition of the Class. Class members can be identified through Defendant’s records. 26. 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 message calls. 27. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class, and has retained counsel competent and experienced in complex litigation and class actions. Plaintiff’s claims are representative of the claims of the other members of the Class. That is, Plaintiff and the Class members sustained damages as a result of Defendant’s conduct and received substantially the same text messages. Plaintiff also has no interests antagonistic to those of the Class, and Defendant has no defenses unique to Plaintiff. Plaintiff and her counsel are committed to vigorously prosecuting this action on behalf of the members of the Class, and have the financial resources to do so. Neither Plaintiff nor his counsel has any interest adverse to the Class. 29. Plaintiff reserves the right to revise the foregoing "Class Allegations" and "Class Definition" based on facts learned through additional investigation and in discovery. 30. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 31. Defendant made unwanted, unsolicited text message advertisements to Plaintiff and the Class members’ cellular telephones without their prior express written consent. 32. Defendant sent these text messages to Plaintiff and the Class' cellular telephone numbers using equipment with the ability to store or produce cellular telephone numbers to be called using a random or sequential number generator and to dial such numbers without human intervention. 33. The equipment used by Defendant to send text messages to Plaintiff and Class’ cellular telephone numbers qualifies as an ATDS as defined by 47 C.F.R. § 64.1200(f)(2) and 47 U.S.C. § 227(a)(1). 35. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the putative Class suffered actual damages and also have had their rights to privacy adversely impacted. Plaintiff and the Class are therefore entitled to, among other things, a minimum of $500 in statutory damages for each such violation under 47 U.S.C. § 227(b)(3)(B). 36. Because Defendant’s misconduct was willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(b)(3), treble the amount of statutory damages recoverable by the Plaintiff and the other members of the putative Class. 37. Alternatively, because Defendant’s misconduct was negligent, the Court should, pursuant to 47 U.S.C. § 227(b)(3), award statutory damages recoverable by Plaintiff and the other members of the putative Class. 38. Additionally, as a result of Defendant’s unlawful conduct, Plaintiff and the other members of the Class are entitled to an injunction under 47 U.S.C. § 227(b)(3)(A) and § 227(c)(5)(A) to ensure that Defendant’s violations of the TCPA do not continue into the future.

win

X.  DEFENDANTS’ FRAUDULENT CONCEALMENT TOLLED THE APPLICABLE STATUES OF LIMITATIONS AND DELAYED ACCRUAL OF PLAINTIFF'S

lose

12. Without a brick-and-mortar store, most online payday and other predatory lenders rely heavily on marketing and advertising to prey on consumers. 1 13. In order to find potential customers, Internet payday lenders pay companies known as "lead generators," which are businesses that collect information on potential borrowers searching for marketing such consumers as potential targets for payday lenders. 14. Lead generators pay high foes to several sources to acquire borrower information, including consumer reporting agencies. Often, lead generators use a non-Big-3 consumer reporting agency,2 such as Clarity, because it does not impose the typically more demanding verification and "permissible purpose" restrictions usually followed by the publically scrutinized Big-3 CRAs. 15. Lead generators primarily obtain the consumer reports to review consumers' personal financial information in order to obtain details of the consumers' lifestyle, mode of living, whether the consumer has recently applied for other subprime credit, and other evidence of a vulnerability to high-cost credit. 17. Typically, lead generators repeatedly resell the same applicant's infonnation to different companies after an exclusivity period for the "first-look buyer," who pays a higher cost for a brief exclusivity period in order to be the first lender to contact the consumer. In fact, often the same data is resold with the lead generator falsely claiming such exclusivity to its customers. 18. Often times, lists-such as a list of people who have applied for payday loans- are sold and then resold by brokers, especially if a company does not wish to make a loan. 19. Ultimately, this practice leads to unending harassment and solicitation by numerous online lenders and data brokers as soon as a consumer does a basic search on the Internet for potential credit. 20. As part of this process, onlinc lenders, data brokers, and lead generators also unlawfully obtain consumers' credit reports for several purposes, including to detennine whether a consumer is still actively looking for an internet loan, whether the consumer received an internet loan, or whether the consumer may qualify or be in need of an additional loan. 21. As reflected by the credit reports of the named Plaintiffs, this results in the improper access of a consumer's credit report by multiple entities for months, often years, after a consumer applies for a single internet loan by entities that a consumer never contacted, nor authorized to obtain their private financial details. Commo11 Allegatio11s as to Clarity a11d Clickspeed 23. As part of this process, Clarity lets certain customers access its consumer database for impermissible purposes, primarily to allow its customers to identify potential payday lending opportunities and then sell the identities of those consumers as "leads". 24. Consistent with its unlawful procedures, Clarity allowed Clickspeed Marketing, Inc. to obtain consumer reports regarding the Plaintiffs and the putative class members. 25. Upon information and belief, Clarity also entered into a contract with Clickspeed in May 2009 where Clarity expressly acknowledge that Clickspeed would use consumer reports from Clarity for the purpose of lead generation and mass marketing. 26. Clarity and Clickspeed's contract violated§§ 1681b and 1681e(a) of the FCRA. 27. Moreover, a basic Internet search on Clickspeed shows that was always a lead generation company rather than a lender. For example, on its homepage, www.clickspeed.com, Clickspeed describes itself as "a leader in online business to consumer lead generation, delivering marketing solutions through technology driven products such as: hosted lead management solutions, data monetization services, marketing and transactions email services, affiliate network and marketing programs, and integrated outsourced phone center solutions."3 29. Despite this available knowledge, Clarity regularly allowed Clickspeed to access individual consumers' reports dozens of times within a single hour. Where such repeated uses would ordinarily serve as warning signs of misuse of consumer reports, Clarity continued to allow unfettered access to its database without consideration of these unusual use patterns. 30. One of the purposes for which the FCRA permits access to a consumer's credit report is for sending marketing "pre-screen" offers for specific credit terms. This provision - 15 U.S.C. § t 681b(c)(B)- requires a specific "firm offer of credit" and other specific disclosures. 31. From all of 2012 and into 2013, Clarity classified Clickspeed inquiries as "PC" to "Screen Consumer- In connection with pre-screen back-end verification that determines if the consumer who accepts pre-screen firm offer still meets the specific criteria" despite knowing that Clickspced never makes any firm (or other) offers of credit to consumers and certainly never attempted to comply with§ 1681 b(c)(B). 32. By example, Clarity provided Ms. Jensen's consumer report to Clickspeed at least 11 times, including multiple occasions within a single hour and on at least one occasion within one minute of one another within the five years prior to filing the Complaint. 33. Similarly, Clarity provided Ms. Jones' consumer report to Clickspeed at least 8 times, including multiple occasions within a single hour and on two occasions multiple times in the same minute within the five years prior to filing the Complaint. 35. None of the Plaintiffs ever applied for credit with Clickspeed or provided authorization to Clickspeed to allow it to access their respective consumer reports. 36. Based on the foregoing, Clarity violated the FCRA by furnishing the Plaintiffs and putative class members' consumer reports to Clickspeed without a permissible purpose in violation of§ 1681 b. 37. Moreover, Clarity's conduct also violated § 168lc(a), which prohibits a consumer reporting agency from furnishing a consumer report if it has "reasonable grounds for believing that the consumer report will not be used for a purpose" listed in § 1681 b. 38. Upon information and belief, Clarity furnished in excess of one hundred thousand consumer reports to Clickspeed, including the consumer reports of each of the Plaintiffs. 39. As a result of this conduct, Plaintiffs and the class members suffered concrete injuries. In addition to having their privacy invaded, Plaintiffs and the class members have had their personal identifying and financial information unnecessarily disseminated to Clickspeed, who in tum disseminated this information to others. Clarity has subjected class members to an increased risk of identity theft and/or a data breach, resulting in consequential anxiety and emotional distress. These injuries arc particularized and concrete, but difficult to quantify, rendering the recovery of class statutory damages ideal and appropriate. l11volveme11t a11d Pers011a/ Liability of Defe11da11ts Halli11a11 a11d Ra1111ey 41. Similarly, Ranney was the president, chief executive officer and co-owner of Clarity, who had the managerial responsibilities for the activities of Clarity, including direct personal involvement of the unlawful conduct described above.4 42. From at least 1997 until at least 2013, Hallinan himself owned, operated, controlled, and financed numerous business entities (at least 20), which issued, serviced, funded, and collected debt from small, short-term, high-interest pay-day loans. 43. In addition, Hallinan created and ran Apex I Lead Generators, Inc., obviously by its name a lead generator, which gathered and resold personal information about consumers to enable his companies and others to target them for illegal Internet loans. 44. Hallinan thus desired to marshal the personal consumer information they had obtained in operating these many payday lending companies and create Clarity as a new revenue stream by adding all of the information from the Hallinan payday lenders to the Clarity database. 45. Hallinan retained an approximately one-third interest in Clarity, but tried to keep his ownership confidential to avoid discovery of the connection between his own payday lending business and Clarity. 47. Upon information and belief, Hallinan and Ranney knew and facilitated Clickspeed's efforts to obtain consumer reports for the purpose of lead generation and mass marketing. Most notably, Hallinan and Ranney participated in the decision to enter into the contract that allowed Clickspeed to obtain consumer reports from Clarity for the purpose of lead generation. 48. Hallinan and Ranney had full knowledge that Clickspeed did not have a permissible purpose as required by § 1681 b of the FCRA and that it would sell information obtained from Clarity to payday lenders interested in targeting potentially vulnerable consumers. 49. Upon information and belief, Hallinan and Ranney made the decision to allow Clickspeed to unlawfully access Clarity's database in order to gain access to data in the possession of Clarity to expand its database and, in turn, improve the marketability of its own products and the compensation received by Hallinan and Ranney. 50. Upon information and belief, Hallinan and Ranney have siphoned off most, if not all, of these profits, leaving Clarity deliberately undercapitalized to satisfy the judgment it faces for the fraudulent and deceptive conduct alleged herein. 51. Accordingly, Hallinan and Ranney may be held personally responsible for their direct involvement in the unlawful conduct and/or by piercing the veil of Clarity because it was used to perpetrate the fraud, to gain an unfair advantage and to commit the injustice alleged herein. Clarity Concealed C/ickspeed Inqlliries 011 Plaintiffs' Co11s11mer Reports 53. In response to Ms. Jensen's request, Clarity furnished Ms. Jensen with a copy of her file, which intentionally concealed that Clarity furnished Ms. Jensen's credit report to Clickspeed on at least 11 occasions. 54. As demonstrated by Ms. Jensen's file disclosure, Clarity consciously omitted the Clickspeed inquiries while at the same time providing a record of 56 other inquiries from September 15, 2015, through March 16, 2012. During this timeframe, Clarity furnished Ms. Jensen's report to Clickspeed on multiple occasions. 55. Rather than disclosing this information in accordance with § 1681 g(a){l), Clarity concealed its unlawful conduct and deprives consumers of this congressionally-mandated information in violation of the FCRA. 56. Similarly, Plaintiffs Ms. Jones and Ms. Greene requested copies of their files from Clarity in April 2016. 57. In response to these requests, Clarity furnished Plaintiffs Ms. Jones and Ms. Greene with a copy of each of their consumer files, which intentionally concealed any inquiries related to Clickspeed in each of their files. 58. Plaintiffs incorporate every allegation above as if set forth herein in full. 60. Numerosity. Fed. R. Civ. P 23(a)(l). Upon information and belief, Plaintiff.Ii allege that the class members are so numerous that joinder of all is impractical. The names and addresses of the class members are identifiable through the internal business records maintained by Defendant and the class members may be notified of the pcndency of this action by published and/or mailed notice. 61. Predominance of Common Questions of Law and Fact. Fed. R. Civ. P. 23(a)(2). Common questions of law and fact exist as to all members of the putative class, and there are no factual or legal issues that differ between the putative class members. These questions predominate over the questions affecting only individual class members. The principal issues are: (a) Whether Clarity, as a matter of common practice, furnished consumer reports to Clickspeed for impermissible purposes as established in § 1681 b; (b) whether Clickspeed had a permissible purpose to obtain the Plaintiffs' and putative class members' consumer reports; (c) whether the reports Clarity furnished were sold when Clarity had reasonable grounds for believing that the consumer report would not be used for a FCRA permitted purpose; ( d) whether Hallinan and Ranney are personally responsible as a result of their personal involvement with the fraudulent conduct; (e) whether the violation was negligent, reckless, knowing, or intentionally committed in conscious disregard of the rights of the Plaintiffs and the putative class members. 63. Adequacy of Representation. Fed. R. Civ. P. 23(a)(4). Plaintiffs are adequate representatives of the putative class, because their interests coincide with, and arc not antagonistic to, the interests of the members of the Class they seek to represent; they have retained counsel competent and experienced in such litigation; and they have and intend to continue to prosecute the action vigorously. Plaintiffs and their counsel will fairly and adequately protect the interests of the members of the Class. Neither Plaintiffs nor their counsel have any interests which might cause him not to vigorously pursue this action. 64. Predominance and Superiority. Fed. R. Civ. P. 23(b)(3). Questions of law and fact common to the Class members predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication of the controversy. The damages sought by each member are such that individual prosecution would prove burdensome and expensive. Additionally, none of the class members would have known of the facts underlying the violation or of the legal basis for this action absent this lawsuit. It would be virtually impossible for members of the Class individually to effectively redress the wrongs done to them. Even if the members of the Class themselves could afford such individual litigation, it would be an unnecessary burden on the Courts. Furthermore, individualized litigation presents a potential for inconsistent or contradictory judgments and increases the delay and expense to all parties and to the court system presented by the legal and factual issues raised by Defendant's conduct. By contrast, the class action device will result in substantial benefits to the litigants and the Court by allowing the Court to resolve numerous individual claims based upon a single set of proof in a case. 66. These ongoing violations were willful as they were either intentional, or alternately carried out with reckless disregard, rendering Clarity liable pursuant to 15 U.S.C. § 168ln. 67. Plaintiffs and the putative class members are entitled to recovery statutory damages, punitive damages, costs, and attorneys' fees from Clarity in an amount to be determined by the Court pursuant to 15 U .S.C. §§ 1681 n. 68. Plaintiffs incorporate every allegation above as if set forth herein in full. 69. Clarity violated § 1681 g through its conduct by concealing that it furnished Plaintiffs' consumer reports to Clickspeed when Plaintiffs requested and received copies of their files from Clarity. 71. The violations by Clarity were willful, rendering it liable for punitive damages in an amount to be determined by the Court pursuant to 15 U.S.C. § 168Jn. In the alternative, Clarity was negligent, which entitles Plaintiff to recovery under 15 U.S.C. §16810. 72. Plaintiffs are entitled to recover actual damages, statutory damages, costs and attorney's fees from Clarity in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n and§ 16810. WHEREFORE, the Plaintiffs move for class certification and for judgment against the Defendants for actual and/or statutory damages and punitive damages as alleged, and for attorneys' fees and costs, and such other specific or general relief, including injunctive relief, the Court finds appropriate. Overview of Lead Ge11eratio11 VIOLATION OF 15 U.S.C. §§ 1681b(a) and 168le(a) CLASS CLAIM VIOLATION OF 15 U.S.C. § 1681g INDIVIDUAL CLAIMS

win

18. Plaintiff re-alleges and incorporates by reference all allegations in the preceding paragraphs. 19. Plaintiff, those similarly situated, and the members of the proposed FLSA Collective and Minnesota Rule 23 Class are or were employed by Defendant as home care workers to provide companionship and related in-home care services for the elderly, ill or disabled. 20. Defendant has suffered and permitted Plaintiff to regularly work more than forty (40) and/or forty-eight (48) hours in certain workweeks. Upon information and belief, Defendant has also suffered and permitted the members of the FLSA Collective, and members of the Minnesota Rule 23 Class to regularly work more than forty (40) and/or forty-eight (48) hours in certain workweeks. 21. Plaintiff and those similarly situated were not compensated in accordance with the FLSA and/or the MFLSA because they were not paid proper overtime wages for all hours worked over forty (40) and/or forty-eight (48) hours per workweek. Specifically, rather than paying them 1.5 times their regular rate of pay for all hours worked over forty (40) in a workweek, which is required by the FLSA (29 U.S.C. § 207), and/or over forty eight (48) in a workweek, which is required by the MFLSA (Minn. Stat. § 177.25), Defendant paid them “straight time” for all of their overtime hours worked. 23. During her employment with Defendant, Plaintiff’s hours have varied from week to week. In certain workweeks, Defendant required Plaintiff to work double shifts due to staffing/scheduling needs. As a result, Plaintiff routinely worked long hours to ensure her client received the care he needed. On average, Plaintiff typically worked approximately fifty (50) to (80) hours per week, depending on the needs of her client each workweek. 24. When Plaintiff was hired by Defendant, Plaintiff inquired to Defendant about whether it paid Personal Care Attendants overtime pay. Defendant informed her that it did not, and that all work hours would be paid at her regular hourly rate. 25. Plaintiff re-alleges and incorporates by reference all allegations in all preceding paragraphs. 26. Plaintiff brings Count I of this action individually and on behalf and all similarly situated individuals in the proposed FLSA Collective. 27. Pursuant to the FLSA, 29 U.S.C. § 207, employers are generally required to pay overtime compensation at an hourly rate of 1.5 times an employee’s regular rate of pay for hours worked over forty (40) in a workweek. 29. In October 2013, the United States Department of Labor determined that these exemptions do not apply to domestic-service workers employed by third-party agencies or employers. 30. Beginning on January 1, 2015, the regulations provide that domestic-service workers employed by third-party agencies or employers are not exempt from the FLSA’s minimum wage and overtime requirements. 29 C.F.R. § 552.109(a). 31. As of January 1, 2015, all domestic-service workers employed by third-party agencies or employers are entitled to overtime compensation at an hourly rate of 1.5 times the employee’s regular rate of pay for hours worked over forty (40) in a work week. 32. Plaintiff, and on information and belief, the FLSA Collective, routinely worked over forty (40) hours per workweek without receiving proper overtime compensation for their overtime hours worked. 34. Defendant has violated the provisions of the FLSA, 29 U.S.C. §§ 207 and 215(a)(2), by not paying domestic-service workers, like Plaintiff and the FLSA Collective, overtime as required by law. 35. Despite the Department of Labor’s position that domestic-service workers employed by third-party agencies or employers are not exempt from the FLSA’s minimum wage and overtime requirements, Defendant has maintained its practice of not paying the proper overtime compensation to Plaintiff and the FLSA Collective. 36. Defendant knowingly, willfully, or in reckless disregard of the law, maintained an illegal practice of failing to pay Plaintiff and the FLSA Collective proper overtime compensation for all hours worked over forty (40). 37. Plaintiff re-alleges and incorporates by reference all allegations in the preceding paragraphs. 38. Pursuant to Fed. R. Civ. P. 23(a) and 23(b), Plaintiff bring Counts II and III of this action individually and on behalf of all similarly situated individuals in the Minnesota Rule 23 Class. 40. There are questions of law and fact common to the proposed Minnesota Rule 23 Class that predominate over and questions solely affecting individual members of the proposed Minnesota Rule 23 Class, including but not limited to the following: a. Whether Defendant violated Minnesota law for failure to pay all overtime wages due and owing; b. The proper measure and calculation of damages; and c. Whether Defendant’s actions were willful or in good faith. 41. Plaintiff’s claims are typical of those members of the Minnesota Rule 23 Class. Plaintiff, like other members of the proposed Minnesota Rule 23 Class, was subject to Defendant’s practices and policies described in this Complaint. Further, Plaintiff’s job duties are typical of the Minnesota Rule 23 Class, as all class members are or were home care workers. 42. Plaintiff will fairly and adequately protect the interest of the proposed Minnesota Rule 23 Class and has retained counsel experienced in complex wage and hour class and collective action litigation. 44. Plaintiff intends to send notice to all members of the proposed Minnesota Rule 23 Class to the extent required by Fed. R. Civ. P. 23. 45. Plaintiff individually, and on behalf of the FLSA Collective, re-alleges and incorporates by reference all allegations in all preceding paragraphs. 46. The FLSA, 29 U.S.C. § 207, requires employers to pay non-exempt employees 1.5 times the regular rate of pay for all hours worked over forty (40) hours per workweek. 47. Defendant suffered and permitted Plaintiff and the FLSA Collective to routinely work more than forty (40) hours in a workweek without proper overtime compensation as required by the FLSA, 29 U.S.C. § 201 et seq. and its implementing regulations. 48. Defendant knew, or showed reckless disregard for the fact, that it failed to pay these individuals proper overtime compensation in violation of the FLSA. 49. Defendant’s failure to comply with the FLSA overtime protections caused Plaintiff and the FLSA Collective to suffer loss of wages and interest thereon. 51. Plaintiff, individually and on behalf of the proposed Minnesota Rule 23 Class, re-alleges and incorporates all allegations in all preceding paragraphs. 52. Plaintiff and the proposed Minnesota Rule 23 Class were or are employees of Defendant within the meaning of the MFLSA, Minn. Stat. §§ 177.23 and 177.24. 53. Defendant was or is the employer of Plaintiff and the proposed Minnesota Rule 23 Class within the meaning of the MFLSA, Minn. Stat. §§ 177.23 and 177.24. 54. The MFLSA requires employers to pay their employees for hours worked over forty-eight (48) in an individual work week at a rate no less than one and one-half times their regular hourly rate of pay. 55. When Defendant paid Plaintiff and the Minnesota Rule 23 Class straight time, rather the required one and one-half times their regular hourly rate for hours worked over forty-eight (48) in a workweek, it violated the MFLSA. 56. The foregoing conduct constitutes a willful violation of the MFLSA within the meaning of Minn. Stat. § 541.07. FAIR LABOR STANDARDS ACT – 29 U.S.C. § 201, et seq. On Behalf of Plaintiff and the FLSA Collective VIOLATION OF THE MINNESOTA FAIR LABOR STANDARDS ACT – Minn. Stat. § 177.21, et seq. On Behalf of Plaintiff and the Proposed Minnesota Rule 23 Class

win

19. On or about July 7, 2019, an unauthorized individual gained access to MGM Resorts International’s computer network system, exfiltrated customer data, and then disclosed a subset of that data on a closed internet forum. 20. The data consisted of a treasure trove of MGM customer PII including: names, addresses, driver’s license numbers, passport numbers, military identification numbers, phone numbers, emails and dates of birth. 21. Although the PII was subsequently removed from the closed internet site, in mid- February 2020 the seemingly full set of data containing the PII of more than 10.6 million MGM guests was published on a well-known hacking forum, visible to any number of dark web miscreants. 61. Plaintiff seeks relief on behalf of himself and as a representative of all others who are similarly situated. Pursuant to Fed. R. Civ. P. Rule 23(a), (b)(2), (b)(3) and (c)(4), Plaintiff seeks certification of a Nationwide class defined as follows: All persons whose PII was compromised as a result of the Data Breach announced by MGM on or about September 5, 2019 (the “Class”). 21 Identity Fraud Hits Record High with 15.4 Million U.S. Victims in 2016, Up 16 Percent According to New Javelin Strategy & Research Study, Business Wire¸ https://www.businesswire.com/news/home/20170201005166/en/Identity-Fraud-Hits-Record-High- 74. Plaintiff restates and realleges paragraphs 1 through 73 above as if fully set forth herein. 75. As a condition of receiving services, Plaintiff and Class Members were obligated to provide MGM with their PII. 76. Plaintiff and the Class Members entrusted their PII to MGM with the understanding that MGM would safeguard their information. 77. Defendant had full knowledge of the sensitivity of the PII and the types of harm that Plaintiff and Class Members could and would suffer if the PII were wrongfully disclosed. 78. Defendant had a duty to exercise reasonable care in safeguarding, securing and protecting such information from being compromised, lost, stolen, misused, and/or disclosed to unauthorized parties. This duty includes, among other things, designing, maintaining and testing the Defendant’s security protocols to ensure that PII in its possession was adequately secured and protected and that employees tasked with maintaining such information were adequately training on cyber security measures regarding the security of such information. 79. Plaintiff and the Class Members were the foreseeable and probable victims of any inadequate security practices and procedures. Defendant knew of or should have known of the inherent risks in collecting and storing the PII of Plaintiff and the Class, the critical importance of providing adequate security of that PII, the current cyber scams being perpetrated and that it had inadequate employee training and education and IT security protocols in place to secure the PII of Plaintiff and the Class. 92. Plaintiff restates and realleges Paragraphs 1 through 73 as if fully set forth herein. 93. Section 5 of the FTC Act prohibits “unfair . . . practices in or affecting commerce,” including, as interpreted and enforced by the FTC, the unfair act or practice by businesses, such as MGM, of failing to use reasonable measures to protect PII. The FTC publications and orders described above also form part of the basis of Defendant’s duty in this regard. 94. MGM violated Section 5 of the FTC Act by failing to use reasonable measures to protect customer PII and not complying with applicable industry standards, as described in detail herein. MGM’s conduct was particularly unreasonable given the nature and amount of PII it obtained and stored, and the foreseeable consequences of a data breach including, specifically, the damages that would result to Plaintiff and Class Members. 95. MGM’s violation of Section 5 of the FTC Act constitutes negligence per se as MGM’s violation of the FTC Act establishes the duty and breach elements of negligence. 96. Plaintiff and Class Members are within the class of persons that the FTC Act was intended to protect. 97. The harm that occurred as a result of the Data Breach is the type of harm the FTC Act was intended to guard against. The FTC has pursued enforcement actions against businesses, which, as a result of their failure to employ reasonable data security measures and avoid unfair and deceptive practices, caused the same harm as that suffered by Plaintiff and the Class. A. The MGM Data Breach NEGLIGENCE PER SE NEGLIGENCE

lose

10. At times during the three year period preceding the filling of this complaint, the Named Plaintiff and the putative class members were classified by Defendant as exempt from overtime wages. 11. At times during the three year period preceding the filling of this complaint, the Named Plaintiff and the putative class members were paid a salary. 12. At times during the three year period preceding the filling of this complaint, the Named Plaintiff and the putative class members were not paid an overtime premium for hours worked in excess of forty per week. 13. Throughout the three year period preceding the filing of this complaint, the job duties performed by the Named Plaintiff and putative class members were those of FLSA non- exempt employees. 14. TSAs performed work similar to help desk workers, offering technical support and troubleshooting to Cerner’s clients. 15. TSAs did not create or install the software that customers used. They did not write code or fix code. Rather, TSAs assisted with remote troubleshooting and configuring software after it was installed. 16. TSAs responded to service request tickets (“SRs”) from clients or other Cerner employees. If the SR was simple enough, the TSA would work to resolve the ticket. However, if the SR required a review of the code, it was sent to a different individual (e.g., software engineer) with greater technical expertise. 4 17. The Named Plaintiff brings this action on behalf of herself and on behalf of other similarly-situated employees, pursuant to 29 U.S.C. § 216(b). The Collective Class of similarly- situated employees is defined as: All persons who were employed by Cerner as TSAs in SolutionWorks and/or AMS1, and who were not compensated at a rate of one and one half times their regular rate of pay for hours worked over forty (40) a week at any time from three years prior to the commencement of this lawsuit. 18. The Named Plaintiff brings this action on behalf of herself and on behalf of all other similarly-situated employees, pursuant to Fed. R. Civ. P. 23. The Missouri Overtime Wage Class is defined as: All persons who were employed by Cerner as TSAs in SolutionWorks and/or AMS2, and who were not compensated at a rate of one and one half times their regular rate of pay for hours worked over forty (40) a week at any time from two years prior to the commencement of this lawsuit. 19. The Named Plaintiff brings the Second Claim for Relief on her own behalf and on behalf of the Missouri Overtime Wage Class, as defined in paragraph 23, supra, pursuant to Fed. R. Civ. P. 23(a) and (b). 20. The persons in the Missouri Overtime Wage Class above are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, upon information and belief, Defendant has employed more than a hundred people who satisfy the definition of the class. 21. Common factual and legal questions involving the Wage Class predominate 1 The class definition is intended to cover individuals who performed the same primary duty as TSAs, but whose job titles, role descriptions, or organization names may have changed during the statutory period. 2 The class definition is intended to cover individuals who performed the same primary duty as TSAs, but whose job titles, role descriptions, or organization names may have changed during the statutory period. 5 over any questions solely affecting individual members of the class, including but not limited to: (a) Whether TSAs are exempt from overtime compensation under Missouri law; (b) Whether Cerner maintained a common practice of unlawfully failing to pay overtime compensation to the Named Plaintiff and members of the putative class; (c) Whether the Named Plaintiff and members of the putative class performed work for Cerner in excess of forty hours per work week; (d) The nature and amount of compensable work performed by the Named Plaintiff and members of the putative class; (e) Whether Cerner employed the Named Plaintiff and members of the putative class within the meaning of Missouri law; and (f) The proper measure of damages sustained by the Named Plaintiff and members of the putative class. 22. The Named Plaintiff’s claims are typical of those of the Missouri Overtime Wage Class. The Named Plaintiff, like other members of the Missouri Overtime Wage Class, was subjected to Cerner’s illegal pay policy of refusing to pay overtime wages, in violation of Missouri law. 23. The Named Plaintiff will fairly and adequately protect the interests of the Missouri Overtime Wage Class and has retained counsel experienced in complex wage and hour litigation. 24. A class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual plaintiffs lack the financial resources to vigorously prosecute separate lawsuits in federal court against a large and wealthy corporate defendant, particularly those with relatively small claims. 6 25. Class certification of the Second Claim for Relief is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the Missouri Overtime Wage Class predominate over any questions affecting only individual members of the Missouri Overtime Wage Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Defendant’s common and uniform policies and practices denied the Missouri Overtime Wage Class the wages for work performed to which they are entitled. The damages suffered by the individual Missouri Overtime Wage Class members are small compared to the expense and burden of individual prosecution of this litigation. In addition, class certification is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments about Defendant’s pay practices. 26. The Named Plaintiff intends to send notice to all members of the Missouri Overtime Wage Class to the extent required by Fed. R. Civ. P. 23. 27. The Named Plaintiff, individually and on behalf of the Collective Class, re- alleges and incorporates by reference the allegations in the preceding paragraphs. 28. Cerner is an enterprise engaged in commerce within the meaning of 29 U.S.C. § 203(s). 29. Cerner is an employer within the meaning of 29 U.S.C. §203(d). 30. The Named Plaintiff and the members of the Collective Class were employees of Cerner within the meaning of 29 U.S.C. §203(e). 31. The FLSA requires each covered employer to compensate all non-exempt employees at a rate of not less than one and one-half times their regular rate of pay for work 7 performed in excess of forty (40) hours per workweek. 32. The Named Plaintiff and members of the Collective Class are not and were not exempt from overtime pay requirements under the FLSA. 33. At times during the applicable statute of limitations, the Named Plaintiff and members of the Collective Class performed worked in excess of forty (40) hours per week without receiving overtime compensation. 34. Specifically, the Named Plaintiff and the class members were expected to work more than 40 hours per week. 35. These practices violate the FLSA, including, but not limited to, 29 U.S.C. § 207. Because of these violations, the Named Plaintiff and members of the Collective Class have suffered a wage loss. 36. Cerner knew or showed reckless disregard for the fact that it failed to pay the Named Plaintiff and members of the Collective Class overtime compensation in violation of the FLSA. 37. The Named Plaintiff, individually and on behalf of the Missouri Overtime Wage Class, re-alleges and incorporates by reference the allegations in the preceding paragraphs. 38. The foregoing conduct, as alleged, violates Mo. Rev. Stat. § 290.505. 39. At all relevant times, Cerner has been and continues to be an “employer” within the meaning of Mo. Rev. Stat. § 290.500(4). 8 40. At all relevant times, the Named Plaintiff and the putative Missouri Overtime Wage Class members were Cerner employees within the meaning of Mo. Rev. Stat. § 290.500(3). 41. Mo. Rev. Stat. § 290.505 requires an employer to pay overtime compensation to all non-exempt employees. 42. The Named Plaintiff and members of the Missouri Overtime Wage Class are not and were not exempt from overtime pay requirements under Missouri law. 43. At times during the applicable statute of limitations, Cerner had a policy and practice of failing and refusing to pay overtime wages to the Named Plaintiff and members of the putative Missouri Overtime Wage Class for their hours worked in excess of forty hours per workweek. 44. As a result of Cerner’s willful failure to pay overtime wages earned and due to the Named Plaintiff and members of the putative Missouri Overtime Wage Class, Defendants have violated and continue to violate Mo. Rev. Stat. § 290.500. 8. Cerner supplies health care information technology solutions, services, 3 devices, and hardware to hospitals and clinics throughout the United States and abroad. 9. At times during the three year period preceding the filing of this complaint, the Named Plaintiff and putative class members are or were employed by Defendant as TSAs. FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF MISSOURI LAW FAILURE TO PAY OVERTIME COMPENSATION IN VIOLATION OF THE FLSA

win

10. Defendant is in the logistics business. 11. In furtherance of Defendant’s business, Defendant employed Plaintiff and other employees (collectively "Drivers”) to deliver their customers’ products to their destination. 12. Drivers were required to arrive at the Defendant’s facility before the truck each weekday, which meant they had to arrive at approximately 5:00 am to unload and separate the truck full of the items to deliver for the day. The unloading and separating took approximately 2 hours each day. 13. At approximately 7:00 am each weekday, Grimes would embark on an approximate 120 mile drive from the warehouse to his first delivery. 14. Between approximately 9:00 am and 2:00 pm each weekday, Grimes would deliver medical and other goods to Defendant’s customers. 15. Between October 2012 and December 2017, Grimes was required to work the following route (“Route 1”): • Stop #1. Paul B. Haul Hospital in Paintsville, KY. Delivered Cardinal Health and Blood. • Stop #2. Value Med in Paintsville, KY. Delivered Smith Drug and Miami Luken. • Stop #3. Mountain Apothecary in Paintsville, KY. Delivered Miami Luken. • Stop #4. Med Zone Pharmacy in Prestonsberg, KY. Delivered Smith Drug and Miami Luken. • Stop #5. Highlands Regional Medical Center in Prestonsberg, KY. Delivered Blood. • Stop #6. Cooley Medical in Prestonsberg, KY. Delivered Cardinal Health. • Stop #7. Value Med in Prestonsberg, KY. Delivered Smith Drug and Miami Luken. • Stop #8. Gary’s Pharmacy in Salyersville, KY. Delivered Miami Luken. • Stop #9. Hope Pharmacy in Salyersville, Ky. Delivered Cardinal Health. • Stop # 10. Wolfe Family Pharmacy in Campton, KY. Delivered Cardinal Health. 16. Grimes was required by Defendant to make the aforementioned stops in order each day and was required to hit specific target times for each stop. Grimes ran this route Monday through Friday each week during the stated period. He was paid $159.93 per day for running Route 1. 17. Between December 2017 and May 2018, Grimes ran a different route from Monday through Friday each week. Route 2 was as follows: • Stop #1. Med Save Pharmacy in Martin, KY. Delivered Cardinal Health. • Stop #2. Saint Joseph Hospital in Martin, KY. Delivered Blood. • Stop #3. Medicine Market in Martin, KY. Delivered Miami Luken. • Stop #4. CVS in South Williamson, KY. Delivered Cardinal Health. • Stop #5. Hurley Drug in Williamson, WV. Delivered HD Smith/ Miami Luken. • Stop #6. Family Pharmacy in South Williamson, KY. Delivered Smith Drug. • Stop #7. South Williamson ARH in South Williamson, KY. Delivered Blood. • Stop #8. Field’s Medical in Inez, KY. Delivered Miami Luken. • Stop #9. Martin Community Health in Inez, KY. Delivered Cardinal Health. • Stop #10. Louisa Drug in Louisa, KY. Delivered Miami Luken. • Stop #11. Riverview Pharmacy in Louisa, KY. Delivered Miami Luken. 18. Grimes was required by Defendant to make the aforementioned stops in order each day and was required to hit specific target times for each stop. Grimes was paid $173.00 per day for running Route 2. 19. At approximately 2pm each weekday, Grimes would embark on the approximate 120 mile drive back to the Defendant’s warehouse. 20. Between April 2013 and May 2018, Grimes ran a Saturday Route as well. Grimes’ route was as follows: • Stop #1. Medicine Shoppe in Somerset, KY. Delivered Cardinal Health. • Stop #2. Walmart in Somerset, KY. Delivered Walmart. • Stop #3. Walmart in Monticello, KY. Delivered Walmart. • Stop #4. Silver’s Pharmacy in Monticello, KY. Delivered Cardinal Health. • Stop #5. Dyer Drug in Albany, KY. Delivered Cardinal Health. • Stop #6. Capps Pharmacy in Burkesville, KY. Delivered Cardinal Health. • Stop #7. Walmart in Columbia, KY. Delivered Walmart. 21. Grimes would arrive at 7am on Saturdays to identify what needed to be delivered and load his van. He would embark on the 40 mile trip to Somerset for his first delivery. He would return to the warehouse at approximately 2pm each Saturday. Grimes was paid $198 per day for performing his Saturday Route. 22. When Grimes would arrive back to the warehouse, he would have to empty his van of all empty totes/ returns and place them in their designated locations. He would then proceed to complete and file paperwork for all my stops. Grimes estimates that he would spend an additional 30 minutes per day performing these duties. 23. In addition to running his route, on weekdays between June 2015 and June 2017, Grimes sorted items at the warehouse overnight. Grimes would arrive at the warehouse at 12am and wrap 12-14 pallets of empty totes/ returns. From 1am- 2am, Grimes would complete the warehouse manager’s paperwork. At 2am, Grimes would scan in and sort the Smith Drug truck by routes which took until 4am. Grimes was paid $80 per overnight and would work overnight from Monday through Friday. 24. During the relevant time period, Defendant classified Grimes and other Drivers, as an independent contractor. 25. Plaintiff was not permitted to work for any other transportation or logistics company while he was employed by Defendant; nor was he allowed to transport products for any other customer. 26. Between June 2015 and June 2017, Grimes was required to work Monday through Friday from midnight to approximately 3:30 pm. He was also required to work 7am to 2:30pm on Saturdays. Grimes averaged working 85 hours per week, but did not receive 1.5 times his regular rate for hours worked over 40 each week. Between June 2017 and May 2018, Grimes averaged working 60 hours each week. 27. Defendant set Grimes’ schedule, determined the sequence in which he made deliveries, and controlled a variety of aspects related to the conduct and appearance of the Drivers, including Grimes. 28. Managers and other employees of Defendant supervise Drivers during their shifts and enforce the Defendants’ policies, procedures and rules against Drivers, including disciplining or terminating a Driver for their non-compliance. 29. Defendant controls all of its own advertising and promotion. Plaintiffs did not have any control over advertising and promotion for Defendant. 30. Plaintiffs do not make any capital investment in Defendant's facilities, advertising, maintenance, or other inventory. 31. At all relevant times, Defendant was exclusively responsible for the maintenance of its facility, inventory, and obtaining all appropriate business insurance and licensing. 32. Drivers do not operate their own individual businesses. 33. Plaintiff are similarly situated to other Drivers in that the practice and policy of misclassifying Drivers as independent contractors has affected all current and former Drivers who worked for Defendant (“Members of the Class”). 34. Plaintiffs and the Members of the Class all were subject to Defendant’s common business policy of failing to pay wages or overtime or any benefits that it offered to its other employees to the Drivers. 35. There are questions of fact and law common to the class, including the following: a. Whether Defendant controls Drivers' schedules. b. Whether Defendant controls what Drivers wear during work hours; c. Whether Defendant controls prices for the deliveries Driver’s make; d. Whether Defendant controls how and in what order Drivers deliver their route; e. Whether Drivers own and operate their own individual businesses. f. Whether Drivers can realize a profit or loss from their work. g. Whether Drivers have made any capital investments in Defendant or their facilities. h. Whether Defendants improperly classify Drivers as independent contractors. i. Whether Defendants fail to pay Drivers overtime wages. j. Whether Defendants are liable to Drivers for attorney's fees associated with this action. k. Whether Defendants failure to pay Drivers minimum wage and overtime is "willful" under the FLSA. l. Whether Defendants are liable to Drivers for liquidated damages under 29 U.S.C. 216(b). 36. Defendants failure to pay minimum wage as required by the FLSA results from a policy or practice applicable to Plaintiffs and the Members of the Class. Application of this policy or practice does not depend on the personal circumstances of the Plaintiffs or those joining this lawsuit. Rather the same policy or practice that resulted in the non-payment of overtime and other benefits to Plaintiffs applied to all Members of the Class. Accordingly, the class is properly defined as: All current and former employees of Defendant who worked as Drivers. 37. Defendant knowingly, willfully or with reckless disregard carried out its illegal pattern or practice of failing to pay minimum wage and overtime compensation with respect to Plaintiff and the Members of the Class. 38. Plaintiffs re-allege and incorporate the preceding paragraphs of this Complaint as fully set forth herein. 39. During the (3) three years preceding this action, or at the commencement of employment (whichever is applicable), Defendant has violated and is violating the provisions of 29 U.S.C. §§ 203 and 206 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, without properly and legally compensating these employees for their employment. 40. Defendants have acted willfully in failing to pay Plaintiffs in accordance with the law. 9. Defendant employed Grimes as a Driver from on or about October 29, 2012 until May 19, 2018. FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARDS ACT

lose

23. On or about January 27, 2020, Defendant sent the following telemarketing text message to Plaintiff’s cellular telephone number ending in 1829 (the “1829 Number”): 24. Defendant’s text message was transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action. 25. Defendant’s text message constitutes telemarketing because it encouraged the future purchase or investment in property, goods, or services, i.e., selling Plaintiff business funding. 26. The information contained in the text message advertises Defendant’s lines of credit, consolidation, invoice factoring, payroll advance, and term loans, which Defendant sends to promote its business. 27. Plaintiff received the subject text 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. 28. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted using an ATDS. 29. Plaintiff is the subscriber and sole user of the 1829 Number, and is financially responsible for phone service to the 1829 Number. 30. The impersonal and generic nature of Defendant’s text message demonstrates that Defendant utilized an ATDS in transmitting the messages. See Jenkins v. LL Atlanta, LLC, No. 1:14- cv-2791-WSD, 2016 U.S. Dist. LEXIS 30051, at *11 (N.D. Ga. Mar. 9, 2016) (“These assertions, combined with the generic, impersonal nature of the text message advertisements and the use of a short code, support an inference that the text messages were sent using an ATDS.”) (citing Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1354 (S.D. Fla. 2014) (plaintiff alleged facts sufficient to infer text messages were sent using ATDS; use of a short code and volume of mass messaging alleged would be impractical without use of an ATDS); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010) (finding it "plausible" that defendants used an ATDS where messages were advertisements written in an impersonal manner and sent from short code); Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 1130; Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 U.S. Dist. LEXIS 72725, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (observing that mass messaging would be impracticable without use of an ATDS)). 31. The text message originated from telephone number 843-258-1494, a number which upon information and belief is owned and operated by Defendant. 32. The number used by Defendant is known as a “long code,” a standard 10-digit phone number that enabled 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. 33. 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. 34. Specifically, upon information and belief, Defendant 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 capacity to store telephone numbers using a random or sequential generator, and to dial such numbers from a list without human intervention. 35. 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. 36. The Platform has the capacity to store telephone numbers, which capacity was in fact utilized by Defendant. 37. The Platform has the capacity to generate sequential numbers, which capacity was in fact utilized by Defendant. 38. The Platform has the capacity to dial numbers in sequential order, which capacity was in fact utilized by Defendant. 39. The Platform has the capacity to dial numbers from a list of numbers, which capacity was in fact utilized by Defendant. 40. The Platform has the capacity to dial numbers without human intervention, which capacity was in fact utilized by Defendant. 41. The Platform has the capacity to schedule the time and date for future transmission of text messages, which occurs without any human involvement. 42. To transmit the messages at issue, the Platform automatically executed the following steps: a. The Platform retrieved each telephone number from a list of numbers in the sequential order the numbers were listed; b. The Platform then generated each number in the sequential order listed and combined each number with the content of Defendant’s message to create “packets” consisting of one telephone number and the message content; c. Each packet was then transmitted in the sequential order listed to an SMS aggregator, which acts an intermediary between the Platform, mobile carriers (e.g. AT&T), and consumers. d. 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. 43. The above execution these instructions occurred seamlessly, with no human intervention, and almost instantaneously. Indeed, the Platform is capable of transmitting thousands of text messages following the above steps in minutes, if not less. 44. 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. 45. 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: 46. 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. 47. Defendant’s unsolicited text messages caused Plaintiff actual harm. Specifically, Plaintiff estimates that he has wasted approximately one minute reviewing Defendant’s unwanted message and additional time retaining counsel. 48. Furthermore, Defendant’s text message took up memory on Plaintiff’s cellular phone. The cumulative effect of unsolicited text messages like Defendant’s poses a real risk of ultimately rendering the phone unusable for text messaging purposes as a result of the phone’s memory being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text (finding that text message solicitations like the ones sent by Defendant present a “triple threat” of identity theft, unwanted cell phone charges, and slower cell phone performance). 49. Defendant’s text messages also can slow cell phone performance by taking up space on the recipient phone’s memory. See https://www.consumer.ftc.gov/articles/0350-text-message- spam#text (finding that spam text messages can slow cell phone performance by taking up phone memory space). 50. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 51. Plaintiff brings this case on behalf of a Class defined as follows: No Consent Class: All persons who from four years prior to the filing of this action (1) were sent a text message by or on behalf of Defendant, (2) using an automatic telephone dialing system, (3) for the purpose of soliciting Defendant’s goods and services, and (4) for whom Defendant claims (a) it did not obtain prior express written consent, or (b) it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff. 52. 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. 55. 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’s and Class members’ cellular telephones using an ATDS; (2) Whether Defendant can meet its burden of showing that it 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. 56. 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, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 61. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 62. 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). 63. Defendant – or third parties directed by Defendant – used equipment having the capacity to dial numbers without human intervention to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined below. 64. These calls were made without regard to whether or not Defendant had first obtained express permission from the called party to make such calls. In fact, Defendant did not have prior express consent to call the cell phones of Plaintiff and the other members of the putative Class when its calls were made. 65. Defendant has, therefore, 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 written consent. 66. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that it was using equipment that at constituted an automatic telephone dialing system. The violations were therefore willful or knowing. 67. 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. Id. 68. Plaintiff re-allege and incorporate paragraphs 1-60 as if fully set forth herein. 69. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 70. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that its conduct was a violation of the TCPA. 71. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls, 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. 72. As a result of Defendant’s 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) Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

(Claim for Declaratory Relief that the Church Plan Exemption Violates the Establishment Clause of the First Amendment to the U.S. Constitution, and is Therefore Void and Ineffective Against Defendant Providence) ............................................ 64 (Claim for Failure to Establish a Trust Meeting the Requirements of ERISA Section 403 Against Defendant Providence) 228. Plaintiffs incorporate and re-allege by reference the foregoing paragraphs as if fully set forth herein. 229. ERISA section 403, 29 U.S.C. § 1103, provides, subject to certain exceptions not applicable here, that all assets of an employee benefit plan shall be held in trust by one or more trustees, that the trustees shall be either named in the trust instrument or in the plan instrument described in ERISA section 402(a), 29 U.S.C. § 1102(a), or appointed by a person who is a named fiduciary. 230. Although the Plan’s assets have been held in trust, the trust does not meet the requirements of ERISA section 403, 29 U.S.C. § 1103. 231. Defendant Providence violated section 403 by failing to put the Plan’s assets in trust in compliance with ERISA section 403. See 29 U.S.C. § 1103. (Claim for Failure to Establish the Plan Pursuant to a Written Instrument Meeting the Requirements of ERISA Section 402 Against Defendant Providence) ....................................................... 52 (Claim for Failure to Provide Minimum Funding, Including by Failing to Comply with ERISA Funding Rules, Against Defendant Providence)............................................................................ 50 (Claim for Failure to Establish a Trust Meeting the Requirements of ERISA Section 403 Against Defendant Providence) ......................... 53 COUNT VI...................................................................................................................... 53 (Claim for Civil Money Penalty Pursuant to ERISA Section 502(a)(1)(A) Against Providence and the Plan Administrator Defendants)...................................................................... 53 (Claim for Breach of Fiduciary Duty to Monitor Performance of Other Fiduciaries Against the Monitoring Defendants) .......................... 58 COUNT IX...................................................................................................................... 60 (Claim for Co-Fiduciary Liability Against All Defendants)............................... 60 A. Numerosity. ......................................................................................................... 43 B. Commonality....................................................................................................... 43 C. Typicality. ........................................................................................................... 44 D. Adequacy. ........................................................................................................... 44 E. Rule 23(b)(1) Requirements. .............................................................................. 45 F. Rule 23(b)(2) Requirements. .............................................................................. 45 G. Rule 23(b)(3) Requirements. .............................................................................. 45 VI. SEATTLE, WASHINGTON 98101-3052 T E L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0 F A C S I MI L E : ( 2 0 6 ) 6 2 3 - 3 3 8 4

win

~ 1 117. Plaintiffs re-allege and hereby incorporate each and every allegation contained in Paragraphs 1 through 116 of this Complaint as though fully set forth 18 I I herein. 19 E~ 21 22 23 24 25 26 27 28 118. As detailed as BANA is in all its forms, disclosures and communications to its borrowers regarding the benefits of a loan modification, not once does BANA disclose to its current borrowers that if they obtain a loan modification from BANA, they wi11 lose thousands, if not tens of thousands, of dollars as a result of BANA's capitalization of the unpaid interest that has been incorporated into the "New Principal Balance" of the modified loan. 119. As alleged previously, BANA knowingly and intentionally concealed from plaintiffs and the other class members that a consequence of proceeding with their loan modifications would be that BANA would "convert" all deferred and unpaid interest into "principal" and that BANA would not report that interest on the -34- 84. Plaintiffs bring this action on their own behalf and on behalf of classes of persons similarly situated pursuant to Rule 23(a) and 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. $5. Plaintiffs seek to represent a damage class of: "all persons who: (1) had a BANA mortgage secured by real property in the United States (or in its territories and protectorates); (2) had their loan modified; (3) owed previously -26- DECLARATORY RELIEF 111. Plaintiffs re-allege. and hereby incorporate each and every allegation contained in Paragraphs 1 through 111 of this Complaint as though fully set forth herein. 112. An actual controversy has arisen and now exists between plaintiffs and BANA regarding the manner in which BANA accounts for payments of deferred and unpaid interest that existed on its borrowers' accounts as of the time they had their loans modified as alleged above. 113. Plaintiffs and the class members contend that BANA has maintained policies whereby it wrongfully concealed from class members that as part of their loan -33- VIOLATION OF 26 U.S.C. 6050H 127. Plaintiffs re-allege and hereby incorporate each and every allegation contained in Paragraphs 1 through 126 of this Complaint as though fully set forth herein. 128. Plaintiffs assert that there exists an implied private right of action to enforce the terms of 26 U.S.C. § 6050H under the test established in Cort v. Ash, 422

lose

10. Plaintiff alleges that at all times relevant herein Defendant conducted business in the State of California, County of Alameda, and within this judicial district. 11. At no time did Plaintiff ever enter into a business relationship with Defendant. 12. Beginning in June 2014, Defendant initiated multiple telephonic communications from (888) 895-0243 and (805) 904-1726 to Plaintiff’s cellular telephone number ending in 9054. 13. At 8:21 a.m. on June 25, 2014, Plaintiff spoke with Defendant and requested that Defendant cease communicating with Plaintiff. 14. Despite Plaintiff’s cease and desist request, Defendant continued to initiate telephonic communications to Plaintiff’s cellular telephone. 15. During each call, Defendant falsely stated that Plaintiff had completed an alleged form requesting financial aid information for higher education. However, Plaintiff is not currently interested in pursing financial aid nor did Plaintiff complete any forms. 16. On information and belief, Plaintiff believes that Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to Case3:14-cv-02994-LB Document1 Filed06/30/14 Page4 of 10 23. Plaintiff brings this action on behalf of herself and on behalf of all others similarly situated (“the Class”). 24. Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any telephone call from Defendant or their 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 dialing system or with an artificial or prerecorded message within the four years prior to the filing of this Complaint. 25. 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 hundreds of thousands, if not more. Thus, this Case3:14-cv-02994-LB Document1 Filed06/30/14 Page5 of 10 35. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 36. The foregoing acts and omissions of Defendant constitutes numerous and multiple negligent violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 37. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq, Plaintiff and The Class are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 38. Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. 39. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 40. The foregoing acts and omissions of Defendant constitutes numerous and multiple knowing and/or willful violations of the TCPA, including but not Case3:14-cv-02994-LB Document1 Filed06/30/14 Page8 of 10 KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. 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)(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. /// /// /// /// Case3:14-cv-02994-LB Document1 Filed06/30/14 Page9 of 10 THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(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.

lose

10. In doing so, Defendant disclosed Plaintiff’s personal information to a third party in violation of the FDCPA. 11. Plaintiff brings this as a class action pursuant to Fed. R. Civ. P. 23. 12. Plaintiff seeks certification of the following class, initially defined as follows: Class: All consumers residing within the United States that have received a letter from Defendant via a third-party vendor concerning debts used primarily for personal, household, or family purposes, within one year prior to the filing of this Complaint. 13. Excluded from the Class is Defendant, and any person, firm, trust, corporation, or other entity related to or affiliated with Defendant, including, without limitation, persons who are officers, directors, employees, associates or partners of Defendant. 15. Upon information and belief, Defendant has sent collection letters in an attempt to collect a debt to hundreds if not thousands of consumers throughout United States, each of which violates the FDCPA. The members of the Class, therefore, are believed to be so numerous that joinder of all members is impracticable. 16. 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 Defendants’ records. Common Questions of Law and Fact 17. There are questions of law and fact common to the class that predominates over any questions affecting only individual Class members. These common questions of law and fact include, without limitation: (i) whether Defendant violated the provision of the FDCPA; (ii) whether the Plaintiff and the Class have been injured by the conduct of Defendant; (iii) whether the Plaintiff and the Class have sustained damages and are entitled to restitution as a result of Defendant’s wrongdoing and, if so, what is the proper measure and appropriate statutory formula to be applied in determining such damages and restitution; and (iv) whether the Plaintiff and the Class are entitled to declaratory and/or injunctive relief. Typicality 19. Plaintiff will fairly and adequately represent the Class members’ interests, in that the Plaintiff's counsel is experienced and, further, anticipates no impediments in the pursuit and maintenance of the class action as sought herein. 20. Neither the Plaintiff nor her counsel have any interests, which might cause them not to vigorously pursue the instant class action lawsuit. Proceeding Via Class Action is Superior and Advisable 21. A class action is superior to other methods for the fair and efficient adjudication of the claims herein asserted, this being specifically envisioned by Congress as a principal means of enforcing the FDCPA, as codified by 15 U.S.C.§ 1692(k). 22. The members of the Class are generally unsophisticated individuals, whose rights will not be vindicated in the absence of a class action. 23. Prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications resulting in the establishment of inconsistent or varying standards for the parties. 24. 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's 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. 26. Absent a class action, the Class members will continue to suffer losses borne from the Defendant’s breaches of Class members’ statutorily protected rights as well as monetary damages, thus allowing and enabling: (a) Defendant’s conduct to proceed and; (b) Defendant to further enjoy the benefit of its ill-gotten gains. 27. Defendant has acted, and will act, on grounds generally applicable to the entire Class, thereby making appropriate a final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 28. Plaintiff repeats, re-alleges, and re-asserts the allegations contained in the above paragraphs and incorporates them as if specifically set forth at length herein. 29. Defendant’s actions are in violation of 15 U.S.C. § 1692c(b). WHEREFORE, Plaintiff, Nina Coulter, respectfully requests that this Court do the following for the benefit of Plaintiff: A. Certify the class described herein and appoint Plaintiff as Lead Plaintiff, and Plaintiff’s Counsel as Lead Counsel; B. Enter judgment against Defendant for statutory damages pursuant to the 6. On a date better known to Defendant, Plaintiff incurred a debt for personal, familial, or household purposes. 7. The bill was handed to Defendant to collect. 8. In an attempt to collect the debt, Defendant sent Plaintiff a collection letter. 9. Upon information and belief, Defendant utilized a third-party vendor to send the letter. The Class VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692 et seq.

win

(Common Law Copyright Infringement / Unfair Competition) (Unjust Enrichment) 15. In the 1950s and 1960s, Arthur Sheridan owned and operated several recording companies specializing in recording and selling doo-wop, jazz, and rhythm and blues music. These music labels produced recordings by some of the most influential musicians of the era, including the Flamingos (inducted to the Rock and Roll Hall of Fame in 2001), Little Walter (inducted to the Blues Hall of Fame in 1986 and the Rock and Roll Hall of Fame in 2008), and the Moonglows (inducted to the Vocal Group Hall of Fame in 1999 and the Rock and Roll Hall of Fame in 2000). 17. Barbara Sheridan owns the pre-1972 master sound recording of “Golden Teardrops” by the Flamingos, critically acclaimed when it was recorded and still regarded as a classic. 18. Arthur and Barbara Sheridan own the intellectual property and contract rights associated with the recordings. These rights include, without limitation, the right to control the use and distribution of the recording, the right to promote the recordings, and the right to receive royalty payments from the exploitation of the master recordings described above. 19. Arthur and Barbara Sheridan continue to market the Pre-1972 Recordings that they own. In particular, Arthur and Barbara Sheridan continue to receive revenue from licenses granted to third parties to publicly perform the recordings. B. iHeartMedia Exploits Plaintiffs’ and Class Members’ Rights Without Permission or Compensation 1) State Law Protection for Pre-1972 Recordings 21. The statutory licensing scheme provided by 17 U.S.C. §§ 112(e), 114(d)(2), and 114(f) does not extend to Pre-1972 Recordings. Thus, SoundExchange’s authority does not extend to the collection and distribution of royalty payments to the owners of copyrights in Pre- 1972 Recordings. See 17 U.S.C. § 114(g)(2) (requiring SoundExchange to distribute royalties to holders of federal copyrights). The existence of SoundExchange does not alter the issues presented in this action because SoundExchange has no authority to negotiate or collect royalties on behalf of copyright holders for the reproduction and public performance of Pre-1972 Recordings. 22. The Copyright Act specifically provides that Pre-1972 Recordings will not be subject to federal copyright. 17 U.S.C. § 301(c). But nothing in the Copyright Act permits entities such as iHeartMedia to make use of Pre-1972 Recordings without compensation. Indeed, the Copyright Act specifically left states free to regulate the use of works of authorship that it chose not to render subject to federal law. 17 U.S.C. § 301(b)(1). 23. New Jersey common law protects Pre-1972 Recordings from being copied, distributed, or otherwise exploited without license or authorization. 2) iHeartMedia 25. iHeartMedia offers its internet radio services to the public on a non-subscription basis. Users can access iHeartMedia’s internet radio services on a variety of internet platforms including computers, digital media devices, tablets, video game consoles, and smartphones. 26. Users of iHeartMedia’s customizable stations hear advertisements at periodic intervals between tracks, and may skip only six tracks per station per hour (and fifteen tracks total per day) across all stations. Skipping a track often results in hearing an advertisement. 27. iHeartRadio’s numerous internet and terrestrial radio broadcasts have included, and continue to include, countless public peformances of Pre-1972 Recordings, all of which have been and continue to be made without any permission from or payment to the owners of the copyright in the Recordings. 28. Moreover, in the course of broadcasting internet and terrestrial radio services that feature Pre-1972 Recordings, iHeartRadio reproduces those Recordings multiple times for purposes of archiving, advertising, buffering, streaming, and otherwise maintaining, accessing, and performing the Recordings. 29. iHeartRadio’s internet radio service is delivered by way of web interfaces that promote iHeartMedia’s services or are designed to attract users to iHeartMedia’s services. 30. iHeartMedia also sells the right to advertise to users on its stations, websites, and applications. 32. Sales of advertisements displayed or broadcast in the course of iHeartMedia’s internet and terrestrial radio services generate millions of dollars of revenue for iHeartMedia each year. 33. iHeartMedia regularly broadcasts to New Jersey listeners the “Golden Teardrops” recording and other recordings listed above, as well as many other Pre-1972 Recordings, and has done so repeatedly for the last several years. 34. iHeartMedia has not licensed Pre-1972 Recordings from their copyright owners. 35. Thus, without obtaining authorization or rendering compensation, iHeartMedia has copied and publicly performed Pre-1972 Recordings in violation of Plaintiffs’ exclusive rights to perform the Recordings. 36. iHeartMedia has derived significant benefits, including millions of dollars of revenue, from unlawfully exploiting these rights. V. 37. Plaintiffs Arthur and Barbara Sheridan bring this action under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) on their own behalf and on behalf of the following class of plaintiffs (the “Misappropriation Class”): All owners of reproduction and public performance rights in Pre- 1972 Recordings that have been publicly performed, copied, or otherwise exploited by iHeartRadio, without a license or other authorization, in the marketing, sale, and provision of internet and terrestrial radio services. 39. There are common questions of law and fact specific to the Misappropriation Class that predominate over any questions affecting individual members, including: a) Whether iHeartMedia copies, publicly performs, or otherwise exploits Pre-1972 Recordings in its internet and terrestrial radio services without authorization or permission; b) Whether such uses are unlawful; c) Whether iHeartMedia’s conduct constitutes misappropriation; d) Whether iHeartMedia’s conduct constitutes unfair competition; e) Whether class members have been damaged by iHeartMedia’s conduct, and the amount of such damages; f) Whether punitive damages are appropriate and the amount of such damages; g) Whether an order enjoining future unauthorized use of Pre-1972 Recordings in internet and terrestrial radio services is appropriate and on what terms; h) Whether iHeartMedia has been unjustly enriched; and i) Whether iHeartMedia should disgorge its unlawful profits, and the amount of such profits. 40. Plaintiffs’ claims are typical of the Misappropriation Class’s claims, as they arise out of the same course of conduct and the same legal theories as the rest of the Misappropriation Class, and Plaintiffs challenge the practices and course of conduct engaged in by iHeartMedia with respect to the Misappropriation Class as a whole. 41. Excluded from the class are iHeartMedia, its employees, co-conspirators, officers, directors, legal representatives, heirs, successors, and wholly or partly owned subsidiaries or affiliated companies; class counsel and their employees; and the judicial officers and associated court staff assigned to this case. 43. iHeartMedia has acted or refused to act on grounds that apply generally to the class, and final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. A class action is also appropriate because iHeartMedia has acted and refused to take steps that are, upon information and belief, generally applicable to thousands of individuals, thereby making injunctive relief appropriate with respect to the class as a whole. 44. Questions of law or fact common to class members predominate over any questions affecting only individual members. Resolution of this action on a class-wide basis is superior to other available methods and is a fair and efficient adjudication of the controversy because in the context of this litigation most individual class members cannot justify the commitment of the large financial resources to vigorously prosecute a lawsuit against iHeartMedia. Separate actions by individual class members would also create a risk of inconsistent or varying judgments, which could establish incompatible standards of conduct for Defendant and substantially impede or impair the ability of class members to pursue their claims. It is not anticipated that there would be difficulties in managing this case as a class action. 45. Plaintiffs reserve the right to amend all class allegations as appropriate, and to request any state law subclasses or other subclasses if necessary, upon completion of class- related discovery and motions for class certification. 47. The Pre-1972 Recordings, when created, were the novel product of mental labor embodied in material form; Plaintiffs and the Misappropriation Class thus have property rights in them as recognized by New Jersey common law. 48. By duplicating the Pre-1972 Recordings without authorization from Plaintiffs and Class Members, and publicly performing those Recordings to its users for its own gain, iHeartMedia misappropriated the Recordings and infringed Plaintiffs’ and Class Members’ property rights, whereby Plaintiffs and Class Members were damaged. 49. As a result of iHeartMedia’s misappropriation of the Pre-1972 Recordings, Plaintiffs and Class Members are entitled to an order enjoining iHeartMedia from continuing to use those recordings without authorization and compensation, and to an order imposing a constructive trust on any money acquired by means of iHeartMedia’s misappropriation, including all gross receipts attributable to iHeartMedia’s misappropriation of the Pre-1972 Recordings. 51. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 52. At the expense of Plaintiffs and the Class, iHeartMedia has been and continues to be unjustly enriched as a result of the unlawful and/or wrongful conduct alleged herein. iHeartMedia has unjustly benefitted through the sale of advertisements in connection with its internet and terrestrial radio services that use without authorization the Pre-1972 Recordings. iHeartMedia has therefore benefitted from the use of Pre-1972 Recordings, and it would be unjust for iHeartMedia to retain that benefit without paying for it. A. Arthur and Barbara Sheridan

lose

28. Honda has become one of the most popular automobile brands in the United States as a result of its extensive and consistent marketing focused upon the quality, safety, and reliability of its vehicles. 29. Honda’s claims of excellence in quality, design, safety, and reliability are consistent themes in its promotional materials. 30. In fact, Honda has an entire section on its website entitled “safety,” where Honda touts the safety of its vehicles. 31. On its website, Honda states “Honda is a mobility company – we move people. But, for us, safety is an enormous priority. We don’t just want to move you; we want to move you safely.” 33. The website goes on to say “This kind of flexibility and affordability allows Honda to make the road safer for everybody on it by engineering for worst case scenarios in an unprecedented way.”3 34. Honda touted its focus on safety on its Facebook page as well, stating that “[t]he future of mobility is all about human connectivity and increased safety.”4 35. On September 20, 2019, Honda issued a press release discussing “the automaker’s deep-rooted and ongoing commitment to safety” and describing Honda’s new “Safety for Everyone” campaign. Honda explains that “‘Safety for Everyone’ represents Honda’s unique approach to safety – that everyone sharing the road should be able to safely and confidently enjoy the freedom of mobility.” 36. Honda echoed its message regarding the quality, reliability, and safety of its vehicles in the marketing materials specific to the Class Vehicles. 37. The brochure for the 2016 Honda Accord touts the vehicle’s safety and reliability, claiming that it is “Helping protect precious cargo” and that its “Convenient features make driving a simpler task” and that its “suite of safety and driver-assistive technologies help free you to enjoy your driving experience.” One of the main slogans on the brochure tells drivers to “Boldly go.”5 3 Safety, Virtual & Real-World Tests, HONDA, https://www.honda.com/safety/virtual-and-real- world-tests (last visited May 24, 2021). 4 Honda, 88. NHTSA complaints regarding the Defect in the 2018 CR-V: March 6, 2018 NHTSA ID NUMBER: 11076480 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11076480 Incident Date January 31, 2018 Consumer Location CHASKA, MN Vehicle Identification Number 5J6RW2H80JL**** Summary of Complaint A. Honda’s Advertisement of Class Vehicles Centered on Quality, Safety & Reliability AVAILABLE. THE DEALER (AUTOPARK HONDA, (919) 467-4747) WAS TO SCHEDULE AN APPOINTMENT TO DIAGNOSE THE VEHICLE AND ADDRESS THE RECALL REPAIR. THE MANUFACTURER WAS NOTIFIED OF THE FAILURE. THE FAILURE AWARE OF THE FAILURE AND PROVIDED A CASE NUMBER. THE FAILURE RECURRED. THE VEHICLE WAS NOT REPAIRED. THE FAILURE MILEAGE WAS 8,900. December 30, 2020 NHTSA ID NUMBER: 11385578 Components: ELECTRICAL SYSTEM, UNKNOWN OR OTHER NHTSA ID Number: 11385578 Incident Date December 27, 2020 Consumer Location ROCKY MOUNT, VA Vehicle Identification Number 5J6RW2H88KL**** Summary of Complaint CAME WITH COMPLETELY DIED AND COULDN’T EVEN GET A JUMP. CHANGED IT AND NOW I HAVE TO KEEP GETTING JUMP EVERYDAY. MY WINDSHIELD HAS ALSO CRACKED TWICE FROM PASSENGER SIDE TO DRIVER SIDE. NO PUNCTURE CHARGE IT AGAIN TO SEE IF THAT HELPS THE PROBLEM. IT IS NOW DECEMBER 14, 2020 AND I AM GOING TO CALL THE HONDA DEALERSHIP TO HAVE MY CAR TOWED IN TODAY FOR THE EXACT SAME PROBLEM OF THE BATTERY BEING CORRECTED. March 11, 2019 NHTSA ID NUMBER: 11185761 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11185761 Incident Date February 1, 2019 Consumer Location CUDDEBACKVILLE, NY Vehicle Identification Number N/A Summary of Complaint DISPLAYED: “ANTI THEFT SYSTEM. THIS SYSTEM HAS LOST POWER. PUSH AND HOLD THE POWER BUTTON FOR MORE THAN TWO SECONDS TO ENABLE THE SYSTEM.” I ASSUMED THAT THE VEHICLE WAS DIRECTING ME TO HOLD THE DRAINED WHILE PARKED OVERNIGHT AND HAD TO CHARGE BATTERY TO START. TOOK TO DEALER, WHO DID A BATTERY TEST AND FOUND NO ISSUE. THERE IS A HONDA TSB CAMPAIGN, BUT HONDA TELLS ME MY VIN IS OUT OF EVERYDAY AND WE TRAVEL WHICH MEANS THE CAR MAY NOT BE DRIVEN FOR 10 DAYS OR MORE THE SERVICE ADVISOR INDICATED THAT WE NEED TO ACQUIRE A BATTERY CHARGER BECAUSE MOST LIKELY THE BATTERY WOULD FOURTH INCIDENT, THE DEALER CHARGED THE BATTERY. AFTER THE FIFTH INCIDENT, ONE WEEK LATER, THE DEALER CHARGED THE BATTERY AND CLAIMED ONLY A .002 MILIAMP DRAW. HAPPENED. I LEFT IT OVER NIGHT AND IT WAS NORMAL AGAIN THE NEXT DAY. RIGHT NOW, AS I’M WRITING THIS COMPLAINT, THERE’S ANOTHER PROBLEM. AN HOUR AGO, I PARKED AT A RESTAURANT’S PARKING LOT. I CAME OUT 40 HAPPENNED TWICE SINCE THEN AND DEALERSHIP DOES NOT PROVIDE A FIX. August 24, 2017 NHTSA ID NUMBER: 11019266 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11019266 Incident Date August 17, 2017 Consumer Location SAMMAMISH, WA Vehicle Identification Number 5J6RW2H98HL**** Summary of Complaint INCLUDED IN NHTSA CAMPAIGN NUMBER: 17V418000 (ELECTRICAL SYSTEM). THE VEHICLE WAS NOT REPAIRED. THE FAILURE MILEAGE WAS 36,639. THE VIN WAS UNAVAILABLE. March 28, 2019 NHTSA ID NUMBER: 11192228 Components: ELECTRICAL SYSTEM, ENGINE NHTSA ID Number: 11192228 Incident Date March 15, 2019 Consumer Location COVINA, CA Vehicle Identification Number 1HGCR2F60GA**** Summary of Complaint IT IN FOR SERVICE AT EH HONDA AUTONATION IN COSTA MESA CA AND THEY TOLD ME THAT EVERYTHING CHECKED OUT FINE. I WAS WORKING IN LOS ANGELES FOUR DAYS LATER AND ONCE AGAIN THE CAR WOULDN’T START. LAST 3 MONTHS. THE FIRST TIME WAS ~7-8K MILES. August 6, 2018 NHTSA ID NUMBER: 11118082 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11118082 Incident Date July 1, 2018 Consumer Location KLAMATH FALLS, OR Vehicle Identification Number 2HKRW2H53JH**** Summary of Complaint MILES)....THE FIRST INCIDENT CAME OUT OF THE BLUE - ON MAY 11TH, 2017 I USED MY CAR AT 1 PM AND WHEN I TRIED TO LEAVE WORK AT 4:30 THE CAR DISPLAY FLASHED A BUNCH OF ODD MESSAGES AND THE CAR WOULDN’T TURN MY WIFE DRIVE THE CAR DUE TO NOT HAVING THE CONFIDENCE THAT THE CAR WILL START, ESPECIALLY IF SHE HAS THE KIDS WITH HER. I WILL BE TAKING IT IN AGAIN ON MONDAY AND SEE WHAT THEY HAVE TO SAY. I HAVE READ THAT NO DIFFERENCE. I THEN PULLED OVER WHEN SAFE, TURNED THE VEHICLE OFF, WAITED FOR 1 MINUTE AND THEN TURNED THE VEHICLE BACK ON. THE NAVIGATION SCREEN WAS BACK ON TO NORMAL. THE INCIDENT OCCURRED ON NOT DETERMINED. THE MANUFACTURER AND LOCAL DEALER WERE NOT NOTIFIED OF THE FAILURE. THE FAILURE MILEAGE WAS 56,000. April 11, 2019 NHTSA ID NUMBER: 11195584 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11195584 Incident Date April 11, 2019 Consumer Location TURLOCK, CA Vehicle Identification Number N/A Summary of Complaint NOTIFIED OF THE FAILURE. THE APPROXIMATE FAILURE MILEAGE WAS 80. *TT *TR February 6, 2019 NHTSA ID NUMBER: 11174885 Components: ELECTRICAL SYSTEM, UNKNOWN OR OTHER NHTSA ID Number: 11174885 Incident Date February 2, 2019 Consumer Location PRAIRIEVILLE, LA Vehicle Identification Number 1HGCR2F12HA**** Summary of Complaint REPAIRED. THE MANUFACTURER WAS NOT NOTIFIED OF THE FAILURE. THE FAILURE MILEAGE WAS APPROXIMATELY 1,200. August 18, 2017 NHTSA ID NUMBER: 11016279 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11016279 Incident Date August 18, 2017 Consumer Location HAWTHORNE, NJ Vehicle Identification Number 2HKRW2H56HH**** Summary of Complaint REPAIRED. THE FAILURE MILEAGE WAS 6,000.*DT*JB September 23, 2020 NHTSA ID NUMBER: 11360689 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11360689 Incident Date August 17, 2020 Consumer Location WELLINGTON, FL Vehicle Identification Number 7FARW1H81KE**** Summary of Complaint THE DEALER. THE MECHANIC WAS UNABLE TO RESTART THE VEHICLE. THE CONTACT WAS INFORMED THAT SEVERAL WIRING HARNESSES HAD MELTED AND NEEDED TO BE REPLACED. THE VEHICLE WAS REPAIRED, BUT THE THE FAILURE. THE FAILURE MILEAGE WAS APPROXIMATELY 700. October 8, 2018 NHTSA ID NUMBER: 11139129 Components: POWER TRAIN, ELECTRICAL SYSTEM, ELECTRONIC STABILITY THE BATTERY (WHICH WE ALL KNEW IT WAS NOT) BUT THEY PUT IN A NEW ONE THEY SAID. ANYHOW AS YOU ALREADY KNOW THIS IS AN ELECTRICAL ISSUE THAT NEEDS TO BE FIXED A.S.A.P.. DEALER NOW TELLS ME HONDA IS WORKING UNDETERMINED. THE FAILURE RECURRED. THE VEHICLE WAS TAKEN BACK TO THE DEALER WHERE IT WAS DIAGNOSED THAT THE BATTERY NEEDED TO BE REPLACED. THE VEHICLE WAS REPAIRED; HOWEVER, THE FAILURE PERSISTED VEHICLE. ABOUT 6 MONTHS AGO I STARTED HAVING THE SAME ISSUE WHERE MY BATTERY WAS DYING. IN ADDITION TO THAT MY.CAR STARTED MAKING A FUNNY NOISE. TURNS OUT I NEEDED MY TENSIONER/ALTERNATOR PULLEY VIOLATION OF FLORIDA’S UNFAIR & DECEPTIVE TRADE PRACTICES ACT (FLA. STAT. §501.201, ET SEQ.) 232. Plaintiffs reallege and incorporate by reference paragraphs 1-168 as though fully set forth herein. 233. Plaintiffs Andre Cruz, Mitchell Bryon Pazanki, Dayane Tessinari, and Fernanda Nunes Ferreira (for the purposes of this section, “Plaintiffs”) bring this claim on behalf of themselves and the Florida Class. 234. Plaintiffs and the Florida Class members are “consumers” within the meaning of WAS MADE AWARE OF THE FAILURE. THE CONTACT WAS INFORMED THAT THE VEHICLE NEEDED TO BE DIAGNOSED TO BE COVERED UNDER THE WARRANTY. IF NOT, THE CONTACT NEEDED TO PAY OUT OF POCKET FOR THE REPAIR. THE WAS 2 MONTHS AGO WHEN A NEIGHBOR CALLED TO TELL ME THE WINDOWS WERE DOWN. THE CAR WAS LOCKED THEN AS WELL, IT WAS ALSO AFTER A RAINY DAY. IN BOTH OCCURRENCES, THERE WAS NO WATER IN THE VEHICLE OR WAS IN DECEMBER 2017 IN BAY AREA CA, AND NOW IN PLEASANTON CA WITH TEMP ABOUT 60 DEGREES OUTSIDER. April 26, 2019 NHTSA ID NUMBER: 11203916 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11203916 Incident Date April 25, 2019 Consumer Location Unknown Vehicle Identification Number 1HGCR2F58GA**** Summary of Complaint WHAT - NO ALARM - NOTHING. I LOOKED ONLINE AND MANY HAVE THIS ISSUE. FOR ALL I KNOW MY HONDA BATTERY DIED DAY 2 OR 3 AS MANY ONLINE SAY THEIRS DIES AFTER SITTING JUST A FEW DAYS. December 14, 2020 NHTSA ID NUMBER: 11383284 Components: ELECTRICAL SYSTEM NHTSA ID Number: 11383284 Incident Date December 10, 2020 Consumer Location DECATUR, IL Vehicle Identification Number 7FARW2H97JE**** Summary of Complaint

lose

(Breach of Contract) (Negligent Misrepresentation) (Restitution/Unfair Business Practices, Violation of California Bus. & Prof. Code §17200) (Rescission) 17. During the Class Period, Defendants operated approximately 83 spring and/or summer camps – approximately 71 in California, 11 in Illinois, and 1 in Colorado – with each camp having multiple sessions over the course of the spring and/or summer. 18. Defendants offered those camps to the public via their website, email marketing, and otherwise. Pursuant to the terms of the agreement, anyone who purchased a camp session could cancel for a refund. The exact terms appear to be inconsistent, with some materials stating that reservations could be canceled at will, while other materials referred to a nominal cancellation fee. 24. Named Plaintiff brings this action on behalf of herself and as a class action pursuant to Federal Rule of Civil Procedure 23. 25. The class that Named Plaintiff seeks to represent is defined as follows: All individuals who paid Defendants for spring and/or summer camps that were canceled by Defendants without refund during the Class Period. 34. Plaintiffs incorporate the allegations above as though they were fully set forth herein. 35. In the time period from 2019 through the present, Plaintiffs entered various agreements with Defendants pursuant to which Plaintiffs paid consideration to Defendants in exchange for Defendants providing summer camp sessions to Plaintiffs (or, primarily, their children) in the spring and summer of 2020. The agreements contained a material term that the agreements could be canceled for a refund, either at will or subject only to a nominal cancelation fee. 36. In or around April 2020, Defendants breached those agreements by canceling the camps due to the COVID-19 pandemic, but refusing to give any refunds to Plaintiffs. 37. Plaintiffs performed all required of them under the agreements, save such performance as has been waived or excused by Defendants’ own conduct. 38. As a result of Defendants’ breach, Plaintiffs have been damaged in an amount to be proved at trial. 39. Plaintiffs incorporate the allegations above as though they were fully set forth herein. 43. Plaintiff incorporates the allegations above as though they were fully set forth herein. 44. Defendants’ conduct, as set forth above, violates the California Unfair Competition Law, Bus. & Prof. Code §17200, et seq. (“UCL”). Defendants’ conduct constitutes unlawful, unfair, or fraudulent business acts or practices in that they promoted their camps, accepted payment for those camps in advance, continued to reassure Plaintiffs and the general public that those camps would operate, then abruptly canceled those camps and refused to provide refunds. 45. As a result of Defendants’ unlawful, unfair, and fraudulent conduct, Plaintiffs have suffered injury in fact and have lost money, while Defendants have been enriched by the retention of those funds that are the property of Plaintiffs. 49. Plaintiff incorporates the allegations above as though they were fully set forth herein. 50. As set forth above, in the time period from 2019 through the present, Plaintiffs entered various agreements with Defendants pursuant to which Plaintiffs paid consideration to Defendants in exchange for Defendants providing summer camp sessions to Plaintiffs (or, primarily, their children) in the spring and summer of 2020. The agreements contained a material term that the agreements could be canceled for a refund, either at will or subject only to a nominal cancelation fee. 51. In or around April 2020, Defendants breached those agreements by canceling the camps, but refusing to give any refunds to Plaintiffs. 52. Plaintiffs sought to rescind the agreements and recover their payments to Defendants, but Defendants have refused to either perform or to refund any consideration.

lose

76. Pursuant to Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, Plaintiff brings this Action on behalf of himself, the Nationwide Class, and State Classes, defined as follows: Nationwide Class: All persons or entities in the United States (including its territories and the District of Columbia) who purchased or leased a “Class Vehicle.” 77. In addition to the Nationwide class, and pursuant to Federal Rules of Civil Procedure Rule 23(c)(5), Plaintiff seeks to represent the following State Classes as well as any subclasses or issue classes as Plaintiff may propose and/or the Court may designate at the time of class certification: Michigan Class: All persons or entities in the State of Michigan who purchased or leased a “Class Vehicle.” New Jersey Class: All persons or entities in the State of New Jersey who purchased or leased a “Class Vehicle.” A. Defendants’ emission-related problems are familiar. ....................... 16 B. Testing Reveals Emissions Problems With the Class Vehicles ............................................................................................. 19 C. A Key Component of the Class Vehicles’ Emissions System—The Catalytic Converter .................................................... 20 D. Injury to Consumers .......................................................................... 24 VI. A. Class Definitions A. Class Definitions ............................................................................... 30 B. Class Certification Requirements ...................................................... 32 IMPLIED AND WRITTEN WARRANTY Magnuson - Moss Warranty Act (15 U.S.C. §§ 2301, et seq.) 101. Plaintiff incorporates by reference all preceding allegations as though fully set forth herein. 102. Plaintiff brings this Action on behalf of himself and the Nationwide Class against Defendants. 103. This Court has jurisdiction to decide claims brought under 15 U.S.C. § 2301 by virtue of 28 U.S.C. § 1332 (a)-(d). 104. Plaintiff and members of the Class are “consumers” within the meaning of 15 U.S.C. § 2301(3). 105. Defendants are a “supplier” and “warrantor” within the meaning of 15 U.S.C. § 2301(4) and (5), respectively. 106. The Class Vehicles are “consumer products” within the meaning of SEATTLE, WA 98101-3052 T E L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0 F A C S I M I L E : ( 2 0 6 ) 6 2 3 - 3 3 8 4 X.

lose