Datasets:

darrow-ai

/

USClassActions

like 1

Follow

Darrow 16

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. 20. Defendant is a home goods and furniture retailer that operates the www.wayfair.com website (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 City. 21. Defendant operates and distributes its products throughout the United States, including New York City. 22. Defendant’s Website provides consumers with access to an array of goods and services, including the ability to browse home goods and furniture products for purchase and delivery, 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 November 2018, 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 home goods and furniture products available for purchase and 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 Home goods and furniture products 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 VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL

win

16. According to Dell Inc.’s 10-Q SEC filing on 12/3/12, “Dell” is Dell Inc. individually and together with its consolidated subsidiaries, and: Dell offers or arranges various financing options and services for its business and consumer customers in the U.S. and Canada through Dell Financial Services (“DFS”). DFS's key activities include the origination, collection, and servicing of customer receivables primarily related to the purchase of Dell products and services. Id., p. 12. * * * Dell makes credit decisions based on proprietary scorecards, which include the customer's credit history, payment history, credit usage, and other credit agency-related elements. Id., p. 15. * * * Dell transfers certain U.S. customer financing receivables to Special Purpose Entities (“SPEs”) which meet the definition of a Variable Interest Entity ("VIE") and are consolidated into Dell's Condensed Consolidated Financial Statements. Id., p. 16. 4:15-cv-10322-LVP-APP Doc # 1 Filed 01/23/15 Pg 5 of 11 Pg ID 5 6   17. On or around 2002 or 2003, Plaintiff went online to Dell.com and purchased a Dell computer for personal use. 18. In conjunction with Plaintiff’s online purchase at Dell.com, Dell Inc. agreed to provide goods to Plaintiff and through that same transaction on Dell.com Plaintiff’s purchase of goods was financed. 19. This financing process is similar to those done by an automobile dealership, where the dealership sells the good and arranges financing for the buyer. 20. On information and belief, Dell placed the financing of Plaintiff’s purchase for goods with Dell Financial Services (“DFS”) and per DFS’ agreement with CIT, within two days from the date of the loan’s origination CIT transferred title of the loan back to DFS. 21. On information and belief, DFS then placed the loan in a special purpose entity that then transferred the loan to another entity that DFS had an interest in through its related entities and partners, including Dell Inc. 22. DFS then serviced the loan and caused to be sent to Plaintiff at least one monthly billing statement. 23. Plaintiff made at least one monthly payment directly to DFS for the benefit of Dell, Inc., for his financed purchase. 24. No debtor – creditor relationship existed between Plaintiff and CIT. 25. Plaintiff did not have any direct contact with CIT. 4:15-cv-10322-LVP-APP Doc # 1 Filed 01/23/15 Pg 6 of 11 Pg ID 6 7   26. No payment was made by Plaintiff in relation to the amount financed for his Dell.com purchase on or after February 3, 2008. 27. At a point in time before February 3, 2008, Plaintiff was in default. 28. At some point in time, DFS, as a part of a portfolio of nonperforming account receivables, sold Plaintiff’s debt to Midland Funding, LLC. 29. On February 3, 2014, Plaintiff was sued in the case captioned, Midland Funding LLC Assignee of CIT Bank v. Eric Hilton, an Ind., 12 M1 149423, in the State of Michigan, 29th Judicial District (the “state court matter”). 30. A redacted true and correct copy of that complaint and all of the attachments is attached hereto as Exhibit A. 31. Plaintiff incorporates paragraphs 1-30 above. 15 U.S.C § 1692e, in pertinent part, provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: * * * (2) The false representation of -- (A) the character, amount, or legal status of any debt. . . . * * * (5) The threat to take any action that cannot legally be taken or 4:15-cv-10322-LVP-APP Doc # 1 Filed 01/23/15 Pg 7 of 11 Pg ID 7 8   that is not intended to be taken. . . . * * * (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 32. The FDCPA broadly prohibits unfair or unconscionable collection methods including filing suit on a time barred debt. See e.g. Murray v. CCB Credit Services, Inc., 04 C 7456, 2004 U.S. Dist. LEXIS 25361, 2004 WL 2943656, at *2 (N.D. Ill. Dec. 15, 2004) ("[A] violation of the FDCPA occurs if the attempt to collect the time-barred debt is accompanied by a threat to sue, or if litigation has actually begun."); Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613, 616 (N.D. Ill. 2001); Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (M.D. Ala. 1987). 33. Defendants’ conduct related to the state court matter violated 15 U.S.C §§ 1692e(2)(A), e(5) and e(10). 34. In defending the state court matter, Plaintiff incurred out of pocket actual damages. 35. The class consists of: All individuals with a Michigan address, whom were sued by Midland Funding LLC, on a debt originating with CIT Bank, where the suit was filed over four years after default, alternatively over six years after 4:15-cv-10322-LVP-APP Doc # 1 Filed 01/23/15 Pg 8 of 11 Pg ID 8 9   default, during a time period from the filing of this lawsuit to one year prior to the filing. 36. On information and belief, 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 above. 37. If it is determine that there are more than 40 persons with a Michigan address, whom Stillman Law Office filed a suit on behalf of Midland Funding LLC, on a debt originating with CIT Bank, where the suit was filed over four years after default, alternatively over six years after default, during a time period from the filing of this lawsuit to one year prior to the filing, Plaintiff places Stillman Law Office along with potential class members on notice and expressly reserves for the purpose of relation back to the original date of the filing of the Complaint the ability to add the above as a class allegation against Stillman Law Office See generally Sokolski v. TransUnion Corp., 178 F.R.D. 393 (E.D.N.Y. 1998); Navarro v Eskanos & Adler, No. C 06-02231 WHA, 2006 U.S. Dist. LEXIS 90880 * 9 – 10 (N.D. Cal. Dec. 7, 2006). 38. There are questions of law and fact common to the class that predominate over any questions affecting only individual class members. The predominant common question is whether Plaintiff and the class members were sued on a time barred debt. 4:15-cv-10322-LVP-APP Doc # 1 Filed 01/23/15 Pg 9 of 11 Pg ID 9 10   39. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has retained legal counsel experienced in handling class actions brought under the FDCPA. 40. A class action is an appropriate method for the fair and efficient adjudication of this controversy. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment for Plaintiff and any class certified against Defendants for: A. Statutory and actual damages; and B. Attorney’s fees and costs. Respectfully submitted, s/ Curtis C. Warner Curtis C. Warner Curtis C. Warner (P59915)

lose

20. CreditGuard is a debt consolidation firm. 21. To increase its sales, and as part of a general cold-call based marketing scheme, CreditGuard makes automated calls to consumers. The Original Calls to Mr. Newell 22. Plaintiff Newell is a “person” as defined by 47 U.S.C. § 153(39). 23. Mr. Newell’s telephone number, (484) 250-XXXX, is registered to a cellular telephone service. 24. In February of 2019, Mr. Newell received a series of automated calls from the Defendant. 25. Mr. Newell alerted the Defendant to the alleged TCPA violations. 26. Mr. Newell then resolved those claims. The Recent Calls to Mr. Newell 27. Despite the prior notice to the Defendant, Mr. Newell continued to receive automated calls. 29. When Mr. Newell answered the call, there was a distinctive click and a pause. 30. This click and pause is a telltale sign of a predictive dialer. 31. The click and pause signifies the algorithm of the predictive dialer operating. The predictive dialer dials thousands of numbers at once, and only transfers the call to a live agent once a human being is on the line. 32. On each of the calls, Mr. Newell was offered the Defendant’s goods or services. 33. On the third call, Mr. Newell was sent an e-mail from pdavidson@creditguard.org confirming that the Defendant had called him all three times. 34. Unfortunately, the Plaintiff is not alone in unwanted receipt of these calls. 35. The Plaintiff received all of the calls from the Caller ID (206) 451-8256. 36. The website “Should I Answer” has given this Caller ID a “NEGATIVE UNSOLICITED CALL” rating, with 21 complaints about that number. See https://www.shouldianswer.com/phone-number/2064518256 (Last Visited June 24, 2019). 37. Plaintiff and the other call recipients were harmed by these calls. They were temporarily deprived of legitimate use of their phones because the phone line was tied up during the telemarketing calls and their privacy was improperly invaded. Moreover, these calls injured Plaintiff and the other call recipients because they were frustrating, obnoxious, annoying, and a nuisance, and disturbed the solitude of Plaintiff and the class. 39. The following individuals are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, their subsidiaries, parents, successors, predecessors, and any entity in which Defendant or their parents have a controlling interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (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 and/or released. Plaintiff anticipates the need to amend the class definitions following appropriate discovery. 40. Numerosity: The exact size of the Class is unknown and unavailable to Plaintiff at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant made unsolicited prerecorded voice message calls to thousands of individuals who fall into the Class definition. Class membership can be easily determined from Defendant’s records. 41. Typicality: Plaintiff’s claims are typical of the claims of the other members of the Class. Plaintiff is a member of the Class, and if Defendant violated the TCPA with respect to Plaintiff, then it violated the TCPA with respect to the other members of the Class. Plaintiff and the Class sustained the same damages as a result of Defendant’s uniform wrongful conduct. 43. 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. Plaintiff has no interest antagonistic to those of the Class, and Defendant have no defenses unique to Plaintiff. 44. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendant have acted or refused to act on grounds generally applicable to the Class, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the members of the Class, and making final injunctive relief appropriate with respect to the Class. Defendant’s practices challenged herein apply to and affect the members of the Class uniformly, and Plaintiff’s challenge of those practices hinges on Defendant’s conduct with respect to the Class, not on facts or law applicable only to Plaintiff. 46. Plaintiff repeats and realleges the allegations of paragraphs 1 through 45 of this complaint and incorporates them by reference. 47. Defendant and/or their agents made unsolicited calls to Plaintiff and the other members of the TCPA Class using an autodialer. 48. Defendant made these autodialed calls en masse without the consent of Plaintiff and the other members of the TCPA Class. 49. Defendant’s conduct was negligent or willful and knowing. 50. Defendant has, therefore, violated 47 U.S.C. § 227(b)(1)(A)(iii). 51. As a result of Defendant’s conduct, Plaintiff and the other members of the TCPA Class are each entitled to a minimum of $500 in damages, and up to $1,500 in damages, for each violation. Violation of 47 U.S.C. § 227 (On Behalf of Plaintiff and the TCPA Class)

win

11. Experian is a FCRA-governed “consumer reporting agency” that selectively decides which information to provide to consumers that request the FCRA- governed information in Defendant’s possession and which information it will hide from consumers. Defendant withholds certain information in order to minimize its compliance costs and to avoid customer service inquiries directed at them and their business partners or private vendors. As mentioned above, these private vendors and/or business partners include companies like LexisNexis, a third party that sells public record information to Defendant and then, in turn, processes disputes regarding that public record information via the "ACDV" system. 12. Upon information and belief, Defendant misrepresents the source of consumers’ bankruptcy Public Record Information by falsely stating that a given courthouse is the source of the Public Record Information, while affirmatively hiding the true source of the Public Record Information. 13. Upon information and belief, Defendant does not obtain its Public Record Information about bankruptcies form courthouses or actual government entities. 45. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 46. The foregoing acts and omissions constitute numerous and multiple violations of the FCRA. 47. As a credit reporting agency, Experian is required to comply with 15 U.S.C. § 1681g(a)(2) of the FCRA. 48. Experian violated 15 U.S.C. § 1681g(a)(2) by failing to clearly and accurately disclose to Plaintiff and the Class the sources that supplied any information to the credit-reporting agency about Plaintiff and the Class. 49. Plaintiff is informed and believes that Experian violated 15 U.S.C. §§ 1681e(a)&(b) of the FCRA by maintaining the very inaccurate information about which Plaintiff reported. FAIR CREDIT REPORTING ACT 15 U.S.C. § 1681 ET SEQ.

win

30. This action is brought as a class action. Plaintiff brings this action on behalf of himself and on behalf of all other persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. 31. The identities of all class members are readily ascertainable from the records of Defendant and those business and governmental entities on whose behalf it attempts to collect debts. 32. Excluded from the Plaintiff's Class is the Defendant and all officers, members, partners, managers, directors, and employees of Defendant, and all of their respective immediate families, and legal counsel for all parties to this action and all members of their immediate families. -6- 33. There are questions of law and fact common to the Plaintiff's Class, which common issues predominate over any issues involving only individual class members. The principal issues are whether Defendant's communications with Plaintiff, such as the above stated claims, violate provisions of the Fair Debt Collection Practices Act. 34. Plaintiff's claims are typical of the class members, as all are based upon the same facts and legal theories. 35. Plaintiff will fairly and adequately protect the interests of Plaintiff's Class defined in this complaint. Plaintiff has retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither Plaintiff nor his attorneys have any interests, which might cause them not to vigorously pursue this action. 36. 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: Plaintiff is informed and believes, and on that basis alleges, that Plaintiff's 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 Plaintiff's Class and those questions predominate over any questions or issues involving only individual class members. The principal issues are whether Defendant's communications with Plaintiff, violate provisions of the Fair Debt Collection Practices Act. (c) Typicality: Plaintiff's claims are typical of the claims of the class members. Plaintiff and all members of Plaintiff's Class defined in this complaint -7- have claims arising out of Defendant's common uniform course of conduct complained of herein. (d) Adequacy: 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. 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 Plaintiff nor his 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. Certification of a class under Rule 23(b)(l)(A) of the Federal Rules of Civil Procedure is appropriate as adjudications with respect to individual members create a risk of inconsistent or varying adjudications which could establish incompatible standards of conduct for Defendant who, on information and belief, collects debts throughout the United States of America. 37. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate in that a determination that the above stated claims, violate provisions of -8- the Fair Debt Collection Practices Act, and is tantamount to declaratory relief and any monetary relief under the FDCPA would be merely incidental to that determination. 38. 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. 39. Further, Defendant has acted, or failed to act, on grounds generally applicable to the Rule (b)(l)(A) and (b)(2) Class, thereby making appropriate final injunctive relief with respect to the Class as a whole. 40. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify one or more classes only as to particular issues pursuant to Fed. R.Civ. P. 23(c)(4). 41. Plaintiff repeats, reiterates, and incorporates the allegations contained in paragraphs numbered one (1) through forty (40) herein with the same force and effect is if the same were set forth at length herein. 42. This cause of action is brought on behalf of Plaintiff and the members of a class. 43. The class involves all individuals whom Defendant's records reflect resided in the State of New York and who were sent a collection letter in substantially the same form letter as the letter sent to Plaintiff on or about October 27, 2015; and (a) the letter was sent to a consumer seeking payment of a personal debt; and (b) the letter was not returned by the -9- postal service as undelivered; and (c) the letter violated 15 U.S.C. §§ 1692e, 1692e(10), & 1692g(a)(4) for false and deceptive representations and for failing to comply with the validation notice requirements, in particular, for misrepresenting Plaintiff’s right to dispute the debt and misrepresenting Plaintiff’s right to obtain verification of the debt. Violations of the Fair Debt Collection Practices Act 44. Defendant's actions as set forth above in the within complaint violates the FDCPA. 45. Because Defendant violated the FDCPA, Plaintiff and the members of the class are entitled to damages in accordance with the FDCPA. WHEREFORE, Plaintiff, respectfully requests preliminary and permanent injunctive relief, and that this Court enter judgment in Plaintiff's favor and against Defendant and award damages as follows: (a) Statutory damages provided under the FDCPA, 15 U.S.C. § 1692(k); (b) Attorney fees, litigation expenses and costs incurred in bringing this action; (c) Any other relief that the Court deems appropriate and just under the circumstances. Dated: Brooklyn, New York September 19, 2016 /s/ Maxim Maximov_____ Maxim Maximov, Esq. Attorneys for the Plaintiff Maxim Maximov, LLP 1701 Avenue P Brooklyn, New York 11229 Office: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com Plaintiff requests trial by jury on all issues so triable. /s/ Maxim Maximov_____ Maxim Maximov, Esq. Violations of the Fair Debt Collection Practices Act brought by Plaintiff on behalf of himself and the members of a class, as against the Defendant.

win

12. Some time prior to January 9, 2018, an obligation was allegedly incurred to Chase Bank USA, N.A. 13. The Chase Bank USA, N.A. 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. 14. The alleged Chase Bank USA, N.A. obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 15. Chase Bank USA, N.A. is a "creditor" as defined by 15 U.S.C.§ 1692a(4). 16. On or about January 9, 2018, Defendant sent a letter (the “Letter”) to the Plaintiff a collection letter regarding the alleged debt. See Exhibit A. 17. Upon information and belief, this Letter was the first communication between Defendant and the Plaintiff regarding the alleged debt. 18. Plaintiff received the letter and read it. 19. The Letter states offered Plaintiff a discount but warned the Plaintiff should she want favorable terms from Chase in the future, she would have to pay the full balance. 20. Specifically the letter stated: “If we settle this debt with you for less than the full outstanding balance, Chase may offer you less favorable terms in the future for some Chase products or services, or may deny your application.” 21. Plaintiff, as would any least sophisticated consumer, read the above statement to mean two things: (1) if Plaintiff pays less than full balance, Chase will offer me less favorable terms and (2) should Plaintiff pay the full amount of the alleged debt, Chase will offer favorable terms in the future. 22. Upon information and belief, had Plaintiff paid the full amount, she would not have been offered more favorable terms in the future. 23. The language was used to mislead the Plaintiff into believing she had a financial incentive to pay the full amount, when none existed. 24. Furthermore, Defendant was in no position nor are they able to ascertain whether paying this alleged debt would improve Plaintiff’s credit reports and credit scores. 25. According to guidance published by the Consumer Financial Protection Bureau (hereinafter “CFPB”), a debt collector’s representation to a consumer that paying debts may improve the consumer’s creditworthiness or “enhance the likelihood that a consumer will subsequently receive credit from a lender” may be deceptive. CFPB Bulletin 2013-08 – Representations Regarding Effect of Debt Payments on Credit Reports and Scores (July 10, 2013). See Exhibit B. 26. By inputting this language, the Defendant caused the Plaintiff a real risk of harm. Plaintiff, as would the least sophisticated consumer, would believe that they have a financial incentive to pay more, when no financial incentive existed. 27. As a result of the Defendant’s violations of the FDCPA, the Plaintiff was harmed. 28. Defendant’s actions as described herein are part of a pattern and practice used to collect consumer debts. 29. Plaintiff brings this claim on behalf of the following class, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 30. The Class consists of (a) all individuals with addresses in the state of New York (b) to whom Defendant (c) sent a collection letter attempting to collect a consumer debt owed to Chase Bank USA, N.A. (d) which stated “If we settle this debt with you for less than the full outstanding balance, Chase may offer you less favorable terms in the future for some Chase products or services, or may deny your application.” (e) which letter 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. 31. 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 collects and/or have purchased debts. 32. 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. 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 Defendant’s written communications to consumers, in the forms attached as Exhibits A, violate 15 U.S.C. §§ 1692e. 34. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. 35. 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. 36. 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 predominate over any questions or issues involving only individual class members. The principal issue is whether the Defendant’s written communications to consumers, in the forms attached as Exhibit A, violate 15 U.S.C. §§ 1692e. (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 Defendant’s 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 Plaintiff’s counsel has 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. 37. 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. 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). 39. 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. 40. 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. 41. 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. 42. Defendant violated said section by: • Falsely representing the amount of the debt in violation of §1692e(2) • Making a false and misleading representation in violation of §1692e(10). 43. 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.

win

15. Upon information and belief, on a date better known by Defendant, Defendant began to attempt to collect an alleged consumer debt from the Plaintiff. 16. Within the one year immediately preceding the filing of this complaint, the Defendant contacted the Plaintiff on multiple occasions via telephone and left numerous voice messages in an attempt to collect the alleged obligation. 17. By way of limited example only, the following is a transcript of one such message that Defendant left for Plaintiff on her cellular telephone voicemail system on or about October 4, 2012: "Message is for Carmit Taibe, this is Dan Clark of Viking Client Services, please return my call at 18002019433 thank you." 18. At the time Plaintiff received the said messages, she did not know the identity of the caller. 19. At the time Plaintiff received the said messages, she did not know any person named "Dan Clark of Viking Client Services." 20. At the time Plaintiff received the said messages, she did not know any company named "Viking Client Services" 21. At the time Plaintiff received the said messages, she did not know that the caller was a -5- debt collector. 22. At the time Plaintiff received the said messages, she did not know that the call concerned the collection of a debt. 23. Each of the messages is a "communication" as defined by 15 U.S.C. § 1692a(2). 24. Each of the above messages uniformly failed to identify the callers as debt collectors attempting to collect a debt. 25. The only way for Plaintiff and/or any least sophisticated consumer to obtain the identity of the caller leaving the messages, and to ascertain the purpose underlying the messages, was to place a return call to the telephone number provided in the messages and to speak with a debt collector employed by Viking Client Services, Inc., and to provide the debt collector with personal information. 26. The Defendant intended that the messages have the effect of causing Plaintiff, and other least sophisticated consumers, to place return calls to the telephone number provided in the messages and to speak with their debt collectors, and then provide those debt collectors with their personal information, as the sole means of obtaining the identity of the caller leaving the messages, and to ascertain the purpose underlying the messages. Scores of federal court decisions -- including the 2nd Circuit Court of Appeals and District Courts within the State of New York -- uniformly hold that the FDCPA requires debt collectors to provide meaningful identification of itself in telephonic voice messages left for consumers, such as the said messages, by accurately stating the name of the debt collection company and stating the nature and/or purpose of the call. 27. At all times relevant to this action, Viking Client Services, Inc. was aware of the substantial weight of legal authority requiring it to provide meaningful identification of -6- itself in telephonic voice messages left for consumers, such as the said messages, by accurately stating its company name and stating the nature and/or purpose of the call. 28. At all times relevant to this action, Viking Client Services, Inc. willfully, deliberately, and intentionally chose not to provide meaningful identification of itself in telephonic voice messages left for consumers, such as the said messages, by accurately stating its company name and stating the nature and/or purpose of the call. 29. The Defendant's act of leaving the said messages for Plaintiff is conduct the natural consequences of which is to harass, oppress, or abuse a person in connection with the collection of a debt and is in violation of the FDCPA. 30. The Defendant's act of leaving the said messages for Plaintiff constitutes the use of a false, deceptive, or misleading representation or means in connection with the collection of a debt and is in violation of the FDCPA. 31. The FDCPA secures a consumer's right to have a debt collector cease further communications with the consumer. By failing to meaningfully identify itself, disclose the purpose of its call and state that Viking Client Services, Inc. is a debt collector in a manner understandable to the least sophisticated consumer, the Defendant has engaged in conduct designed to deprive consumers of their right to have a debt collector cease further communications. 32. It is Defendant's policy and practice to leave telephonic voice messages for consumers and other persons, such as the above said messages, that violate the FDCPA by, inter alia: (a) Failing to provide meaningful disclosure of Viking Client Services, Inc.'s identity; (b) Failing to disclose that the call is from a debt collector; and -7- (c) Failing to disclose the purpose or nature of the communication, i.e. an attempt to collect a debt. 33. Upon information and belief, such messages, as alleged in this complaint, number at least in the hundreds. 34. Upon information and belief, the said messages were either pre-scripted or pre-recorded. 35. Defendant has engaged in a pattern of leaving messages without disclosing that the communication is from a debt collector. 36. The said telephone messages are in violation of 15 U.S.C. §§ 1692d, 1692d(6), 1692e(10) and 1692e(11) for failing to indicate that the messages were from a debt collector, which constitutes a deceptive practice. 37. This action is brought as a class action. Plaintiff brings this action on behalf of herself and on behalf of all other persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. 38. With respect to the Plaintiff's Class, this claim is brought on behalf of a class of (a) all persons in the State of New York (b) for whom Viking Client Services, Inc. left a voicemail or answering machine message, in the form of the above said messages (c) that did not identify Viking Client Services, Inc. by its true company name or state that the call was for collection purposes (d) made in connection with Viking Client Services, Inc.'s attempt to collect a debt (e) which the said messages violate the FDCPA (f) during a period beginning one year prior to the filing of this initial action and ending 21 days after the service of the initial complaint filed in this action. -8- 39. The identities of all class members are readily ascertainable from the records of Viking Client Services, Inc. and those business and governmental entities on whose behalf it attempts to collect debts. 40. Excluded from the Plaintiff's Class are the Defendants and all officers, members, partners, managers, directors, and employees of Viking Client Services, Inc., and all of their respective immediate families, and legal counsel for all parties to this action and all members of their immediate families. 41. There are questions of law and fact common to the Plaintiff's Class, which common issues predominate over any issues involving only individual class members. The principal issues are whether the Defendant's telephonic voice messages, such as the above said messages, violate 15 U.S.C. §§ 1692d, 1692d(6), 1692e(10), and 1692e(11). 42. The Plaintiff's claims are typical of the class members, as all are based upon the same facts and legal theories. 43. The Plaintiff will fairly and adequately protect the interests of the Plaintiff's 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. 44. 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: -9- (a) Numerosity: The Plaintiff is informed and believes, and on that basis alleges, that the Plaintiff's 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's Class and those questions predominate over any questions or issues involving only individual class members. The principal issues are whether the Defendant's telephonic voice messages, such as the above said messages violate 15 U.S.C. §§ 1692d, 1692d(6), 1692e(10), and 1692e(11). (c) Typicality: The Plaintiff's claims are typical of the claims of the class members. Plaintiff and all members of the Plaintiff's Class defined in this complaint have claims arising out of the Defendant's 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 -10- 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. Certification of a class under Rule 23(b)(l)(A) of the Federal Rules of Civil Procedure is appropriate because adjudications with respect to individual members create a risk of inconsistent or varying adjudications which could establish incompatible standards of conduct for Defendants who, on information and belief, collect debts throughout the United States of America. 45. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate in that a determination that the said messages violate 15 U.S.C. §§ 1692d, 1692d(6), 1692e(10), and/or 1692e(11) is tantamount to declaratory relief and any monetary relief under the FDCPA would be merely incidental to that determination. 46. 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. 47. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify one or more classes only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). -11- 48. Plaintiff re-states, re-alleges, and incorporates herein by reference, paragraphs one (1) through forty seven (47) as if set forth fully in this cause of action. 49. Defendant violated the FDCPA. Defendant's violations with respect to the above said messages include, but are not limited to, the following: (a) Engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, in violation of 15 U.S.C. § 1692d; (b) Leaving telephonic voice messages which fail to disclose the purpose or nature of the communication (i.e., an attempt to collect a debt), in violation of 15 U.S.C. § 1692d(6); (c) Using a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, in violation of 15 U.S.C. § 1692e(10); (d) Failing to disclose in its initial communication with the consumer, when that communication is oral, that Defendant, Viking Client Services, Inc. was attempting to collect a debt and that any information obtained will be used for that purpose, in violation of 15 U.S.C. § 1692e(11); and (e) Failing to disclose in all oral communications that Viking Client Services, Inc. is a debt collector, in violation of 15 U.S.C. § 1692e(11). -12- Violations of the Fair Debt Collection Practices Act brought by Plaintiff on behalf of herself and the members of a class, as against the Defendant

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 seafood products company, and owns and operates the website, www.bornstein.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.bornstein.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 seafood products for purchase and delivery, view jobs, 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 November 2020, 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 seafood products 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. 43. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 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 NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

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. 23. Defendant offers the commercial website, WWW.EMERGE212.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 the physical locations, the ability to view floor plans and virtual office packages and prices, learn about building amenities, access to floor plans and building photos, transportation options and services available, read blog posts and frequently asked questions, subscribe to newsletter and schedule a tour of the spaces, participate in other social interactive experiences and to learn about other important information. 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 March, 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, as well as to the facilities, goods, and services of Defendant’s physical locations in New York by being unable to learn more information about the Defendant’s rental space locations, the ability to view floor plans and virtual office packages and prices, learn about building amenities, access to floor plans and building photos, transportation options and services available, read blog posts and frequently asked questions, subscribe to newsletter and schedule a tour of the spaces, participate in other social interactive experiences and to learn about other important information. 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, 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. 29. These access barriers on Defendant’s Website have deterred Plaintiff from visiting or returning to Defendant’s physical locations and Website, and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical locations on its Website and other important information, preventing Plaintiff from visiting or returning to the locations and Website to purchase items and to view the items. 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. 32. 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. 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. 35. 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 36. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendant’s rental space locations, book tours and purchase office packages and otherwise research related products and services via the Website. 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. 40. 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 offered in Defendant’s physical locations, during the relevant statutory period. 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 goods and services offered in Defendant’s physical locations, during the relevant statutory period. 43. 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. 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. 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 their litigation. 47. 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. 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). 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 goods, 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 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). 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 himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. 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 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). 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 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. 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". 62. 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.” 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 New York State physical location is a sales establishment and place of public accommodation 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. 76. Defendant is subject to New York Civil Rights Law because it advertises, owns and operates its physical location and Website. 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 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. 78. 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 . . .” 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 location is a sales establishment and a place of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishment. 86. Defendant is subject to NYCHRL because it advertises, owns and operates its physical location and its Website in the City of New York, 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 its physical location 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. 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 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. 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. 95. 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. 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 goods, services and facilities of its Website and by extension its physical location, 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., 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 NYCHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL

win

23. On or about April 2016, Plaintiff booked a round trip charter to Key West through Defendant’s on-line booking platform. 24. At the time of booking the charter, Plaintiff completed the following on-line form: 25. In completing the above form, Plaintiff understood that she was providing her cellular telephone number for the sole purpose of receiving notifications and information about the charter she had booked, and only for that purpose. 27. Despite promising that it would not use Plaintiff’s telephone number “for any other purpose,” Defendant, on February 6, 2017, May 1, 2017, and August 7, 2017, sent the following telemarketing text messages to Plaintiff’s cellular telephone number ending in 8197 (the “8197 Number”): 28. Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action. 29. Defendant’s text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., Defendant’s charter services. 31. The links (http://usc.am/iPhone and http://usc.am/Android) contained in the text messages are links to download Defendant’s mobile application, which was developed and is operated by Defendant. 32. Plaintiff received the subject texts 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. 32. 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). 33. “Automatic telephone dialing system” refers to any equipment that has the “capacity to dial numbers without human intervention.” See, e.g., Hicks v. Client Servs., Inc., No. 07-61822, 2009 WL 2365637, at *4 (S.D. Fla. June 9, 2009) (citing FCC, In re: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA International for Clarification and Declaratory Ruling, 07–232, ¶ 12, n.23 (2007)). 33. At no point in time did Plaintiff provide Defendant with her express written consent to be contacted using an ATDS. 34. Plaintiff is the subscriber and sole user of the 8197 Number, and is financially responsible for phone service to the 8197 Number. 34. 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. 35. 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. 36. 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. 36. 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 current capacity or present ability to generate or store random or sequential numbers or to dial sequentially or randomly at the time the call is made, and to dial such numbers, en masse, in an automated fashion without human intervention. 37. Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to her daily life. 38. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 38. 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. 39. Plaintiff brings this case on behalf of a Class defined as follows: All persons within the United States who were sent a text message promoting Defendant’s services, made through the use of any automatic telephone dialing system or an artificial or prerecorded voice, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, without emergency purpose and without the recipient’s prior express written consent, from March 10, 2016 to the date of filing of this Complaint. 39. Because Defendant knew or should have known that Plaintiff and the other members of the putative Class had not given prior express consent to receive its autodialed calls to their cellular telephones the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. WHEREFORE, Plaintiff, Jessica Dipuglia, on behalf of herself and the other members of the Class, pray for the following relief: a. A declaration that Defendant’s practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. An injunction prohibiting Defendant from using an automatic telephone dialing system to text message telephone numbers assigned to cellular telephones without the prior express permission of the called party; c. An award of actual and statutory damages; and d. Such further and other relief the Court deems reasonable and just. 40. 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. 40. Plaintiffs re-allege and incorporate the foregoing allegations as if fully set forth herein. 42. Defendant knew that it did not have prior express consent to send these text messages, and knew or should have known that its conduct was a violation of the TCPA. 43. 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. 43. Because Defendant knew or should have known that Plaintiffs 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 Plaintiffs and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 44. 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. 44. As a result of Defendant’s violations, Plaintiffs and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). WHEREFORE, Plaintiff, Jessica Dipuglia, on behalf of herself and the other members of the Class, pray for the following relief: a. A declaration that Defendant’s practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express permission of the called party; c. An award of actual and statutory damages; and d. Such further and other relief the Court deems reasonable and just. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiffs and the Class) PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

21. Defendant is a snack manufacturing company that owns and operates the website, shop.grippos.com (its “Website”), offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State. 22. Defendant’s Website offers its 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 and prices, 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 using a screen-reader. 25. For example, 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. 26. Many features on the Website also fail to contain a proper 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 was 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 was a problem for Plaintiff because in certain instances the screen reader failed to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 30. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. 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. 33. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. 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. 35. 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. 36. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 39. Web-based technologies have features and content that are modified on a daily, and in some instances, an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies. To evaluate whether an inaccessible website has been rendered accessible, and whether corporate policies related to web-based technologies have been changed in a meaningful manner that will cause the website to remain accessible, the website must be reviewed on a periodic basis using both automated accessibility screening tools and end user testing by disabled individuals. 40. 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. 41. 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. 42. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 44. Plaintiff, on behalf of herself 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. 45. 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 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. 47. 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. 48. 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. 49. 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. 50. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 52. 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. 53. 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). 54. 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). 55. 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). 57. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 58. 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. 59. 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.” 60. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 62. 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. 63. 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). 64. 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. 66. 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. 67. Defendant’s actions were and are in violation of the NYCHRL 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.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. 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. 71. 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. 73. 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 NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

10. Codified at 15 U.S.C. § 1681c(g), this provision states the following: Except as otherwise provided in this subsection, 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. 15 U.S.C. § 1681c(g) (the “Receipt Provision”). 11. After enactment, FACTA provided three (3) years in which to comply with its requirements, mandating full compliance with its provisions no later than December 4, 2006. 13. Card issuing organizations proceeded to require compliance with FACTA by contract, in advance of FACTA’s mandatory compliance date. For example, the publication, “Rules for Visa Merchants,” which is distributed to and binding upon all merchants that accept Visa cards, expressly requires that “only the last four digits of an account number should be printed on the customer’s copy of the receipt” and “the expiration date should not appear at all.”5 14. Because a handful of large retailers did not comply with their contractual obligations with the card companies and the straightforward requirements of FACTA, Congress passed The Credit and Debit Card Receipt Clarification Act of 2007 in order to make technical corrections to the definition of willful noncompliance with respect to violations involving the printing of an expiration date on certain credit and debit card receipts before the date of the enactment of this Act.6 15. Importantly, the Clarification Act did not amend FACTA to allow publication of the expiration date of the card number. Instead, it simply provided amnesty for certain past violators up to June 3, 2008. 16. In the interim, card processing companies continued to alert their merchant clients, including Defendant, of FACTA’s requirements. According to a Visa Best Practice Alert in 2010: Some countries already have laws mandating PAN truncation and the suppression of expiration dates on cardholder receipts. For example, the United States Fair and Accurate Credit Transactions Act (FACTA) of 2006 prohibits merchants from printing more than the last five digits of the PAN or the card expiration date on any cardholder receipt. (Please visit http://www.ftc.gov/os/statutes/fcrajump.shtm for more information on the FACTA.) To reinforce its commitment to protecting consumers, merchants, and the overall payment system, Visa is pursuing a global security objective that will enable merchants to eliminate the storage of full PAN 5 Rules for Visa Merchants, 33. Defendant had actual knowledge of FACTA’s truncation requirement before it began failing to comply with the requirement en masse. Indeed, Karen Lopez, currently an Acting Director at Defendant’s casino, claims to have conducted “internal investigations and department trainings” specifically for the purpose of “protect[ing] the assets and every individual on property” and “provide maximum deterrence, detection and immediate response to: theft, cheat/scams on property, harm to our employees and guests . . .,” such as identity theft.22 So too, Stephan Yohay, a current Surveillance Assistant Manager at Defendant’s casino.23 To that end, Lopez has also received training on casino “data archiving” and casino “risk and needs assessment” through the University of Reno, Extended Studies, Gaming Management Program, which training, upon information and belief, would cover, among other things, the need for strict compliance with 35. Moreover, there are numerous Florida statutes and operating regulations governing gambling, pari-mutuel wagering, slot machines and card rooms -- all of which Savin and Defendant’s other employees are well-versed in -- that require Defendant to maintain its establishment in full compliance with state and federal regulations such as FACTA. 36. Defendant’s self-professed knowledge and experience regarding federal laws governing financial transactions no doubt translates to Defendant having intimate knowledge of the requirements of FACTA, a federal law governing financial transactions. Yet, Defendant has a record of derelict data systems and regulatory noncompliance. While CEO Scott Savin tellingly admits that Defendant and its owners’ “only goal” is “to make money,” Dania Casino is one of the worst performing casinos in the region. Cost- and corner-cutting may help explain Defendant’s record of reckless noncompliance and derelict processes and procedures. For examples, just six months after opening, Defendant was forced to close for a year, while “its owners were forced to write a check to the state for nearly $400,000 after it under-reported its taxes for three months because of an alleged software glitch.”25 37. Most of Defendant’s business peers and competitors currently and diligently ensure their credit card and debit card receipt printing process remains in compliance with FACTA by consistently verifying their card machines and devices comply with the Receipt Provision. Defendant could have readily done the same. 39. As discussed above, the casino gaming industry is one of the main targets for identity theft. As such, companies operating in the sector should apply extra care in preserving customers’ data and preventing identity theft. Given the size and years of experience of Defendant’s business, and the various state and federal regulations governing its business, not to mention the prevalence of financial crimes in and around its establishment, at minimum Defendant was acting with reckless disregard of the FACTA requirements and purpose when printing eight (8) digits of credit cards and debit cards, together with other pieces of sensitive information of its customers, including their initialed signatures. 40. Upon information and belief, the violations at issue arose when Defendant installed new credit and debit card payment systems in its establishment. 41. Upon information and belief, prior to the rollout of its new system, Defendant had a written policy in place requiring the truncation of credit card account numbers; this is evidenced by the fact that prior to the installation of the aforementioned system, Defendant was actually truncating credit card and debit card account numbers in accordance with FACTA. 42. Upon information and belief, a manual was provided to Defendant’s employees for the operation of the new system which explained that the company is able to determine which fields will appear on a printed receipt and further explained that the company is able to truncate credit card and debit card numbers. 44. On or about December 5, 2017, Plaintiff used his personal credit card to perform a transaction at Defendant’s Casino at Dania Beach. 45. Plaintiff paid using his personal credit card and subsequently was presented with an electronically printed receipt bearing the first four (4) and last four (4) digits of his credit card account number. 46. In addition to bearing eight (8) digits of his credit card, the receipt identifies the complete first and last name and initialed signature of Plaintiff, the individual to whom the card is issued, as well as the card issuer (in this case VISA) and the transaction date and time. 47. By printing of the first four (4) and last four (4) digits of his Visa credit card account number Defendant breached Plaintiff’s confidence. Additionally, Defendant’s mishandling of his information also breached an implied bailment. E. 49. Plaintiff falls within the class definition and is a member of the class. Excluded from the class is Defendant and any entities in which Defendant has a controlling interest, Defendant’s agents and employees, Plaintiff’s attorneys and their employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death, and/or emotional distress. A. CERTIFICATION UNDER EITHER RULE 23(b)(2) OR (b)(3) IS PROPER. 50. The members of the class are capable of being described without managerial or administrative problems. The members of the class are readily ascertainable from the information and records in the possession, custody or control of Defendant. 52. Further, the first six (6) digits of a credit or debit card would readily determine whether the corresponding card is a business or consumer card. That is because the first six (6) digits of a credit or debit card number constitute what is known as the Bank Identification Number (“BIN”) that represents several items of information, including whether it is a consumer card or commercial (business) card. Finally, Visa, MasterCard, American Express and Discover only allow specific BINs and BIN ranges to identify consumer cards, and specific BINs and BIN ranges identify commercial (business) cards. Consumer cards and business cards do not share the same BINs or BIN ranges. 53. Plaintiff also proposes the following subclass, subject to modification by the Court as required: All persons in the United States who, within the two (2) years prior to the filing of the complaint through the date of the Court’s order granting class certification, (i) engaged in one or more transactions using a consumer/individual-issued (viz. not business issued) debit card or credit card at one or more of Defendant’s establishments located non-tribal owned land in the United States, and (ii) for which Defendant’s point-of-sale system was programmed to generate a printed customer receipt displaying more than the last 5 digits of the credit or debit card number used in connection with such transaction(s). 54. While all Class Members have experienced actual harm as previously explained herein, this suit seeks only statutory damages and injunctive relief on behalf of the class and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to expand the class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 54. All or most purchases at Defendant's establishment for which a FACTA-violative receipt is provided are paid with a consumer card, rather than a business card. To the extent this is an issue, the payments made with the two types of cards are easily discernible: merchants are charged different interchange fees for card transactions that vary based on whether the card is a business card or a consumer card. There are different interchange categories and codes assigned to each transaction that distinguish whether a card used for a transaction is a business card or a consumer card. Defendant and its merchant bank(s) could easily identify whether a particular transaction involved a business card or a consumer card. 55. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The questions of law and fact to the class predominate over questions that may affect individual Class Members, including the following: a. Whether, within the two (2) years prior to the filing of this Complaint, Defendant and/or its agents completed transactions by credit or debit card from any consumer and subsequently gave that consumer a printed receipt upon which more than the last five (5) digits of the card number was displayed; b. Whether Defendant’s conduct was knowing or reckless; c. Whether Defendant is liable for damages, and the extent of statutory damages for each such violation; and d. Whether Defendant should be enjoined from engaging in such conduct in the future. 55. As a person that patronized Defendant’s establishment and received a printed receipt containing more than the last five (5) digits of his credit card, Plaintiff is asserting claims that are typical of the proposed class. Plaintiff will fairly and adequately represent and protect the interests of the class in that Plaintiff has no interests antagonistic to any member of the class. 56. Plaintiff and the members of the class have all suffered harm as a result of the Defendant’s unlawful and wrongful conduct. Absent a class action, the class, along with countless future patrons of Defendant’s establishment, will continue to face the potential for irreparable harm. In addition, these violations of law would be allowed to proceed without remedy and Defendant will continue such illegal conduct. Because of the size of the individual Class Members’ claims, few Class Members could afford to seek legal redress for the wrongs complained of herein. 57. Defendant’s defenses are and will be typical of Plaintiff’s and the same or identical for each of the members of the class and will be based on the same legal and factual theories. There are no unique defenses to any of the Class Members’ claims. 58. A class action is a superior method for the fair and efficient adjudication of this controversy. Class-wide damages are essential to induce Defendant to comply with federal law. The interest of Class Members in individually controlling the prosecution of separate claims against Defendant is small. The maximum statutory damages in an individual action for a violation of this statute are minimal. Management of these claims is likely to present significantly fewer difficulties than those presented in many class claims. 59. Defendant has acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. 6. Identity theft is a serious issue affecting both consumers and businesses. As of 2018, a Harris Poll revealed that nearly 60 million Americans have been affected by identity theft.2 There were a record high 16.7 million victims of identity fraud in 2017 alone, and account takeovers (when a thief opens a credit card account or other financial account using a victim’s name and other stolen information) tripled in 2017 from 2016, causing $5.1 billion in losses.3 61. This section applies to any “device that electronically prints receipts” (hereafter “Devices”) at point of sale or transaction. 15 U.S.C. §1681c(g)(3). 62. Defendant employs the use of said Devices for transactions at its Casino at Dania Beach establishment in Dania Beach, Florida. 63. On or before the date on which this complaint was filed, Plaintiff and members of the class were provided receipt(s) by Defendant that failed to comply with the Receipt Provision. 64. At all times relevant to this action, Defendant was aware, or should have been aware, of both the Receipt Provision as well as the need to comply with said provision. 65. Notwithstanding the three-year period to comply with FACTA and its accompanying provisions, nor the subsequent years since FACTA became effective; and having knowledge of the Receipt Provision and FACTA as a whole; Defendant knowingly, willfully, intentionally, and/or recklessly violated and continues to violate the FCRA and the Receipt Provision. 68. As a result of Defendant’s knowing or reckless violations of the FCRA, Plaintiff and members of the class continue to be exposed to an elevated risk of identity theft. Defendant is liable to Plaintiff and members of the class pursuant to 15 U.S.C. § 1681n for statutory damages, punitive damages, attorney’s fees and costs. * * * WHEREFORE, Plaintiff Oneeb Rehman respectfully requests that this Court enter judgment in his favor and the class, and against Defendant Dania Entertainment Center LLC, d/b/a The Casino at Dania Beach, as follows: a. Granting certification of the Class; b. Awarding statutory damages; c. Awarding punitive damages; d. Awarding injunctive relief; e. Awarding attorneys’ fees, litigation expenses and costs of suit; and f. Awarding such other and further relief as the Court deems proper under the circumstances. 7. Congress enacted FACTA to prevent actual harm. See Pub. L. No. 108-159 (December 4, 2003) (“An Act . . . to prevent identity theft . . . and for other purposes.”) 9. One such FACTA provision was specifically designed to thwart identity thieves’ ability to gain sensitive information regarding a consumer’s credit or bank account from a receipt provided to the consumer during a point of sale transaction, which, through any number of ways, could fall into the hands of someone other than the consumer. A. Background of FACTA Plaintiff Oneeb Rehman (“Plaintiff”), on behalf of himself and other similarly situated individuals, sues Defendant Dania Entertainment Center, LLC, d/b/a The Casino at Dania Beach (“Casino” or “Defendant”), and alleges the following upon information and belief, and his own personal knowledge. number to protect persons from identity theft. B. CASINOS SUCH AS DEFENDANT’S ESTABLISHMENT ARE BREEDING

lose

. -. Sex IBIMOF • Clafm Number (ltl5U!u's Use Onf:y} Social Security Number • • -·· u . Employee's Occupalion {Job Title) Vllheo lnjutyorOceupational Oisea$e Ocwrred dri v-er Employer's Name/Company Name Ahern Rentals Inc-Mineral Ave Telephone (702) 851-3701 Office Mail Address (Number and Sfreel) 1401 Mineral Ave Las Vegas, NV 89106 M43 42 Date Employer Notified c.j~a~ ~ It Supervisor to \/Vhorn Injury Reported /\J\. Cl "f,. 1'I\ MA - ho r.9 Use additional sheet !f necessary) ff you believe th t you have an occupational disease, \vhen did you first have knowledge of the disability a relationship to your employment? ils Witnesses to the Acci nl {ff applicable) Nature of Injury or Occupational Disease Place Las Vegas,NV Date 04/20/2018 Name of Facility 2908 Brooks Las Vegas North Is there evidence that the Injured employee was under the inlluence of alcohol and/or anolher eontroHed substance at !he time of the acciden!? No D Yes {If yes, please explain) Have you advised the pa!lenl to remain off work ftYe days or more? "8 Yes Indicate dates: from ____ _ to From iofonnalion {liven by t employee, together with medicaf ~ence, can yoo directly etmneci this injury or occupational disease as job incurred? J!1 ~Yes D No Is additional medical care by a physician indicated? Yes D No Do you know of any previous injury or disease contributing to this condition or occupational disease (Explain 1r yes) Date 04/20/2018 Address 151 W Brooks Ave City Slate Las Vegas Doctor's Signature 20. In or about May of 2006, Plaintiff was offered and accepted a position as a truck driver for Defendants. 21. On or about April 19, 2018, Plaintiff was injured in the course and scope of his employment. 22. Specifically, Plaintiff was injured while pulling a fuel hose. 23. Plaintiffs April 19, 2018 on-the-job injury occurred through no fault of his own. 24. On or about April 20, 2018, Plaintiff filled out a C-4 Worker's Compensation form. See a true and correct copy of the C-4 Worker's Compensation form attached hereto as Exhibit II. 25. Plaintiff was diagnosed with a lumbar strain and abdominal strain. See Exhibit II. 26. On or about April 24, 2019, Defendants issued Plaintiff a Safety Violation Notice regarding the April 20, 2018 injury. See a true and correct copy of the Safety Violation Notice attached hereto as Exhibit Ill. 27. Such Safety Violation Notice declared that Plaintiff "caused an At Fault Injury to himself when he sprain/strained his back and abdomen pulling a twisting fuel hose." See Exhibit Ill. 28. Such Safety Violation Notice declared Plaintiff would be "[a]ssessed 8 Points" due to his injury. See Exhibit Ill. 29. Upon information and belief, Defendants declare to employees they "use[] the point system to review Company employees ... who are involved in ... workplace accidents." 38. Plaintiff realleges and incorporates by this reference all the paragraphs above in this Complaint as though fully set forth herein. 39. Plaintiff brings this action on behalf of himself and all other similarly situated persons as a class action under Rule 23 of the Nevada Rules of Civil Procedure. 42. Plaintiff hereby realleges and incorporates every allegation of this Complaint as though fully set forth herein. 43. On or about April 19, 2018, Plaintiff was injured in the course and scope of his employment when he was injured as a result of a work-related incident occurring during his shift. 44. Plaintiff filed a workers' compensation form on or about April 20, 2018. 45. Plaintiff exercised his rights by filling out a Workers' Compensation form on or about April 20, 2018. 46. Plaintiff was released back to work on or about April 21, 2018 with light restrictions. 47. At all times relevant, Plaintiff was in compliance with Defendants' work performance expectations. 48. Four days after filing for Workers' Compensation, on or about April 24, 2018 Plaintiff was terminated. 49. As a result of Plaintiffs unlawful termination, Plaintiff was damaged. 50. Defendants terminated Plaintiff for reasons that violate Nevada's public policy against terminating Plaintiff for pursuing and filing a Workers' Compensation claim. 51. Defendants tortiously terminated Plaintiff for his pursuit and filing of his lawful Workers' Compensation Claim. 52. Defendants' proffered reasons for terminating Plaintiff were pretextual. 54. As a proximate result of Defendants' tortious discharge of Plaintiff, Plaintiff 3 has suffered general, special, and consequential damages in an amount in excess of 4 Fifteen Thousand Dollars ($15,000.00). 5 55. Defendants' acts and/or omissions were fraudulent, malicious, or 6 oppressive under NRS 42.005. Pursuant to NRS 42.005 Plaintiff is entitled to an award 7 of punitive damages in excess of Fifteen Thousand Dollars ($15,000.00). 8 56. It was necessary for Plaintiff to retain the services of an attorney to file this 9 action which entitles Plaintiff to an award of reasonable attorney's fees and costs in this 10 suit. 11 18 19 20 21 22 23 24 25 26 57. As a result of the conduct of Defendant, as set forth herein, Plaintiff has sustained damages including, but not limited to, attorney fees and costs for the prosecution, legal advice, and representation herein. 58. Plaintiff was forced to retain the services of attorneys to prosecute this matter. 59. Plaintiff seeks recovery of his attorney fees, costs, and expenses. 60. As described above, Defendants maintain a policy and/or practice of assessing disciplinary points resulting in eventual termination against employees injured in the course and scope of their employment with Defendant. 61. As a result, Plaintiff and Nevada Class Members have been terminated by Defendants in violation of Nevada's public policy of protecting employees who pursue workers' compensation claims. 77. Defendants had a duty of reasonable care to protect the Plaintiff from the 3 negligent and/or careless actions of their own agents, officers, employees, and others. 4 78. Defendants had a duty of reasonable care not to hire individuals with a 5 propensity towards committing unlawful acts against Plaintiff. 6 79. Defendants had a duty to adequately train and supervise their employees 7 in regards to all correct policies and procedures in regard to harassment, medical leave, 8 absence, and/or termination policies and procedures. 9 80. Defendants knew and/or should have known that their employees had a 1 0 propensity towards committing unlawful acts. 11 18 19 20 21 22 81. Defendants breached their duty to Plaintiff by failing to supervise, train, and hire appropriate personnel. 82. As a direct and proximate cause of the foregoing conduct, Plaintiff suffered harm including loss of income and benefits, severe emotional distress including but not limited to great mental and emotional harm, anguish, anxiety, insecurity, damage to self- esteem and self-worth, and shame and humiliation, lack or appetite, and loss of sleep and/or anxiety. KENNETH FANK, on behalf of himself and all others similarly situated; Plaintiff, vs. NEGLIGENT HIRING, TRAINING, SUPERVISION, AND RETENTION (On Behalf of Plaintiff Individually) TORTIOUS DISCHARGE PUBLIC POLICY OF PROTECTING EMPLOYEES WHO PURSUE WORKERS' COMPENSATION CLAIMS (On Behalf of Plaintiff and the Nevada Class) VIOLATION OF AMERICANS WITH DISABILITIES ACT 42 U.S.C. § 12112 et seq. (On Behalf of Plaintiff Individually)

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, tea and health company that owns and operates www.glenbrookfarm.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.glenbrookfarm.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. 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. 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. 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. 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. 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). 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). 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. 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. 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. 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 NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

25. Defendant manufactures, markets and sells “Maker’s Mark Kentucky Straight Bourbon Whiskey” (i.e., “Maker’s Mark”). See below, ¶¶ 30, 31. 26. Defendant manufactures all of its whisky at its distillery, located in the City of Loretto, State of Kentucky. 27. Defendant manufactures and sells millions of bottles each year. In 2013, Defendant sold approximately 1.4 million cases, each containing 6 bottles.6 That is a total of approximately 8.4 million bottles. A 750-milliliter bottle of Maker’s Mark sells for approximately $31.99.7 28. Defendant has faced continual production shortages and has attempted to remedy those shortfalls by expanding and mechanizing its facility. Defendant’s supply shortages have been so severe that Defendant even proposed “watering down” its whisky’s alcohol content to meet production demands.8 68. Plaintiffs repeat, re-allege and incorporate by reference the above allegations as if fully stated herein. 69. Plaintiffs bring this cause of action on behalf of themselves and on behalf of the putative Class. 70. Plaintiffs and Defendant are both “person[s]” as defined by California Business & Professions Code § 17506. California Business & Professions Code § 17535 authorizes a private right of action on both an individual and representative basis. 71. The misrepresentations, acts, and non-disclosures by Defendant of the material facts detailed above constitute false and misleading advertising and therefore violate Business & Professions Code §§ 17500 et seq. 72. At all times relevant, Defendant’s advertising and promotion regarding its whisky being “Handmade” was untrue, misleading and likely to deceive the reasonable consumer and the public; and, in fact, has deceived the Plaintiffs and consumers similarly situated by representing that the product was “Handmade” when in fact Defendant knew and failed to disclose that its whisky was made predominately or entirely made by machines through the use of mechanized and/or automated processes. 79. Plaintiffs repeat, re-allege and incorporate by reference the above allegations as if fully stated herein. 80. Plaintiffs and Defendant are each “person[s]” as defined by California Business & Professions Code § 17201. California Business & Professions Code § 17204 authorizes a private right of action on both an individual and representative basis. 81. “Unfair competition” is defined by Business and Professions Code Section § 17200 as encompassing several types of business “wrongs,” four of which are at issue here: (1) an “unlawful” business act or practice, (2) an “unfair” business act or practice, (3) a “fraudulent” business act or practice, and (4) “unfair, deceptive, untrue or misleading advertising.” The definitions in § 17200 are drafted in the disjunctive, meaning that each of these “wrongs” operates independently from the others. A. “Unlawful” Prong 82. Because Defendant has violated California’s False Advertising Law, Business & Professions Code §§ 17500 et seq., Defendant has violated California’s Unfair Competition Law, Business & Professions Code §§ 17200 et seq., which provides a cause of action for an “unlawful” business act or practice perpetrated on members of the California public. CAL. BUS. & PROF. CODE §§ 17500 ET SEQ. [CALIFORNIA’S FALSE ADVERTISING LAW] CAL. BUS. & PROF. CODE §§ 17200 ET SEQ. [CALIFORNIA’S UNFAIR COMPETITION LAW] NEGLIGENT MISREPRESENTATION 102. Plaintiffs repeat, re-allege and incorporate by reference the above allegations as if fully stated herein. 103. At a date presently unknown to Plaintiffs, but at least four years prior to the filing of this action, and as set forth above, Defendant represented to the public, including Plaintiffs, by packaging and other means, that Maker’s Mark whisky was “Handmade,” as described herein. 104. Defendant made the representations herein alleged with the intention of inducing the public, including Plaintiffs and putative class members, to purchase Maker’s Mark whisky. 105. Plaintiffs and other similarly situated persons in California saw, believed, and relied upon Defendant’s advertising representations and, in reliance on them, purchased the product, as described herein. 106. At all times relevant, Defendant made the misrepresentations herein alleged when Defendant should have known these representations to be untrue, and Defendant had no reasonable basis for believing the representations to be true. 107. As a proximate result of Defendant’s negligent misrepresentations, Plaintiffs and other consumers similarly situated were induced to purchase, purchase more of, or pay more for, Maker’s Mark whisky, due to the unlawful acts of Defendant, in an amount to be determined at trial, during the Class Period.

lose

18. Fidelity acts as a recordkeeper, “service provider,” a party-in-interest, and a fiduciary of thousands of 401(k) plans and similar defined contribution retirement plans (the “Plans,” more fully defined below) in the United States. 19. Fidelity offers the Plans the opportunity to invest in third-party mutual funds and similar investment vehicles through its “FundsNetwork,” which Fidelity launched in 1989 and describes as “one of the industry’s leading fund supermarkets.” As part of its “Workplace Investing” business unit, Fidelity allows the Plans “to invest in mutual funds from hundreds of fund companies outside of Fidelity,” https://www.fidelity.com/mutual-funds/overview, and Fidelity’s Workplace Investing business unit provides third-party (i.e., non-Fidelity) mutual funds with access to over 24,000 retirement plans with over $1.6 trillion in assets. 20. Beginning in or about 2016, Fidelity began requiring various mutual funds, affiliates of mutual funds, mutual fund advisors, sub-advisors, investment funds, including collective trusts, and other investment advisors, instruments or vehicles that are offered to the Plans through Fidelity’s FundNetwork (collectively, “mutual funds”), to make secret payments (the “kickbacks,” “kickback payments,” or “secret payments”) to Fidelity for its own benefit in the guise of “infrastructure” payments or so-called relationship-level fees in violation of, inter alia, the prohibited transaction rules of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq. (i.e., ERISA §§ 404 and 406, 29 U.S.C. §§ 1104 and 1106), as well as ERISA’s fiduciary rules (i.e., ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and 72. This action is brought as a class action by Plaintiffs, individually and in a representative capacity on behalf of the Plan and the following proposed Class (“Class”): Class All employee pension benefit plans covered by the Employee Retirement Income Security Act of 1974 subject to the Internal Revenue Code §§ 401(a) or 401(k) with which Fidelity has maintained a contractual relationship. Excluded from the Class are Defendants, any employee pension benefit plans for which Defendants’ directors, officers or employees are beneficiaries, and any employee pension benefit Plans for which the Judge to whom this case is assigned or any other judicial officer having responsibility for this case is a beneficiary. 74. Numerosity. Plaintiffs are informed and believe that there are at least thousands of Class members throughout the United States. As a result, the members of the Class are so numerous that their individual joinder in this action is impracticable. 75. Commonality. There are numerous questions of fact and/or law that are common to the Plan and all the members of the Class, including, but not limited to the following: (a) whether Defendants have acted and continue to act as fiduciaries under ERISA in connection with the conduct described herein; (b) whether Defendants engaged in prohibited transactions by receiving the kickback payments for their own benefit and otherwise earning excessive compensation and effectively charging excessive fees for the administrative, management and investment services they provide to the Plans; (c) whether Defendants have breached their fiduciary duties under ERISA by failing to defray the reasonable expenses of administering the Plans; (d) whether Defendants have failed to disclose or inform the Plans of the existence and true nature of the kickback payments, as well as the excessive fees and compensation received by Fidelity; (e) whether Defendants are liable for participating in a prohibited transaction by failing to disclose the indirect compensation they receive from mutual funds in violation of 29 C.F.R. § 2550.408b-2; and (f) whether and what form of relief should be afforded to Plaintiff and the Class. 76. Typicality. Plaintiffs, who are a representative of the Plan and the Plans, have claims that are typical of all the members of the Class. Plaintiffs’ claims and all of the Class members’ claims arise out of the same uniform course of conduct by Defendants and arise under the same legal theories that are applicable to all other members of the Class. 78. Predominance. Common questions of law and fact predominate over questions affecting only individual Class members, and the Court, as well as the parties, will spend the vast majority of their time working to resolve these common issues. Indeed, virtually the only individual issues of significance will be the exact amount of damages recovered by each Class member, the calculation of which will ultimately be a ministerial function, and which does not bar certification. 79. Superiority. A class action is superior to all other feasible alternatives for the resolution of this matter. The vast majority, if not all, of the Class members are unaware of Defendants’ breaches of fiduciary duty and prohibited transactions such that they will never bring suit individually. Furthermore, even if they were aware of the claims they have against Defendants, the claims of virtually all Class members would be too small to economically justify individual litigation. Finally, individual litigation of multiple cases would be highly inefficient, a gross waste of the resources of the court and of the parties, and potentially could lead to inconsistent results that would be contrary to the interests of justice. 80. Manageability. This case is well suited for treatment as a class action and easily can be managed as a class action since evidence of both liability and damages can be adduced, and proof of liability and damages can be presented, on a Class-wide basis, while the allocation and distribution of damages to Class members would be essentially a ministerial function. 82. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as if fully set forth herein. 83. Defendants are fiduciaries of the Plans under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(a), as explained above, and are fiduciaries based on their discretion, authority, and/or control with respect to the administration, management, and/or disposition of the Plans and their assets, and their provision of investment advice for a fee or other compensation with respect to the monies or other property of the Plans and Defendants’ authority and responsibility with respect to the administration and management of the Plans and their retirement assets. 84. Defendants control the selection of the mutual funds available as investment options for the Plans and their participants, provide investment advice for compensation with respect to these investment options, use custody, control, ownership, and dominion over the Omnibus Accounts and accumulated united of assets of the Plans and use their discretionary authority and responsibility in the administration of the Plans to obtain kickback payments from the mutual funds and to earn other compensation from self-dealing as described above. 85. Defendants are prohibited from receiving benefits and compensation in connection with their position as fiduciaries of the Plans and a party-in-interest. 87. Fidelity is a fiduciary under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(a), with respect to the kickback payments, because it has discretion and control, or exercises authority, with respect to the management or disposition of these payments by arranging for, accepting and retaining them, either directly or through its subsidiaries or affiliates, as well as self-determining the excessive compensation, as described above. 88. Fidelity has engaged in and continues to engage in prohibited transactions in violation of ERISA § 406(b)(1), 29 U.S.C. § 1106(b)(1), by dealing with the assets of the Plans in its own interest or for its own account. 89. Fidelity has engaged in and continues to engage in prohibited transactions in violation of ERISA § 406(b)(2), 29 U.S.C. § 1106(b)(2), by acting on behalf of third parties which have interests that are adverse to those interests of the Plans, their participants and/or beneficiaries in connection with transactions involving the Plans. 91. Fidelity also has engaged in and participated in violations of ERISA § 406(a), 29 U.S.C. § 1106(a), by causing the Plans to enter into arrangements with Defendants that are not subject to the safe harbor created by 20 C.F.R. § 2550-408b-2 and, therefore, constitute prohibited transactions. 92. Pursuant to ERISA §§ 409(a) and 502(a), 29 U.S.C. §§ 1109(a) and 1132(a), Fidelity is liable to the Plans to credit back, disgorge and/or make restitution of all kickback payments and other improper compensation received by it; or, alternatively, Fidelity is liable to the Plans and the Class to pay damages to make restitution to the Plans in an amount representing the difference between the kickback payments and other compensation that it received, and the reasonable fair market value of any services provided to the Plans by Fidelity. 93. Plaintiffs and the Class also are entitled to all equitable or remediable relief as the Court may deem appropriate and just. 95. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as if fully set forth herein. 96. Fidelity’s arranging for and retention (or the retention by its affiliates or subsidiaries) of the kickback payments, as set forth above, violates its fiduciary duties under ERISA § 404(a)(1)(A) and (B), 29 U.S.C. § 1104(a)(1)(A) and (B), in that Fidelity failed and continues to fail to discharge its duties with respect to the Plans solely in the interest of the Plans’ participants and beneficiaries and (a) for the exclusive purpose of (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the Plans with (b) the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character with like aims. 98. As a direct result of Fidelity’s breaches of duties, Plaintiffs and the Class have suffered losses and damages. 99. Pursuant to ERISA § 409, 29 U.S.C. § 1109, and ERISA § 502(a), Fidelity is liable to restore to the plans the losses they have suffered as a direct result of Fidelity’s breaches of fiduciary duty and is liable for damages and any other available equitable or remedial relief, including prospective injunctive and declaratory relief, and attorneys’ fees, costs and other recoverable expenses of litigation. ERISA’S PROHIBITED TRANSACTION RULES

lose

10. Defendant has intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to Named Plaintiff and the FLSA collective. This pattern, practice, and/or policy includes, but is not limited to: a. willfully failing to pay Named Plaintiff and the members of the FLSA Collective overtime compensation for the hours they worked in excess of 40 hours in a given week. 12. Named Plaintiff and members of the FLSA Collective all perform or performed the same primary duties. 13. Defendant’s unlawful conduct has been widespread, repeated, and consistent. 14. While working for Defendant, Named Plaintiff and other similarly situated employees were regularly required to perform work for Defendant, without receiving proper overtime compensation, as required by applicable federal law. 15. Named Plaintiff worked for Defendant as an LPN from approximately September 2009 until April 2017. 16. Named Plaintiff typically worked five (5) shifts per week, from approximately 7:30 a.m. to 4:00 p.m. Although she was supposed to receive a one (1) hour lunch break, Named Plaintiff worked through all or part of her lunch break. 17. Defendant automatically deducted one (1) hour of pay from Named Plaintiff’s wages for every shift she worked for a “lunch break,” even though Named Plaintiff did not take all or part of her lunch break. 18. Accordingly, Named Plaintiff worked approximately 42.5 hours per week, but was only paid for 37.5 hours per week. 19. Named Plaintiff was thus not paid time and one half her regular hourly wage for all the hours she worked over 40 in any given week. 21. Named Plaintiff and members of the FLSA collective are all victims of the Defendant’s common policy and/or plan to violate the FLSA by failing to provide overtime wages, at the rate of one and one half times the regular rate of pay, for all time worked in excess of forty (40) hours in any given week. 22. Named Plaintiff repeats and re-alleges the allegations set forth above. 23. Pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C § 207, “no employer shall employ any of their employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for their employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 24. Further, pursuant to 29 U.S.C. § 203(d), an “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” 26. Defendant is an “employer,” within the meaning contemplated in the FLSA, 29 U.S.C. § 203(d), and, consequently, are liable for violations of FLSA. 27. Defendant failed to pay Named Plaintiff and members of the FLSA collective all earned overtime wages, at the rate of one and one half times the regular rate of pay, for the time in which they worked after the first 40 hours in any given week. 28. The failure of Defendant to pay Named Plaintiff and members of the FLSA collective their rightfully owed wages and overtime compensation was willful. 29. By the foregoing reasons, Defendant is liable to Named Plaintiff and members of the FLSA collective in an amount to be determined at trial, plus interest, attorneys’ fees and costs. WHEREFORE, Named Plaintiff, individually and on behalf of all other persons similarly situated, demands judgment: (1) on the first cause of action against Defendant, in an amount to be determined at trial, plus liquidated damages in the amount equal to the amount of unpaid wages, interest, attorneys' fees and costs; and (2) such other and further relief as this Court may deem just and proper. Dated: New York, New York June 7, 2017 8. This action is properly maintainable as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b). 9. This action is brought on behalf of Named Plaintiff and a putative collective consisting of similarly situated employees who worked for Defendant as nurses, including but not limited to LPNs and RNs on or after June 7, 2014, who elect to opt-in to this action (“FLSA Collective”). FLSA OVERTIME WAGE COMPENSATION

win

10. Discovery may reveal the transmission of additional faxes as well. 11. Defendant is responsible for sending or causing the sending of the fax. 12. Defendant as the entity whose products or services were advertised in the fax, derived economic benefit from the sending of the fax. 13. Defendant either negligently or wilfully violated the rights of plaintiff and other recipients in sending the fax. 14. Plaintiff had no prior relationship with defendant and had not authorized the sending of fax advertisements to plaintiff. 15. The fax refers to a website registered to defendant. 17. On information and belief, defendant has transmitted similar unsolicited fax advertisements to at least 40 other persons in Michigan. 18. 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. 19. Plaintiff incorporates ¶¶ 1-18. 20. 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). 21. 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. 22. 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. 24. Defendant violated the TCPA even if its actions were only negligent. 25. Defendant should be enjoined from committing similar violations in the future. 26. 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 (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. §1658), (c) were sent faxes by or on behalf of defendant Care Connection, promoting its goods or services for sale (d) and with respect to whom Defendant cannot provide evidence of express consent or an established business relationship prior to the faxing. 27. 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. 28. 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. The manner in which defendant compiled or obtained its list of fax numbers; c. Whether defendant thereby violated the TCPA. 29. 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. 30. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 32. Several courts have certified class actions under the TCPA. Holtzman v. Turza, 08 C 2014, 2009 U.S. Dist. LEXIS 95620 (N.D.Ill., Oct. 14, 2009), aff’d in relevant part, 728 F.3d 682 (7 Cir. 2013); Sadowski v. Med1 Online, LLC, 07 C 2973, 2008 U.S. Dist. LEXIS 41766 th (N.D.Ill., May 27, 2008); CE Design Ltd. v Cy's Crabhouse North, Inc., 259 F.R.D. 135 (N.D.Ill. 2009); Targin Sign Sys. v Preferred Chiropractic Ctr., Ltd., 679 F. Supp. 2d 894 (N.D.Ill. 2010); Garrett v. Ragle Dental Lab, Inc., 10 C 1315, 2010 U.S. Dist. LEXIS 108339, 2010 WL 4074379 (N.D.Ill., Oct. 12, 2010); Hinman v. M & M Rental Ctr., 545 F.Supp. 2d 802 (N.D.Ill. 2008); Clearbrook v. Rooflifters, LLC, 08 C 3276, 2010 U.S. Dist. LEXIS 72902 (N.D. Ill. July 20, 2010) (Cox, M.J.); G.M. Sign, Inc. v. Group C Communs., Inc., 08 C 4521, 2010 U.S. Dist. LEXIS 17843 (N.D. Ill. Feb. 25, 2010); Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642 (W.D.Wash. 2007); Display South, Inc. v. Express Computer Supply, Inc., 961 So.2d 451, 455 (La. App. 1st Cir. 2007); Display South, Inc. v. Graphics House Sports Promotions, Inc., 992 So. 2d 510 (La. App. 1st Cir. 2008); Lampkin v. GGH, Inc., 146 P.3d 847 (Ok. App. 2006); ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. (App.) 94, 50 P.3d 844 (2002); Core Funding Group, LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003); Critchfield Physical Therapy v. Taranto Group, Inc., 293 Kan. 285; 263 P.3d 767 (2011); Karen S. Little, L.L.C. v. Drury Inns. Inc., 306 S.W.3d 577 (Mo. App. 2010). 9. On May 6, 2015, plaintiff Michigan Urgent received the unsolicited fax advertisement attached as Exhibit A on its facsimile machine..

lose

21. State Farm placed automated text messages and prerecorded voice message calls to Plaintiff’s cellular telephone number, XXX-XXX-9200. State Farm’s automated text messages came from telephone number 788-36. 22. Plaintiff did not sign up or ask to receive text messages from State Farm. 24. Moreover, State Farm placed calls to Plaintiff’s cellular telephone featuring prerecorded voice messages. The prerecorded voice messages asked Plaintiff to return State Farm’s call. 25. Plaintiff was annoyed and inconvenienced by the repeated text messages to his cellular telephone. Accordingly, Plaintiff responded “Stop” to get the text messages to stop. 26. State Farm responded: “State Farm Alerts is canceled. You will receive no more msgs.” However Plaintiff did receive more messages. See images supra. 27. Plaintiff called State Farm at 800-440-0098, spoke to a female representative, and requested that State Farm cease sending text messages and prerecorded voice messages to his cellular phone. Plaintiff requested that State Farm contact him only by mail. State Farm’s representative stated that State Farm would comply with Plaintiff’s request. 28. However, State Farm continued to place automated text messages and prerecorded voice messages to Plaintiff’s cellular telephone. 29. The continued automated text and prerecorded voice messages were annoying and frustrating to Plaintiff, and an invasion of Plaintiff’s privacy. 30. The text messages and prerecorded voice messages placed to Plaintiff’s cellular phone by Defendant were made with an autodialer as defined by 47 U.S.C. § 227(a)(1) and the 35. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23 on behalf of himself and all others similarly situated. 36. Plaintiff represents, and is a member of the following classes (the “Classes”): Class 1: All persons within the United States who received on their cellular telephone at least one text message from Defendant, responded via text message commanding that Defendant cease sending text messages, and, from June 10, 2012 to the present, received at least one additional text message to the same cellular telephone number other than a text message confirming that Defendant would cease placing text messages. Class 2: All persons within the United States who received on their cellular telephone at least one prerecorded voice message call from Defendant, instructed Defendant to cease placing prerecorded voice message calls to their cellular telephone, and, from June 10, 2012 to the present, received at least one additional prerecorded voice message call from Defendant to their cellular telephone. 38. Upon information and belief, Defendant placed automated text and prerecorded voice messages to cellular telephone numbers belonging to thousands of consumers throughout the United States without their prior express consent. The members of the Classes, therefore, are believed to be so numerous that joinder of all members is impracticable. 39. The exact number and identities of the Class members are unknown at this time and can only be ascertained through discovery. Identification of the Class members is a matter capable of ministerial determination from Defendant’s records. C. Common Questions of Law and Fact 40. There are questions of law and fact common to the Classes that predominate over any questions affecting only individual Class members. These questions include: (A) Whether Defendant sent non-emergency text messages to Plaintiff and Class members’ cellular telephones using an autodialer; (B) Whether Defendant placed non-emergency prerecorded voice message calls to Plaintiff and Class members’ cellular telephones; (C) Whether Defendant placed non-emergency calls to Plaintiff and Class members’ cellular telephones using an autodialer; (D) Whether Defendant can meet its burden of showing it obtained prior express consent to place each call; (E) Whether Defendant’s conduct was knowing and/or willful; (F) Whether Defendant is liable for damages, and the amount of such damages; and (G) Whether Defendant should be enjoined from such conduct in the future. 42. Plaintiff’s claims are typical of the claims of the Class members, as they are all based on the same factual and legal theories. E. Protecting the Interests of the Class Members 43. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither Plaintiff nor his counsel has any interests which might cause them not to vigorously pursue this action. F. Proceeding via Class Action is Superior and Advisable 44. A class action is the superior method for the fair and efficient adjudication of this controversy. The interest of Class members in individually controlling the prosecutions of separate claims against Defendant is small because it is not economically feasible for Class members to bring individual actions. 45. Management of this class action is unlikely to present any difficulties. Several courts have certified classes in TCPA actions. These cases include, but are not limited to: Mitchem v. Ill. Collection Serv., 271 F.R.D. 617 (N.D. Ill. 2011); Sadowski v. Med1 Online, LLC, 2008 WL 2224892 (N.D. Ill. May 27, 2008); CE Design Ltd. V. Cy’s Crabhouse North, Inc., 259 F.R.D. 135 (N.D. Ill. 2009); Lo v. Oxnard European Motors, LLC, 2012 WL 1932283 (S.D. Cal. May 29, 2012). 46. Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates them herein by reference. 47. Defendant sent multiple automated text and prerecorded voice messages to cellular numbers belonging to Plaintiff and the other members of the Classes without their prior express consent. 48. Each of the aforementioned messages by Defendant constitutes a violation of the 52. Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates them herein by reference. 54. Each of the aforementioned messages by Defendant constitutes a knowing and/or willful violation of the TCPA. 55. As a result of Defendant’s knowing and/or willful violations of the TCPA, Plaintiff and the Classes are entitled to an award of treble damages up to $1,500.00 pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 56. Additionally, Plaintiff and the Classes are entitled to and seek injunctive relief prohibiting such conduct by Defendant in the future. 57. Plaintiff and the Classes are also entitled to and do seek a declaration that: • Defendant knowingly and/or willfully violated the TCPA; • Defendant knowingly and/or willfully placed automated text and prerecorded voice messages to Plaintiff and the Classes; • Defendant willfully disregarded consumers’ requests that Defendant cease placing automated text and prerecorded voice messages to their cellular telephones; • It is Defendant’s practice and history to place automated text and prerecorded voice messages to consumers without prior express consent. A. The Class Dated: June 10, 2016 Respectfully submitted, PLAINTIFF, ANDY AGUILAR By: /s/ Sergei Lemberg Sergei Lemberg, Esq. Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.

win

22. CVRR is an independent downstream energy limited partnership with refining and related logistics assets that operates in the mid-continent region. CVRR was formed by CVI, the indirect owner of the General Partner, in September 2012 in order to own and operate petroleum and auxiliary businesses as a limited partnership. Since formation, CVRR’s business and operations have been run by the General Partner pursuant to the Partnership Agreement. On January 23, 2013, CVRR completed its initial public offering of 24,000,000 common units to the public priced at $25.00 per unit, resulting in gross proceeds to CVRR of $600 million. 23. According to the Partnership Agreement, if the General Partner and/or affiliates1 own more than 80 percent of CVRR’s units, the General Partner could exercise and/or assign to its affiliates the right to acquire CVRR’s remaining outstanding units. As set forth in the Partnership Agreement, the predetermined price per unit under the Call Right, if exercised, would be the greater of: (i) the average closing price of the units during the 20 trading days predating three days before the notice of intent to effect the buyout; or (ii) the highest per-unit price paid by the General Partner or any of its affiliates for CVRR units during the 90-day period preceding the date the notice of intent to effect the buyout. 26. Under the terms of the Exchange Offer, CVRR unitholders, if able, could exchange their units for shares of CVI at a rate of one unit per 0.6335 shares of CVI. Based on the May 25, 2018 closing prices of $43.61 and $22.10 for CVI shares and CVRR units, respectively, one trading day prior to the announcement of the Exchange Offer, the Exchange Offer valued CVRR units at $27.63 per unit, or a 25 percent premium. 27. In connection with the Exchange Offer, CVI filed an S-4 registration statement with the SEC to register 23,537,209 shares of CVI on May 29, 2018. On June 14, 2018 CVI filed an amendment to its registration statement on SEC Form S-4/A. Both registration statements reiterated that there were “no current plans to exercise the call right at this time or upon the consummation of the exchange.”2 The SEC declared CVI’s registration statement effective on June 15, 2018, and CVI filed a prospectus in connection with the Exchange Offer on June 18, 2018. The prospectus also stated that there were “no current plans to exercise the call right at this time or upon the consummation of the exchange.” 44. At all relevant times, the market for CVRR common units was open, well- developed and efficient. As a result of Defendants’ false statements and manipulative conduct, CVRR common units traded at artificially deflated prices during the Class Period. Plaintiff and other members of the Class sold the Partnership’s common units relying upon the integrity of the market price of the Partnership’s common units and market information relating to CVRR, and have been damaged thereby. 45. During the Class Period, Defendants materially misled the investing public, thereby purposely deflating the price of CVRR’s common units, by publicly issuing false and/or misleading statements and/or omitting to disclose material facts necessary to make Defendants’ statements, as set forth herein, not false and/or misleading. These statements and omissions were materially false and/or misleading in that they failed to disclose material adverse information and/or misrepresented the truth about CVRR’s business, operations, and prospects as alleged herein. 47. During the Class Period, as alleged herein, the Defendants acted with scienter in that the Defendants knew or were reckless as to whether the public documents and statements issued or disseminated in the name of the Partnership during the Class Period were materially false and misleading; knew or were reckless as to whether such statements or documents would be issued or disseminated to the investing public; and knowingly and substantially participated or acquiesced in the issuance or dissemination of such statements or documents as primary violations of the federal securities laws. 48. The Defendants permitted CVRR to release these false and misleading statements and failed to file the necessary corrective disclosures, which artificially deflated the value of the Partnership’s common units. 49. As set forth herein, the Defendants, by virtue of their receipt of information reflecting the true facts regarding CVRR, their control over, receipt, and/or modification of CVRR’s allegedly materially misleading statements and omissions, and/or their positions with the Partnership that made them privy to confidential information concerning CVRR, participated in the fraudulent scheme alleged herein. 58. There is a well-defined community of interest in the questions of law and fact involved in this case. Questions of law and fact common to the members of the Class which predominate over questions which may affect individual Class members include: (a) Whether the Exchange Act was violated by Defendants; (b) Whether Defendants omitted and/or misrepresented material facts; (c) Whether Defendants’ statements omitted material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; (d) Whether Defendants knew or recklessly disregarded that their statements were false and misleading; (e) Whether the price of CVRR common units was artificially deflated; and (f) The extent of the damage sustained by Class members and the appropriate measure of damages. 59. Plaintiff’s claims are typical of those of the Class because Plaintiff and the Class sustained damages from Defendants’ wrongful conduct. 60. Plaintiff will adequately protect the interests of the Class and has retained counsel experienced in securities class action litigation. Plaintiff has no interests that conflict with those of the Class. 61. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 63. During the Class Period, Defendants disseminated or approved the false statements specified above, which they knew or recklessly disregarded were misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 64. Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 in that they: (a) Employed devices, schemes, and artifices to defraud; (b) Made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (c) Engaged in acts, practices, and a course of business that operated as a fraud or deceit upon Plaintiff and others similarly situated in connection with their transactions in CVRR common units during the Class Period. 65. Plaintiff and the Class have suffered damages in that, as a result of Defendants’ wrongful conduct alleged herein, they sold CVRR common units at artificially deflated prices. Plaintiff and the Class would not have sold CVRR common units at the prices they did, if they had been aware that the market prices had been artificially and falsely deflated by Defendants’ misleading statements. 67. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 68. The Control Person Defendants, as culpability participants, acted as controlling persons of CVRR within the meaning of Section 20(a) of the Exchange Act. By virtue of their positions and their power to control public statements about CVRR, the Control Person Defendants had the power and ability to control the actions of CVRR and its employees. By reason of such conduct, Defendants are liable pursuant to Section 20(a) of the Exchange Act. For Violation of Section 10(b) of the Exchange Act and Rule 10b-5 Against All Defendants For Violation of Section 20(a) of the Exchange Act Against the Control Person Defendants

lose

-9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. NEGLIGENT VIOLATIONS 10. Defendant contacted or attempted to contact Plaintiff from telephone numbers including (310) 757-8676 with a call-back number, (888) 253-4674. 11. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A). 12. Such calls constitute solicitation calls pursuant to 47 C.F.R. § 13. Plaintiff has received numerous solicitation calls from Defendant within a 12-month period. 18. The class concerning the National Do-Not-Call violation (hereafter “The DNC Class”) is defined as follows: All persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who had not granted Defendant prior express consent nor had a prior established business relationship, who received more than one call made by or on behalf of Defendant that promoted Defendant’s products or services, within any twelve-month period, within four years prior to the filing of the complaint. 19. Plaintiff represents, and is a member of, The DNC Class, consisting of all persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who had not granted Defendant prior express consent nor had a prior established business relationship, who received more than one call made by or on behalf of Defendant that promoted Defendant’s products or services, within any twelve-month period, within four years prior to the filing of the complaint. 64.1200(c)(2), as they were an attempt to promote or sell Defendant’s services. 8. Beginning in or around January of 2017, Defendant contacted Plaintiff on Plaintiff’s home telephone number ending in -4272, in an attempt to solicit Plaintiff to purchase Defendant’s services. 9. Plaintiff’s home telephone number ending in -4272 was added to the National Do-Not-Call Registry on or about July 11, 2003. FOR VIOLATIONS OF: 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

24. Defendant is a casino and hotel that owns and operates its physical locations as well as its Website, www.grandzcasinohotel.com, offering features which should allow all consumers to access the goods and services offered in connection with its physical locations. 25. Defendant operates its location at 321 Gregory Street Central City, Colorado 80427. 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: location and hours, contact information, and related goods and services available both online and in Defendant’s physical locations. 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 physical locations. 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 physical locations 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 location and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical location on its Website and other important information, preventing Plaintiff from visiting the location 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 transaction than to travel to a physical location to make the same transaction. However, as long as the Access Barriers continue to exist on the Website, Plaintiff is prevented from making such a transaction. 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 locations. 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 location and hours of 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 location is 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.

lose

21. Defendant is a jewelry manufacturing company that owns and operates the website, www.harrisjewelry.com (its “Website”), offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State. 22. Defendant’s Website offers its 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 and prices, 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 using a screen-reader. 25. For example, 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. 26. Many features on the Website also fail to contain a proper 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 was 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 was a problem for Plaintiff because in certain instances the screen reader failed to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 30. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. 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. 33. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. 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. 35. 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. 36. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 39. Web-based technologies have features and content that are modified on a daily, and in some instances, an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies. To evaluate whether an inaccessible website has been rendered accessible, and whether corporate policies related to web-based technologies have been changed in a meaningful manner that will cause the website to remain accessible, the website must be reviewed on a periodic basis using both automated accessibility screening tools and end user testing by disabled individuals. 40. 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. 41. 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. 42. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 44. Plaintiff, on behalf of herself 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. 45. 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 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. 47. 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. 48. 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. 49. 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. 50. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 52. 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. 53. 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). 54. 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). 55. 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). 57. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 58. 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. 59. 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.” 60. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 62. 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. 63. 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). 64. 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. 66. 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. 67. Defendant’s actions were and are in violation of the NYCHRL 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.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. 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. 71. 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. 73. 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 NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

(Collective Action Claim for Violation of FLSA) (Individual Claim for Violations of CWA, C.R.S. § 8-4-101, et seq., and CMWO, C.C.R. § 1103-1) (Individual Claim for Violation of the FLSA) 14. Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if fully set forth in this section. 15. Crandall is owner, principal, officer and/or director of Crandall Drilling. 16. Crandall manages and controls the day-to-day operations of Crandall Drilling, including but not limited to the decision to not pay Plaintiff a sufficient premium for hours worked in excess of forty (40) per week 17. Defendant is an “employer” within the meanings set forth in the FLSA, and was, at all times relevant to the allegations in this Complaint, Plaintiffs’ employer, as well as the employer of the members of the collective. 18. Defendant’s primary business is providing water well services, such as drilling and pump repair. 20. Defendant’s annual gross volume of sales made or business done is not less than $500,000.00 (exclusive of excise taxes at the retail level that are separately stated) for each of the three years preceding the filing of this Complaint. 21. At all material times herein, Plaintiff has been entitled to the rights, protection and benefits provided under the FLSA, the CWA and the CMWO. 22. Plaintiff was employed by Defendant within the three (3) years preceding the filing of this Original Complaint. 23. Specifically, Plaintiff was employed by Defendant from September of 2015 until January of 2020 as a foreman. 24. As a foreman, Plaintiff was paid an hourly rate. 25. At all relevant times herein, Defendant directly hired Plaintiff and similarly situated employees to work on its behalf, paid them wages and benefits, controlled their work schedules, duties, protocols, applications, assignments and employment conditions, and kept at least some records regarding their employment. 26. Plaintiff and similarly situated hourly employees regularly worked in excess of forty (40) hours per week throughout their tenure with Defendant. 27. Defendant paid Plaintiff and similarly situated hourly employees one and one-half times their base hourly rate for some hours worked over forty (40) in each week, but not for all hours worked over forty (40) in each week. 28. Upon information and belief, Defendant’s pay practices were the same for all hourly employees. 30. However, Defendant did not include the bonuses that were paid to Plaintiff and in his regular rate when calculating overtime pay. 31. Section 778.208 of Title 29 of the Code of Federal Regulations requires that all forms of compensation, such as nondiscretionary bonuses, “must be totaled in with other earnings to determine the regular rate on which overtime pay must be based.” 32. Therefore, Defendant violated the FLSA by not including all forms of compensation, such as the nondiscretionary bonuses, in the regular rate when calculating Plaintiff’s overtime pay. 33. Defendant failed to pay Plaintiff and all others similarly situated a sufficient overtime premium for all hours worked over forty each week. 34. Upon information and belief, the pay practices that violate the FLSA alleged herein were the same at all of Defendant’s facilities because the policy was a centralized human resources policy implemented uniformly from the corporate headquarters. 35. Defendant knew or showed reckless disregard for whether the way it paid Plaintiffs and other hourly-paid workers violated the FLSA. V. 36. Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if fully set forth in this section. 37. Plaintiff 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). 39. The relevant time period dates back three years from the date on which Plaintiff’s Original Complaint—Collective Action was filed and continues forward through the date of judgment pursuant to 29 U.S.C. § 255(a). 40. The members of the proposed FLSA Collective are similarly situated in that they share these traits: A. They were classified by Defendant as non-exempt from the overtime requirements of the FLSA; B. They were paid hourly rates; C. They worked over forty hours in at least one week within the past three years; and D. They were subject to Defendant’s common policy of failing to pay an overtime premium for all hours worked over forty in each week. 41. Plaintiff is unable to state the exact number of the potential members of the FLSA Collective but believe that the group exceeds five (5) persons. 60. Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if fully set forth in this section. 61. 29 U.S.C. § 207 requires employers to pay employees one and one-half (1.5) times the employee’s regular rate for all hours that the employee works in excess of forty (40) per week. 29 U.S.C.S. § 207. 62. Defendant classified Plaintiff as non-exempt from the requirements of the 69. Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if fully set forth in this section. 70. Plaintiff brings this collective action claim on behalf of all hourly-paid workers employed by Defendant to recover monetary damages owed by Defendant to Plaintiff and members of the putative collective for all the overtime compensation for all the hours they worked in excess of forty (40) each week. 71. Plaintiff brings this action on behalf of himself individually and on behalf of all other similarly situated employees, former and present, who were and/or are affected by Defendant’s willful and intentional violation of the FLSA. 72. 29 U.S.C. § 207 requires employers to pay employees one and one-half (1.5) times the employee’s regular rate for all hours that the employee works in excess of forty (40) per week. 29 U.S.C.S. § 207. 74. Like Plaintiff, these hourly-paid employees regularly worked more than forty (40) hours in a week. 75. Defendant failed to pay Plaintiff and all similarly situated employees an overtime rate of one and one-half times their regular rate for all hours worked in excess of forty hours per week. 76. Because these employees are similarly situated to Plaintiff, and are owed overtime for the same reasons, the opt-in class may be properly defined as: All hourly employees who worked more than forty (40) hours in any week within the past three years. 77. Defendant’s conduct and practice, as described above, has been and is willful, intentional, unreasonable, arbitrary and in bad faith. 78. By reason of the unlawful acts alleged in this Complaint, Defendant is liable to Plaintiff and all those similarly situated for, and Plaintiff and all those similarly situated seek, unpaid overtime wages, liquidated damages, and costs, including reasonable attorney’s fees as provided by the FLSA. 79. Alternatively, should the Court find that Defendant acted in good faith in failing to pay Plaintiff and all those similarly situated as provided by the FLSA, Plaintiff and all those similarly situated are entitled to an award of prejudgment interest at the applicable legal rate. 80. Plaintiff repeats and re-alleges all previous paragraphs of this Complaint as though fully incorporated in this section. 82. Defendants failed to properly pay Plaintiff overtime wages at a rate of not less than one and one-half (1.5) times his regular rate of pay for all hours he worked in excess of forty (40) per workweek. 83. Defendants’ conduct and practices, described herein, were willful, intentional, unreasonably, arbitrary, and in bad faith. 84. Because Defendants willfully violated the CWA and CMWO, a three (3) year statute of limitations shall apply to such violations. 85. As a result of Defendant’s uniform and common policies and practices described above, Plaintiff was illegally deprived of overtime wages earned, in such amounts to be determined at trial, and is entitled to recovery of such total unpaid amounts, reasonable attorneys’ fees, costs and other compensation pursuant to Colo. Rev. Stat. § 8-6-118. IX.

lose

11. Plaintiff Riley and the Collective Rounding Class work, or have worked, for Kirsan as hourly employees at times since October 5, 2014. 12. Plaintiff Riley and the Wisconsin Rounding Class work, or have worked, for Kirsan as hourly employees at Kirsan’s Pleasant Prairie, Wisconsin location at times since October 5, 2015. 13. Kirsan specializes in contract manufacturing and precision CNC machining services at its facility in Pleasant Prairie, Wisconsin. 14. Since October 5, 2014, Plaintiff Riley, the Collective Rounding Class, and the Wisconsin Rounding Class have been paid on an hourly basis for their work at Kirsan’s Pleasant Prairie, Wisconsin facility. 15. Since October 5, 2015, Kirsan, Plaintiff Riley, and the Wisconsin Rounding Class have agreed to specific hourly rates which were to be paid to Plaintiff Riley and the Wisconsin Rounding Class in exchange for their hours worked under forty in a workweek for Kirsan. 16. Since October 5, 2014, Kirsan has implemented a time clock rounding policy applicable to Plaintiff Riley, the Wisconsin Rounding Class, and the Collective Rounding Class where hourly employees’ starts and end times for their shifts were rounded in fifteen minute increments. 18. As an example, under Kirsan’s impermissible time clock rounding policy, if an employee punched in 3:50 p.m., Kirsan would round up to 4:00 p.m. 19. Likewise, under Kirsan’s impermissible time clock rounding policy, if an employee punched out at 3:10 p.m., Kirsan would round down to 3:00 p.m. 20. Since October 5, 2014, Kirsan has suffered or permitted Plaintiff Riley to regularly work more than forty hours during workweeks in which Kirsan applied its time clock rounding policy. 21. Since October 5, 2014, Kirsan has suffered or permitted the Collective Rounding Class and the Wisconsin Rounding Class to work more than forty hours during workweeks in which Kirsan applied its time clock rounding policy. 22. As a result of applying this time clock rounding policy, Kirsan improperly denied Plaintiff Riley, the Wisconsin Rounding Class, and the Collective Rounding Class of compensation at one and one-half times their respective regular rates for hours worked in excess of forty in many workweeks since October 5, 2014. 23. Since October 5, 2014, Kirsan’s application of its time clock rounding policy resulted in employees, including Plaintiff Riley, the Wisconsin Rounding Class and the Collective Rounding Class, being suffered or permitted to perform work for Kirsan without compensation at their agreed-upon hourly rates. 25. On information and belief, Kirsan has not maintained complete and accurate time records for Plaintiff Riley, the Wisconsin Rounding Class, or the Collective Rounding Class since October 5, 2014. 26. Kirsan’s conduct, as set forth in this complaint, was willful and in bad faith, and has caused significant damages to Plaintiff Riley, the Wisconsin Rounding Class, and the Collective Rounding Class. 27. Plaintiff Riley and the Collective Rounding Class are and have been similarly situated, have and have had substantially similar pay provisions, and are and have been subject to Kirsan’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 Riley as stated herein are the same as those of the Collective Rounding Class. 28. Plaintiff Riley and the Collective Rounding Class seek relief on a collective basis challenging, among other FLSA violations, Kirsan’s practice of failing to accurately record all hours worked and failing to pay employees for all hours worked, including overtime compensation. 30. Plaintiff Riley brings her Wisconsin state law claims, pursuant to Wisconsin wage laws, under FED. R. CIV. P. 23 on behalf of the Wisconsin Rounding Class for violations occurring on or after October 5, 2015 (the “Wisconsin Rounding Class Period”). 31. The proposed Wisconsin Rounding Class’ members 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, and the facts on which the calculation of that number are presently within the sole control of Kirsan, upon information and belief, there are over 40 members in the Wisconsin Rounding Class. 33. Plaintiff Riley is able to fairly and adequately protect the interests of the Wisconsin Rounding Class, has no interests antagonistic to the Wisconsin Rounding Class, and has retained counsel experienced in complex wage and hour class action litigation. 34. There are questions of fact and law common to the Wisconsin Rounding Class that predominate over any questions affecting only individual members. The questions of law and fact common to the class arising from Kirsan’s actions include, without limitation, the following: a) Whether Kirsan’s rounding policy violated Wisconsin’s wage laws; b) Whether Kirsan failed to maintain true and accurate records for all hours worked by Riley and the Wisconsin Rounding Class as required by Wisconsin Law; c) Whether Kirsan failed to pay the Wisconsin Rounding Class for all work Kirsan suffered or permitted them to perform; and d) The nature and extent of class-wide injury and the measure of damages for the injury. 35. A class action is superior to any 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 corporate defendant, particularly those plaintiffs with relatively small claims. 37. Plaintiff Riley, individually and on behalf of the Collective Rounding Class, reasserts and incorporates by reference all preceding paragraphs as if restated herein. 38. Since October 5, 2014, Plaintiff Riley and the Collective Rounding Class have been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. §201 et. seq. 39. Since October 5, 2014, Kirsan has been and continues to be an enterprise engaged in commerce within the meaning of 29 U.S.C. §203(s)(1). 40. Since October 5, 2014, Plaintiff Riley and the members of the Collective Rounding Class have been employees within the meaning of 29 U.S.C. § 203(e). 41. Since October 5, 2014, Kirsan has been an employer of Plaintiff Riley and the Collective Rounding Class as provided under 29 U.S.C. § 203(d). 42. Since October 5, 2014, Kirsan has violated the FLSA by failing to pay overtime compensation due to Plaintiff Riley and the Collective Rounding Class for each hour worked in excess of forty hours in any given workweek. 44. Kirsan’s failure to properly compensate Plaintiff Riley and the Collective Rounding Class and failure to properly record all compensable work time was willfully perpetrated and Plaintiff Riley and the Collective Rounding Class are therefore entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime premium pay described above pursuant to Section 216(b) of the FLSA, 29 U.S.C. § 216(b). 45. Alternatively, should the Court find that Kirsan did not act willfully in failing to pay minimum and overtime premium wages, Plaintiff Riley and the Collective Overtime Class are entitled to an award of pre-judgment interest at the applicable legal rate. 46. Pursuant to FLSA, 29 U.S.C. §216(b), successful Plaintiffs are entitled to reimbursement of the costs and attorneys’ fees expended in successfully prosecuting an action for unpaid minimum wages and overtime wages. 47. Plaintiff Riley, individually and on behalf of the Wisconsin Rounding Class, re-alleges and incorporates by reference all preceding paragraphs as restated herein. 49. Since October 5, 2015, Plaintiff Riley and the Wisconsin Rounding Class were employees within the meaning of Wis. Stat. §§ 103.001 et seq. 50. Since October 5, 2015, Plaintiff Riley and the Wisconsin Rounding Class were employees within the meaning of Wis. Stat. §§ 104.01 et seq. 51. Since October 5, 2015, Plaintiff Riley and the Wisconsin Rounding Class were employees within the meaning of Wis. Admin. Code §§ DWD 272.001 et seq. 52. Since October 5, 2015, Plaintiff Riley and the Wisconsin Rounding Class were employees within the meaning of Wis. Admin. Code §§ DWD 274.01 et seq. 53. Since October 5, 2015, Kirsan was an employer within the meaning of Wis. Stat. §§ 109.01 et seq. 54. Since October 5, 2015, Kirsan was an employer within the meaning of Wis. Stat. §§ 103.001 et seq. 55. Since October 5, 2015, Kirsan was an employer within the meaning of Wis. Stat. §§ 104.01 et seq. 56. Since October 5, 2015, Kirsan was an employer within the meaning of Wis. Admin. Code §§ DWD 272.001 et seq. 58. Since October 5, 2015, Kirsan has employed, and/or continues to employ Plaintiff Riley and the Wisconsin Rounding Class within the meaning of Wis. Stat. §§ 109.01 et seq. 59. Since October 5, 2015, Kirsan has employed, and/or continues to employ Plaintiff Riley and the Wisconsin Rounding Class within the meaning of Wis. Stat. §§ 103.001 et seq. 60. Since October 5, 2015, Kirsan has employed, and/or continues to employ Plaintiff Riley and the Wisconsin Rounding Class within the meaning of Wis. Stat. §§ 104.01 et seq. 61. Since October 5, 2015, Kirsan has employed, and/or continues to employ Plaintiff Riley and the Wisconsin Rounding Class within the meaning of Wis. Admin. Code §§ DWD 272.001 et seq. 62. Since October 5, 2015, Kirsan has employed, and/or continues to employ Plaintiff Riley and the Wisconsin Rounding Class within the meaning of Wis. Admin. Code §§ DWD 274.01 et seq. 63. Since October 5, 2015, Plaintiff Riley and the Wisconsin Rounding Class regularly performed activities that were an integral and indispensable part of the employees’ principal activities without receiving compensation for these activities. 65. Since October 5, 2015, Kirsan had, and continues to have, common policies, programs, practices, procedures, protocols, routines, and rules of willfully failing to properly pay the Wisconsin Rounding Class overtime wages for all hours worked in excess of forty hours in a given workweek. 66. Wis. Stat. §109.03 requires payment of all wages earned by the employee to a day not more than 31 days prior to the date of payment. 67. The foregoing conduct, as alleged above, constitutes continuing, willful violations of Wisconsin’s law requiring the payment of minimum, overtime, and agreed upon wages. 68. As set forth above, Plaintiff Riley and the Rounding Class have sustained losses in their compensation as a proximate result of Kirsan’s violations. Accordingly, Plaintiff Riley, individually and on behalf of the Wisconsin Rounding Class, seeks damages in the amount of their respective unpaid compensation, injunctive relief requiring Kirsan to cease and desist from its violations of the Wisconsin laws described herein and to comply with them, and such other legal and equitable relief as the Court deems just and proper. 70. Plaintiff Riley, individually and on behalf of the Wisconsin Rounding Class, seeks recovery of attorneys’ fees and the costs of this action to be paid by Kirsan, pursuant to the Wisconsin law. Violation of Wisconsin Law – Unpaid Agreed-Upon Wages and Overtime Violations of the Fair Labor Standards Act of 1938 as Amended

win

35. 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 Rocket Fuel’s publicly traded securities during the Class Period. 36. The members of the Class are so numerous that joinder of all members is impracticable. The disposition of their claims in a class action will provide substantial benefits to the parties and the Court. Rocket Fuel has over 35 million shares of stock outstanding, owned by hundreds if not thousands of persons. 37. There is a well-defined community of interest in the questions of law and fact involved in this case. Questions of law and fact common to the members of the Class that predominate over questions that may affect individual Class members include: (a) whether Case4:14-cv-03998-PJH Document1 Filed09/03/14 Page10 of 39 - 10 - 98. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein 99. During the Class Period, Rocket Fuel and the Insider Defendants participated in the preparation of and/or disseminated or approved the false statements specified above, which they knew were or deliberately disregarded as being misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 100. Rocket Fuel and the Insider Defendants violated § 10(b) of the Exchange Act and Rule 10b-5 in that they made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 101. Rocket Fuel and the Insider Defendants, individually and together, directly and indirectly, by the use, means, or instrumentalities of interstate commerce and/or the mails, engaged and participated in a continuous course of conduct to conceal the truth and/or adverse material information about the business, operations, and future prospects of Rocket Fuel as specified herein. Rocket Fuel and the Insider Defendants had actual knowledge of the Case4:14-cv-03998-PJH Document1 Filed09/03/14 Page33 of 39 - 33 - For Violations of § 10(b) of the Exchange Act and Rule 10b-5(b) (Against Rocket Fuel and the Insider Defendants) For Violations Of § 20(a) Of The Exchange Act (Against The Insider Defendants) 103. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein. 104. During the Class Period, the Insider Defendants acted as controlling persons of Rocket Fuel within the meaning of § 20(a) of the Exchange Act. By reason of their high-level positions with the Company, participation in, and/or awareness of the Company’s operations, direct involvement in the day-to-day operations of the Company, and/or intimate knowledge of the Company’s actual performance, the Insider Defendants had the power to influence and control and did influence and control, directly or indirectly, the decision-making of the Company, including the content and dissemination of the materially false and misleading statements alleged herein. 105. By reason of such conduct, the Insider Defendants are liable pursuant to § 20(a) of the Exchange Act. Violations of Section 15 of the Securities Act (Against the Insider Defendants) 121. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein except for the allegations of fraudulent intent. For the purposes of this Count, Plaintiff expressly exclude and disclaim any allegation that could be construed as alleging Case4:14-cv-03998-PJH Document1 Filed09/03/14 Page37 of 39 - 37 - Violations of Section 12(a)(2) of the Securities Act (Against Rocket Fuel and the Underwriter Defendants) 115. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein except for the allegations of fraudulent intent. For purposes of this Count, Plaintiff expressly excludes and disclaim any allegation that could be construed as alleging fraud or intentional or reckless misconduct, as this Count is based solely on claims of strict liability and/or negligence under the Securities Act. 116. This Count is brought pursuant to Section 12(a)(2) of the Securities Act, by Plaintiff and other members of the Class who purchased or otherwise acquired common stock in the IPO against Rocket Fuel and the Underwriter Defendants. The IPO Offering Materials contained untrue statements of material fact and omitted to disclose material facts, as detailed above. The facts misstated and omitted would have been material to a reasonable person reviewing the IPO Offering Materials. 117. Rocket Fuel and the Underwriter Defendants owed Plaintiff and the other members of the Class who acquired Rocket Fuel stock pursuant to the IPO Offering Materials Case4:14-cv-03998-PJH Document1 Filed09/03/14 Page36 of 39 - 36 - Violation of §11 of the Securities Act (Against All Defendants) Case4:14-cv-03998-PJH Document1 Filed09/03/14 Page34 of 39 - 34 -

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.barbarabui.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 May of 2020, Plaintiff visited Defendant’s website, www.barbarabui.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 NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

36. Pursuant to the Seventh Amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. Respectfully Submitted this 14th Day of November, 2018. 9. Beginning in or around July 2018, Defendant contacted Plaintiff on Plaintiff’s cellular telephone number ending in -0440, in an attempt to solicit Plaintiff to purchase Defendant’s 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.

win

(FLSA Overtime Violations, 29 U.S.C. § 207 - Brought by Plaintiff on Behalf of Himself and the FLSA Collective) (Failure to Provide Accurate Pay Statements – NYLL § 195(3) Brought by Plaintiff on Behalf of Himself and the Class) 14 (Failure to Pay Wages and Overtime Wages – NYLL, Brought by Plaintiff on Behalf of Himself and the Class) 1.2 million members in downstate New York. 18. Plaintiff sues on behalf of himself and all other similarly situated Marketing Representatives employed by Defendants (the “FLSA Collective” or “FLSA Collective Plaintiffs”). 19. Plaintiff is an appropriate representative of this collective action under 29. U.S.C. §216(b). 20. Plaintiff and the other Marketing Representatives employed by Defendants are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subject to Defendants’ decision, plan and common policies, programs, practices, procedures, protocols, routines, and rules of willfully failing and refusing to pay them at least one-and-one-half times their regular hourly rates of pay for work in excess of forty (40) hours per workweek. Defendants routinely required them to work weekly hours in excess of forty but failed to pay them overtime compensation at time and one-half their regular rate for all overtime hours worked. 21. Plaintiff brings the Second and Third Claims for Relief pursuant to Federal Rules of Civil Procedure (“FRCP”) Rule 23, to recover unpaid wages, unpaid overtime pay, statutory penalties, and other damages, on behalf of himself and all of Defendants’ current and former Marketing Representatives currently and/or formerly employed by Defendants on or after the date that is six years before the filing of this Complaint (the “Class” or “Class Members”). 22. During the Class Members’ employment with Defendants, they consistently worked longer hours than they were paid for, and are thus owed (i) wages at their regular rates of pay for all hours up to 40 in a workweek, and (ii) overtime wages for all hours in excess of 40 in a workweek. 23. The number and identify of, and the names and addresses of, the Class Members are readily ascertainable from the records of the Defendants. The dates of employment and the rates of pay for each member of the Class, the hours assigned and worked, and the wages paid to them, are also determinable from Defendants’ records. Notice can be provided by means permissible under FRCP Rule 23. 24. The proposed Class is so numerous that joinder of all members of the Class is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. While the precise number of such persons is unknown to Plaintiffs and is presently within the sole control of Defendants, Plaintiff believes that there are significantly more than forty (40) members of the Class. 25. Plaintiff’s claims are typical of those claims which could be alleged by any Class Member, and the relief sought is typical of the relief which would be sought by each Class Member in separate actions. All the members of the Class were subject to the same 6 corporate practices and policies of Defendants, as alleged herein, of willfully failing and refusing to properly pay them (i) for all hours worked up to forty (40) per workweek at their regular rate of pay, and (ii) at least one-and-one-half times their regular hourly rates of pay for work in excess of forty (40) hours per workweek, and of violating NYLL §195(3). Defendants’ corporate-wide policies and practices affected all Class Members similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each Class Member. Plaintiff and each Class Member sustained similar losses, injuries and damages arising from the same unlawful policies, practices, and procedures. 26. Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in wage and hour class action litigation who have many times previously represented plaintiffs in wage and hour class cases. 27. 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 class members lack the financial resources to vigorously prosecute a lawsuit against corporate defendants. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that numerous individual actions engender. Because the losses, injuries and damages suffered by each of the individual Class Members are relatively small in the sense pertinent to a class action analysis, the expenses and burden of individual litigation would make it extremely difficult or impossible for the individual Class Members to redress the wrongs done to them. On the other hand, important public interests will be 7 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 Class would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Class, establishing incompatible standards of conduct for Defendants 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. 28. Upon information and belief, employees of Defendants and other employers are often afraid to individually assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because they fear that doing so could harm their 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. 29. The questions of law and fact common to the Class predominate over any questions affecting only individual Class Members, including: (a) whether Defendants failed to keep true and accurate time records for all daily and weekly hours worked by the Class Members and other payroll records required by the NYLL, (b) whether Defendants failed to pay the Class Members their regular hourly rates of pay for all work performed up to forty (40) hours per workweek; (c) whether Defendants failed to pay the Class Members at least one-and-one-half times their regular hourly rates of pay for all work in excess of 8 forty (40) hours per workweek; (d) whether the Class Members are entitled to damages for unpaid regular and/or overtime wages, and if so, the means of measuring such damages; (e) whether Defendants are liable for NYLL liquidated damages; and (f) whether it was Defendants’ policy and practice to fail to furnish the Class Members with an accurate statement of wages, hours worked, rates paid, and gross wages as required by 31. Defendants operate a provider-sponsored health insurance company that serves more than 32. Defendants offer Medicaid, Medicare Advantage, Child Health Plus, and Managed Long Term Care health insurance plans. 33. Plaintiff and the other Marketing Representatives were supposed to sell Medicare health insurance plans for Defendants. 34. Defendants employ hundreds of Marketing Representatives in New York City and assigned them to work in various areas/zones. 35. Defendants maintained offices in three areas/zones in Brooklyn, including offices in downtown Brooklyn (“Downtown Brooklyn”), on 7th Avenue in Central Brooklyn (“Central Brooklyn”), and on 86th Street in South Brooklyn (“South Brooklyn”). 36. Defendants assigned Plaintiff to work out of Defendants’ “Brooklyn South” area/zone and he reported to Defendants’ Brooklyn South office. 9 37. Plaintiff was assigned to primarily work in Coney Island Hospital in Brooklyn, New York. 38. Although Plaintiff was normally primarily assigned to work at Coney Island Hospital, Plaintiff was also assigned to work at several doctors’ offices, and a CVS pharmacy, in Brooklyn. 39. In accordance with Defendants’ Sales Incentive Plan, Defendants paid Plaintiff, the FLSA Collective Plaintiffs, and the Class a base salary plus per enrollment incentive compensation of $200.00 to $500.00 per enrollment. 40. Plaintiff’s, the FLSA Collective Plaintiffs’, and the Class’ primary work duties included selling Defendants’ Healthfirst products, providing customer service, and filling out various required forms and associated paperwork. They also regularly had to make and answer phone calls and emails to and from patients and prospective customers, and personally drop off completed applications at Defendants’ offices at the end of each day. 41. Defendants failed to properly track, record, and pay for all of the hours worked by the Plaintiff, the FLSA Collective Plaintiffs, and the Class. 42. Defendants’ time-sheets did not accurately reflect all time worked because Plaintiff, the FLSA Collective Plaintiffs, and the Class only recorded their scheduled, and not actual, time worked. 43. Plaintiff, the FLSA Collective Plaintiffs, and the Class were normally scheduled to work for Defendants five days a week, although during busy times like during the open enrollment periods they worked six days a week. 10 44. Plaintiff, the FLSA Collective Plaintiffs, and the Class were normally scheduled to work an eight and one half-hour shift –from 9:00 AM to 5:30 PM - which included a half-hour unpaid lunch break. 45. Throughout their employment with Defendants, Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly started working before the start of their scheduled shifts without being paid for all of the hours they worked. 46. For example, Plaintiff used to regularly start working at or about 8:00 AM. 47. Throughout their employment with Defendants, and especially during the busy times, Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly worked through their unpaid lunch breaks - to make sales and/or assist/answer questions from current or prospective customers. 48. Plaintiff, the FLSA Collective Plaintiffs, and the Class often had to stay 30 to 60 minutes, or later, after the end of their scheduled shifts to finish any sales they were working on, to assist/answer questions from current or prospective customers, to perform end of the day duties, to complete required paperwork, and to personally drive to Defendants’ offices to drop off completed applications. 49. In addition, inasmuch as Defendants' management told Plaintiff, the FLSA Collective Plaintiffs, and the Class to give their cell phone numbers to prospective customer – and Defendants printed their cell phone numbers on their business cards - Plaintiff, the FLSA Collective Plaintiffs, and the Class often fielded phone calls and emails from customers and prospective customers in the evenings and on their days off. 5 50. Plaintiff, the FLSA Collective Plaintiffs, and the Class were not compensated for their post-shift work, or for their working through their unpaid lunch break, or when they were 11 called after hours or on their days off, or when they worked prior to the beginning of their scheduled shifts. They thus regularly worked between 1 to 2 or more off-the-clock hours per day for which they were not compensated and during busy times they often worked an extra 2 to 3 extra hours per day for which they were not compensated. 51. Defendants management exerted significant pressure on Plaintiff, the FLSA Collective Plaintiffs, and the Class to meet or exceed their strict sales quotas which resulted in Plaintiff, the FLSA Collective Plaintiffs, and the Class routinely working in excess of their scheduled hours of work. 52. Defendants knew that Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly worked during their unpaid lunch periods, before and after their scheduled hours of work each day, and on days that they were scheduled off. 53. Defendants’ practices resulted in the Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly working more than 40 hours a week without being paid all of their earned overtime premiums, and in them not being compensated for all of the time they worked for Defendants. 54. Defendant profited from the extra hours worked by Plaintiff, the FLSA Collective Plaintiffs, and the Class, and Defendants should have paid them for this time. Plaintiff’s Unpaid Commissions Claim 55. In accordance with Defendants’ Sales Incentive Plan, Defendants were supposed to pay Plaintiff incentive compensation of between $200.00 to $500.00 per enrollment. 56. In December of 2018, Plaintiff enrolled approximately forty-four persons. 57. Defendants refused to pay Plaintiff incentive compensations for each of those enrollments. 12 58. Plaintiff incorporates the allegations contained in the previous paragraphs of this Complaint as if fully set forth herein. 59. Throughout the statute of limitations period covered by these claims, Defendants were and continue to each be an “employer” engaged in interstate commerce within the meaning of the FLSA and employed Plaintiff and each member of the FLSA Collective. 60. At all relevant times, Plaintiff and the FLSA Collective members regularly worked in excess of forty (40) hours per workweek. 61. At all relevant times, Defendants operated under a policy and practice of failing to pay proper overtime compensation to Plaintiff and the FLSA Collective members for all of the hours they worked in excess of 40 hours per week, and demanded, encouraged, allowed, and/or knowingly permitted the FLSA Collective members to work off-the- clock without paying them proper overtime compensation for all of the hours they worked in excess of 40 hours per week. 62. At all relevant times, Defendants willfully, regularly, repeatedly and knowingly failed to pay Plaintiff and the FLSA Collective members at the required overtime rate of one-and- one-half times their regular hourly rate of pay for all hours worked in excess of forty (40) hours per workweek. 63. Plaintiff, on behalf of himself and the FLSA Collective members, seeks damages in the amount of their respective unpaid overtime compensation, liquidated (double) 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. 13 64. Plaintiff, on behalf of himself and the Class, realleges and incorporates by reference all previous paragraphs as if they were set forth again herein. 65. It is unlawful under New York law for an employer to suffer or permit a non-exempt employee to work without paying overtime premiums for all hours worked in excess of forty (40) hours in any workweek. 66. It is unlawful under New York law for an employer to suffer or permit an employee to work without compensation for all hours worked. 67. At all relevant times, Defendants willfully, regularly, repeatedly and knowingly failed to pay Plaintiff and the Class Members for all hours worked at their regular rates of pay and at the required overtime rates for all hours worked in excess of forty (40) hours per workweek. 68. As a direct and proximate result of Defendants’ unlawful conduct, as set forth herein, Plaintiff and the Class Members have sustained damages, including loss of earnings, in an amount to be established at trial. 69. Plaintiff, on behalf of himself and the Class members, seeks damages in the amount of their respective unpaid wages, unpaid overtime compensation, liquidated damages, attorneys’ fees and costs, pre and post judgment interest, pursuant to the NYLL, and such other legal and equitable relief as this Court deems just and proper. 70. Plaintiff, on behalf of himself and the Class members, realleges and incorporates by reference all previous paragraphs as if they were set forth again herein. 71. Section 195(3) of the NYLL requires every employer to "furnish each employee with a statement with every payment of wages… For all employees who are not exempt from overtime compensation as established in the commissioner's minimum wage orders or otherwise provided by New York state law or regulation, the statement shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked." 72. Defendants provided pay statements to Plaintiff and the members of the Class that did not include an accurate number of hours worked. 73. The pay statements that Defendants provided to Plaintiff and the members of the Class included the number of regular and overtime hours paid, not the number of regular and overtime hours actually worked as required by the NYLL. 74. Defendants violated NYLL § 195(3) and consequently owes Plaintiff and the members of the Class statutory damages as specified by NYLL § 198(1-d). 75. Plaintiff, on behalf of himself and the Class Members, seek statutory damages as specified by NYLL § 198(1-d), reasonable attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. : : JURY TRIAL DEMANDED Defendants. :

lose

1. A Judgment against Defendant in favor of Plaintiff and the class members for statutory damages, and costs and attorney’s fees; and 15. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1-14 of this Complaint. 16. Exhibit A sets forth the following: “As of the date of this letter, you owe $5,671.06”. 17. If on the date of Exhibit A American Express was not accruing interest, late charges, and/or other charges on the aforementioned $5,671.06 set forth in Exhibit A, then Defendant violated 15 USC § 1692g(a)(1), 15 USC § 1692e, and/or 15 USC § 1692e(10) as a result of Exhibit A setting forth that Campo owed $5,671.06 “as of the date of this letter”. 18. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1-14 of this Complaint. 19. Exhibit A sets forth the following: “As of the date of this letter, you owe $5,671.06”. 20. Upon information and belief, American Express continued to accrue interest, late charges, and/or other charges on the $5,671.06 set forth in Exhibit A. 21. However, Exhibit A did not explain that interest, late charges, and other charges were accruing, did not explain the basis for the accrual of any interest, late charges, and other charges, and did not set forth what Campo would need to pay to resolve the debt at any given moment in the future. 22. For the above reasons, as a result of the aforementioned omissions from Exhibit A, Defendant violated 15 USC § 1692g(a)(1) and/or 15 USC § 1692e by sending Exhibit A to Campo. 23. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1-14 of this Complaint. 24. Describing the “Balance” as being “as of the date of this letter” in and of itself fails to set forth the amount of the debt as required by 15 USC § 1692g(a)(1) and amounts to a false, deceptive or misleading means in connection with the collection of a debt in violation of 15 USC 1692e, 15 USC 1692e(2)(A), and/or 15 USC 1692e(10). 25. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1-14 of this Complaint. 26. Exhibit A amounted to a false, deceptive or misleading means in connection with the collection of a debt in violation of 15 USC 1692e, 15 USC 1692e(2)(A), and 15 USC 1692e(10). 27. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1-14 of this Complaint. 28. By sending Exhibit A to Campo, Defendant violated 15 USC 1692g. 29. Plaintiff brings this action on behalf of a class pursuant to Fed. R. Civ. P. 23(a) and (b)(3). 30. The class consist of (a) all natural persons (b) who received a letter from Defendant dated between October 7, 2017 and the present, (c) to collect a past due consumer debt, (d) in a form materially identical or substantially similar to Exhibit A. 31. The class members are so numerous that joinder is impracticable. On information and belief, there are more than 50 members. 32. There are questions of law and fact common to the class members, which common questions predominate over any questions that affect only individual class members. 33. The predominant common question is whether Defendant’s letters violate the FDCPA. 34. 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 and class actions. 35. A class action is the superior means of adjudicating this dispute. 36. Individual cases are not economically feasible. WHEREFORE, Plaintiff requests the following relief:

win

(Common Law Fraud) 134. Plaintiffs incorporate by reference each preceding and succeeding paragraph as though fully set forth at length herein. 135. Plaintiffs bring this cause of action on behalf of themselves and on behalf of all other members of the Class. 136. Defendants made material misstatements and omissions concerning the Smart TV s that they sold to Plaintiffs and the Class members. 13 7. As a result, Plaintiffs and Class members were fraudulently induced to purchase Smart TV s. 138. These misstatements and omissions were made by Defendants with knowledge of their falsity, and with the intent that Plaintiffs and Class members rely upon them. 139. Plaintiffs and Class members reasonably relied on these misstatements and omissions, and suffered damages as a result. (Deceptive Omissions - Violations of the CFA) (Unfair and Deceptive Tracking and Transmission- Violations of the CFA) 28. Defendants bill themselves as leading high definition television producers in the United States. In addition to Smart Televisions ("Smart TVs"), Defendants manufacture and sell various audio and entertainment products. Defendants generated billions in revenue in 2016. 29. In or around January 2012, Defendants' began selling Smart TVs. Defendants' Smart TV s provide consumers with multiple access points to visual, audio, and other video content. Defendants' Smart TV s are equipped with HDMI connections, coaxial connectors, analog audio outputs and inputs, and various video input connectors. 30. Defendants' Smart TVs are also equipped with the ability to connect to the internet via wireless internet networking (hereinafter "WiFi"). Specifically, Defendants' Smart TV s allow consumers to access the WiFi networks to allow consumers to access and watch various forms of audio and visual entertainment online, as well as to find access to online news, weather, and entertainment sources. 31. Defendants' Smart TV s are delivered to consumers with many pre- installed applications. These include such popular internet applications as Netflix, Y ouTube, Amazon, Pandora, HuluPlus, Twitter, and more. Many of these applications stream video to consumers via Defendants' Smart TV s. 33. Upon information and belief, smce 2012, Defendants have manufactured Smart TV s that continuously monitor and track, in real time, what consumers are watching and the viewing habits of those consumers, and then transmit that private, confidential information to Defendants' own servers by means of proprietary, automatic tracking software (hereinafter "ATS"). 9 34. Defendants' ATS software enables Defendants to monitor and identify Plaintiffs' and the Class Members' video viewing habits. Defendants' then secretly provide this private, sensitive information of consumers to third-party advertisers and content providers who, in turn, display targeted advertisements to consumers, based on this secretly-collected personal information. In addition, upon information and belief, Defendants even place advertisements, based on consumers' data and information they have secretly acquired from their ATS, within some Smart TV apps in the Smart TVs themselves. 3 5. For instance, Defendant Samsung has identified a company called "Nuance" as third party it transmits consumers' information to and also has identified a company called "Enswers" as a third party it transmit consumers' information to; and Defendant LG has identified Cognitive Networks as a third party it transmit consumers' information to. 10 38. Enswers has admitted that, in 2012, its tracking software has been embedded at the hardware level into Samsung smart TV s. Enswers has already used the technology to push interactive advertisements for retirement-planning financial products in Spain, and also has prompted Samsung smart TV owners to purchase David Beckham underwear during the Super Bowl XL VIII using their remote controls. 13 39. Through Defendants' tracking software, their Smart TVs transmit information about what a consumer is watching on a second-by-second basis. 11 See Consumer Reports, Samsung, LG, and Vizio smart TVs are recording-and sharing data about-everything you watch, Consumer Reports investigates the information brokers who want to turn your viewing habits into cash, February 27, 2015, http://www.consumerreports.org/cro/news/2015/02/samsung-lg-vizio-smart-tvs-watch- everything-you-watch/index.htm (emphasis added). 12 & at 1. See also (Cognitive Network's Tracking System Platform Diagram) (attached hereto as Exhibit 1). 70. The Class satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of Federal Rule of Civil Procedure 23(a). 71. Plaintiffs reserve the right to amend or modify the Class definitions with greater specificity or further division into subclasses or limitation to particular issues after discovery. 72. The members of the Class are so numerous that joinder of all members is impracticable. Although the precise number of Class members is unknown to Plaintiffs at this time and can be determined only by appropriate discovery, it is reasonably estimated that the Class consists of at least tens of thousands, or hundreds of thousands, or millions of members who are geographically dispersed throughout the country. 73. Because Plaintiffs are purchasers of Defendants products and have been subject to Defendants' systematic, deceptive and misleading course of conduct, policies, and advertising intended to trick, mislead and significantly confuse consumers, Plaintiffs are members of the Class and their claims are typical of the claims of the other members of the Class. The harm suffered by Plaintiffs and all other Class members was and is caused by the same misconduct by Defendants. 76. Common questions of law and fact exist as to all members of the Class which predominate over any questions that may affect individual Class members. Among the questions of law and fact common to the Class include the following: a. whether Defendants' deceptive tracking and monitoring using automatic tracking software, and misleading statements and omissions, caused consumers to purchase Defendants' products; b. whether Defendants violated the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq.; c. whether Defendants violated the Electronic Communications Privacy Act, 18 U.S.C. § 2511; d. whether Defendants violated the Video Privacy Protection Act, 81. Plaintiff incorporates by reference each preceding and succeeding paragraph as though fully set forth at length herein. 82. Plaintiff brings this cause of action on behalf of himself and on behalf of all other members of the Class. 84. The CF A defines "merchandise" as "any objects, wares, goods commodities, services or anything offered, directly or indirectly to the public for sale." N.J. Stat. Ann.§ 56:8-l(c). 85. At all relevant times, Defendants have engaged in the advertisement, offering for sale and sale of merchandise within the meaning of N.J. Stat. Ann. § 56:8-l(c), specifically Defendants' Smart TVs and related services. 86. Defendants use ATS technology to comprehensively collect the sensitive television viewing activity of consumers or households across cable or broadband services, set-top boxes, external streaming devices, DVD players, and over-the-air broadcasts, on a second-by-second basis and store this viewing data indefinitely. 87. Defendants provided this viewing data to third parties, which used it to track and target advertising to individual consumers across devices. Defendants engaged in these practices through a medium that consumers would not expect to be used for tracking, without consumers' consent; namely, consumers' own Smart TVs. 88. As described herein, Defendants' continued utilization of unlawful and unconscionable marketing practices, and their continuing practice of monitoring, tracking, and reporting viewing habits and personally identifiable information to unauthorized third parties, without consent, constitutes a deceptive act or practice in violation of the CFA. 89. Further, such is also an unconscionable commercial practice m violation of the CF A. Each instance of Defendants' unfair tracking constitutes a separate violation under the CFA, N.J. Stat. Ann. § 56:8-2. 91. Defendants' omission of this information was an act likely to mislead Plaintiff and the Class acting reasonably under the circumstances and constitutes a deceptive trade practice in violation of the CF A. 92. Defendants conduct was deceptive and unconscionable because, among other misconduct described in this Complaint, Defendants monitored, tracked, and transmitted to third parties Plaintiffs' and Class members' personal viewing habits and personally identifiable information without providing clear and conspicuous notice and without consent. 93. Defendants' collection and sharing of sensitive data without consumers' consent has caused or is likely to cause substantial injury to consumers that is not outweighed by countervailing benefits to consumers or competition and is not reasonably avoidable by consumers themselves. 94. This is an unfair act or practice, in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). 95. Defendants' practice of monitoring, tracking, and transmitting to third parties Plaintiffs' and Class members' personal viewing habits and personally identifiable information without providing clear and conspicuous notice and without consent is also unlawful, deceptive and misleading, and violates the Subscriber Privacy Provision in the Cable Communications Policy Act, the Electronic Communications Privacy Act, the FTC Act, and Video Privacy Protection Act, 18 U.S.C. §§ 2710.22 97. Plaintiffs incorporate by reference all the foregoing paragraphs. 98. Defendants engaged in deceptive practices as defined under the CFA. Defendants' actions were part of a scheme intended to actively mislead Plaintiffs and the Class into believing that the Smart TVs were of a specific quality, namely that the Smart TV s would not violate their privacy and were not designed to violate consumer's privacy by secretly monitoring and recording consumers' viewing habits, while Defendants did in fact know that their Smart TV s were designed to accomplish precisely this objective.

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 Website, with contact information for users to report accessibility-related problems and require that any third party vendors who participate on its Website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria. 27. Defendant offers the commercial website, WWW.DNRBOATWORLD.COM, to the public. The website offers features which should allow all consumers to access the products and services which Defendant offers in connection with their physical locations. The products and services offered by Defendant include, but are not limited to the following, and the Defendant’s website allows consumers to find information about: showroom location and hours, products and/or services offered for sale, technical specifications of its products, prices, warranties, awards and other vital information needed by prospective consumers in order to make informed decisions about the Defendant’s products and/or services. 29. 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. 30. Plaintiff, BRAULIO THORNE, attended the boat fair at Javits during its sales exhibition January 23-27, 2019 in order to obtain information from the personal boat, watercraft and related accessories and/or services sellers presenting and marketing at the fair, including the Defendant. 31. Soon after attending the Javits fair, the Plaintiff attempted to access the Defendant’s website in order to obtain additional information about the Defendant’s products and services but was thwarted in his efforts to do so due to the inaccessibility of the Defendant’s website as set forth herein. 34. By its failure to provide a website that is accessible to the blind or vision impaired, Defendant intentionally violated federal, state and city statutes and regulations designed to protect those members of society who are in need of protection by those various laws. Defendant Must Remove Barriers To Its Website 35. 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 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. 36. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying the services offered by the Defendant equal to sighted individuals because: Plaintiff was unable to find information about: showroom location and hours, products and/or services offered for sale, technical specifications of its products, prices, warranties, awards and other vital information needed by prospective consumers in order to make informed decisions about the Defendant’s products and services. Plaintiff intends to visit Defendant's physical showrooms in the near future if he could access their website. 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. 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 or with deliberate indifference, 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. 40. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 42. 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. The Website must be accessible for individuals with disabilities who use computers, laptops, tablets and smart phones. 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 44. 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. 45. Defendant has, upon information and belief, invested substantial sums in developing and maintaining its 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. 46. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 47. 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 products and services offered in Defendant’s physical locations and on its website, during the relevant statutory period. 49. Plaintiff, on behalf of himself 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 products and services offered in Defendant’s physical locations and on its website, during the relevant statutory period. 50. 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 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 services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL and the NYCHRL. 52. 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. 53. 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. 54. 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. 55. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. Defendant’s showrooms and sales exhibits at Javits 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 physical sales locations. The Website is a service that is heavily integrated with these locations and is a gateway thereto. 58. 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). 59. 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). 61. 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. 62. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 63. 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. 64. 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.” 66. 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). 67. 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. This inaccessibility denies blind patrons full and equal access to the facilities and services that Defendant makes available to the non-disabled public. 68. 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". 70. 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. 71. Defendant’s actions constitute willful intentional discrimination against the State Sub-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 not sufficiently intuitive and/or obvious that it 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. 72. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 74. 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. 75. 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. 76. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 77. 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. 78. 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. 79. 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.” 81. Defendant is subject to NYCHRL because it owns and operates its physical sales 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). 82. 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 sales 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. 83. 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). 85. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 86. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed City Sub-Class 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 City Sub-Class will continue to suffer irreparable harm. 87. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 88. 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(a). 89. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 90. 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. 91. 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. 93. 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. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL

win

1. The Defective Gas Range A. Surface Knob Defect 14. The Defective Gas Range has four (4) surface knobs, located in the front of the range, each of which can be turned to the “Lite” position. 15. When a knob is turned to the “Lite” position, (and assuming the Defective Gas Range is otherwise functioning properly), the burner associated with that knob will emit a flame. 16. However, the surface knobs are prone to, and do, rotate as a result of minor, inadvertent bumps or jostling. As a result, the surface knobs can turn to the “Lite” position as a result of slight, inadvertent contact with either the knobs or the Defective Gas Range itself. B. Ignition System Defect 17. Turning a surface knob on the Defective Gas Range to the “Lite” position opens a burner valve associated with that knob, and allows flammable gas to flow through a burner tube. The gas is directed to a venturi, where it is combined with air to create the proper mixture necessary for combustion. 18. Turning a surface knob also causes a spark switch to close, which sends 120 volts of alternating current to the spark module and, in turn, sends high voltage pulses to all of the electrodes. The pulses cause a spark to occur between the electrode and the grounded burner cap. That spark ignites the gas and air mixture at the burner head, producing a blue flame with an occasional yellow tip. 20. However, the ignition system on the Defective Gas Range does not operate properly, often resulting in a failed ignition. Moreover, the ignition system on the Defective Gas Range does not contain a failsafe or redundancy that will stop the flow of gas in the event that ignition fails, or in the event that the burner valve is opened as a result of inadvertent contact with the surface knob on the Defective Gas Range. 21. Absent ignition, gas continues to flow from the Defective Gas Range, causing an excess of flammable gas to accumulate. The accumulation of gas is noxious and unpleasant. In addition, the accumulation of flammable gas, when combined with oxygen-rich room air, creates a highly combustible fuel mixture and dramatically increases the potential for explosion and/or fire. 22. Beginning in the early 1990s, Defendant had or should have had knowledge of the reports and data demonstrating that gas ovens with “self-proving” systems were prone to hazardous flare-ups and explosions. This propensity was investigated by the United States Consumer Products Safety Commission (“CPSC”) and resulted in the publication of a report on July 15, 2002 entitled Gas Range Delayed Ignitions. The report concluded, inter alia, that marketed “hot surface igniters” and gas valves create a system that “is not failsafe and the presence of gas at the burner was not proved.” Moreover, such appliances “have no means to detect and react to the release or accumulation of non-combusted gases.” 24. The Defective Gas Range was not similarly recalled. C. Sale of Defective Gas Range 25. GE manufactured, produced, and/or distributed the Defective Gas Ranges for sale by GE’s network of authorized dealers in the United States, such as Best Buy, Sears, and other large and medium-sized retail chains, as well as through independently-owned retailers, such as Oberg & Lindquist. 26. The Defective Gas Ranges are or were sold as GE products, branded with the “General Electric” name and “GE” logo. GE markets the Defective Gas Ranges under names such as “Free Standing” or “Profile.” 27. The Defective Gas Range sell or were sold for a retail price of approximately $875 to $1200. 28. There are no differences among the Defective Gas Ranges that relate to, arise from, or are relevant to the cause of the Defects. The Defective Gas Range’s relevant design, parts, pieces, operation and materials are the same. Plaintiff is informed and believes that the gas ranges are and were manufactured in the same facilities in Louisville, Kentucky and/or Leiser, Mexico. 30. GE has failed or refused to implement a solution that prevents the Defective Gas Range’s surface knobs from rotating and releasing flammable gas as a result of minor, inadvertent bumps or jostlings. 31. GE has also failed or refused to repair the Defective Gas Range so that the self- proving ignition system properly and timely prompts the ignition spark in cases of inadvertent surface knob turns. 32. GE refuses to replace the Defective Gas Range with a comparable, non-defective model. 33. Defendants knew, or should have known, that there are several mechanisms that Defendants could use to shut off gas flow when a flame is undetected. 35. On or about January 30, 2013, Ms. Volin physically analyzed the GE-branded 30 inch Free-Standing Gas Range, model number JGB600EEDES on the showroom floor at Oberg & Linquist of Westwood, New Jersey. 36. On information and belief, the Oberg & Linquist salesperson, GE’s de facto agent, provided Ms. Volin with the same representations and omissions that GE provided to Oberg & Linquist, and which GE also stated in its advertising, marketing, labeling and packaging, and owner’s manual regarding the Defective Gas Range. 37. Based on GE’s standardized representations and omissions, Ms. Volin purchased one of the Defective Gas Ranges. 39. On some of these occasions, the ignition system failed to ignite the released gas, resulting in a slow, continuous leak of noxious and flammable gas into Plaintiff’s home. For example, on or about September 2013, Plaintiff’s Defective Gas Range exhibited the Ignition Switch Defect, at which time it malfunctioned due to the negligent and careless design of the manufacturer. This resulted in a flow of gas from the Defective Gas Range and throughout her home. 40. On other occasions, the Defective Gas Range exhibited the Surface Knob Defect wherein the ignition system did ignite the unintended released gas, resulting in an unintended burst of flame. For example, in early 2014, a guest in Plaintiff’s home inadvertently brushed against one of the surface knobs, causing a high flame to burst up from the Defective Gas Range. 41. Plaintiff’s Defective Gas Range has exhibited the Ignition Switch Defect and the Surface Knob Defect fairly regularly from September 2013 to at least May 2014, when Plaintiff purchased safety knob covers (see below). 42. The Defective Gas Range purchased by Plaintiff does not contain a failsafe or redundancy that will stop the flow of gas in the event the spark fails to ignite. When the gas and air mixture is not ignited by the spark, gas continues to flow, causing a noxious odor and an excess to build up which – when combined with oxygen-rich room air – creates a highly combustible fuel mixture and dramatically increases the potential for explosion and/or fire. F. Defendant’s Failure to Address Plaintiff’s Reported Concerns 44. In particular, on or about September 4, 2013, Plaintiff called the GE Consumer Relations phone number (800-386-1215), and selected Option 1, regarding safety issues. Plaintiff spoke with “Jessica” at extension 5455, who opened case #12971295. Plaintiff reported the Defects and asked what GE could do to remedy the Defects. Jessica suggested that a GE service representative visit Plaintiff’s home and look at the Defective Gas Range. 45. On or about September 12, 2013, a GE service representative visited Plaintiff’s home and reviewed the Defective Gas Range. The GE service representative indicated to Plaintiff that nothing could be done to remedy the Defects or their symptoms. The GE service representative refused to provide Plaintiff with any accommodations and told her that there was nothing further that GE would do. Instead, GE advised Plaintiff not to lean on the surface knobs of the Defective Gas Range. Defendant or its authorized representatives did not thereafter contact Plaintiff regarding the subject Defective Gas Range, her complaint, or her request to have the Defects addressed. 47. The safety knob covers are a “band-aid” fix, and a poor replacement for a properly functioning gas range. The safety knob covers are attached to each surface knob, blocking access to the surface knobs and detracting from the aesthetics of the Defective Gas Range. In order to operate a surface knob, Plaintiff must unlatch the lid of the safety knob cover. The lid then hangs from the safety knob cover until Plaintiff has finished using the surface knob, at which point Plaintiff must reattach the lid of the safety knob cover. 48. When the safety knob lid is unlatched and hanging, the oven door of the Defective Gas Range is blocked. Moreover, when the oven is operating, Plaintiff must keep vigil not to allow the oven door to become ajar, otherwise the heat from the oven will cause the safety knob covers to either become hot or possibly melt. G. Defendant Designed a Malfunctioning Gas Range 49. Defendant, at all times relevant hereto, was in the business of designing, manufacturing, assembling, inspecting, marketing, selling and/or distributing the Defective Gas Range, including the appliance purchased by Plaintiff. 51. As a result of the negligence, carelessness and recklessness of Defendant and the dangerous and the defective nature of the Defective Gas Range, reasonable consumers including Plaintiff and the members of the Class routinely endured the Defective Gas Range’s malfunctioning. 52. As a result of the negligence, carelessness and recklessness of Defendant and the dangerous and defective nature of the Defective Gas Range, reasonable consumers, including Plaintiff and the members of the Class, were routinely and repeatedly subjected to unpleasant odors, unjustifiable inconvenience, expense and otherwise incurred damages in an attempt to use and correct the defects the Defective Gas Range including purchasing safety knob covers. 53. As a result of the negligence, carelessness and recklessness of Defendant, and of the dangerous and defective nature of the Defective Gas Range, reasonable consumers, including Plaintiff and the members of the Class, were subjected to the noxious and unpleasant gas leaks, and the unjustifiable safety risk of gas leaks, explosions and/or fires due to the Surface Knob and Ignition System Defects. 55. At all times relevant hereto, Defendant knew, and had reason to know, or should have known, that the surface knobs and self-proving system on the Defective Gas Range were negligently designed, manufactured, assembled, inspected, marketed, advertised, promoted, sold, and/or distributed in a dangerous and defective condition in that they caused the gas valve to open in such a manner as to cause the oven to release flammable gas, but not ignite. Under circumstances such as opening the oven door, the fuel-rich oven air mixes with the oxygen-rich room air, and can trigger an explosion and/or fire. Defendant was fully capable of taking proper remedial action, but failed and/or refused to do so. 56. At all times relevant hereto, Defendant knew, and had reason to know, or should have known, that the Defective Gas Range was negligently designed, manufactured, assembled, inspected, marketed, advertised, promoted, sold, and/or distributed in a dangerous and defective condition in that it possessed hidden and/or concealed defects with respect to: (1) the surface knobs being prone to rotate and, in fact, rotating and releasing flammable gas as a result of minor, inadvertent bumps or jostling, and (2) the self-proving system not properly and timely operating the “ignition” function in the event that the surface knobs inadvertently turn on to the “Lite” position. Each defect created the risk, tendency and propensity of the Defective Gas Range to suddenly and without warning become ineffective for safe use, and/or explode and/or cause fire at any given time. These defects were not reasonably known or knowable to Plaintiff and the members of the Class. 58. Upon complaining to GE about the Defective Gas Range, consumers are denied a good faith or effective repair. GE fails to make repairs that it knows will cause the Defective Gas Range to perform safely and with the quality it represents. GE has not implemented a solution that prevents the Defective Gas Range’s surface knobs from rotating and releasing flammable gas as a result of minor, inadvertent bumps or jostlings; nor did GE develop a fix to the Defective Gas Range’s self-proving system to properly and timely prompt the “ignition” spark in cases of inadvertent surface knob turns. GE has refused repairs or replacement. 59. Defendant has known, or reasonably should have known, that the Defective Gas Range is defective. 60. Defendant has ignored and concealed the nature and severity of the Surface Knob and Ignition System Defects from consumers, including Plaintiff and Class Members. H. Defendant’s Misrepresentations and Omissions 61. At all times relevant hereto, Defendant failed to warn of the dangers of the Defective Gas Range, including that the Defective Gas Range routinely malfunctioned, rendering them ineffective for safe use; and presented an unreasonable risk, tendency and propensity to cause explosion and/or fire when properly used by consumers, in the manner in which they are intended to be used, including by Plaintiff and the members of the Class. 63. At all times relevant hereto, Defendant fraudulently concealed from Plaintiff and the members of the Class dangerous defects in the Defective Gas Range that caused it to routinely malfunction, rendering them ineffective for safe use. 64. At all times relevant hereto, Defendant knew about the hidden Defects and/or concealed the Defects in the Defective Gas Range generally, and with respect to the igniter mechanism specifically. The Defects are reflected in data and reports maintained by Defendant and other reports, technical service bulletins, documents and memoranda within the possession of Defendant. The Defects were not reasonably known or knowable by Plaintiff, and Defendant never disclosed the Defects to Plaintiff or Class Members. 65. Defendant designed, manufactured, assembled, inspected, marketed, advertised, promoted, sold, and/or distributed the Defective Gas Range as safe, despite its exclusive possession of knowledge of the defects in the Defective Gas Range generally, and with respect to the igniter mechanism specifically. 66. Prior to Plaintiff’s use of the Defective Gas Range, Defendant, in order to promote and induce the purchase of their product, represented to the general public and to the Plaintiff, through the internet, by advertisement literature, through sales representatives, owner’s manual and other means that consumers could use the product for the purpose for which the product was intended. 68. Furthermore, the Defective Gas Range’s owner’s manual states, “When one burner is turned to LITE, all the burners spark.” GE fails to disclose to consumers, at the time of purchase or otherwise, the material fact that the Defective Gas Range’s “self-proving system” fails to properly and timely spark “ignition” function when the surface knob gets inadvertently turned on, resulting in unsafe gas fumes being emitted from the Defective Gas Range. The omissions are misleading. 69. GE was obliged to disclose the material facts that the surface knobs and “self- proving” system are defective, and that it had offered no solution to make the Defective Gas Range perform as represented because: (a) Defendant had exclusive superior knowledge of the material facts not known to Plaintiff and Class members, because only Defendant had access to the aggregate data from its retailers, its own tests of knobs and self-proving systems, and complaints from its customers; and (b) Defendant actively concealed and suppressed the material facts from Plaintiff by not warning of the defects in the Defective Gas Range at the time of purchase, and by performing warranty and/or repair work that it knew would not cure the defects. 70. GE had gone to significant efforts to promote its Defective Gas Range, and touted the appliance and operation as a material characteristic, use and benefit. 72. Plaintiff and members of the Class purchased or obtained the Defective Gas Range in reliance on the represented/promised safety features in its manual and other marketing materials (e.g., the surface knob needs to be turned in to avoid unintentional release of gas), namely those that would mitigate the propensity to cause flare-ups, explosions and/or fire (as well as the professed integrity of Defendant GE). 73. The Defective Gas Range does not perform the function for which it was intended and is not merchantable, and is not fit for its ordinary and intended purpose. GE has not been able to conform the Defective Gas Range to its express and implied warranties. 74. The defects were the direct, proximate, and foreseeable cause of damages incurred by Plaintiff and members of the Class. 75. Had the Defective Gas Range been properly manufactured and/or free from design defects, Plaintiff and the members of the Class would not have suffered the damages complained of herein. 77. Members of the Class are so numerous that joinder is impracticable. While the exact number of Class members is unknown to Plaintiff, it is believed that the Class is comprised of hundreds of members geographically disbursed throughout the State of New Jersey. The Class, however, is readily identifiable from information and records in the possession of GE. 79. Plaintiff’s claims are typical of the members of the Class as all members of the Class are similarly affected by Defendant’s actionable conduct. Plaintiff and all members of the Class purchased one or more Defective Gas Ranges. In addition, Defendant’s conduct that gave rise to the claims of Plaintiff and members of the Class (i.e. designing and manufacturing the Defective Gas Range, concealing the defect, and breaching warranties respecting the Defective Gas Range) is the same for all members of the Class. 80. Plaintiff will fairly and adequately protect the interests of the Class because Plaintiff has no interests antagonistic to, or in conflict with, the Class that Plaintiff seeks to represent. Furthermore, Plaintiff has retained counsel experienced and competent in the prosecution of complex class action litigation. 82. Plaintiff knows of no difficulty to be encountered in the maintenance of this action that would preclude its maintenance as a class action. 83. Defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 88. Plaintiff re-alleges and incorporates each and every factual allegation as if fully written herein. 89. Plaintiff and the members of the Class are “consumers” within the meaning of the New Jersey Consumer Fraud Act, N.J. Stat. Ann., § 56:8-1 et seq. (“CFA”). 90. The Defective Gas Ranges are “goods” within the meaning of the CFA. 91. At all relevant times material hereto, GE conducted trade and commerce in New Jersey and elsewhere within the meaning of the CFA. 92. The CFA is, by its terms, a cumulative remedy, such that remedies under CFA’s provisions can be awarded in addition to those remedies provided pursuant to other sources of law. 94. GE had exclusive knowledge of the Defects at the time of sale. The Defects are latent and not something that Plaintiff or members of the Class could have discovered, in the exercise of reasonable diligence, independently prior to purchase. 95. GE represented that its Defective Gas Ranges had characteristics, uses, or benefits, that they did not have, and that its Defective Gas Ranges were of a particular standard, quality or grade that they were not. 96. In its marketing and sale of the Defective Gas Ranges, GE undertook active and ongoing steps to conceal the Defects and has consciously withheld material facts from Plaintiff and other members of the Class with respect to the Defects in the Defective Gas Ranges. Plaintiff is aware of nothing in GE’s advertising, publicity, or marketing materials that discloses the truth about the Defects, despite GE’s awareness, or reckless lack of awareness, of the problem. 97. GE’s conduct was objectively deceptive and had the capacity to deceive reasonable consumers under the circumstances. Defects exist in the Defective Gas Range in that (1) the knobs are prone to, and do, rotate and release flammable gas as a result of minor, inadvertent bumps or jostling, and (2) the self-proving ignition system does not properly and timely ignite gas released by the inadvertent turning of the knobs. The fact of these Defects is a material fact to which a reasonable consumer would attach importance at the time of purchase. The fact of these Defects would influence a reasonable consumer’s choice of action during the purchase of an appliance such the Defective Gas Range. 99. Had GE disclosed the material information regarding the Defects to Plaintiff and the members of the Class, Plaintiff and the members of the Class would not have purchased the Defective Gas Range, or they would have paid less for it. 100. As a result of the foregoing acts, omissions, and practices, Plaintiff and the members of the Class have suffered an ascertainable loss by purchasing defective gas ranges that do not function properly and/or as intended, and that present a risk to the safety of Plaintiff and the members of the Class. 101. Plaintiff is entitled to recover such damages, together with appropriate penalties, including treble damages, attorneys’ fees, and costs of suit. 102. Application of the CFA to all Class members, regardless of their state of residence, is appropriate as described herein and because, inter alia, the facts and circumstances of this case reflect numerous contacts with the State of New Jersey so as to create a state interest in applying the CFA to GE, thereby making application of New Jersey law to the entire Class appropriate. The Magnuson-Moss Warranty Act 15 U.S.C. § 2301 et seq. 126. Plaintiff re-alleges and incorporates each and every factual allegation as if fully written herein. 127. The Defective Gas Range is a “consumer product” within the meaning of 15 Unjust Enrichment 134. Plaintiff re-alleges and incorporates each and every factual allegation as if fully written herein. 135. Plaintiff and members of the Class conferred a benefit upon Defendant. Namely, Plaintiff and members of the Class paid money to Defendant for ownership of the Defective Gas Range. Defendant retained that benefit. 136. Defendant, however, retained that benefit under circumstances that make it inequitable for Defendant to retain such benefit without paying the value thereof. Specifically, Defendant retained that benefit despite the fact that the Defective Gas Range was defective. 137. Plaintiff, and the putative Class, are therefore entitled to disgorgement/restitution. Violations of the New Jersey Consumer Fraud Act N.J. STAT. ANN. § 56:8-1 et seq.

win

31. Over two years ago, on or about April 4, 2015, Plaintiff registered his cellular phone number with the original Oregon prefix (503) and ending in 1930 with the National Do Not Call Registry. 82. Plaintiff re-alleges and incorporates by reference each preceding paragraph as though set forth at length herein. 83. Vision Quest violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated, telephone solicitations to wireless and residential telephone subscribers such as Plaintiff and the Vision Quest DNC Class members who registered their respective telephone numbers on the National Do Not Call Registry, a listing of persons who do not wish to receive telephone solicitations that is maintained by the federal government. 84. Vision Quest made more than one unsolicited telephone call to Plaintiff and members of the Class within a 12-month period without their prior express consent to place such calls. Plaintiff and members of the Vision Quest DNC Class never provided any form of consent to receive telephone calls from Defendants do not have a record of consent to place telemarketing calls to them. A. CLASS ALLEGATIONS VIOLATION OF TCPA, 47 U.S.C. § 227(C) (“DNC Claim” On behalf of Plaintiff and the Vision Quest DNC Class)

lose

16. Plaintiff is a natural person allegedly obligated to pay a debt. 17. Plaintiff’s alleged obligation arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes—namely, personal dental services (the “Debt”). 18. Defendant uses instrumentalities of interstate commerce or the mails in a business the principal purpose of which is the collection of any debts. 19. Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or due, or asserted to be owed or due, another. 2) FORWARD THE ACCOUNT TO OUR ATTORNEY FOR LITIGATION. 3) REPORT THE AMOUNT TO A NATIONAL CREDIT REPORTING 21. A true and correct copy of Defendant’s May 28, 2019 letter is attached as Exhibit A. 22. Defendant’s May 28, 2019 letter purports to contain the notices required in an initial communication by 15 U.S.C. § 1692g(a). See Exhibit A. 23. However, Defendant’s May 28, 2019 letter states: “If you do notify us of a dispute, we will obtain verification of the debt and mail it to you.” Exhibit A. 24. Defendant’s May 28, 2019 letter fails to inform Plaintiff, or the least sophisticated consumer, that the right to verification is triggered only through written dispute. Compare § 1692g(a)(4), with Exhibit A. 25. In connection with the collection of the Debt, Defendant sent Plaintiff a subsequent written communication dated June 4, 2019. 26. A true and correct copy of Defendant’s June 4, 2019 letter is attached as Exhibit B. 27. Defendant’s June 4, 2019 letter states, in relevant part: 29. In connection with the collection of the Debt, Defendant sent Plaintiff a third written communication dated June 13, 2019. 30. A true and correct copy of Defendant’s June 13, 2019 letter is attached as Exhibit C. 31. Defendant’s June 13, 2019 letter states, in relevant part: 33. Plaintiff repeats and re-alleges all factual allegations above. 35. Defendant’s June 4, 2019 letter is based on a form or template, labeled NTC/2, used to send subsequent collection letter to consumers (hereinafter “Notice #2”). 36. Defendant’s June 13, 2019 letter is based on a form or template, labeled NTC/3, used to send subsequent collection letter to consumers (hereinafter “Notice #3”). 37. Upon information and belief, Defendant uses Notice #1, Notice #2, and Notice #3 to send series of collection letters according to regularly scheduled intervals. 38. Notice #1 purports to provide the disclosure required by 15 U.S.C. § 1692g(a)(4) but fails to inform the consumer that the right to verification is triggered only through written dispute. 39. Upon information and belief, Defendant has used Notice #1 to send initial collection letters to over 40 individuals in the State of Arizona within the year prior to the filing of the original complaint in this matter. 40. Notice #2 demands immediate payment and threatens further collection activity if payment is not received. 41. Upon information and belief, Defendant has used Notice #2 to send initial collection letters to over 40 individuals in the State of Arizona within the year prior to the filing of the original complaint in this matter and within less than 30 days from sending the consumer a letter purporting to provide the disclosures required by 15 U.S.C. § 1692g(a). 43. Upon information and belief, Defendant has used Notice #3 to send initial collection letters to over 40 individuals in the State of Arizona within the year prior to the filing of the original complaint in this matter and within less than 20 days from sending the consumer a letter purporting to provide the disclosures required by 15 U.S.C. § 1692g(a). 44. Plaintiff brings this action on behalf of himself and all others similarly situated. Specifically, Plaintiff seeks to represent the following classes of individuals: Initial Dun Class: All persons with an Arizona address to whom Defendant sent a letter based upon Notice #1, within one year before the date of the original complaint, in connection with the collection of a consumer debt. Overshadowing Class: All persons with an Arizona address to whom Defendant, in connection with the collection of a consumer debt and within one year before the date of the original complaint, (1) sent a letter based upon Notice #2 within 30 days of sending a letter purporting to contain the notices required by 15 U.S.C. § 1692g(a); and/or (2) sent a letter based Notice #3 within 20 days of sending a letter purporting to contain the notices required by 15 U.S.C. § 1692g(a). 45. The classes are averred to be so numerous that joinder of members is impracticable. 46. The exact number of class members is unknown to Plaintiff at this time and can be ascertained only through appropriate discovery. 47. The classes are ascertainable in that the names and addresses of all class members can be identified in business records maintained by Defendant. 49. Plaintiff’s claims are typical of those of the classes he seeks to represent. 50. The claims of Plaintiff and of the classes originate from the same conduct, practice, and procedure on the part of Defendant. Thus, if brought and prosecuted individually, the claims of the members of the class would require proof of the same material and substantive facts. 51. Plaintiff possesses the same interests and has suffered the same injuries as each class member. Plaintiff asserts identical claims and seeks identical relief on behalf of the unnamed class members. 52. Plaintiff will fairly and adequately protect the interests of the classes and has no interests adverse to or which directly and irrevocably conflict with the interests of other members of the classes. 53. Plaintiff is willing and prepared to serve this Court and the proposed classes. 54. The interests of Plaintiff are co-extensive with and not antagonistic to those of the absent class members. 56. Class certification is appropriate under Fed. R. Civ. P. 23(b)(2) in that Defendant has acted or refused to act on grounds generally applicable to the classes, making final declaratory or injunctive relief appropriate. 57. Class certification is appropriate under Fed. R. Civ. P. 23(b)(3) in that the questions of law and fact that are common to members of the classes predominate over any questions affecting only individual members. 58. Moreover, a class action is superior to other methods for the fair and efficient adjudication of the controversies raised in this Complaint in that: (a) individual claims by the class members will be impracticable as the costs of pursuit would far exceed what any one plaintiff or class member has at stake; (b) as a result, very little litigation has commenced over the controversies alleged in this Complaint and individual members are unlikely to have an interest in prosecuting and controlling separate individual actions; and (c) the concentration of litigation of these claims in one forum will achieve efficiency and promote judicial economy. 59. Plaintiff repeats and re-alleges each factual allegation contained above. 61. Congress adopted “the debt validation provisions of section 1692g” to guarantee that consumers would receive “adequate notice” of their rights under the FDCPA. Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000) (citing Miller v. Payco–General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir. 1991)). 62. This validation requirement is a “significant feature” of the law that aimed to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” See Hernandez v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1070 (9th Cir. 2016) (citing S. Rep. No. 95-382, at 4 (1977)). 63. “To satisfy section 1692g’s requirements, the notice Congress required must be conveyed effectively to the debtor.” Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997) (quoting Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir. 1988)) (internal citations omitted); see also Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 321 (7th Cir. 2016) (“When § 1692g(a) requires that a communication include certain information, compliance demands more than simply including that information in some unintelligible form.”). 66. Plaintiff repeats and re-alleges each factual allegation contained above. 67. To ensure debt collectors’ notices meaningfully convey consumers’ rights under § 1692g, Congress has further declared that “[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” 15 U.S.C. § 1692g(b). 68. “More importantly for present purposes, the notice must not be overshadowed or contradicted by accompanying messages from the debt collector.” Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148-49 (3d Cir. 2013). 69. The notice of a consumer’s rights under § 1692g may be “overshadowed” by language within the validation letter itself. See Gostony v. Diem Corp., 320 F. Supp. 2d 932, 938 (D. Ariz. 2003) (“The juxtaposition of two inconsistent statements’ renders the notice invalid under § 1692g.”) (quotations removed). VIOLATION OF 15 U.S.C. § 1692g(a)(4) VIOLATION OF 15 U.S.C. § 1692g(b) WE ARE ADVISING OUR CLIENT THAT THE ENTIRE CLAIM BE FORWARDED FOR DIRECT ACTION IF PAYMENT IS NOT RECEIVED WITHIN THE TIME FRAME STATED. Exhibit B (emphasis in original).

win

21. The TCPA was intended to give individuals control over how and where they receive phone calls to their cellular devises. When Defendant blasts individuals with robocalls without their consent, they fail to address or respect the limitations imposed by the TCPA. In doing so, it takes control away from the consumers and violates both the spirit and the letter of the TCPA. 22. On or around February 2020, Plaintiff began receiving unsolicited robocalls from Defendant from various phone numbers to her wireless phone ending in the number 4014, for which Plaintiff provided no consent to call. 23. The constant and continuing, unsolicited robocalls pertain to an Uber Eats account which does not belong to Plaintiff. 24. In fact, Plaintiff has never used an Uber vehicle or the Uber Eats service. Plaintiff is also not a restaurant owner and does not have an Uber Eats account. 40. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of herself and on behalf of and all others similarly situated (“the Class”). Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any unsolicited phone calls from Defendant or its agents on their cellular telephones through the use of any automatic telephone dialing system as set forth in 47 U.S.C. § 227(b)(1)(A)(3) or featuring prerecorded voice messages, which phone calls by Defendant or its agents were not made for emergency purposes or with the recipients’ prior express consent, within four years prior to the filing of this Complaint through the date of final approval. 41. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes members number in the hundreds of thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 42. Plaintiff and members of the Class were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through its agents, illegally contacted Plaintiff and members of the Class via their cellular telephones by using unsolicited robocalls, thereby causing Plaintiff and members of the Class to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and members of the Class previously paid, and invading the privacy of said Plaintiff and the members of the Class. Plaintiff and the members of the Class were damaged thereby. 47 U.S.C. §§ 227 ET SEQ. 47 U.S.C. §§ 227 ET SEQ. 50. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 51. Defendant made unauthorized phone calls using an automatic telephone dialing system and/or prerecorded voice to the cellular telephone number of Plaintiff and the other members of the Class without their prior express written consent. 52. These phone calls were made en masse using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. By using such equipment, Defendant was able to make these robocalls simultaneously to thousands of consumers’ cellphones without human intervention. 53. The foregoing acts and omissions of Defendant and its agents constitute 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. 54. As a result of Defendant’s, and Defendant’s agents’, negligent violations of 47 U.S.C. § 227 et seq., Plaintiff is 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). 55. Plaintiff is also entitled to and seek injunctive relief prohibiting such conduct in the future. 64. As a result of Defendant’s, and Defendant’s agents’, willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member treble damages, as provided by statute, up to $1,500.00 for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 65. Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. * * * 66. Any other relief the Court may deem reasonable, just and proper. NEGLIGENT VIOLATIONS OF THE TCPA 47 U.S.C. §§ 227 ET SEQ.

win

20. Defendants operate Clear Lake Regional Medical Center located at 500 W. Medical Center Blvd., Webster, TX 77598 (the “Hospital”). The Hospital has provided comprehensive healthcare to the Bay Area Houston region for approximately forty-five years. It employs approximately 2,000 staff members and approximately 900 physicians in multiple specialties, including but not limited to breast health, cancer care, cardiology, diabetes management, emergency services, medical imaging, obstetric and gynecological services, pediatrics, rehabilitation services, neuroscience and neurology, robotic and conventional surgery, and wound treatment. 21. Plaintiff Brandie Bowman is a registered nurse who worked for Defendants at the Hospital from approximately August 2014 until approximately March 2015. On or about August 2014, she agreed to provide her services as a registered nurse in the Hospital’s Oncology Department in exchange for Defendants’ agreement to compensate her at a specified hourly rate for each of her hours worked. On information and belief, the agreed hourly rate was approximately $27.50 per hour. 22. Plaintiff and class members were regularly scheduled to work three twelve-hour shifts per week at the Hospital. However, class members had the option to pick up additional shifts, and frequently did so. In Plaintiff’s case, she picked up two additional twelve-hour shifts per week in approximately three out of every four weeks worked. Accordingly, Plaintiff worked approximately 60 hours per week at the Hospital in the majority of the weeks following her orientation. 23. Plaintiff alleges that in each and every week of her employment following her classroom orientation, and as a result of a common policy equally applicable to her and to 8 every member of the class, Defendants (a) failed to pay her the agreed hourly rate for some of her work performed in those weeks in which she worked forty (40) or fewer hours; and (b) failed to pay her at the time-and-one-half overtime rate required by federal law for some of her work performed in those weeks in which she worked more than forty (40) hours in a week. Specifically, she was not compensated at any rate whatsoever for 30 minutes of each of her twelve-hour shifts worked. Off-the-clock work: Uncompensated work during meal breaks. 24. The Hospital generated its payroll documentation for Plaintiff and class members by using eStub software. The hours to be paid were tracked by timekeeping software which, on information and belief, was Kronos timekeeping software. The timekeeping software was configured to deduct 30 minutes of time from each twelve-hour shift worked by the Hospital’s direct patient care nurses. Each pay period, the amount of time tracked by the Kronos software, after deduction of 30 minutes per worked shift, was uploaded for processing into the eStub payroll processing software. 25. All of the Hospital’s hourly-paid direct patient care nurses are and were subject to Defendants’ policy to automatically deduct 30 minutes per shift from the recorded time worked. 26. Plaintiff anticipates that Defendants may attempt to argue that the 30-minute deductions from each shift worked were warranted so as to account for uninterrupted 30-minute lunch breaks during which no work was performed and for which no compensation is owed. In point of fact, however, Plaintiff and her nurse colleagues routinely worked through their lunch breaks, and even when they did manage to spend a few minutes eating, that time was regularly interrupted by other nurses on duty, nurse managers, doctors, patients’ families, and other Hospital staff. 9 27. Defendants are and were familiar with the demands of the health care industry in general and of providing medical services at the Hospital in specific, and they deliberately chose to keep their labor costs down by staffing an insufficient number of personnel per shift. Rather than hiring and staffing a sufficient number of nurses per shift to allow the nurses to take full, uninterrupted 30-minute meal breaks, Defendants required and permitted these overworked nurses to work during their meal breaks for the benefit of the Hospital. Defendants knew and expected that Plaintiff and class members would work through their unpaid “meal breaks,” and this was in fact a daily occurrence at Hospital. Defendants’ supervisors and management routinely interrupted the meal breaks of Plaintiff and class members and made work demands upon them. Defendants’ supervisors and management were actively involved in scheduling the shifts worked by Plaintiffs and the class, and they had actual knowledge that their staffing and work policies were causing Plaintiff and class members to work through meal breaks to the predominant benefit of the Hospital. 28. Plaintiff and class members were not only required to remain at the Hospital during their shifts, including during the supposed “meal breaks,” they were expected to remain on their assigned floors so as to be able to respond to patient care needs at all times. Plaintiff and class members were also required to carry cell phones issued by the Hospital and were required to respond to calls on those telephones at all times, including during any supposed “meal break.” In short, far from ensuring that Plaintiff and class members were completely relieved of work duties during the supposed “meal breaks,” Defendants expected and required Plaintiff and class members to attend to work demands throughout their shifts, including during any “meal break.” 29. In that connection, Plaintiff and class members were expected to complete orders on assigned patients, to answer calls, to respond to medical emergencies (“codes”), to advise 10 other staff on patient care and status issues, to answer questions from hospital staff or family members, and in general to respond immediately to work demands during “meal breaks.” 30. Defendants knew and/or had reason to know that Plaintiff and class members performed work during their unpaid “meal breaks,” as evidenced by Defendants requiring Plaintiff and class members to remain at the Hospital and on their assigned floors during their shifts so as to be available to respond to work demands, and by the fact that Defendants provided Plaintiff and other class members with cell phones and expected them to respond to calls for information or assistance at any time during the shift, including during meal breaks. Moreover, Plaintiff and class members performed work for Defendants during the unpaid meal breaks in plain sight of Defendants’ management, quite often at Defendants’ management’s specific request. 31. Despite Defendants’ actual knowledge that Plaintiff and other class members worked during supposed “meal breaks,” Defendants willfully failed to compensate Plaintiff and class members for such work, electing instead to accept the benefits of the class members’ work without compensating them for such work. 32. Given that Defendants’ supervisors and managers knew from direct observation and from their general knowledge of the Hospital’s operations that Plaintiff and class members (a) regularly worked through the deducted meal break time without compensation; and (b) regularly accumulated overtime hours even after deduction of the uncompensated 30 minutes per shift (as evidenced by the fact that the Hospital paid for overtime that still appeared in the timekeeping records even after deduction of the 30 minutes per shift), Defendants had both actual and constructive knowledge that Plaintiff and class members were not being compensated for meal periods worked at any rate whatsoever, much less at the agreed hourly rate or at the federally mandated time-and-one-half rate required for overtime. 11 Calculation of damages. 33. Evidence reflecting the number of uncompensated meal break hours worked by each class member, as well as their applicable regular and overtime rate, is in the possession of Defendants. Actual damages can be calculated easily once Defendants have produced complete payroll records for the class. The absence of a bona fide meal break makes all meal break time compensable, and all that remains is to establish the number of shifts worked by class members in the weeks in which they worked more than 40 hours, and the number of shifts worked in which they worked fewer than 40 hours. Each shift worked will entitle class members to 30 minutes of pay at either their usual hourly rate or at their time-and-one-half rate, depending upon whether the week in question is one in which forty or fewer hours were worked, or one in which forty or more hours were worked. The information needed to calculate damages―specifically the dates of the shifts worked, the total number of hours worked per week, and the base hourly rate of pay for each worker―exists right now in Defendants’ timekeeping and payroll databases. The damage calculation itself will be a straightforward accounting process. VI. 34. Plaintiff incorporates all allegations contained in the foregoing paragraphs. 35. Pursuant to 29 U.S.C. § 216(b), Plaintiff seeks to prosecute her FLSA claims as a collective action on behalf of the members of the putative class. 36. The action is filed on behalf of all of Defendants’ hourly-paid direct patient care nurses who worked at the Hospital during the three years preceding the filing of this action through entry of judgment in this case, whose overtime pay was docked pursuant to an automatic meal break deduction policy notwithstanding the fact that the nurses performed compensable work during the supposed meal break periods (the “FLSA Class”). 12 37. This FLSA Class is so numerous that joinder of all members is impracticable. Although the precise number of such persons is currently unknown to Plaintiff, and although the data which would identify the size of the FLSA Class is within the sole control of Defendants, upon information and belief there are hundreds of nurses encompassed by the class, most of whom would not be likely to file individual suits because they lack adequate financial resources, access to attorneys or knowledge of their claims. 38. Plaintiff will fairly and adequately protect the interests of the FLSA Class members and has retained counsel experienced and competent in the field of wage and hour law and class action litigation. Plaintiff has no interest that is contrary to or in conflict with the interests of the members of the FLSA Class. 39. A collective action is superior to individual adjudication of the claims at issue in this controversy, since the claims are substantially similar and since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual members of the class may be relatively small, the expense and burden of individual litigation make it virtually impossible for the members of the class to seek redress individually for the wrongs done to them. Management of the suit as a collective action will serve judicial economy. 40. Questions of law and fact common to the FLSA Class members predominate over questions that may affect only individuals because Defendants have acted on grounds generally applicable to all FLSA Class members. Among the common questions of law and fact common to Plaintiff and other collective action class members are: a. whether Defendants employed class members in the manner that “employment” is understood and defined by the FLSA; b. whether Plaintiff and the FLSA Class members were expected to and/or required to work during unpaid meal breaks, and in fact did so; 13 c. Whether Defendants’ control of the conditions of the “meal break” was for the predominant benefit of the Hospital and whether it made such time compensable as a matter of law; d. whether Defendants failed to pay Plaintiff and the FLSA Class members overtime compensation for some of their hours worked in excess of forty hours per workweek in violation of the FLSA, as a result of Defendants’ automatic deduction of, and failure to pay for, 30-minute meal break periods in each shift worked in weeks in which overtime hours were otherwise worked; e. whether Defendants’ violations of the FLSA were willful as that term is understood in the context of the FLSA; and f. whether Defendants are liable for damages claimed hereunder, including but not limited to unpaid overtime wages, liquidated damages, attorneys’ fees and costs. 41. Plaintiff knows of no difficulty that would be encountered in the management of this litigation that would preclude its maintenance as a collective action. 42. The FLSA 216(b) collective action class may be defined as: Nurses employed at Clear Lake Regional Medical Center to provide direct patient care at any time during the three years before this Complaint was filed up to the present who, as a result of Defendants’ practice of automatically deducting thirty (30) minutes from each shift worked and not paying for same, did not receive all of the overtime pay to which they were entitled under the FLSA in the weeks of their employment in which said nurses worked more than forty (40) hours per week. 43. Plaintiff incorporates all allegations contained in the foregoing paragraphs. 44. Pursuant to Fed.R.Civ.P. 23(a), (b)(2) and (b)(3) and 28 U.S.C. § 1367, Plaintiff seeks to prosecute her Texas state claims for breach of contract, quantum meruit and unjust enrichment as a class action on behalf of all hourly-paid direct patient care nurses who worked at the Hospital at any time during the four years preceding the filing of this action through entry of judgment whose pay has been docked by application of an automatic meal break deduction to their shifts worked in the weeks in which they did not work overtime (the “Rule 23 Class”). 14 45. This Rule 23 Class is so numerous that joinder of all members is impracticable. Although the precise number of such persons is currently unknown to Plaintiff, and although the data which would identify the size of the Rule 23 Class is within the sole control of Defendants, upon information and belief there are hundreds of nurses encompassed by the class, most of whom would not be likely to file individual suits because they lack adequate financial resources, access to attorneys or knowledge of their claims. 46. Plaintiff will fairly and adequately protect the interests of the Rule 23 Class Members and has retained counsel experienced and competent in the field of contract, compensation, and class action litigation. Plaintiff has no interest that is contrary to or in conflict with the interests of the members of the Rule 23 Class. 47. A class action is superior to individual adjudication of the claims at issue in this controversy, since the claims are substantially similar and since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual members of the Rule 23 Class may be relatively small, the expense and burden of individual litigation make it virtually impossible for the members of the class to individually seek redress for the wrongs done to them. Management of this suit as a class action will serve judicial economy. 48. Questions of law and fact common to the Rule 23 Class predominate over questions that may affect only individuals because the Hospital has acted on grounds generally applicable to all class members. Among the common questions of law and fact common to Plaintiff and other members of the Rule 23 Class are: a. whether agreements existed pursuant to which Defendants were to pay an hourly wage to Plaintiff and to members of the class for each hour of their work; b. whether Defendants failed to pay Plaintiff and members of the class for all hours worked as a result of its automatic deduction of a 30-minute meal period per shift, notwithstanding the fact that Plaintiff and class members regularly performed compensable work during such meal breaks; 15 c. whether Defendants engaged in a continuing policy, pattern or practice of failing to pay Plaintiff and the class members for all hours worked; d. whether Defendants breached and continue to breach the employment agreements between it and the class members; e. whether Defendants are liable for damages claimed hereunder, including but not limited to unpaid meal break time worked, attorneys’ fees and costs. 49. Plaintiff’s claims are typical of the claims of the Rule 23 Class. Plaintiff, like all other class members, was subject to the Hospital’s policy and practice of automatically deducting 30 minutes of pay per shift worked even though Plaintiff performed compensable work throughout her shift. Plaintiff and each class member has been damaged and is entitled to recovery by reason of the Hospital’s policies and practices. Class action treatment will allow class members to litigate their claims in a manner that is fair to all parties involved, free of fear of retaliation, and efficient for those parties and for the judicial system. 50. The Rule 23 Class members are defined as: Nurses employed at Clear Lake Regional Medical Center to provide direct patient care at any time during the four years before this Complaint was filed up to the present who, as a result of Defendants’ practice of automatically deducting thirty (30) minutes from each shift worked and not paying for same, did not receive all of the straight time pay at their contractual hourly rate to which they were entitled in the weeks of their employment in which said nurses worked forty (40) or fewer hours per week.

lose

(Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A) – Class I) (Negligent Violations of 47 C.F.R. § 64.1200(d) Do-Not-Call List – Class II) (Negligent Violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A) – Class I) 13. Defendant 29 Prime, Inc. touts itself as “the nation’s leading company dedicated to providing online marketing services and search engine optimization (SEO) to small and midsize businesses through the United States and Canada.” See http://www.linkedin.com/company/29-prime (last visited January 21, 2014). Case3:14-cv-00550-EDL Document1 Filed02/05/14 Page3 of 14 35. Class Definition. Pursuant to CR 23(b)(2) and (b)(3), Plaintiffs brings this case as a class action on behalf of National Classes as defined as follows: Class I: All persons in the United States to whom: (a) Defendant, and/or a third party acting on Defendant’s behalf, made one or more non-emergency telephone calls; (b) to their cellular telephone number; (c) with a pre-recorded message; (d) without the recipient’s prior express consent; and (e) at any time in the period that begins four years before the date of filing this Complaint to trial. Class II: All persons in the United States who: (a) received more than one telemarketing call, made by Defendant and/or on Defendant’s behalf; (b) more than 30 days after requesting not to receive further telemarketing calls; (c) in a 12-month period; (d) on their cellular telephone line or residential telephone line; and (e) at any time in the period that begins four years before the date of filing this Complaint to trial. Class III: All persons in the United States who: (a) received more than one telemarketing call, made by Defendant and/or on Defendant’s behalf; (b) in a 12-month period; (c) on their cellular telephone line or residential telephone line; (d) whose cellular or residential telephone line number(s) appear on the National Do- Not-Call registry; and (e) at any time in the period that begins four years before the date of filing this Complaint to trial. Excluded from Classes are Defendant, any entity in which Defendant has a controlling interest or that has a controlling interest in Defendant, and Defendant’s legal representatives, assignees, and successors. Also excluded are the judge to who this case is assigned and any member of the judge’s immediate family. 36. Numerosity. The Classes are each so numerous that joinder of all members is impracticable. On information and belief, the Classes each have more than 1,000 members. Moreover, the disposition of the claims of the Classes in a single action will provide substantial benefits to all parties and the Court. Case3:14-cv-00550-EDL Document1 Filed02/05/14 Page6 of 14 43. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 44. The foregoing acts and omissions of Defendant and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf constitute numerous and multiple negligent violations of the TCPA, 47 U.S.C. § 227(b)(1)(A). 45. As a result of Defendant’s and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf’s negligent violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), Plaintiffs and members of Class I presumptively are entitled to an award of $500 in damages for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 46. Plaintiffs and members of Class I are also entitled to and do seek injunctive relief prohibiting Defendant and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf from violating the TCPA, 47 U.S.C. § 227(b)(1)(A), in the future. Case3:14-cv-00550-EDL Document1 Filed02/05/14 Page9 of 14 47. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 48. The foregoing acts and omissions of Defendant and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf constitute numerous and multiple knowing and/or willful violations of the TCPA, 47 U.S.C. § 227(b)(1)(A). 49. As a result of Defendant’s and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf’s knowing and/or willful violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), Plaintiffs and members of Class I 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). 50. Plaintiffs and members of the Class I are also entitled to and do seek injunctive relief prohibiting Defendant and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf from violating the TCPA, 47 U.S.C. § 227(b)(1)(A), in the future. 51. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 52. The foregoing acts and omissions of Defendant and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf constitute numerous and multiple negligent violations of 47 C.F.R. § 64.1200(d), including failure to properly record do-not-call requests, failure to maintain a record of do-not-call requests, and failure to honor do-not-call requests. 53. As a result of Defendant’s and/or its affiliates, agents, and/or other persons or entities acting on Defendant’s behalf’s negligent violations of 47 C.F.R. § 64.1200(d), Plaintiff Marlowe and members of Class II are entitled to an award of $500 in statutory damages for each and every call in violation of the regulation, pursuant to 47 U.S.C. § 227(c)(5)(B). Case3:14-cv-00550-EDL Document1 Filed02/05/14 Page10 of 14

lose

1. The Choice Plus Plan’s Coordination of Benefits with Medicare 19. After enrolling in Medicare on August 1, 2010, Plaintiff purportedly should have been transferred from the Choice Plus Plan to the Indemnity Plan. As of the filing of this complaint, Plaintiff has not yet been transferred to that Plan. 2. The Indemnity Plan’s Coordination of Benefits with Medicare 20. Under the terms of both Defendant Plans, Plaintiff’s coverage is secondary to her benefits under Medicare. See Summary Plan Description United HealthCare Choice Plus Copay Plan for AllianceBernstein L.P., Jan. 1, 2009 at 62-63 (“Choice Plus Plan SPD”); AllianceBernstein L.P. United HealthCare Indemnity, Jan. 1, 2009 at 40 (“Indemnity Plan SPD”). 21. Medicare is required to use the Resource-Based Relative Value Scale (“RBRVS”) to determine a medical provider’s payment amount for covered services. The RBRVS assigns medical procedures a relative value that is then adjusted according to geographic region and multiplied by a fixed conversion factor, which changes annually. The RBRVS’s underlying data is published in the Federal Register. Medical procedures are identified by Current Procedural Terminology (“CPT”) codes. 23. The Choice Plus Plan SPD provides that if a participant in the Choice Plus Plan is enrolled in Medicare on a primary basis, Medicare pays benefits as the primary payer and the Choice Plus Plan will pay as secondary payer. Id. at 62-63. 24. When the Choice Plus Plan “is secondary, it may reduce its benefits by the total amount of benefits paid or provided by all [primary plans].” Id. at 62. 25. As each claim is submitted, United Insurance, as the Claims Administrator of the Choice Plus Plan, will “(1) Determine [the Plan’s] obligation to pay or provide benefits under its contract; (2) Determine the difference between the benefit payments that [the Choice Plus Plan] would have paid had it been the Primary Coverage Plan and the benefit payments paid or provided by [the primary plan].” Id. 26. If the primary plan paid less than is called for under the Choice Plus Plan, the Choice Plus Plan will pay the difference. Id. 27. With regards to Medicare, the Choice Plus Plan states that it “reduces its benefits” for plan participants who are eligible for Medicare when Medicare would be the Primary Plan. Id. 29. In a letter from AllianceBernstein to Plaintiff dated November 30, 2010, AllianceBernstein explained: [I]f a provider “opts” out of Medicare and the participant is Medicare-eligible, . . . [United Insurance] will still pay the claim as if the provider accepted Medicare, even if nothing is actually paid by Medicare. To do this, [United Insurance] will estimate what Medicare would have paid, as if a Medicare participating provider was used, and then pay the appropriate amount. Letter from Brian W. Fagan to Marianne Gates (Nov. 30, 2010) (emphasis added). 3. Plaintiff’s Benefit Claims 30. However, the Choice Plus Plan SPD clearly states that United Insurance, as the Claims Administrator of the Choice Plus Plan, does not have discretion to estimate Medicare payments. Rather, as stated above, “Medicare benefits are determined as if the full amount that would have been payable under Medicare was actually paid under Medicare.” Choice Plus Plan SPD at 62 (emphasis added). As shown above, Medicare payment amounts are easily determined, belying any need to estimate the payments. 31. The Indemnity Plan coordinates benefits with Medicare in a similar manner as the Choice Plus Plan. 33. Once an employee becomes eligible for Medicare, the Indemnity Plan pays benefits under the Plan as if the participant were covered under Medicare, whether the participant has enrolled in Medicare or not. Id. 34. If a participant “receives services from a provider who has elected to opt-out of Medicare[,] Medicare benefits are determined as if the services were covered under Medicare Parts A and B and the provider had agreed to limit charges to the amount of charges allowed under Medicare rules.” Id. at 41. 35. As discussed below, Plaintiff alleges that United improperly estimates Medicare benefits for all United Plans for which Medicare may be a primary payer. Indeed, United’s estimates greatly exceed the amounts that Medicare actually pays and result in United under- reimbursing United Plan participants and beneficiaries for covered services. 36. Plaintiff received medical care from various physicians who charged varying amounts for her visits. Initially, Plaintiff’s claims were processed by United Insurance with the Choice Plus Plan as the primary payer. After Plaintiff became covered by Medicare, United Insurance began processing Plaintiff’s claims with the Choice Plus Plan as secondary to Medicare. 37. Some of Plaintiff’s medical providers have opted out of Medicare. Thus, Plaintiff is responsible for the amount that Medicare would have paid had Plaintiff’s providers participated in Medicare. 38. On numerous occasions, United Insurance improperly determined the amount that Medicare would have paid had Plaintiff’s claim been covered by Medicare. 40. On August 6, 2010, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $2,000. The EOB dated August 30, 2010, reflects that United Insurance determined that Medicare would pay $1,600. However, the CMS fee schedule database indicates that Medicare would have paid $191.61, which is less than an eighth of the amount United Insurance had determined. 41. On August 11, 2010, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $3,000. An EOB dated September 27, 2010, states that Medicare would have paid $2,400. The EOB notes: Medicare pays benefits before your group health plan. Since the patient did not enroll for Medicare part A and/or B we processed this claim after estimating how much Medicare parts A and/or B would have covered. The patient is responsible for the difference between the billed charge and the amount paid by this Plan. (Emphasis added). 42. However, the CMS fee schedule database indicates that Medicare would have paid a total of $508.88—only a fraction of what United Insurance determined Medicare would pay. 43. On August 26, 2010, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $300. The EOB dated September 27, 2010, reflects that Medicare would have paid $240. The CMS database indicates that Medicare actually would have paid $55.23, less than a quarter of the amount United Insurance determined it would pay. 45. Once again, United Insurance vastly overestimated the amount Medicare would have paid had Plaintiff’s provider been covered by Medicare. The CMS database indicates that Medicare would have paid $114.26—an amount that is nowhere near the amount that United Insurance determined. 46. On February 1, 2011, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $300. The EOB dated March 24, 2011, states that Medicare would have paid $240. United Insurance did not cover any amount for this procedure. The CMS database indicates that Medicare actually would have paid $55.23. 47. On February 24, 2011, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $600. The EOB dated April 20, 2011, states that Medicare would have paid $480. United Insurance did not cover any amount for this procedure, and the CMS database indicates that Medicare actually would have paid $45.54, less than a tenth of the amount United Insurance determined it would pay. 49. United contracts with certain medical providers to provide covered services to the United Plans’ participants and beneficiaries. Accordingly, on information and belief, many of the United Plans differentiate between services provided by such in-network providers from those with whom United has not contracted—so-called out-of-network (“ONET”) providers. Because United has not negotiated fees with ONET providers, a United Plan might provide for reimbursement of less than such providers’ service charges, leaving the participants and beneficiaries liable for any difference. 50. The Choice Plus Plan SPD defines Non-Network Benefits as “Benefits for Covered Health Services that are provided by a non-Network Physician, non-Network facility, or other non-Network provider.” Choice Plus Plan SPD at 84. The SPD does not describe how payments for Non-Network Benefits are calculated. 51. On July 19, 2010, Plaintiff was seen by a medical professional and claims were submitted to United Insurance in the amounts of $150 and $75. The EOB dated October 29, 2010, limited the amounts allowed for these claims to $10 and $15 respectively. The EOB also notes: Your Plan covers reasonable charges for covered health services. The reasonable charge is based on amounts charged by other physicians or health care professionals in the area for similar services or supplies. Benefits are not available for that portion of the charge that exceeds the reasonable charge determined for this service. 52. On July 29, 2010, Plaintiff was seen by a medical professional and a claim was submitted to United Insurance in the amount of $300. The EOB dated October 29, 2010, limited the amount allowed for this claim to $180. The EOB contains the same notation set forth in the paragraph above. 54. The Ingenix databases have been the subject of several lawsuits. They have also been the subject of a settlement agreement between the New York State Attorney General (the “NYAG”) and UnitedHealth Group Inc. entered into on January 13, 2009, under Investigation No. 2008-I6I (the “Settlement”). 55. Among other things, the NYAG’s investigation determined that Ingenix skewed the databases so that reasonable and customary charges would be undervalued resulting in lower reimbursements to United Plan participants and beneficiaries. The investigation also found that UnitedHealth Group Inc.’s ownership of the databases as well as its subsidiary insurance companies’ use of the databases was a conflict of interest. 56. The Settlement thus provides for the establishment of a database by FAIR Health, Inc., a nonprofit group selected by the NYAG, to replace the Ingenix database. This process is being funded, at least in part, by a $50 million UnitedHealth Group Inc. contribution. 58. The Settlement required UnitedHealth Group Inc. to post certain information on its website. Among other things, that portion of the website states: If your health care plan requires payment using the term “reasonable and customary” or similar language mentioned above with respect to medical and surgical procedures performed and billed by health care professionals or health care provider group practices, affiliates of UnitedHealth Group most commonly refer to a schedule of charges created by Ingenix, Inc., a wholly owned subsidiary of UnitedHealth Group when determining the maximum amount they will pay for such benefits. Ingenix publishes two databases called the Prevailing Healthcare Charges System database (“PHCS Database”) and the Medical Data Research database (“MDR Database”). The information in these databases is updated and published by Ingenix at scheduled times each year. UnitedHealth Group affiliates which administer health care plans based on the term “reasonable and customary” or similar standards use the medical or surgical modules of one of these databases for reimbursement of professional fees for medical and surgical services. Important Notice on Payment of Out-of-Network Benefits, http://www.uhc.com/legal/ payment_of_out_of_network_benefits/relatedinformation/dd1c6963c5190210VgnVCM20000030 10b10a____.htm (last visited May 18, 2011). 59. However, in so doing, UnitedHealth Group Inc. and its subsidiaries have not, upon information and belief, done anything to correct the data in the Ingenix databases that the NYAG investigation found flawed. Therefore, UnitedHealth Group Inc. and subsidiaries/affiliates continue to reimburse ONET services at less than the actual reasonable and customary rate required. C. United Insurance Failed to Comply with ERISA’s Claims Procedure Requirements 89. Numerosity. The members of each class are so numerous that joinder of all members is impracticable. Upon information and belief, each class consists of thousands of health care subscribers whose benefits under the United Plans were underpaid because United Insurance overstates Medicare payments and improperly calculates ONET reimbursement rates, and who did not receive a full and fair review of their claims. The precise number of members in each class is within Defendants’ custody and control. Based on reasonable estimates, the numerosity requirement of Rule 23 is easily satisfied for each class. Common questions of law and fact exist as to all class members and predominate over any questions affecting solely individual members of each class, including the class action claims and issues described herein. 90. Commonality. The following common class claims and issues arise for Plaintiff and the Class: (a) whether Defendants violated ERISA; (b) whether Defendants’ alleged ERISA violations, if proved, justify injunctive relief; (c) whether Defendants’ coordination of benefits procedures complied with A. United Improperly Determines the Amount Medicare Pays on Benefits Claims

lose

14. Defendant is a fitness facility located in New York’s Financial District. At this location, there are three studios were members can take classes in yoga, boxing and high-intensity interval training, as well as other classes. Defendant’s fitness facility also offers sports training and spa services. Defendant also operates fitness facilities, spas, and pop-up locations in other states. 15. Defendant’s Website is heavily integrated with its New York City fitness facility, serving as its gateway. Through the Website, Defendant’s customers are, inter alia, able to: learn information about the fitness facility’s location and hours of operation; learn about classes and spa services offered; learn about membership and pricing; and learn about special offers including a free trial week. 16. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff Olsen and other blind or visually-impaired users access to its Website, thereby denying the facilities and services that are offered and integrated with its fitness facility. Due to its failure and refusal to remove access barriers to its Website, Plaintiff Olsen and visually-impaired persons have been and are still being denied equal access to Defendant’s fitness facility and the numerous facilities, goods, services, and benefits offered to the public through its Website. 20. Due to the inaccessibility of its Website, blind and visually-impaired customers such as Plaintiff Olsen, 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 Website’s access barriers that Plaintiff Olsen encountered have caused a denial of his full and equal access in the past, and now deter him on a regular basis from accessing the Website. These access barriers have likewise deterred him from visiting Defendant’s fitness facility and enjoying it equal to sighted individuals. 21. If the Website was equally accessible to all, Plaintiff Olsen could independently navigate it, view goods and service items, learn about Defendant’s New York City location, view the schedule, book an appointment or create an account, equal to sighted users. 23. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff Olsen and other visually-impaired consumers with equal access to the Website, Plaintiff Olsen 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 Olsen; b. Failing to construct and maintain a website that is sufficiently intuitive to be equally accessible to visually-impaired individuals, including Plaintiff Olsen; 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 Olsen, as a member of a protected class. 24. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 25. Title III of the ADA expressly contemplates the injunctive relief that Plaintiff Olsen seeks under 42 U.S.C. § 12188(a)(2). 27. Although Defendant may currently have centralized policies on maintaining and operating its Website, Defendant lacks a policy reasonably calculated to make the Website fully and equally accessible to, and independently usable by, blind and other visually impaired consumers. 28. Without injunctive relief, Plaintiff Olsen and other visually impaired consumers will continue to be unable to independently use the Website, violating its rights. 30. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 31. Plaintiff Olsen 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 fitness facility during the relevant statutory period (“Class Members”). 32. Plaintiff Olsen seeks to certify a State of New York 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 the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s fitness facility during the relevant statutory period (“New York Subclass Members”). 33. Plaintiff Olsen 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 the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s fitness facility during the relevant statutory period (“New York City Subclass Members”). 35. Plaintiff Olsen’s claims are typical of the Class Members, New York Subclass Members and New York City Subclass Members: they are all severely visually impaired or otherwise blind, and claim that Defendant has violated Title III of the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the visually impaired individuals. 37. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class and Subclass Members predominate over questions affecting only individuals, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 38. 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. 39. Plaintiff Olsen, individually and on behalf of the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 40. Title III of the ADA prohibits “discriminat[ion] 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). 41. Defendant’s fitness facility is a public accommodation under Title III of the ADA, 42 U.S.C. § 12181(7). 42. Its Website is a service, privilege, or advantage of this establishment. The Website is a service that is integrated with this location. 44. Under 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). 45. These acts violate Title III of the ADA, and the regulations promulgated thereunder. Plaintiff Olsen, who is a member of a protected class of persons under Title III of 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, he 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. 46. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff Olsen requests the relief as set forth below. 47. Plaintiff Olsen, individually and on behalf of the New York Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Defendant’s New York fitness facility is a sales establishment and public accommodation under N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant’s fitness facility. Defendant’s Website is a service that is by and integrated with this fitness facility. 50. Defendant is subject to NYSHRL because it owns and operates its fitness facility and the Website. Defendant is a “person” within the meaning of N.Y. Exec. Law § 292(1). 51. 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 its fitness facility 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. 52. 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.” 54. 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 websites 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 its business nor result in an undue burden to them. 55. Defendant’s actions constitute willful intentional discrimination against the class because of a disability, violating the NYSHRL, N.Y. Exec. Law § 296(2), in that Defendant has: a. Constructed and maintained a website that is inaccessible to 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. 57. As Defendant’s actions violate the NYSHRL, Plaintiff Olsen seeks injunctive relief to remedy the discrimination. 58. Plaintiff Olsen is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for every offense. 59. Plaintiff Olsen is also entitled to reasonable attorneys’ fees and costs. 60. 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. 61. Plaintiff Olsen, individually and on behalf the New York City Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 62. The NYCHRL 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.” N.Y.C. Admin. Code § 8-107(4)(a). 64. Defendant is subject to NYCHRL because it owns and operates its Website and its fitness facility, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 65. Defendant is violating the NYCHRL in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its fitness facility 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. 66. 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). 68. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff Olsen and the New York City Subclass Members because of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its fitness facility 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 the New York City Subclass will continue to suffer irreparable harm. 69. As Defendant’s actions violate the NYCHRL, Plaintiff Olsen seeks injunctive relief to remedy the discrimination. 70. Plaintiff Olsen is also entitled to compensatory damages, as well as civil penalties and fines for each offense. N.Y.C. Admin. Code §§ 8-120(8), 8-126(a). 71. Plaintiff Olsen is also entitled to reasonable attorneys’ fees and costs. 72. Under N.Y.C. Admin. 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. 73. Plaintiff Olsen, individually and on behalf the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 75. A judicial declaration is necessary and appropriate now in order that each of the parties may know its respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant, Its Website And Its Website’s Barriers VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL

lose

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 GA 15 usc 1692 FAIR DEBT COLLECTION PRACTICES ACT DECEPTIVE PRACTICES  02/20/2014 /s/ David Palace

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. 22. Defendant is a consumer electronics retailer, and owns and operates the website, pcliquidations.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. 23. 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 and prices, and avail consumers of the ability to peruse the numerous items offered for sale. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff has visited the Website on separate occasions using a screen-reader. 26. Plaintiff visited Defendant’s website, pcliquidations.com, in November of 2019, with an intent to browse available computers and LCD monitors. Despite his 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, accommodations and inaccessibility with Plaintiff’s screen reader. As a result, Plaintiff was barred from effectively browsing and being able to make his desired purchase. 27. 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 “laptops and tablets” section where Plaintiff was attempting, but was unsuccessful, in making a purchase. 29. Plaintiff has made numerous attempts to complete a purchase on pcliquidations.com, most recently in November, 2019, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused pcliquidations.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. 30. As described above, Plaintiff has actual knowledge of the fact that Defendant’s website contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually-impaired persons. 31. 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 his original search. 32. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 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. 34. 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. 35. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 36. 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. 38. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 39. 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). 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. 43. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 45. 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. 46. 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 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. 47. 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. 49. 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. 50. 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. 51. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 52. 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. 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). 55. 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). 56. 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). 58. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 59. 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. 60. 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.” 61. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 62. 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). 64. 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). 65. 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. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 68. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 69. 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. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. 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. 72. Plaintiff, on behalf of himself 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. 74. 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

�������������������������������������������������������(Do not cite jurisdictional statutes unless diversity)� � ���������������������������

win

(Breach of Contract on behalf of the Class) (Violation of N.J.S.A. 56: 8-1 et seq. on Behalf of the Subclass) (Breach of Implied Covenant of Good Faith & Fair Dealing on Behalf of the Class) 10. The new energy suppliers, who compete against local utilities such as Public Service Electric and Gas Company (“PSE&G”), are known as energy service companies, or “ESCOs.” While ESCOs supply the electricity, local utilities continue to deliver the commodity to consumers’ homes. The local utility also continues to bill the customer for both the energy supply and delivery costs. The only difference to the customer is which company sets the price for the customer’s energy supply. 12. Consumers who do not choose to switch to an ESCO for their energy supply continue to receive their supply from their local utility. 13. In New Jersey, the NJBPU holds market-based auctions for utilities to purchase electricity at wholesale on a three-year rolling basis on behalf of its customers. Pursuant to the Electric Discount and Energy Competition Act of 1999, the power procured by utilities must be purchased at prices consistent with market conditions. A third-party consultant manages the auctions on behalf of the NJBPU, and the bidding processes and results are made publicly available. As a result, these auctions reflect market-determined prices. Utilities then charge their customers a rate based on market prices for supply obtained in the competitive wholesale marketplace, plus other wholesale costs, namely transmission, capacity, ancillary, congestion, and administrative costs as determined by the NJBPU -- without any markup or profit. Because New Jersey utility rates do not include any profits, they serve as pure reflections of average market costs of wholesale electricity, and associated costs. 14. ESCOs such as Gateway have various options to buy electricity at wholesale for resale to retail customers, including: owning generation plants; purchasing from wholesale marketers and brokers at the price available at or near the time it is used by the retail consumer (i.e., the spot market); and by purchasing in advance of the time it is used by consumers, either by purchasing energy to be used in the future or by purchasing futures contracts for the delivery of energy in the future at a predetermined price (i.e., futures or swaps). The purpose of deregulation is to allow ESCOs to use these and other innovative purchasing strategies to reduce electricity costs, and pass those savings on to consumers. 16. As part of the deregulation plan, ESCOs (like Gateway) do not have to file or seek approval for the electricity rates they charge or the methods by which they set their rates with the 41. Plaintiff also brings this action on his own behalf and additionally, pursuant to Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure, on behalf of a subclass (the “Subclass”) of New Jersey Gateway customers who were charged a variable rate for residential electricity services by Gateway from Novemvber 2012 to the present. 42. Excluded from the Class and Subclass are Defendant; any parent, subsidiary, or affiliate of Defendant; any entity in which Defendant has or had a controlling interest, or which Defendant otherwise controls or controlled; and any officer, director, legal representative, predecessor, successor, or assignee of Defendant. 44. Defendant’s violations of N.J.S.A. 56: 8-1 et seq. are applicable to all members of the Subclass, and its violations of the common law are applicable to all members of the Class, and Plaintiff is entitled to have Defendant enjoined from engaging in illegal and deceptive conduct in the future. 45. Plaintiff repeats and re-alleges the allegations contained in the paragraphs above as if fully set forth herein. 46. Gateway customers in New Jersey, and others in other states, have customer agreements whose variable rate terms are substantially similar. 47. Plaintiff and the Class entered into valid contracts with Defendant for the provision of electricity. 49. Pursuant to the Agreement, Plaintiff and the Class paid the variable rates Defendant charged for electricity. 50. However, Defendant failed to perform its obligations under the Agreement to charge rates based primarily upon electricity costs and the rates utilities and other ESCOs chage. Indeed, Defendant charged a variable rate for electricity that was untethered from the factors upon which the parties agreed the rate would be based. 51. Plaintiff and the Class were damaged as a result because they were billed, and they paid, a charge for electricity that was higher than it would have been had Defendant based its rate on the agreed upon factors. 52. By reason of the foregoing, Defendant is liable to Plaintiff and the other members of the Class for the damages that they have suffered as a result of Defendant’s actions, the amount of such damages to be determined at trial, plus attorneys’ fees. 53. Plaintiff repeats and re-alleges the allegations contained in the paragraphs above as if fully set forth herein. 54. Every contract contains an implied covenant of good faith and fair dealing in the performance and enforcement of the contract. The implied covenant is an independent duty and may be breached even if there is no breach of a contract’s express terms. 55. Under the contract, Defendant had unilateral discretion to set the variable rate for electricity based on market conditions and other factors, such as the amount of profit Defendant hoped to earn from the sale of electricity in a customer’s utility area. 57. Defendant breached the implied covenant of good faith and fair dealing by arbitrarily and unreasonably exercising its unilateral rate-setting discretion to price gouge and frustrate Plaintiff and other Class members’ reasonable expectations that the variable rate for electricity would be commensurate with market conditions. 58. Plaintiff repeats and re-alleges the allegations contained in the paragraphs above as if fully set forth herein. 59. The Consumer Fraud Act prohibits, inter alia: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression, or omission, in connection with the sale or advertisement of any merchandise. . . . 9. In 1999, New Jersey’s legislature and the New Jersey Board of Public Utilities (“NJBPU”) deregulated the market for electricity. Among the goals of the reorganization were increased competition and deregulation within the industry, with an eye towards achieving greater consumer choice and an overall reduction of energy rates. As a result, the State’s electric industry is open to competition, and consumers may choose their supplier of energy. The History Of New Jersey’s Energy Industry

win

16. The Defendant City of Cleveland Heights, Ohio is a political subdivision. 17. At all times relevant, Plaintiff Employees and SSEs were employed by Defendant in Bargaining Unit Positions. 18. Plaintiff Employees all currently work for Defendant in Bargaining Unit Positions. 19. Plaintiff Employees and SSEs have been employed by Defendant in Bargaining Unit Positions within the last three years. 20. Payment of longevity pay to Plaintiff Employees and SSEs in Bargaining Unit Positions, under Defendant’s collective bargaining agreement with Local 860 (formerly with the National Production Workers Union, Local 707 – as noted above) over the last three years, was mandatory in nature and, thus, was required to be included in Plaintiff Employees and SSEs’ regular rate of pay. 21. Defendant failed to include longevity pay in Plaintiff Employees and SSEs’ regular rates of pay. 6 22. Defendant knowingly and willfully failed to pay Plaintiff Employees and SSEs the proper amount of overtime compensation through the date of this Complaint. 23. Plaintiff Employees bring Count I of this action on their own behalf pursuant to 29 U.S.C. § 216(b) and on behalf of all SSEs in Bargaining Unit Positions who have been, are being, or will be adversely affected by Defendant’s unlawful conduct. 24. The class that Plaintiff Employees seek to represent and for whom Plaintiff Employees seek the right to send “opt-in” notices for purposes of the collective action, and of which Plaintiff Employees are themselves members, is composed of and defined as follows: All former and current employees employed by Defendant City of Cleveland Heights in Bargaining Unit Positions that received longevity pay at any time between January 1, 2016 and the present. 25. Plaintiff Employees are unable to state at this time the exact size of the potential class, but upon information and belief, aver that it consists of at least 100 employees. 26. This action is maintainable as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) as to claims for unpaid overtime compensation, liquidated damages, attorneys’ fees, and costs under the FLSA. 27. In addition to Plaintiff Employees, numerous current and former employees are similarly situated with regard to their wages and claims for unpaid wages and damages. 7 28. Plaintiff Employees are representative of those other employees and are acting on behalf of their interests as well as their own interests in bringing this action. 29. These similarly situated employees are known to Defendant and are readily identifiable through Defendant’s payroll records. These individuals may readily be notified of this action and allowed to opt in pursuant to 29 U.S.C. § 216(b) for the purpose of collectively adjudicating their claims for unpaid overtime compensation, liquidated damages, attorneys’ fees, and costs under the FLSA. 8 30. Plaintiffs incorporate by reference and re-allege the foregoing allegations as if fully rewritten herein. 31. Defendant’s practice and policy of failing to include longevity pay in the Plaintiff Employees and SSEs’ regular rates of pay violated the FLSA, 29 U.S.C. §§ 201- 219. 32. Defendant’s practice and policy of not paying Plaintiff Employees and SSEs overtime compensation at a rate of one and one-half times their regular rate of pay for the hours they work and worked in excess of 40 hours in a workweek violated the 36. Plaintiffs incorporate by reference and re-allege the foregoing allegations as if fully rewritten herein. 9 37. Defendant failed to pay Plaintiff Employees and SSEs their proper wages within the statutory time period under R.C. 4113.15(A). 38. To date, Defendant has failed to pay all wages due and owing to Plaintiff Employees and SSEs. 39. Because Defendant Employer failed to pay Plaintiff Employees and SSEs their wages within the time period specified under R.C. 4113.15(A), Plaintiff Employees and SSEs a seek their wages that remain unpaid plus liquidated damages required by statute.

win

13. “Caliber Homes Loans, Inc. is a national residential mortgage company that originates and services home loans. Caliber was founded by Lone Star Funds, a global private equity fund. Caliber originates home loans through a network of over 100 retail branches, wholesale lending, correspondent lending, mini-correspondent lending, and a consumer direct centralized operational center.” See Cobalt website. 50. Plaintiff hereby incorporates by reference the foregoing paragraphs of this Complaint into this count. 51. The FLSA requires each covered employer such as Defendant to compensate all non- exempt employees at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours per work week. 52. Plaintiff and the FLSA Collective are entitled to be paid overtime compensation for all hours worked. 53. Defendant, pursuant to their policies and practices, failed and refused to pay overtime premiums to Plaintiff and the FLSA Collective for all of their hours worked. 54. Defendant violated the FLSA, 29 U.S.C. § 201 et seq. by failing to compensate Plaintiff and the FLSA Collective for all overtime compensation. 56. The foregoing conduct, as alleged herein, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a). 57. Plaintiff, on behalf of herself and the FLSA Collective, seek damages in the amount of all respective unpaid overtime compensations at a rate of one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week, plus liquidated damages as provided by the FLSA, 29 U.S.C. § 216(b), interest, and such other legal and equitable relief as the Court deems just and proper. Collective Action under §216(b) of the FAIR LABOR STANDARDS ACT Overtime Claims

win

(Breach of Contract) (Violation of California Business & Professions Code Sections 17200, et seq. – Unfair Competition Law – Unlawful Prong) (Violation of California Business & Professions Code Sections 17200, et seq. – Unfair Competition Law - Unfair Prong) 14. Plaintiff Moody brings this litigation, on her own behalf and on behalf of the following Class, pursuant to Federal Rule of Civil Procedure 23: All mortgage loan customers of Citi (or its subsidiaries), whose mortgage loan is for a one- to-four family residence located in California, and who paid Citi or its agents or loan servicers money in advance for payment of taxes and assessments on the Property, for insurance, or for other purposes relating to the Property, and to whom Citi and its agents and loan servicers failed to pay interest as required by §2954.8(a). Excluded from the above Class is any entity in which Defendant has a controlling interest, and officers or directors of Defendant. The judge assigned to this case and the judge’s staff members are also excluded from the Class. 15. Plaintiff reserves the right under Rule 23 to amend or modify the Class descriptions with greater specificity or further division into subclasses or limitation to particular issues, based on the results of discovery and further investigation. 16. The members of the Class are so numerous that their individual joinder is impracticable. Because the class members may be identified through business records regularly maintained by Defendant and its employees and agents, and through the media, the number and identities of class members can be ascertained. Members of the Class can be notified of the pending action by e-mail, mail, and by published notice, if necessary. 23. Plaintiff incorporates by reference and re-alleges all paragraphs previously alleged. 26. Plaintiff incorporates by reference and re-allege all paragraphs previously alleged. 27. Defendant’s conduct is unfair under the UCL because it has no utility and, even if it did, any utility is outweighed by the gravity of harm to Plaintiff and the Class members. Defendant’s practice is also immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. 28. Plaintiff and the Class members, and each of them, have been damaged by these practices. Pursuant to California Business and Professions Code § 17200 et seq. Plaintiff, on her own behalf and on behalf of all others similarly situated, seek relief as prayed for below. 29. Plaintiff incorporates by reference and re-alleges all paragraphs previously alleged.

lose

21. Defendant is a furniture company that owns and operates the website, www.interiorexpress.com (its “Website”), offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State. 22. Defendant’s Website offers its 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 and prices, 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 using a screen-reader. 25. For example, 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. 26. Many features on the Website also fail to contain a proper 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 was 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 was a problem for Plaintiff because in certain instances the screen reader failed to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 30. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. 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. 33. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. 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. 35. 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. 36. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 39. Web-based technologies have features and content that are modified on a daily, and in some instances, an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies. To evaluate whether an inaccessible website has been rendered accessible, and whether corporate policies related to web-based technologies have been changed in a meaningful manner that will cause the website to remain accessible, the website must be reviewed on a periodic basis using both automated accessibility screening tools and end user testing by disabled individuals. 40. 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. 41. 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. 42. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 44. Plaintiff, on behalf of herself 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. 45. 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 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. 47. 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. 48. 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. 49. 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. 50. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 52. 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. 53. 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). 54. 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). 55. 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). 57. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 58. 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. 59. 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.” 60. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 62. 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. 63. 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). 64. 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. 66. 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. 67. Defendant’s actions were and are in violation of the NYCHRL 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.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. 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. 71. 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. 73. 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

26. Defendant owns and operates nail salons in Las Vegas, Nevada. 28. In efforts to drum-up business, Defendant would uniformly send marketing text messages to hundreds, if not thousands, of consumers at a time and provided different types of offers and savings for future purchases. Upon information and belief, Defendant has sent at least one thousand illegal text messages over the last four years preceding this lawsuit 29. Plaintiff himself was sent text messages without his express written consent. 30. Below is a depiction of an actual text message received by Plaintiff from Defendant: 31. Defendant’s text messages constitute telemarketing because they encourage the future purchase of Defendant’s services by consumers. 32. Plaintiff received the subject text messages within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. 34. Plaintiff is the subscriber and sole user of the ***-***-3377 phone number. 35. Some, if not all of the messages originated from the short-code “98135.” 36. The impersonal and generic nature of Defendant’s text messages, coupled with the fact that they were originated from a short-code, 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); 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)). 37. Specifically, upon information and belief, Defendant, through their direction, utilized a combination of hardware and software systems to send the text messages at issue in this case. The systems utilized by Defendant have the current capacity or present ability to generate or store random or sequential numbers or to dial sequentially or randomly at the time the call is made, and to dial such numbers, en masse, in an automated fashion without human intervention. 39. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 40. Plaintiff brings this case on behalf of a Class defined as follows: All persons within the United States who, within the four years prior to the filing of this Complaint, received a marketing or promotional text message made through the use of any automatic telephone dialing system, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, not for emergency purpose and without the recipient’s prior express written consent. 41. Defendant and their employees or agents, Plaintiff’s attorneys and their employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death, and/or emotional distress are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. 44. 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 their burden of showing that they obtained prior express consent to make such calls; (3) Whether Defendant conduct was knowing and willful; (4) Whether Defendant are liable for damages, and the amount of such damages; and (5) Whether Defendant should be enjoined from such conduct in the future. 45. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiffs and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 50. Plaintiff re-alleges and incorporates paragraphs 1-49 as if fully set forth herein. 51. 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). 53. Defendant – or third parties directed by Defendant– used equipment having the capacity to dial numbers without human intervention to make marketing telephone calls to the cellular telephones of Plaintiff and the other members of the Class defined above. 54. These calls were made without regard to whether Defendant had first obtained express written consent to make such calls. In fact, Defendant did not have prior express written consent to call the cell phones of Plaintiff and Class Members when the subject calls were made. 55. Defendant therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make marketing telephone calls to the cell phones of Plaintiff and Class Members without their prior express written consent. 56. All possible Defendants are directly, jointly, or vicariously liable for each such violation of the TCPA. 57. 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. 58. Plaintiff re-alleges and incorporates paragraphs 1-49 as if fully set forth herein. 59. At all times relevant, Defendant knew or should have known that their conduct as alleged herein violated the TCPA. 61. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls to their cellular telephones, the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 62. All possible Defendants are directly, jointly, or vicariously liable for each such violation of the TCPA. 63. As a result of Defendant violations, Plaintiff and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). WHEREFORE, Plaintiff, BRANDON ARNEAUD, on behalf of herself and the other members of the Class, prays for the following relief: a. A declaration that Defendant practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. A declaration that Defendant violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, were willful and knowing; c. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express consent of the called party; d. An award of actual, statutory damages, and/or trebled statutory damages; and e. Such further and other relief the Court deems reasonable and just. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

10. Discovery may reveal the transmission of additional faxes as well. 12. Defendant Athenahealth, Inc., as the entity whose products or services were advertised in the fax, derived economic benefit from the sending of the fax. 13. Defendant Athenahealth, Inc., either negligently or wilfully violated the rights of Plaintiff and other recipients in sending the fax. 14. The fax refers to a website registered to Defendant Athenahealth, Inc. 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 in the form required by 47 U.S.C. § 227. 17. On information and belief, the fax attached hereto was sent as part of a mass broadcasting of faxes. 18. On information and belief, Defendant has transmitted similar unsolicited fax advertisements to at least 40 other persons in Michigan. 19. There is no reasonable means for Plaintiff or other recipients of Defendant’s unsolicited advertising fax to avoid receiving illegal faxes. Fax machines must be left on and ready to receive the urgent communications authorized by their owners. 20. Plaintiff incorporates ¶¶ 1-19. 21. 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. 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. 24. Plaintiff and each class member is entitled to statutory damages. 25. Defendant violated the TCPA even if its actions were only negligent. 26. Defendant should be enjoined from committing similar violations in the future. 27. 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 (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. §1658), (c) were sent faxes by or on behalf of Defendant Athenahealth, Inc., promoting its goods or services for sale (d) and which did not contain an opt out notice as described in 47 U.S.C. §227. 29. 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. The manner in which Defendant compiled or obtained its list of fax numbers; c. Whether Defendant thereby violated the TCPA. 30. 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. 31. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 32. 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. 9. Some time in 2015, prior to filing this complaint, Plaintiff Michigan Urgent Care & Primary Care Physicians, P.C. received the unsolicited fax advertisement attached as Exhibit A on its facsimile machine.

win

21. Defendant is a clothing store that operates its clothing store as well as the Website to the public. The clothing store is located at 20 Hudson Yards, Floor 2, New York, New York. Defendant’s clothing store constitutes a place of public accommodation. Defendant’s clothing store provides to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services which allow consumers to find information about the clothing store location and hours, swimwear, to inquire about pricing and other products available online and in the clothing store for purchase and view privacy policies and other goods and services offered by the Defendant. 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 clothing store. 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 clothing store and the numerous goods, services, and benefits offered to the public through the Website. 24. During Plaintiff’s visits to the Website, the last occurring in February 2020, 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, as well as to the facilities, goods, and services of Defendant’s physical location in New York by being unable to learn more information on the location and hours of the clothing store, swimwear, inquiries about pricing and other products available online and in the clothing store for purchase and view privacy policies and other goods and services offered by Defendant. 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 location, and enjoying it equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical clothing store on its Website and other important information, preventing Plaintiff from visiting the location to purchase a swimsuit. 29. 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. 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 not 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 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 Website, with contact information for users to report accessibility-related problems. 34. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently locate Defendant’s clothing store’s locations and hours of operation, shop for and otherwise research related products and services via the Website. 36. Defendant has, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making its 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 location, during the relevant statutory period. 39. Plaintiff, on behalf of herself and all others similarly situated, seeks to 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 location, during the relevant statutory period. 40. 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 in Defendant’s physical location, during the relevant statutory period. 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). 48. Defendant’s clothing store is a place of public accommodation 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 clothing store. The Website is a service that is integrated with these locations. 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 location is located in the State of New York and constitute a sales establishment and place of public accommodation 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 this physical location. 57. Defendant is subject to New York Human Rights Law because it owns and operates its physical location and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 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 not sufficiently intuitive and/or obvious and 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. 65. 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. 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. 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 City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. 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.” 71. Defendant’s location is a sales establishment and place of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishment. 72. Defendant is subject to NYCHRL because it owns and operates its physical location 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). 73. 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 location 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. 75. 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 not sufficiently intuitive and/or obvious and 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. 76. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 77. 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. 79. 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. 80. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 81. 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. 82. 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. 83. 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 location, which Defendant owns, operate 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. 84. 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 NYCHRL VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

19. The named plaintiffs maintain this action against all of the defendants, jointly and severally, for and on behalf of himself and all other similarly situated current and/or former joint employees of the defendants who jointly employed them and those other similarly situated persons to perform hours worked in excess of 40 hours worked in the same workweek in the restaurant enterprise of Lalaja in and around Craven County, North Carolina for each workweek ending in the three chronological years immediately preceding the date on which this action was filed and continuing thereafter ending on the date final judgment in this action is entered by a U.S. District Court pursuant to the statutory class action procedure specified at 29 U.S.C. §216(b) for each such similarly situated current and/or former employee of the defendants in that same time period who files, will file, or who has filed a written consent to be a party to this action that is required by 29 U.S.C. §216(b) within the applicable statute of limitation(s) for any such workweek. 20. The statutory class of similarly situated persons under 29 U.S.C. §216(b) described in ¶19 above is based upon the failure of the defendants to pay an overtime premium at the rate required by 29 U.S.C. § 207(a)(1) for all hours worked over 40 in the same workweek to the named plaintiffs and each member of that statutory class that the named plaintiffs seek to represent for each hour or part of an hour of actual work that each such similarly situated person was or will be jointly or severally employed by one or more of the defendants to perform hours worked over 40 in the same workweek in the defendants’ restaurant enterprise described in ¶¶6-18 above in the time period described in ¶19 above. 21. At all times in the three year time period immediately preceding the date on which this action was filed and continuing thereafter, the defendants jointly and severally employed or continue to jointly and severally employ one or more of the named plaintiffs and/or the similarly situated employees of the defendants that are described in ¶¶6-20, inclusive, above of this complaint in the defendants’ restaurant enterprise that is described in ¶¶6-18 above by the defendants to provide Mexican food, beverages, entertainment, and catering services for the defendants’ customers in North Carolina for varying periods of time described in ¶¶6-18, inclusive above of this complaint in that same enterprise. At all times relevant to this action, the defendants regularly employed in the defendants’ enterprise a workforce of approximately thirty (30) employees that the two individual defendants assigned to work to perform different tasks on any given day. 22. During the time from before November 2016 and continuing through the present date that the defendants jointly and severally employed and will continue to employ plaintiff Vazquez and other workers as waiters, the defendants did not accurately record the total quantity of hours worked by plaintiff Vazquez and those other waiters for each workweek that they were and will be employed by the defendants. 23. During that same time period plaintiff Vazquez customarily and regularly worked approximately 62-65 hours per workweek as a waiter but before in or about March or April 2019, the defendants regularly paid him for only 80 hours worked per workweek. 25. Upon information and belief, at all times in the time period described in ¶21 above, the defendants claimed the tips that plaintiff Vazquez and other employees received in their work as waiters at the rate of $4.75 per hour in purported compliance with their obligation to pay the plaintiff and those other employees both the minimum wage at the rate required by 29 U.S.C. § 206(a) when the plaintiff and those other employees worked 40 or less hours per workweek as waiters and overtime wages at the rate required by 29 U.S.C. § 207(a)(1) when the plaintiff and those other employees worked more than 40 hours in the same workweek as waiters. 26. Before March or April 2019, the defendants did not inform the plaintiff or any other of the other employees described in ¶25 above in advance of the defendants’ use of the tip credit provisions that are described in ¶25 above on any date before April 2019. 27. Upon information and belief, even after March or April 2019 and continuing through the present date, the defendants still have not informed the plaintiff or any other of the other employees described in ¶25 above in advance of the defendants’ use of the tip credit provisions that are described in ¶25 above for any date in or after April 2019. 28. During the entire time period described in ¶21 above, the defendants did not obtain from any “tipped employee” (as defined in 29 U.S.C. § 203(t)) any weekly or monthly report by that employee of the amount of tips received by that employee for any particular week or month in the course of that tipped employee’s employment by one or more of the defendants. 30. During the time from before November 2016 and continuing through the present date that the defendants jointly and severally employed and will continue to employ plaintiff Hernandez and other workers as dishwashers, the defendants did not accurately record the total quantity of hours worked by plaintiff Hernandez and those other dishwashers for each workweek that they were and will be employed as dishwashers by the defendants. 31. During that same time period plaintiff Hernandez and the other employees whom the defendants employed as dishwashers customarily and regularly worked approximately 52 to 55 hours per workweek as dishwashers but before in or about March or April 2019 they were always paid a lump sum without payment of the overtime premium required by 29 U.S.C. § 207(a)(1). Before in or about March or April 2019, that lump sum was paid partially in cash and partially by check. Upon information and belief, after March or April 2019, the defendants regularly paid her and those other dishwashers that lump sum only by check. For plaintiff Hernandez, the total amount of that lump sum varied from pay period to pay period during that same time period. On information and belief, that lump still did not include any payment of the overtime premium required by 29 U.S.C. § 207(a)(1). 33. During that same time period plaintiff Juarez and the other employees whom the defendants employed as cooks customarily and regularly worked approximately 66 hours per workweek as cooks but before in or about March or April 2019 were always paid a lump sum without payment of the overtime premium required by 29 U.S.C. § 207(a)(1). Before in or about March or April 2019, the lump sum that the defendants paid in cash for every two-week pay period to plaintiff Juarez was $1,400.00. Upon information and belief, the defendants made similar lump sum payments to the other persons that the defendants employed as cooks in the amount for every two-week pay period. 34. Upon information and belief, after March or April 2019, the defendants continued to pay the persons they employed as cooks a lump sum but only by check. On information and belief, that lump still did not include any payment of the overtime premium required by 29 U.S.C. § 207(a)(1). 36. During the time from before November 2016 and continuing through March or April 2019 that the defendants jointly and severally employed and will continue to employ plaintiffs Mendoza and Catalina and other workers as taco chip servers, the defendants did not accurately record the total quantity of hours worked by those plaintiffs and those other persons employed as taco chip servers for each workweek that they were and will be employed as taco chip servers by the defendants. 37. During that same time period plaintiffs Mendoza and Catalina and the other employees whom the defendants employed as taco chip servers customarily and regularly worked approximately 80 to 85 hours per workweek as taco chip servers but before in or about March or April 2019 were always paid in cash at a straight hourly rate and the regular rate of $9/hour without payment of the overtime premium required by 29 U.S.C. § 207(a)(1). After in or about March or April 2019, the defendants reduced the hours worked per workweek by those persons that they employed as taco chip servers to substantially less than 40 hours per workweek and continued to pay them at the regular hourly rate of $9.00. 38. The defendants provided and paid for workers’ compensation insurance for the work performed by the plaintiffs and the workers who worked with the plaintiffs as part of the defendants’ enterprise. 40. The defendants supplied all of the funds to pay the named plaintiffs and their co-workers. 41. The individual defendants had final say as to who was hired to work in the restaurant. The individual defendants also had the right to fire the named plaintiffs any time as at will employees, and the defendants did not hire the named plaintiffs or any of their co- workers for any specific duration or any specific project. 42. The individual defendants had final say as to who was fired or disciplined for misconduct at work in the work that the named plaintiffs performed for the defendants. 43. During the entire time period described in ¶21 above, none of the plaintiffs operated an independent business, and they all were economically dependent upon the defendants for work and wages on a day to day basis. 44. Upon information and belief, the defendants did not post any written notice required by 29 C.F.R. § 516.4 as to the rights of employees to payment of the minimum wage under 29 U.S.C. §§ 206(a) and payment at the overtime rate described in 207(a)(1) for all hours worked in excess of 40 in the same workweek. 46. Long before 2015, each of the defendants was and continues to be an experienced employer who was and continues to be familiar with the FLSA and the NCWHA, and the requirements of both of those statutes with respect to what they require and required with respect to the wage rate to be paid for work in excess of forty (40) hours in the same workweek, and what is and was considered to be the regular rate at which an employee is employed under the FLSA. The defendants acted in reckless and willful disregard of the requirements of the FLSA with respect to these matters, and as a consequence of this willful and reckless disregard of the rights of the plaintiffs and the members of the collective action defined in ¶¶19-20 to payment of wages at the overtime rate required by 29 U.S.C. § 207(a)(1) have been violated for the entire three-year time period immediately preceding the date on which this action was filed. 47. Paragraphs 1 through 46 above are realleged and incorporated herein by reference by the named plaintiffs and each member of the collective action described in ¶¶19-20 above of this complaint that the named plaintiffs seek to represent pursuant to 29 U.S.C. §216(b) against all defendants.

win

(Declaratory Relief) 115. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 114 of this Complaint as though set forth at length herein. 116. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that Dyln.co contains access barriers denying blind customers the full and equal access to the goods, services and facilities of Dyln.co, which Dyln 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. 117. 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. (Violation of 42 U.S.C. §§ 12181 et seq. – Title III of the Americans with Disabilities Act) (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.)) 27. Defendant controls and operates Dyln.co. in New York State and throughout the United States and the world. 28. Dyln.co is a commercial website that offers products and services for online sale. The online store allows the user to browse water bottles and accessories, make purchases, and perform a variety of other functions. 29. Among the features offered by Dyln.co are the following: (a) Consumers may use the website to connect with Dyln on social media, using such sites as Facebook, Twitter, Instagram, and Pinterest; (b) an online store, allowing customers to purchase various kinds and sizes of water bottles and accessories; and (c) Getting answers to frequently asked questions, learning about shipping and return policies, learning about the technology of the products, and about the company. 30. This case arises out of Dyln’s policy and practice of denying the blind access to the goods and services offered by Dyln.co. Due to Dyln’s failure and refusal to remove access barriers to Dyln.co, blind individuals have been and are being denied equal access to Dyln, as well as to the numerous goods, services and benefits offered to the public through Dyln.co. 31. Dyln denies the blind access to goods, services and information made available through Dyln.co by preventing them from freely navigating Dyln.co. 33. 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 Dyln.co 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 Dyln.co customers are unable to determine what is on the website, browse the website or investigate and/or make purchases. 34. Dyln.co 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 Dyln.co, these forms include search fields to locate bottles, fields that specify the color and quantity, 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. 36. Similarly, on Dyln.co, blind customers are not aware if the desired products, such as bottles, 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 Dyln.co. 37. Furthermore, Dyln.co 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 Dyln.co’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. 39. Moreover, the lack of navigation links on Defendant’s website makes attempting to navigate through Dyln.co even more time consuming and confusing for Plaintiff and blind consumers. 40. Dyln.co 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, Dyln.co’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 Dyln.co. 42. Dyln.co thus contains access barriers which deny the full and equal access to Plaintiff, who would otherwise use Dyln.co and who would otherwise be able to fully and equally enjoy the benefits and services of Dyln.co in New York State and throughout the United States. 43. Plaintiff, Linda Slade, has made numerous attempts to complete a purchase on Dyln.co, most recently on February 16, 2021, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused Dyln.co 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 16 oz. alkaline DYLN water bottle. 44. As described above, Plaintiff has actual knowledge of the fact that Defendant’s website, Dyln.co, contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually-impaired persons. 45. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Dyln.co. 47. Defendant utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 48. Because of Defendant’s denial of full and equal access to, and enjoyment of, the goods, benefits and services of Dyln.co, 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. 49. 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 Dyln.co and as a result have been denied access to the enjoyment of goods and services offered by Dyln.co, during the relevant statutory period.” 50. 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 Dyln.co and as a result have been denied access to the enjoyment of goods and services offered by Dyln.co, during the relevant statutory period.” 51. 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. 53. There are common questions of law and fact common to the class, including without limitation, the following: (a) Whether Dyln.co is a “public accommodation” under the ADA; (b) Whether Dyln.co is a “place or provider of public accommodation” under the laws of New York; (c) Whether Defendant, through its website, Dyln.co, 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, Dyln.co, 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. 54. 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 Dyln has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, Dyln.co, so it can be independently accessible to the class of people who are legally blind. 56. 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. 57. 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. 58. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 59. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 58 of this Complaint as though set forth at length herein. 61. Dyln.co is a sales establishment and public accommodation within the definition of 42 U.S.C. §§ 12181(7). 62. Defendant is subject to Title III of the ADA because it owns and operates Dyln.co. 63. 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. 64. 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. 65. 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.” 67. 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. 68. 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 Dyln who are blind have been denied full and equal access to Dyln.co, 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. 69. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 70. 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 Dyln.co in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing regulations. 72. The actions of Defendant were and are in violation of the ADA, and therefore Plaintiff invokes her statutory right to injunctive relief to remedy the discrimination. 73. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 74. 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. 75. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 74 of this Complaint as though set forth at length herein. 76. 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.”. 77. Dyln.co is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 78. Defendant is subject to the New York Human Rights Law because it owns and operates Dyln.co. Defendant is a person within the meaning of N.Y. Exec. Law. § 292(1). 79. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to Dyln.co, causing Dyln.co 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. 81. 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.” 82. 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. 84. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 85. 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 Dyln.co 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. 86. The actions of Defendant were and are in violation of the New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 87. 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. 88. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 89. 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. 91. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 92. 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 . . .” 93. 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.” 94. Dyln.co is a sales establishment and public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). 95. Defendant is subject to New York Civil Rights Law because it owns and operates Dyln.co. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 96. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to Dyln.co, causing Dyln.co 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. 98. 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 . . .”

win

14. Pursuant to 29 U.S.C. § 216(b), Plaintiff seeks to prosecute his FLSA claims individually and as a collective action on behalf of all persons who are or were formerly employed by Defendant as AMs at any time during the relevant period (the “Collective Action Members”). 15. Defendant is liable under the FLSA for, inter alia, failing to properly compensate Plaintiff and other AMs. 16. There are many similarly situated current and former AMs who have not been paid overtime premiums for hours worked over 40 in a workweek in violation of the FLSA and who would benefit from the issuance of a court- supervised notice of this lawsuit and the opportunity to join it. Thus, notice should be sent to the Collective Action Members pursuant to 29 U.S.C. § 216(b). 17. The similarly situated Collective Action Members are known to Defendant, are readily-identifiable, and can be located through Defendant’s records. 19. Defendant maintained control, oversight, and discretion over the operation of all of its company-owned restaurants, including its employment practices with respect to the AMs. 20. Plaintiff’s and the AMs’ work was performed in the normal course of Defendant’s business and was integrated into it. 21. Consistent with the Defendant’s policy, pattern and/or practice, Plaintiff and AMs worked over 40 hours in one or more workweeks, but Plaintiff and AMs did not receive overtime premiums on one or more regularly scheduled pay dates within the relevant period for hours worked as AMs in excess of 40 in those workweeks. 22. All of the work that the Plaintiff and the AMs performed was assigned by Defendant, and/or Defendant was aware of all of the work that they have performed. 23. The work that Plaintiff and the AMs performed as part of their primary duty required little skill and no capital investment. 25. Regardless of the store at which they worked, Plaintiff’s and the AMs’ primary job duties included: a. preparing food; b. helping customers; c. bussing tables; d. cleaning the restaurant; e. checking to make sure that supplies were properly shelved; and f. checking inventory. 26. Regardless of the store at which they worked, Plaintiff’s and the AMs’ primary job duties did not include: a. hiring; b. firing; c. disciplining other employees; d. scheduling; e. supervising and delegating; or f. exercising meaningful independent judgment and discretion. 27. Plaintiff’s and the AMs’ primary duties were manual in nature. 28. The performance of manual labor duties occupied the majority of Plaintiff’s and the AMs’ working hours. 30. Upon information and belief, Defendant did not perform a person-by- person analysis of the AMs’ job duties when making the decision to classify the AMs (and other similarly-situated current and former employees holding comparable positions but different titles) as exempt from the overtime provisions of the FLSA. 31. Within approximately several weeks prior to December 1, 2016, and upon information and belief prior to the issuance of the November 22, 2016 injunction by the Texas federal district court blocking the Department of Labor from implementing the new overtime rules that would have become effective on December 1, 2016, Defendant announced to its AMs that it was reclassifying all AM positions to hourly-paid, overtime non-exempt effective on or about December 1, 2016. 32. Upon information and belief, Defendant did not perform a person-by- person analysis of the AMs’ job duties when making that decision to reclassify the AMs (and other similarly-situated current and former employees holding comparable positions but different titles) to non-exempt from the overtime provisions of the FLSA to be effective on or about December 1, 2016. 34. Upon information and belief, Defendant did not perform a person-by- person analysis of the AMs’ job duties when making that decision not to reclassify the AMs (and other similarly-situated current and former employees holding comparable positions but different titles) to hourly-paid non-exempt from the overtime provisions of the FLSA. 35. Defendant’s conduct alleged herein was willful and/or in reckless disregard of the applicable wage and hour laws and was undertaken pursuant to Defendant’s centralized, company-wide policy, pattern, and/or practice of attempting to minimize labor costs by not paying overtime premiums to its AMs. Defendant knew that AMs were not performing work that complied with any FLSA exemption and it acted willfully or recklessly in failing to classify Plaintiff in his AM position and other AMs as non-exempt employees. 37. During the relevant period, Defendant knew or recklessly disregarded the fact that the FLSA required it to pay employees primarily performing non- exempt duties an overtime premium for hours worked in excess of 40 per workweek. 38. Accordingly, Defendant’s unlawful conduct was willful and/or in reckless disregard of the applicable wage and hour laws and undertaken pursuant to Defendant’s centralized, company-wide policy, pattern, and/or practice of attempting to minimize labor costs by not paying overtime premiums to AMs. 40. Defendant’s willful violations of the FLSA are further demonstrated by the fact that during the relevant period, Defendant failed to maintain accurate and sufficient time records of work start and stop times for Plaintiff and the Collective Action Members. 41. Defendant acted recklessly or in willful disregard of the FLSA by instituting a policy and/or practice that did not record all hours worked by Plaintiff and the Collective Action Members during the relevant period. 42. At all relevant times, Defendant has been, and continues to be, an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 43. Defendant is subject to the coverage of the maximum hours and overtime compensation provisions of the FLSA. 45. Defendant has engaged in a widespread pattern and practice of violating the FLSA, as detailed above in this Complaint. 46. Plaintiff consented in writing to be a party to this action, pursuant to 29 U.S.C. § 216(b), as reflected in the attached consent filed contemporaneously herewith. 47. The overtime wage provisions set forth in 29 U.S.C. § 201 et seq., apply to Defendant. 48. During the relevant period and continuing to the present time, Defendant had a policy and practice of not paying overtime premiums to Plaintiff and its AMs (and similarly-situated employees in comparable Assistant Manager positions but holding different titles), for hours worked in excess of 40 hours per workweek. 50. As a result of Defendant’s willful failure to record, report, credit and/or compensate its employees, including Plaintiff and the Collective Action Members, Defendant has failed to make, keep and preserve records with respect to each of its employees sufficient to determine the wages, hours, and other conditions and practices of employment in violation of the FLSA, 29 U.S.C. § 201 et seq., including 29 U.S.C. §§ 211(c) and 215(a). 51. As a result of Defendant’s policy and practice of minimizing labor costs by underfunding the labor budgets for its restaurants, Defendant knew or recklessly disregarded the fact that Plaintiff and the Collective Action Members were primarily performing manual labor and non-exempt tasks. 53. As a result of Defendant’s FLSA violations, Plaintiff, on behalf of himself and the Collective Action Members, is entitled (a) to recover from Defendant unpaid overtime wages, (b) to recover an additional, equal amount as liquidated damages, and (c) to recover their unreasonably delayed payment of wages, reasonable attorneys’ fees, costs and disbursements of this action, and all allowable interest, pursuant to 29 U.S.C. § 216(b) and the federal rules. 54. Because Defendant’s violations of the FLSA have been willful, a three-year statute of limitations applies pursuant to 29 U.S.C. § 255. Fair Labor Standard Act – Unpaid Overtime Wages On Behalf of Plaintiff and the FLSA Collective

win

21. Defendant is a clothing and accessories company that owns and operates the website, www.rockwelltime.com (its “Website”), offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State. 22. Defendant’s Website offers its 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 and prices, 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 using a screen-reader. 24. Plaintiff most recently visited Defendant’s website in February of 2020 to potentially make a purchase. Despite his efforts, however, Plaintiff was denied a user 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 enjoy the privileges and benefits of Defendant’s public accommodation. 26. Many features on the Website also fail to contain a proper 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 was 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 was a problem for Plaintiff because in certain instances the screen reader failed 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 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. 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 his 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 visiting the Website, presently and in the future. 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 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. 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. Web-based technologies have features and content that are modified on a daily, and in some instances, an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies. To evaluate whether an inaccessible website has been rendered accessible, and whether corporate policies related to web-based technologies have been changed in a meaningful manner that will cause the website to remain accessible, the website must be reviewed on a periodic basis using both automated accessibility screening tools and end user testing by disabled individuals. 39. 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. 41. 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 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. 43. 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. 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 or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 46. 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. 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 himself 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 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. 52. 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)(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). 55. 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. 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 himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 59. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 60. 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 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 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). 64. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 65. 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. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 67. 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. 68. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 69. 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. 70. Plaintiff, on behalf of himself 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. 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., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 72. 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. VIOLATIONS OF THE NYCHRL

win

14. Defendant is an online personal styling service that delivers clothing to your door. Members complete a fashion profile. A personal stylist then reviews the member’s profile and selects five (5) clothing and accessory items to be delivered via mail to the member. The member has a week to try on the items. The member then returns the items he or she does not like and keeps the rest. Items that may be delivered include shirts, pants, dresses, shoes, jewelry and similar items. Members pay a styling fee of $20 that can be used towards purchasing items. 15. Defendant’s Website is heavily integrated with its personal styling service. There is a nexus between the Website and the personal styling services offered by Defendant. On the Website, customers can learn information about the company; learn about how the process works; learn about the types of products that are available; learn about pricing; sign up for a membership and manage your account. 17. Plaintiff Tatum-Rios cannot use a computer without the assistance of screen-reading software. She is, however, a proficient JAWS screen-reader user and uses it to access the Internet. She has visited the Website on separate occasions using screen- reading software. 21. If the Website was equally accessible to all, Plaintiff Tatum-Rios could independently navigate it, view goods and service items, complete a style profile, schedule a shipment, and learn answers to frequently asked questions, as sighted individuals can. 22. Through her attempts to use the Website, Plaintiff Tatum-Rios has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 24. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 25. Title III of the ADA expressly contemplates the injunctive relief that Plaintiff Tatum-Rios seeks under 42 U.S.C. § 12188(a)(2). 27. Although Defendant may currently have centralized policies on 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. 28. Without injunctive relief, Plaintiff Tatum-Rios and other visually impaired consumers will continue to be unable to independently use the Website, violating its rights. 29. Defendant has, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making its Website equally accessible to visually impaired customers. 31. Plaintiff Tatum-Rios 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 Defendant’s personal styling service during the relevant statutory period (“Class Members”). 32. Plaintiff Tatum-Rios seeks to certify a State of New York 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 the Website and as a result have been denied access to the equal enjoyment of Defendant’s personal styling service during the relevant statutory period (“New York Subclass Members”). 33. Plaintiff Tatum-Rios 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 the Website and as a result have been denied access to the equal enjoyment of Defendant’s personal styling service during the relevant statutory period (“New York City Subclass Members”). 35. Plaintiff Tatum-Rios’s claims are typical of the Class Members, New York Subclass Members and New York City Subclass Members: they are all severely visually impaired or otherwise blind, and claim that Defendant has violated Title III of the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the visually impaired individuals. 36. Plaintiff Tatum-Rios will fairly and adequately represent and protect the Class and Subclasses’ interests because she has retained and is represented by counsel competent and experienced in complex class action litigation, and because she has no interests antagonistic to the Class or Subclasses. 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 and Subclasses, making appropriate both declaratory and injunctive relief with respect to Plaintiff, the Class and Subclasses. 38. 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. 39. Plaintiff Tatum-Rios, individually and on behalf of the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 40. Title III of the ADA prohibits “discriminat[ion] 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). 41. Defendant’s Website is a public accommodation under Title III of the ADA, 42 U.S.C. § 12181(7). Its Website is a service, privilege, or advantage of Defendant’s personal styling service. The Website is a service that is integrated with this personal styling service. 43. Under 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). 44. Under 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). 45. These acts violate Title III of the ADA, and the regulations promulgated thereunder. Plaintiff Tatum-Rios, who is a member of a protected class of persons under Title III of 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, she 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. 47. Plaintiff Tatum-Rios, individually and on behalf of the New York Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 48. Defendant’s Website is a sales establishment and public accommodation under N.Y. Exec. Law § 292(9), as it targets New York consumers. Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a public accommodation and commercial marketplace that is by and integrated with its personal styling service. 49. Defendant is subject to NYSHRL because it owns and operates its personal styling service and the Website. Defendant is a “person” within the meaning of N.Y. Exec. Law § 292(1). 50. Defendant is violating the NYSHRL in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with its personal styling service 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. N.Y. Exec. Law §§ 296(2)(a), 296(2)(c)(i), 296(2)(c)(ii). 52. Defendant’s actions constitute willful intentional discrimination against the class because of a disability, violating the NYSHRL, N.Y. Exec. Law § 296(2), in that Defendant has: a. Constructed and maintained a website that is inaccessible to 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. 53. Defendant discriminates, and will continue in the future to discriminate against Plaintiff Tatum-Rios and New York Subclass 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 personal styling service that targets New York consumers 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 New York Subclass Members will continue to suffer irreparable harm. 55. Plaintiff Tatum-Rios, individually and on behalf the New York City Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 56. Defendant’s personal styling service targets consumers located in New York City. The Website is a sales establishment and public accommodation under the NYCHRL, N.Y.C. Admin. Code § 8-102(9), and its Website is a public accommodation and commercial marketplace that is integrated with that service. 57. Defendant is subject to NYCHRL because it owns and operates its personal styling service and the Website. Defendant is therefore a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 58. Defendant is violating the NYCHRL in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its personal styling service 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. N.Y.C. Admin. Code §§ 8- 107(4)(a), 8-107(15)(a). 60. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff Tatum-Rios and the New York City Subclass Members because 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 the New York City Subclass will continue to suffer irreparable harm. 61. As Defendant’s actions violate the NYCHRL, Plaintiff Tatum-Rios seeks injunctive relief to remedy the discrimination, compensatory damages, civil penalties and fines for each offense, and reasonable attorneys’ fees and costs. N.Y.C. Admin. Code §§ 8-120(8), 8-126(a). 62. Plaintiff Tatum-Rios, individually and on behalf the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 64. A judicial declaration is necessary and appropriate now in order that each of the parties may know its respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant, Its Website And Its Website’s Barriers VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL

lose

10. Merriam-Webster's defines "pure" as "unmixed with any other matter," in other words, containing a single, unadulterated ingredient. 11. Surveys and other market research, including expert testimony Plaintiff intends to introduce, will demonstrate that the term “Pure Grape Juice” is misleading to a reasonable consumer because the reasonable consumer believes that the term “pure,” when used to describe goods such as the Product, means that the goods are free from ingredients other than grape juice. 12. By deceiving consumers about the nature, quality, and/or ingredients of the Product, Defendants are able to charge higher prices for the Product, thereby increasing their own profits. 13. Defendants intended for consumers to rely on their representations, and reasonable consumers did in fact so rely. As a result of their false and misleading labeling and 1 https://www.amazon.com/Kedem-64oz-Concord-Grape Juice/dp/B07ND5F2V6?ref_=bl_dp_s_web_3032710011&th=1 5 omissions of fact, Defendants were and are able to sell the Product to the general public throughout the United States and to realize sizeable profits. 14. The front label of the Product prominently displays the representation that the Product is “Pure Grape Juice” and does not reveal that it contains an added preservative, or any additional ingredients whatsoever. 15. Moreover, the reasonable consumer is not expected or required to scour the ingredients list on the back of the Product in order to confirm or debunk Defendants’ prominent front-of-the-Product claim, representation, and warranty that the Product is “Pure Grape Juice” 16. Consumers rely on label representations and information in making purchasing decisions. 17. The marketing of the Product as “Pure Grape Juice” in prominent locations on the labels of all of the Product, throughout the Class Period, evidences Defendants’ awareness that “Pure” claim is material to consumers. 18. Defendants’ 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. 19. Plaintiff and the Class members reasonably relied to their detriment on Defendants’ misleading representations and omissions. 20. Defendants’ false, misleading, and deceptive misrepresentations and omissions are likely to continue to deceive and mislead reasonable consumers and the general public, as 6 they have already deceived and misled Plaintiff and the Class members. 21. In making the false, misleading, and deceptive representations and omissions described herein, Defendants knew and intended that consumers would pay a premium for a Product labeled “Pure” over comparable products not so labeled. 22. As an immediate, direct, and proximate result of Defendants’ false, misleading, and deceptive representations and omissions, Defendants injured Plaintiff and the Class members in that they: a. Paid a sum of money for a Product that was not what Defendants represented; b. Paid a premium price for a Product that was not what Defendants represented; c. Were deprived of the benefit of the bargain because the Product they purchased was different from what Defendants warranted; and d. Were deprived of the benefit of the bargain because the Product they purchased had less value than what Defendants represented. 23. Had Defendants not made the false, misleading, and deceptive representations and omissions, Plaintiff and the Class members would not have purchased the Product or would not have been willing to pay the amount charged for the Product they purchased. 24. Plaintiff and the Class members paid for a Product that was “Pure Grape Juice” but received a Product that adulterated with an additional ingredient. The Product Plaintiff and the Class members received was worth less than the Product for which they paid. 25. Based on Defendants’ misleading and deceptive representations, Defendants were able to, and did, charge a premium price for the Product over the cost of competitive products 7 not bearing a “Pure” label. 26. Plaintiff and the Class members all paid money for the Product. However, Plaintiff and the Class members did not obtain the full value of the advertised Product due to Defendants’ misrepresentations and omissions. Plaintiff and the Class members purchased, purchased more of, and/or paid more for, the Product than they would have had they known the truth about the Product. Consequently, Plaintiff and the Class members have suffered injury in fact and lost money as a result of Defendants’ wrongful conduct. 36. Plaintiff brings this matter on behalf of herself and those similarly situated. As detailed at length in this Complaint, Defendants orchestrated deceptive marketing and labeling practices. Defendants’ customers were uniformly impacted by and exposed to this misconduct. Accordingly, this Complaint is uniquely situated for class-wide resolution, including injunctive relief. 37. The Class is defined as all consumers who purchased the Product anywhere in the United States during the Class Period (the “Class”). 38. Plaintiff also seeks certification, to the extent necessary or appropriate, of a subclass of individuals who purchased the Product in the State of New York at any time during the Class Period (the “New York Subclass”). 2 See https://www.youtube.com/watch?v=v-j3_0OYWNc, describing how the grapes for the Product are grown at Defendants’ winery in Marlboro, New York. Additionally, the back label of the Product states that it is produced in Marlboro. New York. 10 39. The Class and New York Subclass shall be referred to collectively throughout the Complaint as the Class. 40. The Class is properly brought and should be maintained as a class action under Rule 23(a), satisfying the class action prerequisites of numerosity, commonality, typicality, and adequacy because: 41. Numerosity: Class Members are so numerous that joinder of all members is impracticable. Plaintiff believes that there are thousands of consumers who are Class Members described above who have been damaged by Defendants’ deceptive and misleading practices. 42. Commonality: The questions of law and fact common to the Class Members which predominate over any questions which may affect individual Class Members include, but are not limited to: a. Whether Defendants are responsible for the conduct alleged herein which was uniformly directed at all consumers who purchased the Product; b. Whether Defendants’ misconduct set forth in this Complaint demonstrates that Defendants have engaged in unfair, fraudulent, or unlawful business practices with respect to the advertising, marketing, and sale of their Product; c. Whether Defendants made false and/or misleading statements to the Class and the public concerning the contents of their Product; d. Whether Defendants’ false and misleading statements concerning their Product were likely to deceive the public; e. Whether Plaintiff and the Class are entitled to injunctive relief; and f. Whether Plaintiff and the Class are entitled to money damages under the same causes of action as the other Class Members. 11 43. Typicality: Plaintiff is a member of the Class. Plaintiff’s claims are typical of the claims of each Class Member in that every member of the Class was susceptible to the same deceptive, misleading conduct and purchased Defendants’ Product. Plaintiff is entitled to relief under the same causes of action as the other Class Members. 44. Adequacy: Plaintiff is an adequate Class representative because her interests do not conflict with the interests of the Class Members she seeks to represent; her consumer fraud claims are common to all members of the Class and she has a strong interest in vindicating her rights; she has retained counsel competent and experienced in complex class action litigation and they intend to vigorously prosecute this action. 45. Predominance: Pursuant to Rule 23(b)(3), the common issues of law and fact identified above predominate over any other questions affecting only individual members of the Class. The Class issues fully predominate over any individual issue because no inquiry into individual conduct is necessary; all that is required is a narrow focus on Defendants’ deceptive and misleading marketing and labeling practices. 46. Superiority: A class action is superior to the other available methods for the fair and efficient adjudication of this controversy because: a. The joinder of thousands of individual Class Members is impracticable, cumbersome, unduly burdensome, and a waste of judicial and/or litigation resources; b. The individual claims of the Class Members may be relatively modest compared with the expense of litigating the claim, thereby making it impracticable, unduly 12 burdensome, and expensive—if not totally impossible—to justify individual actions; c. When Defendants’ liability has been adjudicated, all Class Members’ claims can be determined by the Court and administered efficiently in a manner far less burdensome and expensive than if it were attempted through filing, discovery, and trial of all individual cases; d. This class action will promote orderly, efficient, expeditious, and appropriate adjudication and administration of Class claims; e. Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action; f. This class action will assure uniformity of decisions among Class Members; g. The Class is readily definable and prosecution of this action as a class action will eliminate the possibility of repetitious litigation; h. Class Members’ interests in individually controlling the prosecution of separate actions is outweighed by their interest in efficient resolution by single class action; and i. It would be desirable to concentrate in this single venue the litigation of all plaintiffs who were induced by Defendants’ uniform false advertising to purchase their Product as being “Pure Grape Juice” 47. Accordingly, this Class is properly brought and should be maintained as a class action under Rule 23(b)(3) because questions of law or fact common to Class Members predominate over any questions affecting only individual members, and because a class action is superior to other available methods for fairly and efficiently adjudicating this controversy. 5. As depicted below, Defendants market and advertise the Product as “Pure Grape Juice.” 51. Plaintiff repeats and realleges each and every allegation contained in all the foregoing paragraphs as if fully set forth herein. 52. New York General Business Law Section 349 (“GBL § 349”) declares unlawful “[d]eceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in this state . . .” 53. The conduct of Defendants alleged herein constitutes recurring, “unlawful” deceptive acts and practices in violation of GBL § 349, and as such, Plaintiff and the New York Subclass Members seek monetary damages and the entry of injunctive relief against Defendants, enjoining them from inaccurately describing, labeling, marketing, and promoting the Product. 54. There is no adequate remedy at law. 55. Defendants misleadingly, inaccurately, and deceptively advertises and markets their Product to consumers. 56. Defendants’ improper consumer-oriented conduct—including labeling and advertising the Product as being “Pure Grape Juice” —is misleading in a material way in that it, inter alia, induced Plaintiff and the New York Subclass Members to purchase and pay a premium for Defendants’ Product and to use the Product when they otherwise would not have. Defendants made their untrue and/or misleading statements and representations willfully, wantonly, and with reckless disregard for the truth. 16 57. As a result of Defendants’ recurring, “unlawful” deceptive acts and practices, Plaintiff and the New York Subclass Members are entitled to monetary, compensatory, treble and punitive damages, injunctive relief, restitution and disgorgement of all moneys obtained by means of Defendants’ unlawful conduct, interest, and attorneys’ fees and costs. 57. Plaintiff and the New York Subclass Members have been injured inasmuch as they paid a premium for a product that was—contrary to Defendants’ representations— not “Pure Grape Juice.” Accordingly, Plaintiff and the New York Subclass Members received less than what they bargained and/or paid for. 58. Defendants’ advertising and Product’s packaging and labeling induced Plaintiff and the New York Subclass Members to buy Defendants’ Product and to pay a premium price for it. 58. Plaintiff repeats and realleges each and every allegation contained in all the foregoing paragraphs as if fully set forth herein. 59. Defendants’ deceptive and misleading practices constitute a deceptive act and practice in the conduct of business in violation of New York General Business Law §349(a) and Plaintiff and the New York Subclass Members have been damaged thereby. 59. N.Y. Gen. Bus. Law § 350 provides, in part, as follows: False advertising in the conduct of any business, trade or commerce or in the 17 furnishing of any service in this state is hereby declared unlawful. 6. The Product’s labeling is depicted below: 3 60. N.Y. Gen. Bus. Law § 350a(1) provides, in part, as follows: The term ‘false advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions proscribed in said advertisement, or under such conditions as are customary or usual . . . 61. Defendants’ labeling and advertisements contain untrue and materially misleading statements concerning Defendants’ Product inasmuch as they misrepresent that the Product is “Pure Grape Juice.” 62. Plaintiff and the New York Subclass Members have been injured inasmuch as they relied upon the labeling, packaging and advertising and paid a premium for the Product which was—contrary to Defendants’ representations—not “Pure Grape Juice.” Accordingly, Plaintiff and the New York Subclass Members received less than what they bargained and/or paid for. 63. Defendants’ advertising, packaging and product labeling induced Plaintiff and the New York Subclass Members to buy Defendants’ Product. 64. Defendants made their untrue and/or misleading statements and representations willfully, wantonly, and with reckless disregard for the truth. 65. Defendants’ conduct constitutes multiple, separate violations of N.Y. Gen. Bus. 18 Law § 350. 66. Defendants made the material misrepresentations described in this Complaint in Defendants’ advertising, and on the Product’s packaging and labeling. 67. Defendants’ material misrepresentations were substantially uniform in content, presentation, and impact upon consumers at large. Moreover, all consumers purchasing the Product were and continue to be exposed to Defendants’ material misrepresentations. 68. As a result of Defendants’ recurring, “unlawful” deceptive acts and practices, Plaintiff and New York Subclass Members are entitled to monetary, compensatory, treble and punitive damages, injunctive relief, restitution and disgorgement of all moneys obtained by means of Defendants’ unlawful conduct, interest, and attorneys’ fees and costs. 69. Plaintiff repeats and realleges each and every allegation contained in all the foregoing paragraphs as if fully set forth herein. 7. Defendants’ advertising reinforces the Product label’s “Pure Grape Juice” claim. For example, a video used to advertise the Product promotes the idea that grape juice is the only ingredient in the Product by showing grapes going directly from the vines into the bottles and 4 using the slogan “Kedem, it’s about the Grapes.”1 70. Plaintiff and Class Members have been injured as a result of Defendants’ violations of the following state consumer protection statutes, which also provide a basis for redress to Plaintiff and Class Members based on Defendants’ fraudulent, deceptive, unfair and unconscionable acts, practices and conduct. 71. Defendants’ conduct as alleged herein violates the consumer protection, unfair trade practices and deceptive acts laws of each of the following jurisdictions: 19 a. Alaska: Defendants’ practices were and are in violation of Alaska’s Unfair Trade Practices and Consumer Protection Act, Alaska Stat. § 45.50.471, et seq. b. Arizona: Defendants’ practices were and are in violation of Arizona’s Consumer Fraud Act, Ariz. Rev. Stat. Ann. §§ 44-1521, et seq. c. Arkansas: Defendants’ practices were and are in violation of Arkansas Code Ann. § 4-88-101, et seq. d. California: Defendants’ practices were and are in violation of California Consumer Legal Remedies Act, Civil Code § 1750, et seq., and California’s Unfair Competition Law, California Business and Professions Code § 17200, et seq., and California’s False Advertising Law, California Business and Professions Code § 17500, et seq. e. Colorado: Defendants’ practices were and are in violation of Colorado’s Consumer Protection Act, Colo. Rev. Stat. §§ 61-1-101, et seq. f. Connecticut: Defendants’ practices were and are in violation of Connecticut’s Gen. Stat. § 42-110a, et seq. g. Delaware: Defendants’ practices were and are in violation of Delaware’s Consumer Fraud Act, Del. Code Ann. tit. 6, § 2511, et seq. and the Deceptive Trade Practices Act, Del. Code Ann. tit. 6, § 2531, et seq. h. District of Columbia: Defendants’ practices were and are in violation of the District of Columbia’s Consumer Protection Act, D.C. Code § 28-3901, et seq. 20 i. Florida: Defendants’ practices were and are in violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. § 501.201, et seq. j. Hawaii: Defendants’ practices were and are in violation of the Hawaii’s Uniform Deceptive Trade Practices Act, Haw. Rev. Stat. § 481A-1, et seq. and Haw. Rev. Stat. § 480-2. k. Idaho: Defendants’ practices were and are in violation of Idaho’s Consumer Protection Act, Idaho Code Ann. § 48-601, et seq. l. Illinois: Defendants’ acts and practices were and are in violation of Illinois’ Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/2; and Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/2. m. Indiana: Defendants’ practices were and are in violation of Indiana’s Deceptive Consumer Sales Act, Ind. Code Ann. § 24-5-0.5-1, et seq. n. Kansas: Defendants’ practices were and are in violation of Kansas’s Consumer Protection Act, Kat. Stat. Ann. § 50-623, et seq. o. Kentucky: Defendants’ practices were and are in violation of Kentucky’s Consumer Protection Act, Ky. Rev. Stat. Ann. § 367.110, et seq. p. Maine: Defendants’ practices were and are in violation of the Maine Unfair Trade Practices Act, 5 Me. Rev. Stat. Ann. Tit. 5, § 205-A, et seq. and 10 Me. Rev. Stat. Ann. § 1101, et seq. q. Maryland: Defendants ’practices were and are in violation of Maryland’s 21 Consumer Protection Act, Md. Code Ann. Com. Law § 13-101, et seq. r. Massachusetts: Defendants’ practices were unfair and deceptive acts and practices in violation of Massachusetts’ Consumer Protection Act, Mass. Gen. Laws ch. 93A, § 2. s. Michigan: Defendants’ practices were and are in violation of Michigan’s Consumer Protection Act, Mich. Comp. Laws Ann. § 445.901, et seq. t. Minnesota: Defendants’ practices were and are in violation of Minnesota’s Prevention of Consumer Fraud Act, Minn. Stat. § 325F.68, et seq. and the Unlawful Trade Practices law, Minn. Stat. § 325D.09, et seq. u. Missouri: Defendants’ practices were and are in violation of Missouri’s Merchandising Practices Act, Mo. Rev. Stat. § 407.010, et seq. v. Nebraska: Defendants’ practices were and are in violation of Nebraska’s Consumer Protection Act, Neb. Rev. Stat. § 59-1601, et seq. and the Uniform Deceptive Trade Practices Act, § 87-302, et seq. w. Nevada: Defendants’ practices were and are in violation of Nevada’s Deceptive Trade Practices Act, Nev. Rev. Stat. Ann. §§ 598.0903 and 41.600. x. New Hampshire: Defendants’ practices were and are in violation of New Hampshire’s Regulation of Business Practices for Consumer Protection, N.H. Rev. Stat. Ann. § 358-A:1, et seq. y. New Jersey: Defendants’ practices were and are in violation of New Jersey’s 22 Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq. z. New Mexico: Defendants’ practices were and are in violation of New Mexico’s Unfair Practices Act, N.M. Stat. Ann. § 57-12-1, et seq. aa. North Carolina: Defendants’ practices were and are in violation of North Carolina’s Unfair Deceptive Trade Practices Act, N.C. Gen. Stat. Ann. § 75-1, et seq. bb. North Dakota: Defendants’ practices were and are in violation of North Dakota’s Unlawful Sales or Advertising Practices law, N.D. Cent. Code § 51-15- 01, et seq. cc. Ohio: Defendants’ practices were and are in violation of Ohio’s Consumer Sales Practices Act, Ohio Rev. Code Ann. § 1345.01, et seq. and Ohio’s Deceptive Trade Practices Act. Ohio Rev. Code Ann. § 4165.01, et seq. dd. Oklahoma: Defendants’ practices were and are in violation of Oklahoma’s Consumer Protection Act, Okla. Stat. Ann. tit. 15 § 751, et seq., and Oklahoma’s Deceptive Trade Practices Act, Okla. Stat. Ann. tit. 78 § 51, et seq. ee. Oregon: Defendants’ practices were and are in violation of Oregon’s Unlawful Trade Practices law, Or. Rev. Stat. § 646.605, et seq. ff. Pennsylvania: Defendants’ practices were and are in violation of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1, et seq. 23 gg. Rhode Island: Defendants’ practices were and are in violation of Rhode Island’s Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1-1, et seq. hh. South Dakota: Defendants’ practices were and are in violation of South Dakota’s Deceptive Trade Practices and Consumer Protection Act, S.D. Codified Laws § 37-24-1, et seq. ii. Texas: Defendants’ practices were and are in violation of Texas’ Deceptive Trade Practices Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41, et seq. jj. Utah: Defendants’ practices were and are in violation of Utah’s Consumer Sales Practices Act, Utah Code Ann. § 13-11-1, et seq., and Utah’s Truth in Advertising Law, Utah Code Ann. § 13-11a-1, et seq. kk. Vermont: Defendants’ practices were and are in violation of Vermont’s Consumer Fraud Act, Vt. Stat. Ann. tit. 9 § 2451, et seq. ll. Washington: Defendants’ practices were and are in violation of Washington Consumer Protection Act, Wash. Rev. Code Ann. § 19.86, et seq. mm. West Virginia: Defendants’ practices were and are in violation of West Virginia’s Consumer Credit and Protection Act, W. Va. Code § 46A-6-101, et seq. nn. Wisconsin: Defendants’ practices were and are in violation of Wisconsin’s Consumer Act, Wis. Stat. §421.101, et seq. 24 oo. Wyoming: Defendants’ practices were and are in violation of Wyoming’s Consumer Protection Act, Wyo. Stat. Ann. §40-12-101, et seq. 72. Defendants violated the aforementioned states’ unfair and deceptive acts and practices laws by representing that the Product is “Pure Grape Juice.” 73. Contrary to Defendants’ representations, the Product is not “Pure Grape Juice,” but, rather, is adulterated with an additional artificial ingredient, potassium metabisulfite. 74. Defendants’ misrepresentations were material to Plaintiff’s and Class Members’ decision to pay a premium for the Product. 75. Defendants made their untrue and/or misleading statements and representations willfully, wantonly, and with reckless disregard for the truth. 76. As a result of Defendants’ violations of the aforementioned states’ unfair and deceptive practices laws, Plaintiff and Class Members paid a premium for the Product. 77. As a result of Defendants’ violations, Defendants have been unjustly enriched. 78. Pursuant to the aforementioned states’ unfair and deceptive practices laws, Plaintiff and Class Members are entitled to recover compensatory damages, restitution, punitive and special damages including but not limited to treble damages, reasonable attorneys’ fees and costs and other injunctive or declaratory relief as deemed appropriate or permitted pursuant to the relevant law. 25 79. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 8. Defendants’ representation that the Product is “Pure Grape Juice” is false, misleading, and deceptive because the Product contains an additional ingredient, namely potassium metabisulfite, a synthetic chemical preservative. 80. Defendants provided Plaintiff and Class Members with an express warranty in the form of written affirmations of fact promising and representing that the Product is “Pure Grape Juice.” 81. The above affirmations of fact were not couched as “belief” or “opinion,” and were not “generalized statements of quality not capable of proof or disproof.” 82. These affirmations of fact became part of the basis for the bargain and were material to Plaintiff’s and Class Members’ transactions. 83. Plaintiff and Class Members reasonably relied upon Defendants’ affirmations of fact and justifiably acted in ignorance of the material facts omitted or concealed when they decided to buy Defendants’ Product. 84. Within a reasonable time after they knew or should have known of Defendants’ breach, Plaintiff, on behalf of herself and Class Members, placed Defendants on notice of their breach, giving Defendants an opportunity to cure their breach, which they refused to do. 85. Defendants breached the express warranty because the Product is not “Pure Grape Juice,” but rather, is adulterated with an additional artificial ingredient, potassium metabisulfite. 86. Defendants thereby breached the following state warranty laws: 26 a. Code of Ala. § 7-2-313; b. Alaska Stat. § 45.02.313; c. 88. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 89. Plaintiff brings this claim individually and on behalf of all members of the Class. 29 Upon certification, the Class will consist of more than 100 named plaintiffs. 9. Whether Defendants’ labeling of the Product as “Pure Grape Juice” is deceptive is judged by whether it would deceive or mislead a reasonable person. 90. The Magnuson-Moss Warranty Act provides a federal remedy for consumers who have been damaged by the failure of a supplier or warrantor to comply with any obligation under a written warranty or implied warranty, or other various obligations established under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. 91. The Product is a “consumer product” within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1). 92. Plaintiff and other members of the Class are “consumers” within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3). 93. Defendants are the “suppliers” and “warrantors” of the Product within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301(4) & 2301(5). 94. Defendants represented in writing that the Product is “Pure Grape Juice.” 95. This statement was made in connection with the sale of the Product and relates to the nature of the Product and affirm and promise that the Product is as represented and defect free and, as such, are “written warranties” within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(6)(A). 96. As alleged herein, Defendants breached the written warranty by selling consumers a Product that are not “Pure Grape Juice,” but rather, is adulterated with an additional artificial ingredient, potassium metabisulfite. 97. The Product does not conform to Defendants’ written warranty and therefore 30 violates the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. Consequently, Plaintiff and the other members of the Class have suffered injury and are entitled to damages in an amount to be proven at trial. 98. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 99. Defendants are in the business of manufacturing, distributing, marketing and advertising the Product. 100. Under the Uniform Commercial Code’s implied warranty of merchantability, Defendants warranted to Plaintiff and Class Members that the Product is “Pure Grape Juice” 101. Defendants breached the implied warranty of merchantability in that Defendants’ Product’s ingredients deviate from the Product’s labelling as “Pure Grape Juice,” and reasonable consumers expecting a product that conforms to their label would not accept Defendants’ Product if they knew that they actually contained ingredients other than grape juice. 102. Within a reasonable amount of time after Plaintiff discovered that the Product contains additional ingredients other than grape juice, Plaintiff notified Defendants of such breach. 103. The inability of Defendants’ Product to meet the label description was wholly due to Defendants’ fault and without Plaintiff’s or Class Members’ fault or neglect, and was solely 31 due to Defendants ’manufacture and distribution of the Product to the public. 104. As a result of the foregoing, Plaintiff and Class Members have been damaged in the amount paid for Defendants’ Product, together with interest thereon from the date of purchase. BREACH OF EXPRESS WARRANTY (On Behalf of Plaintiff and All Class Members) BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (On Behalf of Plaintiff and All Class Members) 105. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 106. Defendants knew or had reason to know that Plaintiff and other Class Members were buying their Product with the specific purpose of buying “Pure Grape Juice” that was not adulterated with additional ingredients. 107. Plaintiff and the other Class Members, intending to use pure grape juice unadulterated with additional ingredients, relied on Defendants in selecting their Product to fit their specific intended use. 108. Defendants held themselves out as having particular knowledge of Defendants’ Product’s ingredients. 109. Plaintiff’s and Class Members’ reliance on Defendants in selecting Defendants’ Product to fit their particular purpose was reasonable given Defendants’ claims and representations in its advertising, packaging and labeling concerning the Product’s ingredients. 110. Plaintiff and the other Class Members’ reliance on Defendants in selecting 32 Defendants’ Product to fit their particular use was reasonable given Defendants’ particular knowledge of the Product it manufactures and distributes. 111. As a result of the foregoing, Plaintiff and Class Members have been damaged in the amount paid for Defendants’ Product, together with interest thereon from the date of purchase. BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY (On Behalf of Plaintiff and All Class Members) COMMON LAW UNJUST ENRICHMENT (On Behalf of Plaintiff and All Class Members in the Alternative) 112. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 113. Plaintiff, on behalf of herself and consumers nationwide, bring a common law claim for unjust enrichment. 114. Defendants’ conduct violated, inter alia, state and federal law by manufacturing, advertising, marketing, and selling their Product while misrepresenting and omitting material facts. 115. Defendants’ unlawful conduct as described in this Complaint allowed Defendants to knowingly realize substantial revenues from selling their Product at the expense of, and to the detriment or impoverishment of, Plaintiff and Class Members, and to Defendants’ benefit and enrichment. Defendants have thereby violated fundamental principles of justice, equity, and good conscience. 116. Plaintiff and Class Members conferred significant financial benefits and paid 33 substantial compensation to Defendants for the Product, which was not as Defendants represented them to be. 117. Under New York’s common law principles of unjust enrichment, it is inequitable for Defendants to retain the benefits conferred by Plaintiff’s and Class Members’ overpayments. 118. Plaintiff and Class Members seek disgorgement of all profits resulting from such overpayments and establishment of a constructive trust from which Plaintiff and Class Members may seek restitution. VIOLATION OF NEW YORK GBL § 350 (On Behalf of Plaintiff and the New York Subclass Members) VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT, 15 U.S.C. § 2301 et seq. (On Behalf of Plaintiff and All Class Members) VIOLATION OF NEW YORK GBL § 349 (On Behalf of Plaintiff and New York Subclass Members) VIOLATION OF STATE CONSUMER PROTECTION STATUTES (On Behalf of Plaintiff and All Class Members)

lose

(Violation of 47 U.S.C. § 227, et seq. – Telephone Consumer Protection Act) (on behalf of Plaintiff and the Class) 10. Plaintiff received and listened to the call from Bluegreen on her personal cell phone. 11. Plaintiff did not provide Defendant prior express written consent to call her cell phone. As used herein, the term “prior express written consent” means an agreement signed by the recipient containing a clear and conspicuous disclosure informing the recipient that she will receive phone calls from Bluegreen from an automatic telephone dialing system and informing her that she is not required to sign such an agreement as a condition of purchasing any property or goods. 12. Defendant placed calls soliciting membership for its vacation club to Plaintiff and members of the proposed class without their prior express written consent. 13. Plaintiff seeks certification of the following Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3): "All persons in the United States who received one or more unauthorized phone calls from Bluegreen Vacations Unlimited, Inc." 15. The claims of the named Plaintiff are typical of those of the class in that they all received phone calls from Defendant without providing their express written consent as defined by 47 C.F.R. § 64.1200 (f)(8). Plaintiff’s claims and the claims of the proposed class are based on the same legal theories and arise from the same unlawful conduct, resulting in the same injury to Plaintiff and the members of the proposed class. 16. There are common questions of law and fact involved affecting the parties to be represented, including: a. Whether Defendant called members of the proposed class without obtaining their prior written consent, including a signed agreement with the disclosures required by 47 C.F.R. § 64.1200 (a)(2) and (f)(8); b. Whether Defendant called members of the proposed class using an automatic telephone dialing system; c. Whether the calls encourage the purchase of Defendant’s services and products; d. Whether Defendant’s conduct violates 47 U.S.C. § 227 (b)(1)(A); e. Whether Defendant’s conduct violates the rules and regulations implementing the TCPA; and, f. Whether Plaintiff and the members of the proposed class are entitled to increased damages based on the willfulness of Defendant’s conduct. 18. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class. Plaintiff has retained and is represented by counsel competent and experienced in collective action litigation. 19. References to Plaintiff in this complaint include the named Plaintiff and each member of the class, unless otherwise indicated. 20. Plaintiff incorporates by reference the foregoing allegations as if set forth fully herein. 21. The TCPA defines an “automatic telephone dialing system” as “equipment that has the capacity… to store or produce numbers to be called, using a sequential number generator; and to dial such numbers.” 47 U.S.C. § 227 (a)(1). 22. The TCPA defines a “telephonic solicitation” as a “call or message for the purpose of encouraging the purchase of goods, or service, which is transmitted to any person.” 47 U.S.C. § 227 (a)(4). 23. The Federal Communications Commission’s Regulations implementing the TCPA provide that telephone solicitations cannot be made to a recipient without the recipient’s “prior express written consent.” See FCC 12-21, CG Docket 02-278 (effective October 16, 2013); 47 C.F.R. § 64.1200 (a)(2). 25. The Code of Federal Regulations further provides that the written agreement required to obtain “prior written consent” must include a clear and conspicuous disclosure informing the person signing that (1) 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 (2) 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. 47 C.F.R. § 64.1200 (f)(8)(i)(A)-(B). 26. The TCPA provides for a private right of action and statutory damages of at least $500 per violation. 47 U.S.C. § 227 (b)(3). 27. Defendant placed phone calls to Plaintiff and members of the proposed class 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. 28. Defendant made calls nationwide to members of the proposed class despite not having prior express written consent from the class members to call them. It would be impracticable for Defendant to make these calls without using the automatic telephone dialing system described in the previous paragraph. 30. By calling Plaintiff and members of the proposed class who had not granted Defendant their prior express written consent by signing agreements containing the disclosures described above, Defendant violated the express provisions of the TCPA, including 47 U.S.C. § 227 (b)(1)(A)(iii) and 47 C.F.R. § 64.1200 (a)(2) and (f)(8). 31. Defendant knew or should have known that the calls placed to Plaintiff and members of the proposed class were telephone solicitations and that Plaintiff and members of the proposed class did not provide prior written consent, as described above, authorizing Defendant to call them. 32. Plaintiff and the proposed class are entitled to damages of $500.00 per call placed by Defendant and up to $1,500.00 per call if the Court finds that Defendant willfully violated the 7. Plaintiff incorporates by reference the foregoing allegations as if set forth fully herein. 9. On or about May 17, 2016, Bluegreen called Plaintiff while she was in New Orleans, Louisiana, informing her that she was a finalist of a sweepstakes for $47,000, and offered her a vacation in exchange for a deposit to hold the reservation.

win

29. Indra Energy provides energy services to consumers. 31. These telemarketing efforts include the use of automated calls to send prerecorded messages. 32. The company engages in use of this equipment because it allows for thousands of automated calls to be placed at one time, but its sales representatives, who are paid based on sales they complete, or on an hourly basis, only talk to individuals who respond. Therefore, the Defendant shifts the burden of wasted time onto consumers. 33. Plaintiff Metzler is the registered account owner and regular user of the telephone number ending in 3278 (the “3278 Number”). 34. On or about January 13, 2020, Plaintiff received an unsolicited, prerecorded phone call on his cellular telephone number from, or on behalf, of Defendant. 35. The initial call from number 111-111-111 was dropped but immediately after Plaintiff received another call from number 605-381-1440. 36. The January 13, 2020 call stated that Defendant was calling to offer Plaintiff discounted electricity and natural gas. 37. Plaintiff was connected with one of Defendant’s telephone representatives. 38. The phone representative identified he was calling from Indra Energy and advised Plaintiff to go through the verification process with Indra and transferred Plaintiff to get the verification. 40. Further proving that Indra Energy was the source behind the original call to Plaintiff was the phone representing confirming to the Plaintiff that Indra Energy had his information on file. 41. Confirming the calls, the Plaintiff received a “welcome letter” from Indra Energy. 42. The prerecorded calls at issue were transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action. 43. Defendant’s prerecorded calls constitutes telemarketing because they encouraged the future purchase or investment in property, goods, and/or services, i.e., requesting that Plaintiff switch his gas and electric utility over to Defendant. 44. The prerecorded calls Plaintiff received originated from telephone numbers 111- 111-111 and 605-381-1440, which are numbers owned and/or operated by or on behalf of Defendant. 45. Plaintiff received the subject calls within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other prerecorded calls to be sent to individuals residing within this judicial district. 46. At no point in time did Plaintiff provide Defendant with his express consent to be contacted with a prerecorded call. 47. Plaintiff is the subscriber and sole user of the 3278 Number and is financially responsible for phone service to the 3278 Number. 48. Plaintiff has been registered with the national do-not-call registry since 2010. 50. Defendant’s unsolicited prerecorded call caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s prerecorded call also inconvenienced Plaintiff and caused disruption to his work-day as he received the prerecorded messages while at work. See Patriotic Veterans, Inc. v. Zoeller, No. 16- 2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner's time and mental energy, both of which are precious.”). 51. By placing the prerecorded calls as alleged herein, Defendant has 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. 52. Defendant’s voice message took up memory on Plaintiff’s cellular phone. The cumulative effect of unsolicited voice messages like Defendant’s poses a real risk of ultimately rendering the phone unusable for voice 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 similar to the voice message sent by Defendant present a “triple threat” of identity theft, unwanted cell phone charges, and slower cell phone performance). 54. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarlysituated. 55. Plaintiff brings this case on behalf of a Class defined as follows: No Consent Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a prerecorded message, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, without emergency purpose and without the recipient’s prior express written consent. Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action (1) were sent a prerecorded message by or on behalf of Defendant; (2) more than one time within any 12-month period; (3) where the person’s telephone number had been listed on the National Do Not Call Registry for at least thirty days; (4) for the purpose of selling Defendant’s products and services; and (5) 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. 56. 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. 59. 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 prerecorded telemarketing calls to Plaintiff’s and Class members’ cellular telephones; (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. 60. The common questions in this case are capable ofhaving commonanswers. If Plaintiff’s claim that Defendant routinely transmits automated or prerecorded calls to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 66. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 67. 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 or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 68. Defendant – or third parties directed by Defendant – transmitted calls using an artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the putative class. 69. These calls were made without regard to whether 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. 70. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an artificial or prerecorded voice to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. 71. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that it was using an artificial or prerecorded voice. The violations were therefore willful or knowing. 73. Because Defendant knew or should have known that Plaintiff and the other members of the putative Class had not given prior express consent to receive its prerecorded calls to their cellular telephones the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 74. Plaintiff re-allege and incorporates paragraphs 1-65 as if fully set forth herein. 75. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 76. Defendant knew that it did not have prior express consent to transmit artificial or prerecorded voice calls, and knew or should have known that its conduct was a violation of the 79. Plaintiff repeats and realleges the paragraphs 1 through 65 of this Complaint and incorporates them by reference herein. 80. 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.” 81. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”2 82. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.” 83. 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” 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. 47 U.S.C. § 227(c). 85. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry Class received more than one telephone call in a 12-month period made by or on behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. § 64.1200. 86. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiffs and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227 (On Behalf of Plaintiff and the Do Not Call Registry Class) Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

10. Discovery may reveal the transmission of additional faxes as well. 11. Defendant Primcogent Solutions, LLC, is responsible for sending or causing the sending of the fax. 13. Defendant Primcogent Solutions, LLC, either negligently or wilfully violated the rights of Plaintiff and other recipients in sending the faxes. 14. Each fax refers to a website registered to Defendant Primcogent Solutions, LLC. 15. The fax has a “remove” number at the bottom that is associated with the mass broadcasting of advertising faxes. 16. Plaintiff had no prior relationship with Defendant and had not authorized the sending of fax advertisements to Plaintiff. 17. The fax does not contain an “opt out” notice in the form required by 47 U.S.C. § 227. 18. On information and belief, the fax attached hereto was sent as part of a mass broadcasting of faxes. 19. On information and belief, Defendant has transmitted similar unsolicited fax advertisements to at least 40 other persons in Michigan. 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. 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). 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. 29. 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. 30. 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. The manner in which Defendant compiled or obtained their list of fax numbers; c. Whether Defendant thereby violated the TCPA. 31. 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. 32. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 33. 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. 9. On April 12, 2011, Plaintiff Michigan Urgent Care & Primary Care Physicians, P.C. received the unsolicited fax advertisement attached as Exhibit A on its facsimile machine.

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 2.1 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 pet insurance company, and owns and operates the website, www.embracepetinsurance.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.embracepetinsurance.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 pet insurance for purchase, view a blog, 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 November 2020, 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 pet insurance for purchase, 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. 43. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 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 NYSHRL VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

win

14. Plaintiff is a natural person allegedly obligated to pay a debt. 16. Defendant uses instrumentalities of interstate commerce or the mails in a business the principal purpose of which is the collection of any debts. 17. Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or due, or asserted to be owed or due, another. 18. In connection with the collection of the Debt, Defendant sent Plaintiff written communication dated May 30, 2019. 19. A true and correct copy of Defendant’s May 30, 2019 letter (“the Letter”) is attached hereto as Exhibit A. 20. The Letter was Defendant’s initial communication with Plaintiff with respect to the Debt. 21. Plaintiff received and read the Letter. 22. The Letter purported to contain the notices required in an initial communication by 15 U.S.C. § 1692g(a). 23. The Letter states: “Original Creditor: N AZ RADIOLOGY.” Exhibit A. 24. The Letter further states that Defendant “will provide you with the name and address of the original creditor, if different from the current creditor.” Id. 25. The Letter does not identify the “current creditor.” 27. The least sophisticated consumer may reasonably conclude that “N AZ RADIOLOGY” is the original creditor and that another entity is the creditor to whom the Debt is owed. 28. The Letter does not explain who assigned the Debt to Defendant for collection, nor does it state Defendant’s relationship to “N AZ RADIOLOGY.” 29. Defendant sent no other written communication to Plaintiff within five days of sending the Letter. 30. Plaintiff repeats and re-alleges all factual allegations above. 31. The Letter is based on a form or template that Defendant uses to send collection letters to consumers (“Template”). 32. Defendant has used the Template to send collection letters to over 40 individuals within the year prior to the filing of the original complaint in this matter. 33. Plaintiff brings this action on behalf of herself and all others similarly situated. Specifically, Plaintiff seeks to represent the following class of individuals: All individuals in the United States to whom Defendant, within the one year prior to the filing of the original complaint in this action, mailed a letter based on the Template and where such letter was Defendant’s initial written communication with the individual with respect to the debt. 35. The class is averred to be so numerous that joinder of members is impracticable. 36. The exact number of class members is unknown to Plaintiff at this time and can be ascertained only through appropriate discovery. 37. The class is ascertainable in that the names and addresses of all class members can be identified in business records maintained by Defendant. 38. There exists a well-defined community of interest in the questions of law and fact involved that affect the parties to be represented. These common questions of law and fact predominate over questions that may affect individual class members. Such issues include, but are not limited to: (a) the existence of Defendant’s identical conduct particular to the matters at issue; (b) whether letters based on the Template violate the FDCPA; (c) the availability of statutory penalties; and (d) attorneys’ fees and costs. 39. Plaintiff’s claims are typical of those of the class she seeks to represent. 40. The claims of Plaintiff and of the class originate from the same conduct, practice, and procedure on the part of Defendant. Thus, if brought and prosecuted individually, the claims of the members of the class would require proof of the same material and substantive facts. 42. Plaintiff will fairly and adequately protect the interests of the class and has no interests adverse to or which directly and irrevocably conflict with the interests of other members of the class. 43. Plaintiff is willing and prepared to serve this Court and the proposed class. 44. The interests of Plaintiff are co-extensive with and not antagonistic to those of the absent class members. 45. Plaintiff has retained the services of counsel who are experienced in consumer protection claims, as well as complex class action litigation, will adequately prosecute this action, and will assert, protect and otherwise represent Plaintiff and all absent class members. 46. Class certification is appropriate under Fed. R. Civ. P. 23(b)(3) in that the questions of law and fact that are common to members of the class predominate over any questions affecting only individual members. 48. Plaintiff repeats and re-alleges each factual allegation above. 49. Defendant violated 15 U.S.C. § 1692g(a)(2) by failing to disclose to Plaintiff the name of the creditor to whom the Debt was owed. 51. Plaintiff repeats and re-alleges each factual allegation above. 52. The FDCPA prohibits the use of false, deceptive, or misleading representations in the collection of debts. See 15 U.S.C. § 1692e. 53. “Courts have routinely found debt collection letters to be deceptive where the letter fails to clearly identify the current creditor of the debt.” Valentin v. Grant Mercantile Agency, Inc., No. 117CV01019AWISKO, 2017 WL 6604410, at *6 (E.D. Cal. Dec. 27, 2017). VIOLATION OF 15 U.S.C. § 1692g(a)(2) VIOLATION OF 15 U.S.C. § 1692e

win

(Violation of California’s Consumers Legal Remedies Act (“CLRA”) Cal. Civ. Code §§ 1750, et seq. (Equitable relief only) (Violation of California’s Unfair Competition Law (“UCL”) Cal. Bus. & Prof. Code §§ 17200, et seq. - Unfair Prong) (Violation of California’s Unfair Competition Law (“UCL”) Cal. Bus. & Prof. Code §§ 17200, et seq. - Unlawful Prong) 13. The demand for bottled water continues to grow in the United States and internationally. Consumers believe bottled water is healthy, unadulterated and more flavorful in many cases than tap water. 27. Plaintiff brings this action as a class action pursuant to Rules 23(a) and 23(b)(2) and 23 (b)(3) of the Federal Rule of Civil Procedure, seeking damages and injunctive relief under state consumer protection statutes on behalf of himself and all members of the Class. 28. The Class consists of all consumers who, while in California, purchased any Peñafiel beverage within the applicable statute(s) of limitations. 29. The Class for whose benefit this action is brought is so numerous that joinder of all members is impracticable. While the exact number and identities of the persons who fit within each proposed class are presently unknown, it includes thousands of persons and the exact number can be ascertained from Defendant’s records or by resort to vendor records. Peñafiel beverages are sold by Target, Wal- mart, Instacart and over Amazon.com. 37. Plaintiff realleges and incorporates by reference all previous allegations of the Complaint as if they were set forth in full herein. 45. Plaintiff realleges and incorporates by reference all previous allegations of the Complaint as if they were set forth in full herein. 46. Section 17200 of the California Business & Professions Code, known as the Unfair Competition Law (“UCL”), prohibits any “unlawful, unfair or fraudulent business act or and unfair, deceptive, untrue or misleading advertising ....” Section 17200 specifically prohibits any “unlawful ... business act or practice.” 47. The UCL borrows violations of other laws and statutes and considers those violations also to constitute violations of California law. 48. Defendant’s conduct was and continues to be unlawful under FDA regulations. 49. Defendant’s conduct in unlawfully offering for sale and selling Peñafiel beverages that are unlawfully contaminated by arsenic is without excuse or justification. 50. Defendant has violated the FDA arsenic level rules which make it unlawful to disseminate beverage containing arsenic at levels higher than 10 ppb. 52. Plaintiff realleges and incorporates by reference all previous allegations of the Complaint as if they were set forth in full herein. 53. Section 17200 of the California Business & Professions Code (the “UCL”) prohibits any “unlawful, unfair or fraudulent business act or and unfair, deceptive, untrue or misleading advertising ...” Section 17200 specifically prohibits any “unfair ...business act or practice.” Defendant’s practices violate the UCL’s “unfair” prong. 54. 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. A business act or practice is also “unfair” under the UCL if a defendant’s conduct is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. A business act or practice is also “unfair” under the UCL where the consumer injury is substantial, the injury is not outweighed by any countervailing benefits to consumers or competition, and the injury is one that consumers themselves could not reasonably have avoided considering the available alternatives. 55.. Defendant’s conduct, as detailed herein, constitutes unfair business practices. Defendant’s practices, as described herein, are “unfair” within the meaning of the UCL because the conduct is unethical and injurious to California residents, and the utility of the conduct to Defendant does not outweigh the gravity of the harm to consumers, including Plaintiff and Class Members.

lose

Cite the U.S. Civil Statute under which you are filing (DonotcUeJurlsdkaonalstatutesunlessdiversity): TCPA, 47 U.S.C. S 227. et seq. VII. REQUESTED IN

win

25. In 2017, Defendant, using an automated text-messaging platform, caused various text messages to be transmitted to Plaintiff’s cellular telephone number ending in 2907 (“2907 Number”), including the following text messages: 26. Defendant’s text messages constitute telemarketing because they promoted Defendant’s fitness facilities. 28. Plaintiff received the subject text messages within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. 29. At no point in time did Plaintiff provide Defendant with her express written consent to be contacted by text messages using an ATDS. 30. Plaintiff is the subscriber and user of the 2907 Number. 31. The impersonal and generic nature of Defendant’s text messages establishes that Defendant utilized an ATDS to transmit 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); 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)). 33. Defendant’s unsolicited text message caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text message also inconvenienced Plaintiff and caused disruption to her daily life. See Patriotic Veterans, Inc. v. Zoeller, No. 16-2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone owner’s time and mental energy, both of which are precious.”). 34. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 35. Plaintiff brings this case on behalf of the below defined Class: All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a text message, from Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone number, advertising Defendant’s services, without the recipients’ prior express written consent. 36. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. 39. 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. 40. 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. 45. Plaintiff re-alleges and incorporates paragraphs 1-44 above, as if fully set forth herein. 47. “Automatic telephone dialing system” refers to any equipment that has the “capacity to dial numbers without human intervention.” See, e.g., Hicks v. Client Servs., Inc., No. 07-61822, 2009 WL 2365637, at *4 (S.D. Fla. June 9, 2009) (citing FCC, In re: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA International for Clarification and Declaratory Ruling, 07–232, ¶ 12, n.23 (2007)). 48. 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. 49. These calls were made without regard to whether 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. 50. 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 consent. PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

18. Plaintiff was born with a permanent physical disability, specifically spastic quadriplegic cerebral palsy, and must daily rely on her use of a wheelchair and ankle foot orthotics. 19. Plaintiff also has visual impairment and is in need of assistance in her daily life. 20. Plaintiff frequently participates in various marathons by riding a customized racing wheelchair with an assistance of her mother as a “pusher,” Kelli King-Tanghe, a non-disabled person, in a so called “duo team.” 21. Plaintiff, together with her mother, participated in over 60 races as a “duo team,” sharing the joy of participation and competition with other non- disabled race applicants. 22. Duo teams are generally permitted to participate in marathons, where one non-disabled individual is pushing the wheelchair with the permanently disabled individual. 23. Defendant is sponsoring and organizing 2017 Chicago Marathon event, which is scheduled to take place on October 8, 2017. 24. Defendant’s 2017 Chicago Marathon is open to all willing participants, including duo teams. 25. The lottery drawing for the duo teams took place on January 24, 2017. 26. The duo teams are the only disabled athletes that are required to participate in a lottery drawing to determine participation for the Chicago Marathon. 44. Plaintiff brings this action on behalf of herself and on behalf of all others similarly situated (the “Class”). 45. Plaintiff represents, and is a member of the Class, consisting of: All permanently disabled persons within the United States who require an assistance of a “pusher” and have timely applied to participate at the Defendant’s 2017 Chicago Marathon event. 46. 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 hundreds, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 47. Plaintiff and members of the Class were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through their agents, illegally discriminated against Plaintiff and the Class members on the grounds of Plaintiff’s and Class members’ permanent disability in that Plaintiff and Class members require an assistance of a “pusher” to participate in 2017 Chicago Marathon event. Plaintiff and the Class members were denied of full and equal opportunity to participate in the Chicago Marathon event. TITLE III OF THE ADA 42 U.S.C. § 12181 ET SEQ • Injunctive relief prohibiting such conduct in the future; • Injunctive relief requiring Defendant to conduct a separate drawing for Plaintiff and Class members to remedy the discrimination and provide them with an equal opportunity to participate in a separate non- discriminatory lottery in order for 2017 Chicago Marathon event; • Litigation costs; • Attorneys’ fees; • Any other relief the Court may deem just and proper.

win

10. The Letter advised the Plaintiff that the current creditor 1 is MASTR 2004-

win

22. On or around August of 2020, Plaintiff visited the Website, using a popular screen reading software called NonVisual Desktop Access, with the intent of browsing and potentially making a purchase. 24. As a result of visiting the Website, Plaintiff is aware that the Website includes multiple barriers making it impossible for himself, and any other visually impaired or blind person, from enjoying access to the Website’s content equally to that of a sighted user. 25. For example, many features on the Website fail to accurately describe the contents of graphical images, fail to properly label title, fails to distinguish one page from another, contain multiple broken links, contain headings that do not describe the topic or purpose, and the keyboard user interfaces lack a mode of operation where the keyboard focus indicator is visible. 26. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 27. Upon information and belief, Defendant has not, and have never, had adequate policies and procedures in place to ensure the Website is and will remain accessible to the blind and/or visually impaired. 28. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons, who need screen-readers to access websites, 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. 30. If the Website were equally accessible to all, and if simple compliance with the WCAG 2.1 guidelines were met, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 31. Because of this, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including maintaining a website that is inaccessible to members of a protected class. 32. Due to Defendant’s violations of the ADA, and the harm it has caused, Plaintiff seeks damages, fees, costs, and injunctive relief. 33. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 34. 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. 35. 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. 37. 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. 38. 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. 40. 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. 41. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 42. 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). 43. 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. 44. 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). 46. 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). 47. 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. 48. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 50. 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.” 51. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 52. 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). 53. 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. 55. 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. 56. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 57. 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. 58. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 60. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 61. 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. 62. Plaintiff, on behalf of himself 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. 63. 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., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 64. 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

Defendant. : : : : : : : : : : : : Case No. /

lose

12. On or about July 2014, Defendant contacted Plaintiff on Plaintiff’s cellular telephone number ending in “9642” via an automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 277(a)(1), using an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 277(b)(1)(A). 13. This ATDS has the capacity to store or produce telephone numbers to be called using a random or sequential number generator. 14. Defendant utilized telephone number (855) 801-5775 to call Plaintiff on Plaintiff’s cellular telephone. 15. At no time did Plaintiff enter into a business relationship with Defendant. 16. At no time did Plaintiff provide Plaintiff’s cellular telephone number ending in “9642” to Defendant through any medium. 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 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. 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. 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 herself 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.

lose

13. Plaintiff’s contract of insurance with Defendant bears Policy Number 12PRM049566-02 (the “Policy”) and is effective for the period of June 1, 2019 to June 1, 2020 (the “Policy Term”). The Policy is attached hereto as Exhibit A. 14. Plaintiff paid all premiums owed to Defendant under the Policy, and Defendant accepted all such premiums from Plaintiff. 15. The Policy is a form policy issued by Defendant. 16. The Policy is an “all-risk” policy, which provides the broadest property insurance coverage available.  17. The Policy provides coverage for “direct physical loss of or damage to Covered Property . . . caused by or resulting from any Covered Cause of Loss.” 18. The Policy does not define the phrase “direct physical loss of or damage to . . . .”  19. However, the use of the disjunctive “or” in the phrase “direct physical loss of or damage to” means that coverage is triggered if either a physical loss of property or damage to property occurs. The concepts are separate and distinct and cannot be conflated.   20. Physical loss of, or damage to, property may be reasonably interpreted to occur when a covered cause of loss threatens or renders property unusable or unsuitable for its intended purpose or unsafe for normal human occupancy and/or continued use.  21. The Policy provides Plaintiff with, inter alia, various business income and extra expense coverages during the Policy Term. 23. Additional coverage is provided under the Policy for business income losses resulting from an “action of civil authority” which prohibits access to the Covered Property, related to a “Covered Cause of Loss” at property other than the Covered Property: “We will pay for the actual loss of Business or Rental Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described premises due to direct physical loss or damage to property, other than at the described premises, caused by or resulting from any Covered Cause of Loss.” 24. Members of the Class also purchased a policy of insurance from Defendant providing for the same business income coverage, and using the same form policy provisions. In Response to Covid-19, Pennsylvania and Other State Governments Issue Sweeping Orders Shutting Down “Non-Essential” Businesses 25. Severe acute respiratory syndrome coronavirus 2 (“COVID-19”) has spread, and continues to spread, rapidly across the United States and has been declared a pandemic by the World Health Organization. See https://www.health.harvard.edu/diseases-and- conditions/coronavirus-resource-center (last accessed May 6, 2020). 27. According to a study published in The New England Journal of Medicine, COVID- 19 is widely accepted as a cause of real physical loss and damage. It remains stable and transmittable in aerosols for up to three hours, up to four hours on copper, up to 24 hours on cardboard and up to two to three days on plastic and stainless steel. See https://www.nih.gov/news- events/news-releases/new-coronavirus-stable-hours-surfaces (last accessed May 6, 2020). 28. Another study, published in the Journal of Hospital Infection, found: “Human coronaviruses can remain infectious on inanimate surfaces at room temperature for up to 9 days. At a temperature of 30°C or more the duration of persistence is shorter.” See https://www.inverse.com/science/coronavirus-4-studies-explain-how-covid-19-sticks-to-surfaces (last accessed May 6, 2020). 29. In response to the Covid-19 pandemic, on March 6, 2020, the Governor of Pennsylvania declared a “Disaster Emergency” throughout the Commonwealth of Pennsylvania. Thereafter, on March 16, 2020, the Governor of Pennsylvania ordered that, starting on March 17, 2020, all restaurants and bars were to close their dine-in facilities, limiting their business to carry- out, delivery, and drive-through, and prohibiting all eating and drinking inside restaurants and bars. And finally, on March 19, 2020, the Governor of Pennsylvania issued an Executive Order closing all non-essential businesses. Specifically, the Executive Order, which became effective immediately upon its issuance, mandated that: No person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public. Governor Wolf, “Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses that are not Life Sustaining,” (Mar. 19, 2020) https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319- TWW-COVID-19-business-closure-order.pdf (“Executive Order”). 31. Most other states, including those in which the putative Class members reside and/or do business, have issued similar compulsory shut-down orders for “non-essential” businesses, or businesses deemed not to be “life sustaining.” 32. The closure of all “non-life-sustaining businesses” evidences an awareness on the part of both state and local governments that COVID-19 causes loss of or damage to property. This is particularly true in places of business open to the public, as the contact and interaction necessarily incident to such businesses causes a heightened risk of the property becoming contaminated. 33. For example, a New York City Executive Order entered on March 16, 2020 specifically acknowledged that: “[COVID-19] physically is causing property loss and damage.” See https://www1.nyc.gov/assets/home/downloads/pdf/executive-orders/2020/eeo-100.pdf (last accessed May 6, 2020). 34. Similarly, in a March 16, 2020 proclamation, the City of New Orleans acknowledged COVID-19’s “propensity to attach to surfaces for prolonged periods of time, thereby spreading from surface to person and causing property loss and damage in certain circumstances.” See https://nola.gov/mayor/executive-orders/emergency-declarations/03162020- mayoral-proclamation-to-promulgate-emergency-orders-during-the-state-of-emergency-due-to- co/ (last accessed May 6, 2020). 36. Because the COVID-19 virus can survive on surfaces for up to fourteen days, the Pennsylvania Supreme Court ultimately concluded that “any location . . . where two or more people can congregate is within the disaster area.” Plaintiff Submits a Claim Under Its “All-Risk” Policy, and Defendant Wrongly Fails and Refuses To Honor Its Obligations Respecting Same 37. As a result of the orders governing Plaintiff, the Covered Property closed on March 17, 2020 and remains closed to this day, except for take-out service. 38. Plaintiff has incurred, and continues to incur, among other things, a substantial loss of business income and additional expenses covered under the Policy. 39. Plaintiff provided timely notice to Defendant of its claim for the interruption to its business. 41. Plaintiff’s Covered Property suffered “direct physical loss or damage” due to the Governor of Pennsylvania’s Order (and other local governmental orders) mandating that Plaintiff discontinue its primary use of the Covered Property as a dine-in eating and drinking establishment. The Governor’s Order, in and of itself, constitutes a Covered Cause of Loss within the meaning of the Policy. 42. Alternatively, and to the extent the Governor’s Order does not constitute a Covered Cause of Loss within the meaning of the Policy, the COVID-19 pandemic and the ubiquitous nature of the COVID-19 virus caused a direct physical loss of or damage to Plaintiff’s Covered Property. 43. Further, and as an additional basis for coverage under the Policy, the ubiquitous nature of the COVID-19 virus caused direct physical loss of or damage to property other than Plaintiff’s Covered Property, and such loss or damage resulted in an “action by civil authority” prohibiting access to Plaintiff’s Covered Property, within the meaning of the Policy. Contrary To Defendant’s Position, The Virus Exclusion Does Not Apply 44. The Policy contains a coverage exclusion for “loss or damage caused by or resulting from any virus, bacterium or other microorganism” (Form CP 01 40 07 06) (the “Virus Exclusion”). 45. The Virus Exclusion does not preclude coverage for Plaintiff’s claim under the Policy. 47. Further, to the extent that the coverage under the policy derives from direct physical loss or damage caused by the COVID-19 virus, either to Plaintiff’s Covered Property or to property other than Plaintiff’s Covered property, Defendant should be estopped from enforcing the Virus Exclusion, on principles of regulatory estoppel, as well as general public policy. 48. In 2006, two insurance industry trade groups, Insurance Services Office, Inc. (“ISO”) and the American Association of Insurance Services (“AAIS”), represented hundreds of insurers in a national effort to seek approval from state insurance regulators for the adoption of the Virus Exclusion.1 49. In their filings with the various state regulators (including Pennsylvania), on behalf of the insurers, ISO and AAIS represented that the adoption of the Virus Exclusion was only meant to “clarify” that coverage for “disease-causing agents” has never been in effect, and was never intended to be included, in the property policies. 50. Specifically, in its “ISO Circular” dated July 6, 2006 and entitled “New Endorsements Filed to Address Exclusion of Loss Due to Virus or Bacteria,” ISO represented to the state regulatory bodies that: While property policies have not been a source of recovery for losses involving contamination by disease-causing agents, the specter of pandemic or hitherto unorthodox transmission of infectious material raises the concern that insurers employing such policies may face claims in which there are efforts to expand coverage to create sources of recovery for such losses, contrary to policy intent. 52. The foregoing representations made by the insurance industry were false. By 2006, the time of the state applications to approve the Virus Exclusion, courts had repeatedly found that property insurance policies covered claims involving disease-causing agents, and had held on numerous occasions that any condition making it impossible to use property for its intended use constituted “physical loss or damage to such property.” 53. The foregoing assertions by the insurance industry (including Defendant), made to obtain regulatory approval of the Virus Exclusion, were in fact misrepresentations and for this reason, among other public policy concerns, insurers should now be estopped from enforcing the Virus Exclusion to avoid coverage of claims related to the COVID-19 pandemic. 54. In securing approval for the adoption of the Virus Exclusion by misrepresenting to the state regulators that the Virus Exclusion would not change the scope of coverage, the insurance industry effectively narrowed the scope of the insuring agreement without a commensurate reduction in premiums charged. Under the doctrine of regulatory estoppel, the Court should not permit the insurance industry to benefit from this type of duplicitous conduct before the state regulators. 56. Defendant’s denial of lost business income claims has left Plaintiff and the Class without vital coverage acquired to ensure the survival of their businesses during this temporary suspension of operations. 57. Plaintiff brings this action individually and as a class action on behalf of the Class, defined as follows: All policyholders in the United States who purchased commercial property coverage, including business or interruption income (and extra expense) coverage from Defendant and who have been denied coverage under their policy for lost business income after being ordered by a governmental entity, in response to the COVID-19 pandemic, to shut down or otherwise curtail or limit in any way their business operations. 58. Excluded from the Class are Defendant and its officers, directors, legal representatives, successors, subsidiaries, and assigns. Also excluded from the Class are any judicial officer presiding over this matter, members of their immediate family, and members of their staff. 59. The members of the Class are so numerous and geographically dispersed that joinder would be impracticable. Class members are readily identifiable from information and records in Defendant’s possession, custody, or control. 61. Plaintiff’s claims are typical of the claims of the absent class members and have a common origin and basis. Plaintiff and absent Class members are all injured by Defendant’s refusal to afford the purchased coverage. Plaintiff’s claims arise from the same practices and course of conduct giving rise to the claims of the absent Class members and are based on the same legal theories, namely the refusal to provide insurance coverage for the loss. If prosecuted individually, the claims of each Class member would necessarily rely upon the same material facts and legal theories and seek the same relief. Plaintiff’s claims arise from the same practices and course of conduct that give rise to the other Class members’ claims and are based on the same legal theories. 62. Plaintiff will fully and adequately assert and protect the interests of the absent Class members and has retained Class counsel who are experienced and qualified in prosecuting class action cases similar to this one. Neither Plaintiff nor Plaintiff’s attorneys has any interests contrary to or conflicting with the interests of absent Class members. 63. The questions of law and fact common to all Class members predominate over any questions affecting only individual class members. 65. Additionally, the prosecution of separate actions by individual Class members would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for Defendant. Such individual actions would create a risk of adjudications that would be dispositive of the interests of other Class members and impair their interests. Defendant, through its uniform conduct, acted or refused to act on grounds generally applicable to the Class as a whole, making declaratory relief appropriate to the Class as a whole. 66. Plaintiff incorporates by reference each and every allegation set forth above. 67. The Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides that in “a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 68. An actual controversy has arisen between Plaintiff and the Defendant as to the rights, duties, responsibilities and obligations of the parties in that Plaintiff contends and Defendant disputes and denies that the Policy provides coverage to Plaintiff for any current and future lost business income, subject to the limit of liability, for the temporary suspension of Plaintiff’s operations. 70. Plaintiff’s loss of use, loss of access, and loss of functionality of the Covered Property when government shutdown orders made it unlawful for Plaintiff to fully access, use, and operate its business at the Covered Property, constitutes a direct physical loss of the Covered Property under the Policy. Alternatively, the ubiquitous nature of the COVID-19 virus caused direct physical loss or damage to the Covered Property by preventing Plaintiff from using the Covered Property for its intended purpose. 71. Additionally, the government shutdown orders or, alternatively, the ubiquitous nature of the COVID-19 virus, caused direct physical loss of or damage to property other than the Covered Property, thereby invoking coverage under the Policy’s “Civil Authority” provision for “actual loss of Business or Rental Income . . . caused by action of civil authority that prohibits access to the described premises.” 72. The Policy constitutes a valid and binding agreement obligating the Defendant to indemnify Plaintiff for covered losses. 73. Plaintiff has substantially performed or otherwise satisfied all conditions precedent to bringing this action and obtaining coverage pursuant to the Policy and applicable law, or alternatively, Plaintiff has been excused from performance by Defendant’s acts, representations, conduct, or omissions. 74. Defendant has failed to indemnify Plaintiff for its covered losses. 75. No exclusion to coverage, including the Virus Exclusion, applies. 76. Plaintiff has suffered and continues to suffer a covered loss under the Policy. 78. Plaintiff incorporates by reference each and every allegation set forth above. 79. Plaintiff and Defendant entered into a contract of insurance; here, the Policy. 80. The Class members entered into a substantially identical policy with Defendant. 81. Under the Policy, Defendant agreed to indemnify Plaintiff and the Class for their business losses as a result of a covered loss. 82. Plaintiff and the Class members suffered a covered loss under the Policy. 83. Plaintiff and the Class members timely submitted a notice of claim and satisfied all conditions precedent to receiving the coverage it purchased from Defendant. 84. Defendant breached its contract with Plaintiff and the Class members by failing and refusing to provide the contracted for coverage. 85. Defendant’s breach of the contract has caused Plaintiff and the Class to suffer damages in the amount of their unreimbursed business losses or their limits of liability, whichever is lower. BREACH OF CONTRACT DECLARATORY RELIEF Plaintiff Purchased an “All-Risk” Policy of Property Insurance That Broadly Provides Coverage for Loss of Business Income, Among Other Things

lose

10. Plaintiff adopts and realleges ¶¶ 1-9. 11. Section 1692g of the FDCPA requires that, within 5 days of Defendant’s first communication to a consumer, it had to provide the consumer with an effective validation notice, containing, among other disclosures, “(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt”, as well as “(5) a statement that, upon the consumer's written request within the thirty- 4 4 day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.” see, 15 U.S.C. § 1692g(a)(4) and (5). 12. Nowhere in Defendant Mercer’s June 9, 2016 initial collection letter to Plaintiff (Exhibit B) does it state that Plaintiff’s dispute to Defendant Mercer had to be in writing to protect his right to obtain validation of the debt, or that a request for the name of the original creditor had to be in writing. Thus, Defendant Mercer has violated § 1692g of the FDCPA, see, McCabe v. Crawford & Co., 272 F. Supp. 2d 736, 742-743 (N.D. Ill. 2003); Matmanivong v. NCC, 2015 U.S. Dist. LEXIS 15054 at [*26]-[*27](N.D. Ill. 2015); and Bishop v. Ross Earle & Bonan, 817 F.3d 1268, 1274 (11th Cir. 2016). 13. Defendant Mercer’s violation of § 1692g of the FDCPA renders it liable for statutory damages, costs, and reasonable attorneys’ fees. See, 15 U.S.C. § 1692k. 14. Plaintiff adopts and realleges ¶¶ 1-9. 15. Section 1692f of the FDCPA prohibits a debt collector from using any unfair or unconscionable means to collect or attempt to collect a debt, see, 15 U.S.C. § 1692f. 16. Defendant Mercer, by failing to advise Plaintiff that his dispute must be in writing for it to be effective, and that any request for the name of the original creditor had to be in writing, used unfair or unconscionable means to collect a debt, in violation of § 1692f of the FDCPA. 17. Defendant Mercer’s violation of § 1692f of the FDCPA renders it liable 5 5 for statutory damages, costs, and reasonable attorneys’ fees. See, 15 U.S.C. § 1692k. 18. Plaintiff, Joseph Huffer, brings this action individually and as a class action on behalf of all persons similarly situated in the State of Indiana from whom Defendant Mercer attempted to collect a delinquent consumer debt, allegedly owed for a home loan, via the same form collection letter (Exhibit B), that Defendant Mercer sent to Plaintiff, from one year before the date of this Complaint to the present. This action seeks a finding that Defendant Mercer’s form letter violates the FDCPA, and asks that the Court award damages as authorized by § 1692k(a)(2) of the FDCPA. 19. Defendant Mercer regularly engages in debt collection, using the same form collection letter it sent Plaintiff Huffer, in its attempts to collect delinquent consumer debts from other persons. 20. The Class consists of more than 35 persons from whom Defendant Mercer attempted to collect delinquent consumer debts, by sending other consumers the same form collection letter it sent Plaintiff Huffer. 21. Plaintiff Huffer’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. 22. 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 6 6 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. Defendant Mercer has acted in a manner applicable to the Class as a whole such that declaratory relief is warranted. 23. Plaintiff Huffer 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 Defendant Mercer’s conduct was perpetrated on all members of the Class and will be established by common proof. Moreover, Plaintiff Huffer has retained counsel experienced in class action litigation, including class actions brought under the FDCPA. 6. Defendant Mercer sent Mr. Huffer an initial form collection letter, dated June 9, 2016, demanding payment of a delinquent consumer debt owed for a home loan. This letter stated, in pertinent part: * * * Federal law gives you thirty (30) days after you receive this letter to dispute the validity of the debt or any part of it. If you don’t dispute the debt within that period, I’ll assume that it’s valid. If you do dispute it – by notifying me to that effect – I will, as required by the law, obtain and mail to you proof of the debt. And if, within the same period, you request the name and address of your original creditor, if the original creditor is different from the current creditor, I will furnish you with that information too. If you request proof of the debt or the name and address of the original creditor within the thirty (30) day period that begins with your receipt of this letter, the law requires me to suspend my efforts (through litigation or otherwise) to collect the debt until I mail the requested information to you. * * * Nowhere in Defendant’s letter did it advise Mr. Huffer that disputes had to be in writing, to be effective, and so that he could require Defendant Mercer to provide validation of the debt. A copy of this letter is attached as Exhibit B. 3 3 7. Violations of the FDCPA which could lead a consumer to alter his or her course of action as to whether to pay or whether to dispute a debt, or which would be a factor in the consumer's decision-making process, are material, see, Lox v. CDA, 689 F.3d 818, 827 (7th Cir. 2012). Whether disputing a debt could be done orally, by simply picking up the phone, or whether a consumer needs to make a written dispute, is material information that would play a role in a consumer’s decision of whether to dispute a debt. Moreover, disclosure of the information is mandatorily required by the plain language of the FDCPA and is therefore material, see, Janetos v. Fulton, Friedman & Gullace, 825 F.3d 317 (7th Cir. 2016). 8. Defendant’s collection actions complained of herein occurred within one year of the date of this Complaint. 9. Defendant’s collection communications are to be interpreted under the “unsophisticated consumer” standard. See, Gammon v. GC Services, Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). Violation Of § 1692f Of The FDCPA -- Unfair Or Unconscionable Collection Actions Violation Of § 1692g Ineffective Validation Notice

win

11.1 co .= ........ 11. On or about January, 2011, January 27, 2011 and August 14, 2012, Defendants II transmitted by telephone facsimile machine three unsolicited faxes to Plaintiff. Copies of the II three facsimiles are attached hereto as Exhibit A. 13. Exhibit A is part of Defendants' work or operations to market Defendants' goods 2 1\ or services which were performed by Defendants and on behalf of Defendants. Therefore, Exhibit 3 II A constitutes material furnished in connection with Defendants' work or operations. 4 14. Plaintiff had not invited or given permission to Defendants to send the faxes. ~ ..~' 15. On information and belief, Defendants faxed the same and similar ..unso-Itched 6 II facsimiles to Plaintiff and more than 40 other recipients without first receiving ~e recipients' 7 1\ express permission or invitation. .~ I 8 16. There is nO' reasonable means for Plaintiff (or any other class member) to' avoid 9 II receiving unauthO'rized faxes. Fax machines are left on and ready to receive the urgent c,..O ....l"" ....l::!! 1\ communications their owners desire to receive . IiL~ ­ c5~= 11 17. Defendants' facsimiles did not display a proper opt~out notice as required by 47 18. In accordance with F. R. Civ. P. 23(b)(1), (b)(2)and (b)(3), Plaintiff brings this l- ..0 a ~~Vl :::> G) II class action pursuant to the JFPA, on behalf ofthe following class. of persons: :I: e bl~ All persons who (l) on or after four years prior to the filing of this action, (2) 17 1/ were sent telephone facsimile messages of material advertising the commercial 26. Plaintiff and the Plaintiff Class reassert and incoJiporate herein by reference the 17 II averments set for in paragraphs 1-25 above. 16 27. The JFP A makes unlawful for any person to "use ~y telephone facsimile machine, 18 \ 19 II computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement 20 II ... " 47 U.S.C. § 227(b)(l)(C). i 28. The JFP A defines "unsolicited advertisement" as: "any material advertising the 22 II commercial availability or quality of any property, goods, or services which is transmitted to any 23 II person without that person's prior express invitation or permission, in writing or otherwise." 47 24 II U.S.C. § 227 (a) (5). 2S 21 I- ..0 c:: 0:: I:: "" ~WVl Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq. 15 ~ ~ bl~ u"Ou"" :Zt'<l~- Q ~ ~::!- 14

lose

11. Plaintiff CAYETANO brings claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of all current and former non-exempt employees, including, but not limited to, laborers, flagman, foreman assistants, doormen, security, concierge, machine operators, and cleaners employed by Defendants on or after the date that is six years before the filing of the Complaint in this case (“FLSA Collective Plaintiffs”). 4 12. At all relevant times, Plaintiff and other FLSA Collective Plaintiffs have been similarly situated, have had substantially similar job requirements and pay provisions, and have been subjected to Defendants’ decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules—all of which have culminated in a willful failure and refusal by Defedants to pay Plaintiff and FLSA Collective Plaintiffs their proper (i) overtime compensation at the rate of one and one half times the regular hourly rate for work in excess of forty (40) hours each week, and (ii) compensation for all hours worked but for which they have not yet compensated due to Defendants’ time-shaving practices. The claims of Plaintiff as stated herein are essentially the same as those of other FLSA Collective Plaintiffs. 13. 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 Defendants. Notice can be provided to the FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 14. Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure (“FRCP”) Rule 23, on behalf of all current and former non-exempt employees, including but not limited to laborers, flagman, foreman assistants, doormen, security, concierge, machine operators, and cleaners, who were employed and unjustly compensated by Defendants, throughout New York State, on or after the date that is six (6) years before the filing of the Complaint in this case (the “Class”). 15. The Class members are readily ascertainable. The number and identity of the 5 Class members are determinable from the records of Defendants. The hours assigned and worked, the titles of the positions held, and rates of pay for each Class member are also determinable from Defendants’ records. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under FRCP 23. 16. The proposed Class is so numerous that a joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. Although the precise number of such persons is unknown because the facts on which the calculation of that number rests are presently within the sole control of Defendants, there is no doubt that there are more than forty (40) members of the Class. 17. Plaintiff’s claims are typical of those claims that could be alleged by any member of the Class, and the relief sought is typical of the relief that would be sought by each member of the Class in separate actions. All of the Class members were subject to the same corporate practices of Defendants, as alleged herein, including but not limited to Defendants’ (i) failing to pay proper overtime compensation for all hours worked in excess of forty (40) hours each week; (ii) failing to pay regular and overtime compensation for all hours worked due to a practice of time-shaving, (iii) failing to pay spread of hours premium, (iv) failing to provide Class members with proper wage statements in compliance with the New York Labor Law, and (v) failing to properly provide wage and hour notices to Class members upon hiring and as required thereafter, pursuant to the New York Labor Law. Defendants’ corporate-wide policies and practices affected all Class members similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each Class member. Plaintiff and other Class members sustained similar losses, injuries, and damages arising from the same unlawful policies, practices, and 6 procedures carried out by Defendants. 18. Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in both class action litigation and employment litigation, and have previously represented plaintiffs in wage and hour cases. 19. A class action is superior to other available methods for the fair and efficient adjudication of the controversy—particularly in the context of the wage and hour litigation where individual class members lack the financial resources to vigorously prosecute a lawsuit against corporate defendants. Class action treatment will permit a large number of similarly situated persons to prosecute common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that numerous individual actions engender. Because losses, injuries and damages suffered by each of the individual Class members are small in the sense pertinent to a class action analysis, the expenses and burden of individual litigation would make it extremely difficult or impossible for the individual Class members to redress the wrongs done to them. On the other hand, 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 Class would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Class, establishing incompatible standards of conduct for Defendants 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 7 addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently manage this action as a class action. 20. Defendants and other employers throughout the state violate the NYLL. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Both current and 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. 21. There are questions of law and fact common to the Class which predominate over any questions affecting only individual class members, including: a) Whether Defendants employed Plaintiff and the Class members within the meaning of the New York law; b) What are and were the policies, practices, programs, procedures, protocols and plans of Defendants regarding the types of work and labor for which Defendants did not properly pay Plaintiff and the Class; c) At what common rate, or rates subject to common methods of calculation, were and are Defendants required to pay Plaintiff and the Class members for their work; d) Whether Defendants failed to properly compensate Plaintiff and Class members for overtime under state and federal laws for all hours worked in excess of forty (40) each week; e) Whether Defendants practiced a policy of time-shaving; 8 f) Whether Defendants failed to pay Plaintiff and Class members spread of hours premium for each work shift exceeding ten (10) hours in duration; g) Whether Defendants provided to Plaintiff and Class members proper wage and hour notice, on the date of hiring and annually thereafter, to all non- exempt employees, per the requirements of the NYLL; and h) Whether Defendants provided to Plaintiff and Class members proper wage statements with each payment of wages, as required by the NYLL. 22. In or around September 2014, Plaintiff CAYETANO was hired by Defendants and/or their predecessors, as applicable, to work as a general labor worker at various construction sites throughout the greater New York City area. Plaintiff CAYETANO’s employment was terminated in or around December of 2017. 23. Throughout his employment with Defendants, Plaintiff CAYETANO routinely worked in excess of forty (40) hours each per week. Specifically, Plaintiff CAYETANO was scheduled to work five (5) days per workweek for eight and a half (8.5) hours per workday, from 7:30 a.m. to 4:00 p.m., for a total of forty-two and a half (42.5) hours per workweek. Moreover, Plaintiff CAYETANO was frequently required by Defendants to stay after 5:00 p.m., and also after 5:30 p.m., as needed. Plaintiff CAYETANO was paid straight time at an hourly rate of $11.00 per hour for all hours worked. 24. Throughout his employment by Defendants, Plaintiff CAYETANO was not compensated overtime premium for all hours worked in excess of forty (40) each week. Although Plaintiff CAYETANO regularly worked forty-two and a half (42.5) to forty-seven and a half (47.5) hours per week, he was only ever paid $11.00 per hour for all hours worked. 9 Plaintiff has therefore not been properly compensated by Defendants at the overtime premium rate of one and a half times his regularly hourly rate for all hours worked in excess of forty (40) each week, in violation of the FLSA and NYLL. 25. Throughout his employment by Defendants, Plaintiff CAYETANO was not compensated for all his hours worked. Plaintiff CAYETANO was automatically deducted a thirty (30) minute meal break even though he never took such a break. Due to Defendants’ time- shaving policy, Plaintiff CAYETANO did not receive his proper regular and overtime compensation for his off-the-clock hours of work. 26. Whenever Plaintiff was required by Defendants to continue working up until and through 5:30 p.m., Plaintiff CAYETANO worked over ten (10) or more hours on those days, as his work shift began at 7:30 a.m. each day. However, Plaintiff and Class members were never paid a spread of hours premium as required under the NYLL. 27. Based on Plaintiff CAYETANO’s observations and conversations with other employees, FLSA Collective Plaintiffs and Class members similarly suffered from Defendant’s policy of (i) time-shaving, (ii) failing to pay employees proper overtime compensation for all hours worked in excess of forty (40) each week, and (iii) failing to pay a spread of hours premium. 28. Defendants knowingly and willfully operated their business with a policy of not paying either the FLSA overtime rate (of time and one-half) or the New York State overtime rate (of time and one-half) to Plaintiff, FLSA Collective Plaintiffs and the Class for all hours worked in excess of forty (40) each week. 10 29. Defendants knowingly and willingly failed to pay Plaintiff, FLSA Collective Plaintiffs and the Class regular and overtime wages for all hours worked due Defendants’ time- shaving practices. 30. Defendants knowingly and willfully made illegal meal break deductions from Plaintiff, FLSA Collective Plaintiffs and Class members’ paychecks. 31. Defendants knowingly and willfully operated their business with a policy of not paying spread-of-hours premium to Plaintiff and Class members, in violation of the NYLL. 32. Defendants knowingly and willfully operated their business with a policy of not providing proper wage statements, as required under the NYLL. 33. Defendants knowingly and willfully operated their business with a policy of not providing proper wage notices to employees, at the beginning of employment and at dates of all wage changes thereafter, pursuant to the requirements of the NYLL. 34. Plaintiff retained Lee Litigation Group, PLLC to represent Plaintiff, FLSA Collective Plaintiffs and Class members in this litigation and has agreed to pay the firm a reasonable fee for its services. 35. Plaintiff realleges and reavers Paragraphs 1 through 34 of this class and collective action Complaint as if fully set forth herein. 36. At all relevant times, Defendants were and continue to be employers engaged in interstate commerce and/or the production of goods for commerce within the meaning of the 11 FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiff and FLSA Collective Plaintiffs are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 37. At all relevant times, Defendants employed Plaintiff and FLSA Collective Plaintiffs within the meaning of the FLSA. 38. At all relevant times, Corporate Defendant QUALITY FACILITY SOLUTIONS CORP had gross annual revenues in excess of $500,000. 39. At all relevant times, the Defendants had a policy and practice of refusing to pay overtime compensation at the statutory rate of time and one-half to Plaintiff and FLSA Collective Plaintiffs for their hours worked in excess of forty (40) per workweek. 40. Defendants failed to compensate Plaintiff and FLSA Collective Plaintiffs for all hours worked due to time-shaving. 41. Records, if any, concerning the number of hours worked by Plaintiff and FLSA Collective Plaintiffs, and the actual compensation paid to Plaintiff and FLSA Collective Plaintiffs should be in the possession and custody of Defendants. Plaintiff intends to obtain these records by appropriate discovery proceedings to be taken promptly in this case and, if necessary, will then seek leave of Court to amend this Complaint to set forth the precise amount due. 42. Defendants failed to properly disclose or apprise Plaintiff and FLSA Collective Plaintiffs of their rights under the FLSA. 43. As a direct and proximate result of Defendants’ willful disregard of the FLSA, Plaintiff and FLSA Collective Plaintiffs are entitled to liquidated (i.e., double) damages pursuant to the FLSA. 12 44. Due to the intentional, willful, and unlawful acts of Defendants, Plaintiff and FLSA Collective Plaintiffs suffered damages in an amount not presently ascertainable of unpaid overtime, plus an equal amount as liquidated damages. 45. Plaintiff and FLSA Collective Plaintiffs are entitled to an award of their reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b). 46. Plaintiff realleges and reavers Paragraphs 1 through 45 of this class and collective action Complaint as if fully set forth herein. 47. At all relevant times, Plaintiff and Class members were employed by Defendants within the meaning of the NYLL, §§ 2 and 651. 48. Defendants willfully violated the rights of Plaintiff and Class members by failing to pay Plaintiff and Class members the proper overtime compensation at rates not less than one and one-half times the regular rate of pay for each hour worked in excess of forty (40) hours each workweek. 49. Defendants willfully violated the rights of Plaintiff and Class members, by practicing a policy of time-shaving, in violation of the NYLL. 50. Defendants willfully violated the rights of Plaintiff and Class members by failing to pay spread-of-hours premium for each workday that exceeded ten (10) hours in length, in violation of the NYLL. 51. Defendants knowingly and willfully operated their business with a policy of not providing proper wage statements to Plaintiff and other non-exempt employees, as required by 13 the NYLL. Defendants are required to provide accurate and proper information on wage statements issued to employees in accordance with the NYLL. 52. Defendants knowingly and willfully operated their business with a policy of not providing Plaintiff and other non-exempt employees with proper wage notices, at date of hiring and at dates of all wage changes thereafter, in violation of the NYLL. 53. Due to the Defendants’ NYLL violations, Plaintiff and Class members are entitled to recover from Defendants their unpaid wages, including overtime, unpaid spread-of-hours premium, reasonable attorneys’ fees, liquidated damages, statutory penalties and costs and disbursements of the action, pursuant to the NYLL. VIOLATION OF THE FAIR LABOR STANDARDS ACT VIOLATION OF THE NEW YORK LABOR LAW

win

1. This is a class action lawsuit on behalf of all people who paid tuition and fees for the Spring 2020 academic semester at NYU, and who, because of Defendant’s response to the Novel Coronavirus Disease 2019 (“COVID-19”) pandemic, lost the benefit of the education for which they paid, and/or the services or which their fees were paid, without having their tuition and fees refunded to them. 14. Plaintiff and Class members are individuals who paid the cost of tuition and other mandatory fees for the Spring 2020 semester at Quinnipiac. 15. Courses for the Spring 2020 semester began on or about January 21, 2020 and final examinations are scheduled to end on or about May 9, 2020. 16. Plaintiff and Class members paid the cost of tuition for the Spring 2020 semester. They also paid other mandatory fees associated with the Spring 2020 semester, including a technology fee and a student fee. 17. Tuition at Quinnipiac for the Spring 2020 semester is approximately $24,000. Room and board and other mandatory fees approximate $16,940. 19. On March 10, 2020, Quinnipiac announced via letter from University President Judy Olian that because of the global COVID-19 pandemic, all in-person classes would be suspended effective immediately. The announcement informed students that all classes would instead be held remotely through online formats. 2. Quinnipiac is a private university, with an enrollment of approximately 10,000 students. The university offers 58 undergraduate majors, 20 graduate programs, and a Juris Doctor program. Quinnipiac also operates an online program offering undergraduate, graduate, doctoral degrees, as well as various certificate programs. 20. Since March 6, 2020, Quinnipiac has not held any in-person classes. Classes that have continued have only been offered in an online format, with no in-person instruction. Even classes for students with concentrations in areas where in-person instruction is especially crucial (such as music, accounting, theatre, and the sciences) have only had access to minimum online education options. 21. As a result of the closure of Defendant’s facilities, Defendant has not delivered the educational services, facilities, access and/or opportunities that Plaintiff and the putative class contracted and paid for. Plaintiff and the putative class are therefore entitled to a refund of all tuition and fees for services, facilities, access and/or opportunities that Defendant has not provided. Even if Quinnipiac claims it did not have a choice in cancelling in-person classes, it nevertheless has improperly retained funds for services it is not providing. 22. The online learning options being offered to Quinnipiac students are subpar in practically every aspect, from the lack of facilities, materials, and minimal access to faculty. Students have been deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. 24. Quinnipiac students paid a higher price for an in-person education than they would have paid for an online education. This is illustrated clearly by the vast price difference in Quinnipiac’s in-person, on-campus programs versus Quinnipiac’s own online learning programs. For example, the tuition for the Spring 2020 semester for an in-person undergraduate degree is approximately $24,000. A full 16-credit course load therefore amounts to $1,500 per credit. 25. However, Quinnipiac also offers an online Bachelor of Science in Health Science Studies which costs $575 per credit, and an online Bachelor of Science in Nursing which costs $570 per credit. Thus, the cost per credit for an in-person undergraduate education at Quinnipiac is nearly triple the cost of an online education at the same university. 26. Through this lawsuit Plaintiff seeks, for herself and Class members, Defendant’s disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring 2020 semester when classes moved online, students were forced to vacate campus, and campus services ceased being provided. Plaintiff seeks return of these amounts on behalf of herself and the Class as defined below. 28. Plaintiff also seeks to represent a subclass consisting of Class members who reside in New Jersey (the “Subclass”). 29. Subject to additional information obtained through further investigation and discovery, the foregoing definition of the Class and Subclass may be expanded or narrowed by amendment or amended complaint. 30. Numerosity. The members of the Class and Subclass are geographically dispersed throughout the United States and are so numerous that individual joinder is impracticable. Upon information and belief, Plaintiff reasonably estimates that there are tens of thousands of members in the Class and Subclass. Although the precise number of Class members is unknown to Plaintiff, the true number of Class members is known by Defendant and 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 and third-party retailers and vendors. 32. Typicality. Plaintiff’s claims are typical of the claims of the other members of the Class in that, among other things, all Class and Subclass members were similarly situated and were comparably injured through Defendant’s wrongful conduct as set forth herein. Further, there are no defenses available to Defendants that are unique to Plaintiff. 33. Adequacy of Representation. Plaintiff will fairly and adequately protect the interests of the Class and Subclass. Plaintiff has retained counsel that is highly experienced in complex consumer class action litigation, and Plaintiff intends to vigorously prosecute this action on behalf of the Class and Subclass. Furthermore, Plaintiff has no interests that are antagonistic to those of the Class or Subclass. 35. In the alternative, the Class and Subclass may also be certified because: (a) the prosecution of separate actions by individual Class and Subclass members would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for the Defendant; (b) the prosecution of separate actions by individual Class and Subclass members would create a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the interests of other Class members not parties to the adjudications, or substantially impair or impede their ability to protect their interests; and/or (c) Defendant has acted or refused to act on grounds generally applicable to the Class as a whole, thereby making appropriate final declaratory and/or injunctive relief with respect to the members of the Class as a whole. 36. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 37. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendants. 39. As part of the contract, and in exchange for the aforementioned consideration, Defendant promised to provide certain services, all as set forth above. Plaintiff, Class, and Subclass members fulfilled their end of the bargain when they paid monies due for the Spring 2020 semester. Tuition for the Spring 2020 semester was intended to cover in-person educational services from January through May 2020. In exchange for tuition monies paid, Class and Subclass members were entitled to in-person educational services through the end of the Spring semester. 4. Since March 6, 2020, Quinnipiac has not held any in-person classes. Classes that have continued have only been offered in an online format, with no in-person instruction. 40. Defendant has failed to provide the contracted for services and has otherwise not performed under the contract as set forth above. Defendant has retained monies paid by Plaintiff and the Class for their Spring 2020 semester tuition and fees, without providing them the benefit of their bargain. 41. Plaintiff and members of the Class and Subclass have suffered damage as a direct and proximate result of Defendant’s breach, including but not limited to being deprived of the education, experience, and services to which they were promised and for which they have already paid. 42. As a direct and proximate result of Defendant’s breach, Plaintiff, the Class, and Subclass are entitled to damages, to be decided by the trier of fact in this action, to include but not be limited to reimbursement of certain tuition, fees, and other expenses that were collected by Defendant for services that Defendant has failed to deliver. Defendant should return the pro- rated portion of any Spring 2020 tuition and fees for education services not provided as Quinnipiac has not held in-person classes since March 6, 2020. 44. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 45. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendant. 46. Plaintiff and members of the Class and Subclass conferred a benefit on Defendant in the form of monies paid for Spring 2020 tuition and other fees in exchange for certain service and promises. Tuition for the Spring 2020 semester was intended to cover in-person educational services from January through May 2020. In exchange for tuition monies paid, Class members were entitled to in-person educational services through the end of the Spring semester. 47. Defendant voluntarily accepted and retained this benefit by accepting payment. 48. Defendant has retained this benefit, even though Defendant has failed to provide the education, experience, and services for which the tuition and fees were collected, making Defendant’s retention unjust under the circumstances. Accordingly, Defendant should return the pro-rated portion of any Spring 2020 tuition and fees for education services not provided since Quinnipiac has not held in-person classes since March 6, 2020. 5. On March 15, 2020, Ms. Olian also informed students that all university housing was to close for the remainder of the semester, and that all students were required to vacate by 9 p.m. on Wednesday, March 18. 50. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 51. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendant. 52. Plaintiff and members of the Class and Subclass have an ownership right to the in-person educational services they were supposed to be provided in exchange for their Spring 2020 tuition and fee payments to Defendant. 53. Defendant intentionally interfered with the rights of Plaintiff, the Class, and Subclass when it moved all classes to an online format and discontinued in-person educational services for which tuition and fees were intended to pay. 54. Plaintiff and members of the Class and Subclass demand the return of the pro- rated portion of any Spring 2020 tuition and fees for education services not provided since Quinnipiac has not held in-person classes since March 6, 2020. 55. Defendant’s retention of the fees paid by Plaintiff and members of the Class and Subclass without providing the educational services for which they paid, deprived Plaintiff, Class and Subclass members of the benefits for which the tuition and fees paid. 56. This interference with the services for which Plaintiff and members of the Class and Subclass paid damaged Plaintiff and Class members in that they paid tuition and fees for services that will not be provided. 6. As a result of the closure of Defendant’s facilities, Defendant has not delivered the educational services, facilities, access and/or opportunities that Mr. Hotter and the putative class contracted and paid for. The online learning options being offered to Quinnipiac students are subpar in practically every aspect, from the lack of facilities, materials, and access to faculty. Students have been deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. The remote learning options are in no way the equivalent of the in-person education that Plaintiff and the putative class members contracted and paid for. 7. Plaintiff and the putative class are therefore entitled to a refund of tuition and fees for in-person educational services, facilities, access and/or opportunities that Defendant has not provided. Even if Quinnipiac claims it did not have a choice in cancelling in-person classes, it nevertheless has improperly retained funds for services it is not providing. Breach Of Contract (On Behalf Of The Class And Subclass) Conversion (On Behalf Of The Class And Subclass) Plaintiff And Class Members Paid Tuition And Fees For Winter and Spring 2020 Terms Unjust Enrichment (On Behalf Of The Class And Subclass)

lose

(Declaratory Relief) (on behalf of Plaintiff and the Class) 110. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 111. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that Dominos.com contains access barriers denying blind customers the full and equal access to the goods, services and facilities of Dominos.com and by extension Domino’s Pizza Restaurants, which Domino’s Pizza owns, operates, and/or 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. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind. 112. 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. WHEREFORE, Plaintiff prays for judgment as set forth below. (Violation of 42 U.S.C. §§ 12181, et seq. — Title III of the Americans with Disabilities Act) (on behalf of Plaintiff and the Class) (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) (on behalf of Plaintiff and New York subclass) 22. 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 Dominos.com and as a result have been denied access to the enjoyment of goods and services offered in Domino’s Pizza Restaurants, during the relevant statutory period.” 23. 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. 24. This case arises out of Defendant’s policy and practice of maintaining an inaccessible website denying blind persons access to the goods and services of Dominos.com and Domino’s Pizza Restaurants. 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 Dominos.com and by extension the goods and services offered through Defendant’s website to Domino’s Pizza Restaurants. 26. The claims of the named Plaintiff are typical of those of the class. The class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Domino’s Pizza has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, Dominos.com, so it can be independently accessible to the class of people who are legally blind. 27. 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. 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. 29. 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. 30. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 31. Domino’s Pizza operates Domino’s Pizza Restaurants, an American casual dining chain specializing in pizza. The company currently operates numerous restaurants in the state of New York. 32. Dominos.com is a service and benefit offered by Domino’s Pizza and Domino’s Pizza Restaurants throughout the United States, including New York State. Dominos.com is owned, controlled and/or operated by Domino’s Pizza. 33. Dominos.com is a commercial website that offers products and services for online sale and pick-up or delivery that are available in Domino’s Pizza restaurant locations. The online store allows the user to browse menu items, food descriptions and prices; view the nutritional value of each item and specials; find restaurant locations; and perform a variety of other functions. 35. This case arises out of Domino’s Pizza’s policy and practice of denying the blind access to Dominos.com, including the goods and services offered by Domino’s Pizza restaurants through Dominos.com. Due to Domino’s Pizza’s failure and refusal to remove access barriers to Dominos.com, blind individuals have been and are being denied equal access to Domino’s Pizza Restaurants, as well as to the numerous goods, services and benefits offered to the public through Dominos.com. 36. Domino’s Pizza denies the blind access to goods, services and information made available through Dominos.com by preventing them from freely navigating Dominos.com. 37. The Internet has become a significant source of information for conducting business and for doing everyday activities such as shopping, banking, etc., for sighted and blind persons. 38. The blind access websites by using keyboards in conjunction with screen-reading software which vocalizes visual information on a computer screen. Except for a blind person whose residual vision is still sufficient to use magnification, screen access software provides the only method by which a blind person can independently access the Internet. Unless websites are designed to allow for use in this manner, blind persons are unable to fully access Internet websites and the information, products and services contained therein. 40. Dominos.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 forms, inaccessible image maps, the lack of adequate prompting and labeling; the denial of keyboard access; and the requirement that transactions be performed solely with a mouse. 42. Similarly, Dominos.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 Dominos.com do not contain adequate alt-text and are therefore inaccessible to Plaintiff and other blind individuals. 43. Dominos.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 Dominos.com, these forms include search fields to locate menu items, fields that specify the number of items desired, and fields used to fill-out personal information, including address and credit card information. Due to the lack of adequate labeling, Plaintiff and blind customers cannot easily make purchases or inquiries as to Domino’s Pizza’s menu items or specials, nor can they enter their personal identification and financial information with confidence and security. 45. The lack of navigation links on Domino’s Pizza’s website makes attempting to navigate through Dominos.com even more time consuming and confusing for Plaintiff and blind consumers. 46. Dominos.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, Dominos.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 Dominos.com. 47. Due to Dominos.com’s inaccessibility, Plaintiff and blind customers must in turn spend extended time, energy and/or money to make their purchases at a Domino’s Pizza restaurant. Some blind customers may require a driver to get to the restaurant or require assistance in navigating the restaurant. By contrast, if Dominos.com was accessible, a blind person could independently investigate products and programs and make purchases via the Internet as sighted individuals can and do. 48. Dominos.com thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use Dominos.com and who would otherwise be able to fully and equally enjoy the benefits and services of Domino’s Pizza restaurants in New York State. 50. As described above, Plaintiff has actual knowledge of the fact that Defendant’s website, Dominos.com contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually impaired individuals. 51. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Dominos.com and Domino’s Pizza Restaurants. 52. Domino’s Pizza 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. 53. Domino’s Pizza utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 54. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 56. Domino’s Pizza Restaurants located in New York State and throughout the United States are sales establishments and public accommodations within the definition of 42 U.S.C. § 12181(7)(E). Dominos.com is a service, privilege or advantage of Domino’s Pizza Restaurants. Dominos.com is a service that is by and integrated with these restaurants. 57. Defendant is subject to Title III of the ADA because they own and operate Domino’s Pizza Restaurants. 58. 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. 59. 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. 61. 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 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.” 62. 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 large 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 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. 63. 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 Domino’s Pizza Restaurants who are blind have been denied full and equal access to Dominos.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. 64. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 66. 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. 67. 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. 68. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 69. 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. 70. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 71. 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.” 73. Defendant is subject to New York Human Rights Law because they own and operate the Domino’s Pizza Restaurants and Dominos.com. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 74. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to Dominos.com, causing Dominos.com and the services integrated with Domino’s Pizza Restaurants 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. 75. Specifically, 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.” 76. 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.” 78. 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. Exc. 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. 79. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 81. The actions of Defendant 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. 82. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exc. Law § 297(4)(c) et seq. for each and every offense. 83. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 84. 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. 85. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 86. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 87. 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 …” 89. Domino’s Pizza located in New York State and throughout the United States are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Dominos.com is a service, privilege or advantage of Domino’s Pizza. Dominos.com is a service that is by and integrated with these restaurants. 90. Defendant is subject to New York Civil Rights Law because they own and operate Domino’s Pizza and Dominos.com. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 91. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to Dominos.com, causing Dominos.com and the services integrated with Domino’s Pizza 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. 92. 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 large 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 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. 94. Specifically, under NY Civ 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 …” 95. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 96. 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 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. 97. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every offense. 98. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein.

lose

(Breach of Contract) (Conversion) (Fraud) (Violation of New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2.2 et seq. ("NJCFA")) 12. In or about May 2017, Plaintiff received from Henkel check numbered 26263, drawn on the Alliance Bank of Arizona, in the amount of $5.49 to his address in Monmouth County, New Jersey, where the check was deposited at a Wells Fargo branch. The check was returned "unpaid" with the "Reason" noted that the check had been drawn on a "Closed Account." 13. Wells Fargo then imposed a $12.00 "returned deposit item fee" pursuant to prevailing banking practices and the terms of Wells Fargo's account agreements. 15. Plaintiff brings this action on behalf of himself and all persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of each of those provisions. The Class is defined as follows: All individuals who, commencing six years from the filing of this action, received a rebate check from Henkel that was returned "unpaid" by the bank in which it was deposited. Excluded from the Class are: (1) employees of the Defendants, including their officers or directors; (2) Defendants' affiliates, subsidiaries, or co-conspirators; and (3) the Court to which this case is assigned. 17. Plaintiff's claims are typical of, and not antagonistic to, the claims of the other Class members because Plaintiff was injured by Defendants' practices and by asserting his claims, Plaintiff will also advance the claims of all members of the Class who were damaged by the same wrongful conduct of Defendants and their co- conspirators as alleged herein, and the relief sought is common to the Class. 19. These common questions and others predominate over questions, if any, that affect only individual members of the Class. 20. The claims of the representative Plaintiff are typical of the claims of the Class. There are no material conflicts with any other member of the Class that would make class certification inappropriate. Plaintiff and counsel will fairly and adequately represent the interests of the Class. 21. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because individual litigation of the claims of all Class members is impracticable. Even if every Class member could afford individual litigation, the court system could not. It would be unduly burdensome on the courts if individual litigation of numerous cases would proceed. By contrast, the conduct of this action as a class action, with respect to some or all of the issues presented in this Complaint, presents fewer management difficulties, conserves the resources of the parties and of the court system, and protects the rights of each Class member. 23. Injunctive relief is appropriate as to the Class as a whole because Defendants have acted or refused to act on grounds generally applicable to the Class. 24. Whatever difficulties may exist in the management of the class action will be greatly outweighed by the benefits of the class action procedure, including, but not limited to, providing Class members with a method for the redress of claims that may otherwise not warrant individual litigation: Individual consumers typically lack the resources, ability, and knowledge to legally pursue their respective remedy after Henkel's wrongdoing and the relatively small amounts at issue would not warrant an attorney's involvement on an isolated claim. Accordingly, if a class were not certified, the alternative to a class action would be not be multiple individual actions, but rather no actions and Company would thereby have succeeded in committing——and continuing to commit——its wrongdoing with legal impunity. 26. Defendants deliberately and knowingly wrongfully issued checks that Defendants intended would be "unpaid" due to Defendants' closing of the account upon which the checks were drawn. 27. Defendants thereby obtained money of Plaintiff to which they are not legally entitled. 28. As a direct and proximate result of Defendants' conduct, Plaintiff and Class members have been damaged. 29. Plaintiff repeats and realleges each and every allegation set forth above as if fully set forth herein. 30. Defendants knowingly falsely stated that Plaintiff would receive a monetary rebate if the subject product were purchased while Defendants intended that checks would be "unpaid" due to Defendants' closing of the account upon which the checks were drawn. 31. Plaintiff relied on Defendants' stated inducement of a monetary rebate by purchasing the subject product. 32. Defendants deliberately and knowingly wrongfully closed the account on which the check had been drawn. 33. Defendants thereby obtained money of Plaintiff to which they are not legally entitled. 35. Plaintiff repeats and realleges each and every allegation set forth above as if fully set forth herein. 36. Defendants stated in the subject rebate campaign that a monetary rebate would be provided for purchase of the subject product. 37. Although Plaintiff purchased the subject product, Defendants deliberately closed the account on which the rebate check had been drawn. 38. Defendants thereby obtained money of Plaintiff to which they are not legally entitled. 39. As a direct and proximate result of Defendants' conduct, Plaintiff and Class members have been damaged. 40. Plaintiff repeats and realleges each and every allegation set forth above as if fully set forth herein. 42. Plaintiff relied on Defendants' stated inducement of a monetary rebate by purchasing the subject product. 43. Defendants deliberately and knowingly wrongfully closed the account on which the check had been drawn. 44. Defendants thereby obtained money of Plaintiff to which they are not legally entitled. 45. As a direct and proximate result of Defendants' conduct, Plaintiff has been damaged. 46. NJCFA provides for, inter alia, treble damages, attorneys' fees, penalties of $10,000.00 for the first violation and $20,000.00 for the second and every subsequent violation, and enhanced damages for violations perpetrated against Senior Citizens and/or persons suffering from a disability including a $30,000.00 for a scheme perpetrated against such vulnerable consumers. 47. Plaintiff is a Senior Citizen who suffered a cerebral vascular accident and has been receiving medical treatment for his "stroke" prior to the product purchase.

lose

18. To provide their services, HWS employed (and continues to employ) numerous waste disposal drivers—including Plaintiff Uribe and the individuals that make up the putative or potential class. 19. While exact job titles may differ, these employees were subjected to the same or similar illegal pay practices for similar work. 20. Plaintiff and the Putative Class Members’ primary job duties consisted of driving waste disposal trucks, hauling waste, recycling, and other refuse to various landfill or disposal sites throughout the Greater Houston areas. 21. Plaintiff Uribe was employed by HWS as a waste disposal driver from approximately March 2016 until October 2017. 22. Plaintiff and the Putative Class Members are non-exempt employees paid a piece- rate—that is, they were paid for each haul completed. 23. Specifically, Plaintiff Uribe received different dollar amounts for each haul, depending on the type of haul, but did not receive overtime compensation at the required rate of time-and-one- half for all hours worked over forty (40) each workweek. 24. Plaintiff and the Putative Class Members’ duties did not (and currently do not) include managerial responsibilities or the exercise of independent discretion or judgment. 25. Plaintiff and the Putative Class Members did not have the authority or discretion to vary or change their proscribed job duties and/or routes. 26. Plaintiff and the Putative Class Members did not have the authority to bind or represent the company financially. 28. Plaintiff and the Putative Class Members were not (and currently are not) responsible for making decisions regarding salary, pay, or other administrative matters. 29. Plaintiff and the Putative Class Members’ duties did not (and currently do not) concern work directly related to the management or general business operation s of HWS and/or its customers. 30. Rather, Plaintiff and the Putative Class Members were blue-collar waste disposal drivers. 31. Plaintiff Uribe worked an average of thirteen (13) to fifteen (15) hours per day, and six (6) to seven (7) days per week, but did not receive overtime compensation at the required rate of time- and-one-half for all hours worked over forty (40) each week. 32. HWS denied Plaintiff and the Putative Class Members overtime pay as a result of a widely applicable, illegal pay practice. Plaintiff and the Putative Class Members regularly worked in excess of forty (40) hours per week but never received overtime compensation. 33. HWS applied this pay practice despite clear and controlling law that states that the manual and routine duties which were performed by Plaintiff and the Putative Class Members consisted of non-exempt work. 34. The FLSA mandates that overtime be paid a one and one-half times an employee’s regular rate of pay. 35 Accordingly, HWS’ pay policies and practices violated (and continue to violate) the 38. All previous paragraphs are incorporated as though fully set forth herein. 39. The FLSA Collective is defined as: 56. All previous paragraphs are incorporated as though fully set forth herein. 57. Pursuant to 29 U.S.C. § 216(b), this is a collective action filed on behalf of HWS’s employees who are (or were) similarly situated to Plaintiff with regard to the work they performed and the manner in which they were paid. 58. Other similarly situated employees of HWS have been victimized by HWS’s patterns, practices, and policies, which are in willful violation of the FLSA. 60. HWS’s failure to pay Plaintiff and the Putative Class Members overtime compensation at the rates required by the FLSA, results from generally applicable policies and practices of HWS, and does not depend on the personal circumstances of Plaintiff or the Putative Class Members. 61. Thus, Plaintiff’s experiences are typical of the experiences of the Putative Class Members. 62. The specific job titles or precise job requirements of the various Putative Class Members does not prevent collective treatment. 63. All of the Putative Class Members—regardless of their specific job titles, precise job requirements, rates of pay, or job locations—are entitled to be properly compensated their overtime wages for all hours worked in excess of forty (40) each week. 64. Although the issues of damages may be individual in character, there is no detraction from the common nucleus of liability facts. 65. Absent a collective action, many members of the proposed FLSA collective likely will not obtain redress of their injuries and HWS will retain the proceeds of its violations. 66. Moreover, individual litigation would be unduly burdensome to the judicial system. Concentrating the litigation in one forum will promote judicial economy and parity among the claims of the individual members of the classes and provide for judicial consistency. 67. Accordingly, the FLSA collective of similarly situated plaintiffs should be certified as defined as in Paragraph 39 and notice should be promptly sent. VI. A. FLSA COVERAGE

lose

52. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 57. There are numerous questions of law and fact common to members of the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the members of the Class are: a) Whether Defendant made non-emergency calls to Plaintiff’s and Class members’ cellular telephones using an ATDS; b) Whether Defendant can meet its burden of showing that it obtained prior express written consent to make such calls; c) Whether Defendant’s conduct was knowing and willful; d) Whether Defendant is liable for damages, and the amount of such damages; and e) Whether Defendant should be enjoined from such conduct in the future. 63. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 64. 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). 65. 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. 66. 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. 67. 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. 68. 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. 70. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 71. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 72. 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. 73. 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. 74. 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)(C). 75. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violation of the TCPA, 47 U.S.C. § 227 (On Behalf of Plaintiff and the Do Not Call Registry Class) Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

lose

76. Plaintiff incorporates by reference the paragraphs above. 77. The Count alleges breaches of the duty of prudence against all Defendants. 78. During the Class Period, Defendants, had they properly discharged their fiduciary obligations, would have known that GEAM Funds were poorly performing and were managed by conflicted Trustees and investment advisors. 79. The defendants failed to conduct an appropriate investigation into whether GEAM Funds were and continued to be prudent investments for the Plan. 80. Because Defendants should have known that GEAM Funds were not a prudent investment options for the Plan, they had a fiduciary duty to protect the Plan and its participants from unreasonable and entirely predictable losses incurred as a result of the Plan’s investment in GEAM Funds. 81. Defendants had available to them several different options for satisfying this duty, including: making appropriate public disclosure, as necessary; divesting the Plan of GEAM Funds; discontinuing further contributions to and/or investment in GEAM Funds under the Plan; consulting independent fiduciaries regarding appropriate measures to take in order to prudently and loyally serve the participants of the Plan; and/or resigning as fiduciaries of the Plan to the extent that as a result of their employment by GEAM they could not loyally serve the Plan and its participates in connection with the Plan’s acquisition and holding of GEAM Funds. 83. According to DOL regulations and case law interpreting this statutory provision, a fiduciary's investment or investment course of action is prudent if (a) he has given appropriate consideration to those facts and circumstances that, given the scope of such fiduciary's investment duties, the fiduciary knows or should know are relevant to the particular investment or investment course of action involved, including the role the investment or investment course of action plays in that portion of the plan's investment portfolio with respect to which the fiduciary has investment duties; and (b) he has acted accordingly. 85. As a consequence of these Defendants' breaches of fiduciary duties alleged in this Count, the Plan suffered significant losses. If these Defendants had discharged their fiduciary duties of prudently invest the Plan's assets, the losses suffered by the Plan would have minimized or avoided. Therefore, as a direct and proximate result of the breaches of fiduciary duty alleged herein, the Plan, and indirectly Plaintiff and the other Class members, on information and belief, lost hundreds of millions of dollars of retirement savings. 86. Pursuant to ERISA §§409, 502(a)(2), 29 U.S.C. §§1109(a), 1132(a)(2), these defendants are liable to restore the losses to the Plan caused by their breaches of fiduciary duties alleged in this Court and to provide other equitable relief appropriate. 87. Plaintiff repeats and realleges each of the allegations set forth in the foregoing paragraphs as if fully set forth herein. 88. The Count alleges fiduciary breach against Defendants Trustees (the “Investment Oversight Defendants”) 89. The Investment Oversight Defendants are directly responsible for selecting, monitoring, and removing investment options in the Plans. 90. The Investment Oversight Defendants caused the Plans to invest billions of dollars in investment options managed by GEAM favoring exclusively the proprietary investment options of the GEAM Funds for certain asset classes. 92. By the conduct and omissions described above, the Investment Oversight Defendants failed to discharge their duties with respect to the Plans solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and beneficiaries and defraying reasonable expenses of administering the Plans, in violation of BRISA§ 404(a)(l)(A), 29 U.S.C. § 1104(a)(l)(A). 93. The Investment Oversight Defendants failed to discharge their duties with respect to the Plans with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims, in violation of ERISA §404(a)(1)(B), 29 U.S.C. §1104(a)(1)(B). 94. As a direct and proximate result of these breaches of fiduciary duties, the Plans and their participants have paid GEAM, directly and indirectly, substantial investment management and other fund-related fees during the Class Period, and suffered lost-opportunity costs which continue to accrue, for which the Investment Oversight Defendants are jointly and severally liable pursuant to ERISA § 409, 29 U.S.C § 1109, and ERISA § 502(a)(2), 29 U.S.C §1132(a)(2). 95. Plaintiff repeats and realleges each of the allegations set forth in the foregoing paragraphs as if fully set forth herein. 96. This count alleges prohibited transactions against all Defendants. 98. The Defendants caused the Plans to engage in prohibited transactions under ERISA with each purchase of investment shares from GEAM Funds and payment by the Plans of fees to GEAM in connection with the Plans' investment in a GEAM-affiliated investment option. Disloyal Conduct In Connection With Investments Failure To Prudently Manage The Plan And Assets Of The Plan (Against All Defendants) Prohibited Transactions In Connection With Investments

lose

19. Plaintiff brings this action on behalf of all similarly situated individuals who are currently or were formerly employed by Defendant as RNs and individuals holding comparable non-exempt positions with different titles at any time within three years prior to the filing of this Complaint (“the Collective Action Period”), and who worked “off the clock” and did not receive any compensation, and/or worked overtime but did not receive overtime compensation at a rate of 1 and ½ times their regular rate of pay. 20. Plaintiff seeks to prosecute her FLSA claim as a Collective Action on behalf of herself and all other similarly situated Collective Action Members during the Collective Action Period, pursuant to 29 U.S.C. § 216(b). 21. Defendant is liable under the FLSA for, inter alia, failing to properly compensate Plaintiff and the Collective Action Members. 23. The similarly situated RNs are known to Defendant, are readily identifiable, and can be located through Defendant’s records. Therefore, notice should be sent to the Collective Action Members pursuant to 29 U.S.C. § 216(b). 24. When Plaintiff was hired, Defendant gave her an offer letter that stated “You will not to [sic] exceed 40 hours per work week.” 25. However, Plaintiff regularly worked in excess of 40 hours per week while employed by Defendant. 26. Defendant required that Plaintiff sign forms stating that she “must be available to clients 24 hours a day and 7 days per week. Therefore, it is a requirement to have an operational vehicle, internet ready computer and a mobile phone to be able to respond to calls or messages within 1 hour from the agency or any client.” 28. Defendant is aware that Plaintiff and similarly situated individuals worked “off the clock” and worked in excess of 40 hours per week because it directed them to perform this work. 29. Defendant had a policy and practice of routinely adjusting and limiting the billing hours entered by Plaintiff and similarly situated individuals, causing them not to be compensated for all the hours that they worked. 30. In April 2014, Plaintiff Morton complained to CEO Omar Green that she was not paid for all the hours that she worked. 32. On May 30, 2014, Plaintiff Morton sent a text message to Cityside’s Keisha Palmer complaining that she was “not paid for more than 20 hours of nursing services [she] put into the system for the week of May 19.” 33. Three hours after Plaintiff Morton engaged in this protected conduct, Defendant terminated Plaintiff. 34. During the relevant time period, Defendant classified Plaintiff and the Collective Action Members as non-exempt employees and they were paid by the hour. 35. Consistent with Defendant’s policy, pattern, and/or practice, Plaintiff and the Collective Action Members (i) regularly worked in excess of 40 hours per workweek without being paid at a rate of 1 ½ times their regular rate of pay, in violation of the FLSA; and (ii) regularly worked “off the clock” without receiving any compensation, in violation of the FLSA. 37. Defendant failed to accurately record time worked, and failed to provide accurate wage statements to Plaintiff and the Collective Action Members identifying all the hours that they worked. 38. Plaintiff and the Collective Action Members are similarly situated under the FLSA because: (1) they shared common job duties; (2) they shared a common job description; (3) they were all classified by Defendant as non-exempt employees under the FLSA; (4) they regularly worked in excess of 40 hours per week; (5) they regularly worked “off the clock” for Defendant; and (6) they did not receive overtime compensation at a rate of 1 ½ times their regular rate of pay. 39. Defendant’s failure to pay Plaintiff and the Collective Action Members overtime at a rate of 1 ½ times their regular rate for all hours worked in excess of 40 per week was willful and in bad faith. 40. At all relevant times, Defendant knew or should have known that its wage and hour practices were improper, and that the FLSA required it to pay its employees an overtime premium for hours worked in excess of 40 per workweek, yet it continued to violate the FLSA. 42. Plaintiff, on behalf of herself and the Collective Action Members, re- allege and incorporate by reference all prior paragraphs of the Complaint. 43. At all relevant times, Defendant employed Plaintiff, and employed or continues to employ, the Collective Action Members. 44. The overtime wage provisions set forth in the FLSA apply to Defendant, Plaintiff, and the Collective Action Members. 45. Plaintiff consents in writing to be a party to this action, pursuant to 29 U.S.C. § 216(b). 46. As a result of Defendant’s willful failure to compensate Plaintiff and the Collective Action Members at a rate not less than 1 ½ times the regular rate of pay for work performed in excess of 40 hours in a workweek, as well as for all hours worked by them, Defendant has violated and, continues to violate the FLSA, 29 U.S.C. §§ 201 et seq. 48. As a result of Defendant’s actual knowledge, through Plaintiff’s supervisors, that Plaintiff and the Collective Action Members were performing work in excess of 40 hours per workweek, and Defendant’s policy and practice that did not allow Plaintiff and the Collective Action Members to record all hours worked, Defendant willfully violated the FLSA. 49. Because Defendant’s violations of the FLSA were willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255. 50. Defendant did not make a good faith effort to comply with the FLSA with respect to its compensation of Plaintiff and the Collective Action Members. 52. Plaintiff re-alleges and incorporates by reference all prior paragraphs of the Complaint. 53. Plaintiff engaged in activity protected by the FLSA. 54. Defendant subjected Plaintiff to an adverse job action when it terminated Plaintiff. 55. Defendant terminated Plaintiff for engaging in activity protected by the FLSA. 56. Defendant’s retaliatory conduct injured Plaintiff. 57. Defendant intentionally and willfully violated the FLSA by terminating Plaintiff. FAIR LABOR STANDARDS ACT: RETALIATORY DISCRIMINATION AND DISCHARGE UNDER 29 U.S.C. § 215(a)(3) (Brought on Behalf of Plaintiff) FAIR LABOR STANDARDS ACT: UNPAID OVERTIME WAGES (Brought on Behalf of Plaintiff and All Collective Action Members)

win

1.1(d). 10. The alleged debt is a “debt” as defined by 15 U.S.C. §1692a(5) and 23 NYCRR § 12. Within the one (1) year preceding the filing of this complaint, Defendant communicated and/or attempted to communicate with Plaintiff in an attempt to collect the alleged debt. 13. On or about May 20, 2015, Defendant mailed or caused to be mailed to Plaintiff a collection or “dunning” letter via U.S. Mail in an attempt to collect the alleged debt from Plaintiff (“letter”). The letter is attached to this complaint as Exhibit A. 14. Collection/“dunning” letters in the year prior to the filing of the instant action between the Plaintiff and the Defendant and / or employee(s) of the Defendant regarding the alleged debt each constituted a “communication” as defined by FDCPA § 1692a(2). 15. Collection/“dunning” letters in the year prior to the filing of the instant action between the Plaintiff and the Defendant and / or employee(s) of the Defendant regarding the alleged debt each conveyed information regarding the alleged debt directly or indirectly to the Plaintiff. 16. Defendant’s letter is a form letter that Defendant directs at hundreds, if not thousands of consumers within the State of New York. 17. Defendant’s letter states, in relevant part: 52. Plaintiff brings this claim on behalf of a class pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3). 53. 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. 54. On information and belief, the class is so numerous that joinder of all members is not practicable. 56. Plaintiff’s claim is typical of the claims of the class members. All are based on the same factual and legal theories. 57. Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and FDCPA litigation. 58. A class action is superior for the fair and efficient adjudication of this matter, in that: a. Individual actions are not economically feasible, b. Members of the class are likely to be unaware of their rights, and c. Congress intended class actions to be the principal enforcement mechanism under the FDCPA. 8. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered “1” through “7” herein with the same force and effect as if the same were set forth at length herein. 9. On information and belief, Defendant, on behalf of LVNV Funding, LLC, began collecting an alleged consumer debt from the Plaintiff originating with Capital One Bank (USA), N.A. (“the alleged debt”). Current Creditor: LVNV Funding, LLC Original Creditor: Capital One Bank (USA), N.A. Original Account #: ***********1400 Current Balance Due: $1,418.99

lose

13. Plaintiff brings this claim on behalf of the following class, 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 it attempts to collect and/or has 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 Defendant’s written communications to consumers, in the form 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. 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 allegations as if set forth here. 23. Some time prior to December 2, 2020, Plaintiff allegedly incurred an obligation to non-party Bucking Horse Emergency Physicians, LLC (“Bucking Horse”). 24. The obligation arose out of transactions incurred primarily for personal, family, or household purposes, specifically medical services. 25. The alleged Bucking Horse obligation is a "debt" as defined by 15 U.S.C.§ 1692a (5). 26. Bucking Horse is a "creditor" as defined by 15 U.S.C.§ 1692a (4). 27. According to Defendants’ letter, Pendrick is the current creditor of the Bucking Horse debt. 28. Pendrick collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of itself or other creditors using the United States Postal Services, telephone and internet. 29. Pendrick is a debt buyer. 30. Pendrick purchases or otherwise acquires consumer debt from creditor(s). 32. Debt Recovery was collecting the Bucking Horse account on behalf of Pendrick. 33. Pendrick hired Debt Recovery to collect this consumer debt. 34. Debt Recovery collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation – December 2, 2020 Collection Letter 35. On or about December 2, 2020, Defendants sent Plaintiff a collection letter regarding the alleged debt. See Letter attached as Exhibit A. 36. The letter states that “The law limits how long you can be sued on a debt. Because of the age of your debt(s), the current creditor cannot sue you for it.” 37. The letter further states, “Should you choose to make a payment for less than the discounted offer it may be considered a partial payment and re-start the statute of limitations”. 38. This statement is false, since under applicable law, the statute of limitations on the alleged debt cannot be restarted by making a payment at all. See, Tex. Fin. Code Ann. § 392.307(d). 39. Plaintiff was misled as to her rights. 40. Plaintiff was misled into believing that making a partial payment or promise to pay would restart the statute of limitation. 41. Defendant’s actions were false, deceptive, and/or misleading. 42. Plaintiff was concerned and confused by the Letter. 43. Plaintiff was therefore unable to evaluate her options of how to handle this debt. 45. Plaintiff was hesitant to make a partial payment due in part to Defendant’s false claim that such a payment would restart the statute of limitation. 46. In addition, Plaintiff suffered emotional harm due to Defendant’s improper acts. 47. These violations by Defendants were knowing, willful, negligent and/or intentional, and the Defendants did not maintain procedures reasonably adapted to avoid any such violations. 48. Defendant’s collection efforts with respect to this alleged debt from Plaintiff caused Plaintiff to suffer concrete and particularized harm, inter alia, because the FDCPA provides Plaintiff with the legally protected right to be not to be misled or treated unfairly with respect to any action for the collection of any consumer debt. 49. Defendant’s deceptive, misleading and unfair representations with respect to its collection efforts were material misrepresentations that affected and frustrated Plaintiff's ability to intelligently respond to Defendant’s collection efforts because Plaintiff could not adequately respond to Defendant’s demand for payment of this debt. 50. Defendant’s actions created an appreciable risk to Plaintiff of being unable to properly respond or handle Defendant’s debt collection. 51. Plaintiff was confused and misled to her detriment by the statements in the dunning letter, and relied on the contents of the letter to her detriment. 52. Plaintiff would have pursued a different course of action were it not for Defendant’s statutory violations. 53. As a result of Defendant’s deceptive, misleading and false debt collection practices, Plaintiff has been damaged. 54. Plaintiff repeats the allegations above as if set forth here. 55. 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. 56. 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. 57. Defendants violated said section as described above, by making false or misleading representations in violation of §§ 1692e, 1692e (2)(A), 1692e (5) & 1692e (10). 58. By reason thereof, Defendants 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. 59. Plaintiff repeats the allegations above as if set forth here. 60. Alternatively, 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. § 1692f. 61. 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. 62. Defendants violated this section by unfairly misrepresenting that the time period for filing suit may renew. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq.

win

Discrimination and Termination of Employment Because of Pregnancy [Violation of New York City Human Rights Law as amended by the New York City Pregnant Workers Fairness Act and N.Y.C. Admin. Code §§ 8-101 et seq., 8- 107(22)] (Against All Defendants) 117. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 118. The New York City Human Rights Law prohibits any employer or an employee or an agent thereof from discriminating against an employee in the terms and conditions of her employment and discharging an employee based Plaintiff’s disability and perceived disability due to her pregnancy and related medical condition. N.Y. C. Admin. Code § 8-107(1)(a). 119. As outlined above, Defendants discriminated against Plaintiff in the terms and conditions of her pregnancy and by terminating her employment. 120. In doing so, Defendants acted with willful, wanton, and reckless disregard for Ms. Romero’s rights to be free from discrimination because of pregnancy. 121. Plaintiff is entitled to damages as a result of Defendants’ unlawful acts, including lost wages and benefits, damages to compensate her for past and future physical and emotional distress, punitive damages, reasonable attorneys’ fees and costs of this action, and pre-judgment interest. Prayer For Relief 23 WHEREFORE, Plaintiff, on behalf of herself and the FLSA collective members, respectfully requests that this court enter a judgment providing the following relief: a) Authorizing Plaintiff at the earliest possible time to give notice of this collective action, or that the court issue such notice, to all persons who are presently, or have been employed by defendants as non-exempt tipped or non-tipped employees. Such notice shall inform them that the civil notice has been filed, of the nature of the action, of their right to join this lawsuit if they believe they were denied proper hourly compensation and overtime wages; b) Certification of this case as a collective action pursuant to FLSA; c) Issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated members of the FLSA opt-in class, apprising them of the pendency of this action, and permitting them to assert timely FLSA claims and state claims in this action by filing individual Consent to Sue forms pursuant to 29 U.S.C. § 216(b), and appointing Plaintiff and his counsel to represent the Collective Action Members; d) A declaratory judgment that the practices complained of herein are unlawful under FLSA and New York Labor Law; e) An injunction against E-Z Recycling Services Inc., New Colony Enterprise Inc., its officers, agents, successors, employees, representatives and any and all persons acting in concert with them as provided by law, from engaging in each of unlawful practices and policies set forth herein; f) An award of unpaid wages and minimum wages due Plaintiff and the Collective Action members under the FLSA and New York Labor Law, plus compensatory and liquidated damages in the amount of twenty five percent under NYLL §§190 et seq., §§650 et seq., and one hundred percent after April 9, 2011 under NY Wage Theft Prevention Act, and interest; 24 g) An award of unpaid overtime wages due under FLSA and New York Labor Law, plus compensatory and liquidated damages in the amount of twenty five percent under NYLL §§190 et seq., §§650 et seq., and one hundred percent after April 9, 2011 under NY Wage Theft Prevention Act, and interest; h) An award of unpaid “spread of hours” premium due under the New York Labor Law; i) An award of damages for Defendants’ failure to provide wage notice at the time of hiring as required under the New York Labor Law. j) An award of liquidated and/or punitive damages as a result of Defendants’ knowing and willful failure to pay minimum wages and overtime compensation pursuant to 29 U.S.C. §216; k) An award of liquidated and/or punitive damages as a result of Defendants’ willful failure to pay minimum wages, overtime compensation and “spread of hours” premium pursuant to New York Labor Law; l) An award of costs and expenses of this action together with reasonable attorneys’ and expert fees pursuant to 29 U.S.C. §216(b) and NYLL §§198 and 663; m) The cost and disbursements of this action; n) An award of prejudgment and post-judgment fees; o) Providing that if any amounts remain unpaid upon the expiration of ninety days following the issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent, as required by NYLL §198(4); and p) Such other and further legal and equitable relief as this Court deems necessary, just, and proper. 25 Dated: Flushing, New York May 15, 2017 Discrimination and Termination of Employment Because of Pregnancy [Violation of New York City Human Rights Law as amended by the New York City Pregnant Workers Fairness Act and N.Y.C. Admin. Code§§ 8-101 et seq., 8- 107(22)] (Against All Defendants) 112. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 113. The Pregnancy Discrimination Act prohibits discrimination in the terms and conditions of employment and the discharge of an employee based on the employee’s pregnancy. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). 114. As outlined above, Defendants discriminated against Plaintiff in the terms and conditions of her pregnancy and by terminating her employment. 115. In doing so, Defendants acted maliciously and with reckless indifference to Plaintiff’s right to be free from discrimination based on her pregnancy. 22 116. Plaintiff is entitled to damages as a result of Defendants’ unlawful acts, including lost wages and benefits, damages to compensate her for past and future physical and emotional distress, punitive damages, reasonable attorneys’ fees and costs of this action, and pre-judgment interest. [Violation of New York Labor Law—Time of Hire Wage Notice Requirement] 105. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 106. The Defendants failed to furnish to the Plaintiff at the time of hiring a notice containing the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer’s main office or principal place of business, and a mailing address if different; the telephone number of the employer, and anything otherwise required by law; in violation of the NYLL, § 195(1). 107. Due to the defendants’ violation of the NYLL, § 195(1) each Plaintiff is entitled to recover from Defendants, jointly and severally, $50 for each workday that the violation occurred or continued to occur, up to $5,000, together with costs and attorneys’ fees pursuant to New York Labor Law. N.Y. Lab. Law §198(1-b). [Violations of the Fair Labor Standards Act—Overtime Wage Brought on behalf of the Plaintiff and the FLSA Collective] 34. Defendants committed the following alleged acts knowingly, intentionally and willfully. 35. Defendants knew that the nonpayment of minimum wage, overtime pay, spread of hours pay, and failure to provide the required wage notice at the time of hiring would financially injure Plaintiff and similarly situated employees and violate state and federal laws. 8 Plaintiff Maria Romero: 36. From May 2009 to June 2016 Plaintiff was hired by Defendants to work as recycling working for Defendants’ recycling business located at 102-17 44th Ave. Corona, NY 11368. 37. From May 2009 to June 2016, Plaintiff worked starting at 8:30 a.m. to 6:30 p.m. six days per week. Plaintiff took one day off each week. Plaintiff regularly worked at least sixty (60) hours per week. 38. Plaintiff was paid at a weekly flat rate of $360.00, in cash. 39. The applicable minimum wage for the relevant periods are: a. January 1, 2007 to July 23, 2009 period was $7.15 per hour. b. July 24, 2009 to December 30, 2013 period was $7.25 per hour. c. December 31, 2013 to December 30, 2014 period was $8.00 per hour. d. December 31, 2014 to December 30, 2015 period was $8.75 per hour. e. December 31, 2015 to December 30, 2016 period was $9.00 per hour. 40. Defendants did not compensate Plaintiff for minimum wage or overtime compensation according to state and federal laws. 41. Plaintiff was not provided any uninterrupted breaks or any time for meals. 42. Plaintiff was not provided any sick leave. 43. Plaintiff was not required to utilize any means of recording or verifying their hours worked (e.g. punch clock, sign-in sheet, fingerprint or ID scanner). 44. Defendants did not compensate Plaintiff overtime compensation according to state and federal laws. 9 45. Plaintiff was not compensated for New York’s “spread of hours” premium for shifts that lasted longer than ten (10) hours, one day each week. 46. Defendants did not provide Plaintiff with a wage notices at the time of her hiring. 47. Defendants committed the following alleged acts knowingly, intentionally and willfully. 48. Defendants knew that the nonpayment of minimum wages, overtime and the “spread of hours” premium would economically injure Plaintiff and the Collective Members by their violation of federal and state laws. 49. While employed by Defendants, Plaintiff was not exempt under federal and state laws requiring employers to pay employees overtime. 50. Plaintiff and the FLSA Collective Action Members’ workdays frequently lasted longer than 10 hours. 51. Defendants did not pay Plaintiff and other Collective Action members’ New York’s “spread of hours” premium for every day in which they worked over 10 hours. 52. Defendants failed to keep full and accurate records of Plaintiff’s hours and wages. 53. Defendants did not provide Plaintiff and other Collective Action Members with written notices about the terms and conditions of their employment upon hire in relation to their rate of pay, regular pay cycle and rate of overtime pay. These notices were similarly not provided upon Plaintiff and other Collective Members’ pay increase(s). Pregnancy Discrimination 54. On or about the end of April, Plaintiff informed Defendants that she was pregnant and will soon be required to take time off from work due to the pregnancy. 10 55. Defendant Jinlong Gao informed Plaintiff she can take the time she needs and when she returns her job will still be available for her. 56. On or about June 2016, Plaintiff informed Defendant Jinlong Gao of her intent on taking maternity leave and an approximate time when she would return to work. Defendant Jinlong Gao reassured Plaintiff her job will be available when she returns. 57. On or about March 2017 Plaintiff contacted Defendants with the intent to return to work, she was denied the opportunity and was informed the position has been filed. 58. Defendants acted willfully and with malice, in conscious and deliberate disregard of Plaintiff’s health and interests. 59. Defendants knowingly and willfully operated their business with a policy of not paying either the FLSA minimum wage or the New York State minimum wage to Plaintiff or other similarly situated employees. 60. Defendants knowingly and willfully operated their business with a policy of not paying Plaintiff and other similarly situated employees either the FLSA overtime rate (of time and one-half), or the New York State overtime rate (of time and one-half), in violation of the FLSA and New York Labor Law and the supporting federal and New York State Department of Labor Regulations. 61. Defendants knowingly and willfully operated their business with a policy of not paying the New York State “spread of hours” premium to Plaintiff and other similarly situated employees. 62. Plaintiff brings this action individually and on behalf of all other and former non- exempt employees who have been or were employed by the Defendants at each of their warehouse 11 locations for up to the last three (3) years, through entry of judgment in this case (the “Collective Action Period”) and whom failed to receive minimum wages, spread-of-hours pay, and/or overtime compensation for all hours worked in excess of forty (40) hours per week (the “Collective Action Members”), and have been subject to the same common decision, policy, and plan to not provide required wage notices at the time of hiring, in contravention to federal and state labor laws. 63. Upon information and belief, the Collection Action Members are so numerous the joinder of all members is impracticable. The identity and precise number of such persons are unknown, and the facts upon which the calculations of that number may be ascertained are presently within the sole control of the Defendants. Upon information and belief, there are more than fifteen (15) Collective Action Members, who have worked for or have continued to work for the Defendants during the Collective Action Period, most of whom would not likely file individual suits because they fear retaliation, lack adequate financial resources, access to attorneys, or knowledge of their claims. Therefore, Plaintiff submits that this case should be certified as a collection action under the FLSA, 29 U.S.C. §216(b). 64. Plaintiff will fairly and adequately protect the interests of the Collective Action Members, and have retained counsel that is experienced and competent in the field of employment law and class action litigation. Plaintiff has no interests that are contrary to or in conflict with those members of this collective action. 65. This action should be certified as collective action because the prosecution of separate action by individual members of the collective action would risk creating either inconsistent or varying adjudication with respect to individual members of this collective that would as a practical matter be dispositive of the interest of the other members not party to the adjudication, or subsequently impair or impede their ability to protect their interests. 12 66. A collective action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual Collective Action Members may be relatively small, the expense and burden of individual litigation makes it virtually impossible for the members of the collective action to individually seek redress for the wrongs done to them. There will be no difficulty in the management of this action as collective action. 67. Questions of law and fact common to members of the collective action predominate over questions that may affect only individual members because Defendants have acted on grounds generally applicable to all members. Among the questions of fact common to Plaintiff and other Collective Action Members are: a. Whether the Defendants employed Collective Action members within the meaning of the FLSA; b. Whether the Defendants failed to pay the Collective Action Members the minimum wage in violation of the FLSA and the regulations promulgated thereunder; c. Whether the Defendants failed to pay the Collective Action Members overtime wages for all hours worked above forty (40) each workweek in violation of the FLSA and the regulation promulgated thereunder; d. Whether the Defendants failed to pay the Collective Action Members spread of hours payment for each day an employee worked over 10 hours; e. Whether the Defendants failed to provide the Collective Action Members with a wage notice at the time of hiring as required by the NYLL; 13 f. Whether the Defendants’ violations of the FLSA are willful as that term is used within the context of the FLSA; and, g. Whether the Defendants are liable for all damages claimed hereunder, including but not limited to compensatory, punitive, and statutory damages, interest, costs and disbursements and attorneys’ fees. 68. Plaintiff knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a collective action. 69. Plaintiff and others similarly situated have been substantially damaged by Defendants’ unlawful conduct. 70. Plaintiff brings her NYLL claims pursuant to Federal Rules of Civil Procedure (“F. R. C. P.”) Rule 23, on behalf of all non-exempt persons employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (the “Class Period”). 71. All said persons, including Plaintiff, are referred to herein as the “Class.” The Class members are readily ascertainable. The number and identity of the Class members are determinable from the records of Defendants. The hours assigned and worked, the positions held, and the rate of pay for each Class Member is also determinable from Defendants’ records. For purpose of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under said F.R.C.P 23. 72. The proposed Class is so numerous that joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parities and the Court. Although the precise number of such persons is unknown, and the facts on which the calculation of the number 14 is presently within the sole control of the Defendants, upon information and belief, there are more than ten (10) members of the class. 73. Plaintiff’s claims are typical of those claims which could be alleged by any member of the Class, and the relief sought is typical of the relief that would be sought by each member of the Class in separate actions. All the Class members were subject to the same corporate practices of Defendants, as alleged herein, of failing to pay minimum wage, and overtime compensation. Defendants’ corporation wide policies and practices, including but not limited to their failure to provide a wage notice at the time of hiring, affected all Class members similarly, and Defendants benefited from the same type of unfair and/ or wrongful acts as to each Class member. Plaintiff and other Class members sustained similar losses, injuries and damages arising from the same unlawful policies, practices and procedures. 74. Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiff are represented by attorneys who are experienced and competent in representing Plaintiff in both class action and wage and hour employment litigation cases. 75. 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 Class members lack the financial resources to vigorously prosecute corporate defendants. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expenses that numerous individual actions engender. The losses, injuries, and damages suffered by each of the individual Class members are small in the sense pertinent to a class action analysis, thus the expenses and burden of individual litigation 15 would make it extremely difficult or impossible for the individual Class members to redress the wrongs done to them. Further, 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 Class would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Class, establishing incompatible standards of conduct for Defendants 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. 76. Upon information and belief, defendants and other employers throughout the state violate the New York Labor Law. 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. 77. There are questions of law and fact common to the Class which predominate over any questions affecting only individual class members, including: a. Whether Defendants employed Plaintiff and the Class within the meaning of the New York law; b. Whether Defendants paid Plaintiff and Class members the New York minimum wage for all hours worked; 16 c. Whether Plaintiff and Class members are entitled to overtime under the New York Labor Law; d. Whether Defendants maintained a policy, pattern and/or practice of failing to pay e. Plaintiff and the Rule 23 Class spread-of-hours pay as required by the 78. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 79. At all relevant times, upon information and belief, Defendants have been, and continue to be, “employers” engaged in interstate “commerce” and/or in the production of “goods” for “commerce,” within the meaning of the FLSA, 29 U.S.C. §§206(a) and §§207(a). Further, Plaintiff is covered within the meaning of FLSA, U.S.C. §§206(a) and 207(a). 80. At all relevant times, Defendants employed “employees” including Plaintiff, within the meaning of FLSA. 17 81. Upon information and belief, at all relevant times, Defendants have had gross revenues in excess of $500,000. 82. The FLSA provides that any employer engaged in commerce shall pay employees the applicable minimum wage. 29 U.S.C. § 206(a). 83. At all relevant times, Defendants had a policy and practice of refusing to pay the statutory minimum wage to Plaintiff, and the collective action members, for some or all of the hours they worked. 84. The FLSA provides that any employer who violates the provisions of 29 U.S.C. §206 shall be liable to the employees affected in the amount of their unpaid minimum compensation, and in an additional equal amount as liquidated damages. 85. Defendants knowingly and willfully disregarded the provisions of the FLSA as evidenced by failing to compensate Plaintiff and Collective Class Members at the statutory minimum wage when they knew or should have known such was due and that failing to do so would financially injure Plaintiff and Collective Action members. 86. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 87. At all relevant times, Plaintiff were employed by Defendants within the meaning of New York Labor Law §§2 and 651. 88. Pursuant to the New York Wage Theft Prevention Act, an employer who fails to pay the minimum wage shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to the total of such under-payments found to be due the employee. 18 89. Defendants knowingly and willfully violated Plaintiff’s and Class Members’ rights by failing to pay them minimum wages in the lawful amount for hours worked. 90. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 91. The FLSA provides that no employer engaged in commerce shall employ a covered employee for a work week longer than forty (40) hours unless such employee receives compensation for employment in excess of forty (40) hours at a rate not less than one and one-half times the regular rate at which he or she is employed, or one and one-half times the minimum wage, whichever is greater. 29 USC §207(a). 92. The FLSA provides that any employer who violates the provisions of 29 U.S.C. §207 shall be liable to the employees affected in the amount of their unpaid overtime compensation, and in an additional equal amount as liquidated damages. 29 USC §216(b). 93. Defendants’ failure to pay Plaintiff and the FLSA Collective their overtime pay violated the FLSA. 94. At all relevant times, Defendants had, and continue to have, a policy of practice of refusing to pay overtime compensation at the statutory rate of time and a half to Plaintiff and Collective Action Members for all hours worked in excess of forty (40) hours per workweek, which violated and continues to violate the FLSA, 29 U.S.C. §§201, et seq., including 29 U.S.C. §§207(a)(1) and 215(a). 95. The FLSA and supporting regulations required employers to notify employees of employment law requires employers to notify employment law requirements. 29 C.F.R. §516.4. 19 96. Defendants willfully failed to notify Plaintiff and FLSA Collective of the requirements of the employment laws in order to facilitate their exploitation of Plaintiff’s and FLSA Collectives’ labor. 97. Defendants knowingly and willfully disregarded the provisions of the FLSA as evidenced by their failure to compensate Plaintiff and Collective Members the statutory overtime rate of time and one half for all hours worked in excess of forty (40) per week when they knew or should have known such was due and that failing to do so would financially injure Plaintiff and Collective Action Members. [Violation of New York Labor Law—Spread of Hour Pay] 102. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 20 103. The NYLL requires employers to pay an extra hour’s pay for every day that an employee works an interval in excess of ten hours pursuant to NYLL §§190, et seq., and §§650, et seq., and New York State Department of Labor regulations §146-1.6. 104. Defendants’ failure to pay Plaintiff’s and FLSA Collective spread-of-hours pay was not in good faith. [Violations of the Fair Labor Standards Act—Minimum Wage Brought on behalf of the Plaintiff and the FLSA Collective] [Violation of New York Labor Law—New York Pay Stub Requirement] 108. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as 21 though fully set forth herein. 109. The NYLL and supporting regulations require employers to provide detailed paystub information to employees every payday. NYLL §195-1(d). 110. Defendants have failed to make a good faith effort to comply with the New York Labor Law with respect to compensation of each Plaintiff, and did not provide the pay stub on or after each Plaintiff’s payday. 111. Due to Defendants’ violations of New York Labor Law, Plaintiff is entitled to recover from Defendants, jointly and severally, $250 for each workday of the violation, up to $5,000 for Plaintiff for costs and attorneys’ fees pursuant to New York Labor Law N.Y. Lab. Law §198(1-d). [Violation of New York Labor Law—Minimum Wage Brought on behalf of Plaintiff and Rule 23 Class]

win

10. Defendant Message Center is in the business of providing answering services to healthcare professionals. 11. Defendant Message Center sent fax advertisements promoting Message Center’s answering services. 13. Plaintiff and Class members did not give their prior express consent to receive fax messages from Defendant, or phone calls of any kind, nor did they desire to receive such fax advertisements. 14. Plaintiff Tim Huckabee DDS, PA is a dentist located in Texas. 15. On January 19, 2016, Plaintiff received a fax message from Defendant. See Figure 1 (showing a copy of the Message Center’s fax advertisement sent to Plaintiff). (Figure 1.) 17. Plaintiff did not have any type of an established business relationship with Defendant Message Center. 18. Defendant was and is aware that the unsolicited fax advertisements at issue were (and are continuing to be) sent, and that the faxes were being transmitted to consumers and entities that had not consented to receive them. 20. Numerosity: The exact size of 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, Defendant has sent unsolicited fax advertisements to thousands of consumers and entities that fall into the definition of the Class. Members of the Class can be identified through Defendant’s records. 21. Commonality and Predominance: There are several 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 and predominant questions for the Class include, but are not necessarily limited to, the following: (a) whether Defendant’s conduct violated the TCPA; (b) whether Defendant’s fax messages constitute unsolicited advertisements; (c) whether Defendant systematically sent fax advertisements to members of the Class who did not previously provide Defendant with their prior express consent to receive such faxes; and (d) whether members of the Class are entitled to treble damages based on the willfulness of Defendant’s conduct. 22. Typicality: Plaintiff’s claims are typical of the claims of the other members of the Class in that Plaintiff and the members of the Class sustained the same injuries arising out of Defendant’s uniform wrongful conduct and transmission of unsolicited fax advertisements. 24. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendant has acted or refused to act on grounds generally applicable to the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the members of the Class, and making final injunctive relief appropriate with respect to the Class as a whole. Defendant’s policies challenged herein apply and affect members of the Class uniformly and Plaintiff’s challenge of these policies hinges on Defendant’s conduct with respect to the Class as a whole, not on facts or law applicable only to Plaintiff. Defendant has acted and failed to act on grounds generally applicable to Plaintiff and the other members of the Class, requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward members of the Class. The factual and legal bases of Defendant’s liability to Plaintiff and to the other members of the Class are the same, resulting in injury to the Plaintiff and to all of the other members of the Class. Plaintiff and the members of the Class have suffered harm and damages as a result of Defendant’s unlawful and wrongful conduct. 26. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 27. Defendant sent, or directed to be sent, unsolicited fax message advertisements to fax machines belonging to Plaintiff and other members of the Class without their prior express consent to receive such messages. 28. Defendant’s fax messages are unsolicited advertisements because they advertise and otherwise solicit consumers and businesses to purchase Defendant Message Center’s goods and services and Plaintiff and the members of the Class did not consent to receive such messages. Specifically, the fax message included information about the availability of Defendant Message Center’s services and provided a phone number and website where a fax recipient could sign up and pay for the same. 29. Plaintiff and members of the Class did not provide their express consent to receive fax messages from Defendant and did not have any form of a business relationship with Defendant. 30. By making, or having made on their behalf, the unsolicited fax calls to Plaintiff and Class members’ fax machines without their prior express consent, Defendant has violated 47 U.S.C. § 227(b)(1)(C). 32. Should the Court determine that Defendant’s conduct was willful and knowing, the Court may, pursuant to section 227(b)(3), treble the amount of statutory damages recoverable by Plaintiff and the Class. Violation of 47 U.S.C. § 227 et seq. (On behalf of Plaintiff and the Class)

lose

1. Plaintiffs are current or former employees—as defined by 29 U.S.C. § 203(e), and the Colorado Wage and Hour Law—within the last three years, of Defendant Decker Truck Line, Inc., (“Decker” or “the Company”) in Fort Collins, Colorado. 10. All of the deliveries which are the subject of this action occur between the two New Belgium locations within Fort Collins, Colorado. 11. After delivering the New Belgium product to the warehouse, the Plaintiffs drive the trucks back to the brewery to obtain another load of New Belgium product for delivery to the warehouse. 12. The Plaintiffs make no other deliveries and drive no other routes during their scheduled work for Decker. 14. Decker, however, has improperly and uniformly applied a policy of treating all Plaintiffs as being exempt or otherwise not covered by those overtime wage payment requirements. 15. Decker has improperly and uniformly treated all Plaintiffs as over-the- road interstate truckers subject to an exclusion from the above referenced requirement to pay the Plaintiffs the time-and-a-half overtime rate for work over 40 hours per work week. 16. Decker further, as a uniform policy, required all Plaintiffs to clock in 15 minutes per day before the commencement of each of their scheduled 12 hour shifts to prepare for and/or to perform their initial work activities, but Decker has not and does not pay all Plaintiffs for such time worked off-the-clock. 17. Decker has used a schedule which has all Plaintiffs work during three days of a work week for a purported 12 hour shift each day (plus the 15 minutes of off- the-clock work, described immediately above); followed the next work week by having Plaintiffs work during four days for a purported 12 hour shift each day (plus the same additional 15 minutes of off-the-clock work). 19. All Plaintiffs have been required to work or be available for work during their meal break times, and have been paid straight time wages for such work. 2. Representative Plaintiffs J.R. Deherrera and Jennifer Johnson are current employees of Decker. All other Plaintiffs and representative Plaintiffs are former employees of Decker. 20. In a 12 hour (plus 15 minutes) shift, all Plaintiffs are entitled to three 10 minute duty-free rest breaks under Colorado Wage and Hour Law. 21. When any of the Plaintiffs work over 40 hours during a work week, they have been entitled to be paid at the time-and-a-half rate for their overtime under both the FLSA and under the Colorado Wage and Hour Law. 22. Decker does not and has not paid any of the Plaintiffs for their overtime work at time-and-a-half wage rates. Nor has Decker paid any of the Plaintiffs for their straight time or overtime for a) the 15 minutes a day that they have been required to clock in to perform preparatory or initial work activities in advance of their scheduled driving shifts; or 2) their rest periods that should have been provided, but have not been. 23. Decker’s actions in failing to pay Plaintiffs for all their hours worked at the proper rate of pay has been willful, under both the FLSA and under the Colorado Wage and Hour Law. 3. Decker is an Iowa corporation that does business within the State of Colorado. 36. All Plaintiffs, by this reference, incorporate the allegations set out in paragraphs 1-35, as if they were set out fully here. 37. The representative Plaintiffs bring this Claim for Relief on behalf of themselves, individually, and on behalf of all other Decker drivers, similarly situated, as a collective action under the FLSA. 38. All Plaintiffs’ work activities for Decker are and have been non-exempt work under the FLSA; and for any and all time worked by all Plaintiffs, or to be credited to all Plaintiffs, during a work week, all Plaintiffs are entitled to pay at their straight time rate for work under and up to 40 hours or work per work week, and at time-and-a-half their straight time wages for all work performed over 40 hours per work week. 39. Decker has not paid Plaintiffs for all of their time worked under the FLSA because it has not paid Plaintiffs for the 15 minutes of daily off-the-clock work described above. 4. On information and belief, Decker has entered into contractual agreement(s) with the New Belgium Brewing Company (“New Belgium”) to perform trucking services for New Belgium within Fort Collins, Colorado. 41. To the extent Decker does pay Plaintiffs, it has paid Plaintiffs at straight time rates for any and all work time that it credits to Plaintiffs, and not at the properly calculated straight time and overtime rates. 42. Decker’s uniform policies of wrongfully paying only straight time wages for work performed over 40 hours in a week, and of requiring the Plaintiffs to perform 15 minutes of unpaid off-the-clock work, and/or preparation for work, in advance of their shifts are and have been willful violations of §§ 203, 206, 207, 216 inter alia, of the FLSA. 43. As a result of Defendant’s violation of the FLSA, all Plaintiffs, past and present, have suffered damages by failing to receive appropriate wages for all hours worked, including overtime and straight time, in an amount to be determined at trial, and are entitled to the recovery of such amounts, liquidated damages, pre- and post- judgment interest, their reasonable attorneys’ fees, costs, and such other compensation and legal remedies; and additionally, such declaratory and injunctive or other equitable relief, as the law allows. 45. All Plaintiffs work activities for Decker is and has been non-exempt work under the Colorado Wage and Hour Law; and for any and all time worked by all Plaintiffs, or to be credited to all Plaintiffs during a work week, all Plaintiffs are entitled to pay at their straight time rates for work up to 40 hours of work per work week, and at time-and-a-half for all of work performed over 40 hours per work week. 46. Decker has not paid all Plaintiffs for all of their time worked under the Colorado Wage and Hour Law because it does not pay Plaintiffs for the 15 minutes of off-the-clock work, and/or preparation for work, described above. 47. Decker also has not paid Plaintiffs for all of their time worked under the Colorado Wage and Hour Law because it does not provide Plaintiffs with 10 minute duty-free paid rest breaks for each four hours of work Plaintiffs performed. 48. For example, when Plaintiffs work their four day 12 hour shifts as scheduled by Decker (without counting either the15 minutes of off-the-clock work or the unpaid rest breaks described above), Decker has paid the Plaintiffs at straight time rates for the entire 48 hours of work during the work week, and has not paid for eight of those hours at the Plaintiffs’ time-and-a-half pay rate. 5. New Belgium is a Colorado-based manufacturer of beer and other products, which manufactures its products within the area of Fort Collins, Colorado. 50. Under applicable Colorado Wage and Hour Law, all Plaintiffs have been entitled to a paid 10 minute duty-free rest period for each four hour period worked during their shift. 51. Because Decker has required all Plaintiffs to work through their lunch breaks, but pays them for that time, all Plaintiffs have worked at or more than three full four hour periods during each work shift. 52. All Plaintiffs have been entitled to three paid 10 minute rest periods per 12 hour shift worked, but Decker has never provided or paid for such rest breaks. 53. The proposed class satisfies the numerosity, commonality, typicality, adequacy and superiority requirements of Fed. R. Civ. P. 23. 54. The class satisfies the numerosity standard because it involves scores of former employees and employees who, on information and belief, are now located both inside and outside of Colorado, which makes joinder of all members impracticable. 56. The representative Plaintiffs’ claims are typical of the class because they have been employed in the same or similar driver position, performed the same or similar work duties, and have been subject to the same unlawful pay policies and practices as the class. 58. The representative Plaintiffs will fairly and adequately protect the interests of the class, and they have retained counsel experienced and competent in handling wage and hour class action litigation. 59. Prosecuting this action on behalf of each class member individually may result in inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class and would substantially impair or impede individual class members’ ability to protect their interests. 60. Decker has acted or refused to act on grounds that apply generally to the class, and therefore final injunctive relief or declaratory relief is appropriate with respect to the class as a whole. 61. Maintaining this lawsuit as a class action is superior to litigating each individual class member’s claim separately and will result in a fair and efficient adjudication of this controversy. 63. The Court has the resources and ability to effectively manage this class action. 64. At all relevant times, the representative Plaintiffs and similarly situated Decker drivers are entitled to the rights, benefits and protections provided under the Colorado Wage and Hour Law because they were employees performing labor or services for the benefit of Decker. Colo. Rev. Stat. §8-4-101(4), 7 CCR 1103-1. 65. Decker is subject to the wage and overtime payment requirements of the Colorado Wage and Hour Law because it is a corporation that employs persons in Colorado. Colo. Rev. Stat. §8-4-101(5), 7 CCR 1103-1. 66. Decker had policies and practices that resulted in the Plaintiffs not being paid the agreed upon rate of pay and overtime for all time worked including work activities performed at the start of their work shift and for state law mandated rest breaks, which were uniformly denied to Plaintiffs. 67. These policies and practices were uniformly applied to all Plaintiffs. 69. These policies and practices also resulted in Decker failing to fully and accurately record the hours worked by the Plaintiffs in violation of Colo. Rev. Stat. §8- 4-103(4). 7. On information and belief, Decker has contracted with New Belgium for Decker to be paid to transport New Belgium’s beer and other products from its Fort Collins brewery to and from its Fort Collins warehouse. 70. Decker willfully violated its legal obligations to pay for all straight and overtime hours worked by the Plaintiffs because it knew and/or recklessly disregarded that the Plaintiffs were not paid at the overtime rate for work performed over 40 hours a week; that it required the Plaintiffs to perform 15 minutes a shift of unpaid off-the- clock work and/or preparation for work; and that it neither granted nor paid for a 10 minute rest break for the Plaintiffs for every 4 hours of work 71. Because Decker’s actions were willful, Plaintiffs’ claims for relief are subject to a three-year statute of limitations, pursuant to Colo. Rev. Stat. §8-4-122. 72. Decker failed to act in good faith or with reasonable grounds to believe that its acts or omissions were not a violation of the Colorado Wage and Hour Law, and as a result, Plaintiffs are entitled to penalties under the law. 8. All Plaintiffs’ work for Decker has consisted of them driving Decker trucks back and forth between the New Belgium brewery and its warehouse. 9. The trip that the Plaintiffs make or have made is approximately five miles in length, one way. FOR ALL TIME WORKED IN A WORK WEEK AT THE PROPER STRAIGHT TIME AND OVERTIME PAY RATES TIME WORKED IN A WORK WEEK AT THE PROPER STRAIGHT TIME AND OVERTIME PAY RATES

lose

10. During the course of their employment, Plaintiff and other similarly situated employees regularly worked in excess of forty (40) hours in individual workweeks. 11. Defendant failed to pay Plaintiff and similarly situated employees any premium for the hours they worked in excess of forty hours per week. V. 12. Plaintiff will seek to certify his state law claims arising under the IMWL for Illinois-mandated overtime wages (Count II) as a Rule 23 Class Action. Plaintiff will ask the Court to determine the rights of the parties pursuant to the IMWL, and to direct the Defendant to account for all hours worked and wages paid to the class members during the temporality of the class. 13. Count II is brought pursuant to Fed. R. Civ. P. Rule 23(a) and (b) because: a. the class is so numerous that joinder of all members is impracticable. While the precise number of Class Members has not been determined at this time, Plaintiff is informed and believes that Defendant has employed over sixty persons in Illinois during the IMWL Class Period; 4 b. There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members. These common questions of law and fact include, without limitation: (i) Whether Defendant failed to pay Plaintiff and the Class at time and a half their regular rate of pay for all time worked in excess of forty (40) hours per individual work week during the IMWL class period; c. The class representative and the members of the class have been equally affected by Defendant's failure to pay overtime wages; d. Members of the class will be reluctant to bring forth claims for unpaid overtime wages for fear of retaliation; e. The class representative, class members and Defendant have a commonality of interest in the subject matter and remedies sought and the class representative is able to fairly and adequately represent the interest of the classes. If individual actions were required to be brought by each member of the class injured or affected, the result would be a multiplicity of actions creating a hardship on the class members, Defendant and the Court. 14. Therefore, a class action is an appropriate method for the fair and efficient adjudication of this lawsuit. 15. Plaintiff incorporates and re-alleges paragraphs 1 through 14 as though set forth herein. 5 16. This Count arises from Defendant’s violation of the FLSA for its failure to pay Plaintiff one and a half times his regular rate of pay for all time worked in excess of forty (40) hours in a work week, described more fully in paragraphs 7 - 11, supra. 17. Defendant directed Plaintiff to work, and Plaintiff did work, in excess of forty (40) hours in individual workweeks within the three (3) years prior to filing this lawsuit. 18. Other similarly situated employees were also directed to work in excess of forty (40) hours in individual workweeks within the three years prior to filing this lawsuit 19. Plaintiff and similarly situated employees were not exempt from the overtime provisions of the FLSA. 20. Plaintiff and similarly situated employees were entitled to be paid overtime wages for all time worked in excess of forty (40) hours in individual workweeks. 21. Defendant did not pay Plaintiff and similarly situated employees overtime wages for all time worked in excess of forty (40) hours in individual workweeks. 22. Defendant’s failure to pay Plaintiff and the Class overtime wages for all time worked in excess of forty (40) hours in individual workweeks was a violation of the FLSA. 23. Plaintiff and the Class are entitled to recover unpaid overtime wages for up to three (3) years prior to the filing of this lawsuit because Defendant’s violation of the FLSA was willful. WHEREFORE, Plaintiff prays for a judgment against Defendant as follows: A. That the Court determine that this action may be maintained as a collective action pursuant to Section 216(b) of the FLSA. B. A judgment in the amount of all unpaid overtime wages owed to Plaintiff and the Class C. Liquidated damages in the amount equal to the unpaid overtime wages; 6 D. Reasonable attorneys’ fees and costs of this action as provided by the FLSA; E. Such other and further relief as this Court deems appropriate and just. 24. Plaintiff incorporates and re-alleges paragraphs 1 through 23 as though set forth herein. 25. This Count arises from Defendant’s violation of the IMWL for its failure to pay Plaintiff time and a half his regular rate of pay for all time worked in excess of forty (40) hours in individual workweeks, as described more fully in paragraphs 7 - 11, supra. 26. Defendant directed Plaintiff to work, and Plaintiff did work, in excess of forty (40) hours in individual workweeks within the three (3) years prior to filing this lawsuit. 27. Plaintiff was not exempt from the overtime provisions of the IMWL. 28. Plaintiff was entitled to be paid overtime wages for all time worked in excess of forty (40) hours in individual workweeks. 29. Defendant did not pay Plaintiff overtime wages for all time worked in excess of forty (40) hours in individual work weeks. 30. Defendant likewise directed other similarly situated, non-exempt laborers to work in excess of forty (40) hours in individual work weeks and who were likewise entitled to be paid overtime wages for all compensable time in excess of forty (40) hours in individual work weeks. 31. Defendant did not pay other similarly situated non-exempt laborers at an overtime rate for all time worked in excess of forty (40) hours in individual work weeks. 7 32. Defendant’s failure to pay overtime wages to Plaintiff and other persons similarly situated overtime wages for all time worked in excess of forty (40) hours per in individual work weeks was a violation of the IMWL. 33. Pursuant to 820 ILCS 105/12(a), Plaintiff and members of the class are entitled to recover unpaid overtime wages for three (3) years prior to the filing of this suit. 34. The Class that Plaintiff seeks to represent in regard to the minimum wage claims arising under the IMWL is composed of and defined as all individuals employed by Defendant as drivers in Illinois from September 7, 2013 and up through the date of filing of this lawsuit. WHEREFORE, Plaintiff and the class pray for a judgment against Defendant as follows: A. That the Court determine that this action may be maintained as a class action pursuant to Fed. R. Civ. P. Rule 23(a) and (b); B. A judgment in the amount of all back wages due to Plaintiff and the Class as provided by the IMWL; C. Statutory damages pursuant to the formula set forth in 820 ILCS 105/12(a); D. That the Court declare that Defendant has violated the IMWL; E. That the Court enjoin Defendant from violating the IMWL; F. Reasonable attorneys’ fees and costs of this action as provided by the IMWL, 820 ILCS 105/1 et seq.; and G. Such other and further relief as this Court deems appropriate and just. Dated: September 7, 2016 /s/ Alvar Ayala Alvar Ayala (ARDC #6295810) Christopher J. Williams (ARDC #6284262) Workers’ Law Office, P.C. 53 W. Jackson Blvd, Suite 701 Chicago, IL 60604 (312) 795-9121 Attorneys for Plaintiff 7. Defendant operates a freight yard and freight repair business in Chicago, Illinois. 8. Plaintiff and similarly situated employees worked for Defendant performing spotting duties by moving freight containers within Defendant’s yard and adjacent yards and by performing welding and repair tasks on freight containers on Defendant’s shop. 9. Plaintiff was employed by Defendant from approximately late in the calendar year of 2015 through approximately mid-August 2016. Violation of the IMWL – Overtime Wages Plaintiff of behalf of himself and similarly situated employees Violation of the FLSA – Overtime Wages Plaintiff on behalf of himself and similarly situated employees

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. 20. Defendant operates BRONXWOOD Assisted Living Centers as well as the BRONXWOOD website, and offers it to the public and offers features that should allow all consumers to access the facilities and services that Defendant offers regarding its Assisted Living Centers. 21. Defendant operates BRONXWOOD Assisted Living Centers (hereinafter its “Centers”) across New York, with one of its Centers located at 799 East Gun Hill Road, Bronx, NY 10467. 22. These Centers constitute places of public accommodation. Defendant’s Centers provide to the public important services. Defendant’s Website provides consumers with access to an array of information and services including Center locations and hours, access to details regarding its many services, including available Amenities, Personal Care, Home Care, Events and Clinical and Therapeutic Services, promotional information, and other services available online and in Centers. 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 facilities and services that are offered and integrated with Defendant’s Centers. 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 Centers and the numerous facilities, services, and benefits offered to the public through its 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. 28. These access barriers have deterred Plaintiff from revisiting Defendant’s website and/or visiting its physical locations, despite an intention to do so. Defendant Must Remove Barriers To Its Website 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired consumers 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, despite her intention to do so. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical Center locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Centers on its Website and other important information about the Centers locations and hours, access details regarding its many services, including available Amenities, Personal Care, Home Care, Events and Clinical and Therapeutic Services, promotional information, and other services available online and in Centers. 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 consumers. 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 facilities and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Plaintiff, on behalf of herself 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 facilities 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 goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; d. Whether Defendant, through its Website, discriminates against Plaintiff and similarly situated individuals by failing to make, print, or publish its statements and advertisements accessible to visually impaired individuals, in violation of the FHA. e. 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. 46. 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. 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. 51. Defendant’s Centers 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 Centers. The Website is a service that is integrated with these locations. 52. 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). 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 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). 55. 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. 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.” 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). 61. 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. This inaccessibility denies blind patrons full and equal access to the facilities, facilities and services that Defendant makes available to the non-disabled public. 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". 64. 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. 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. 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. 69. 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. 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. 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.” 76. 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. 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 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, facilities 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. 86. 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. 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, goods, 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 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. 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. 97. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 98. Section 804(c) of the Fair Housing Act, 42 U.S.C. § 3604, provides that it shall be unlawful: To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. Defendant’s Barriers on Its Website VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE FAIR HOUSING ACT 42 U.S.C. § 3604 et seq. VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL

win

10. There are questions of law or fact common to the members of the class that predominate over questions of law or fact affecting only individual members. The questions of law or fact common to all members of the class are: they are all retirees that retired on or after July 1, 1986 from the City of Hamtramck and former members and their eligible family members of the police or firefighter collective bargaining units that had contractually guaranteed retiree health care insurance at a specific level from the time of retirement for the rest of the retirees’ and their eligible family members’ lives. 11. The claims of the named Plaintiffs are for the entire class and are therefore typical of the claims of the class. 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 4 of 22 Pg ID 4 5 12. Plaintiffs are similarly situated to the members of the proposed class and there is no reason to doubt that they will fairly and adequately protect the interests of the class. 13. The maintenance of this action as a class action is superior to other available methods of adjudication in promoting the convenient administration of justice and in achieving a fair and efficient adjudication of the controversy in this matter because the prosecution of separate actions by or against individual members of the class would create a risk of (1) inconsistent or varying adjudications with respect to individual members of the class that would confront the Defendant with incompatible standards of conduct and (2) adjudications with respect to individual members of the class that would, as a practical matter, be dispositive of the interests of other members of the class not parties to the adjudications or substantially impair or impede their ability to protect their interest because, in view of the complexity of the issues and the expense of litigation, the separate claims of the individual class members are insufficient in amount to support the prosecution of separate actions because the amount recoverable for each individual member would be insufficient to cover the costs of litigation. 14. Since the late 1980’s all agreements between the collective bargaining representatives of the City of Hamtramck police officers (Hamtramck Fraternal 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 5 of 22 Pg ID 5 6 Order of Police, Labor Council and the Hamtramck Ranking Officer Association) and the City of Hamtramck firefighters (Local 750, International Association of Firefighters, AFL-CIO, Hamtramck Firefighters Association) and the City of Hamtramck have included provisions for vested retiree healthcare benefits. 15. Those benefits for those members of the collective bargaining units have uniformly provided that “[t]he City shall pay in full for the cost of medical, hospital, and surgical insurance (as more fully described in [the section stating the particular health care benefit]) for employees and eligible members of employees’ families who retire on or after July 1, 1986 until that retired employee attains the age of sixty-five (65) or is eligible for medicare or medicaid.” This provision creates a contractually protected vested retiree benefit. 16. The benefit that is provided is also stated with specificity; “[t]he City shall provide continuous medical, hospital and surgical insurance coverage equivalent to or better than Michigan Blue Cross and Michigan Blue Shield MVFC- 2 coverage with a Master Medical Plan supplemented together with the prescription drug rider.” 17. Upon retirement, employees are given a document from the City of Hamtramck that states that their health care benefits continue and the “City’s health care coverage will remain primary until you reach of the age of 65.” 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 6 of 22 Pg ID 6 7 18. After the retiree reaches the age of 65, the benefits are coordinated with Medicare and the benefits are continued at a similar level. The various contracts provide that the retirees, “shall be eligible and shall provide and pay the full cost of supplemental insurance to Medicare, which is equivalent to or superior to that offered by and through Blue Cross-Blue Shield of Michigan.” 19. The vested benefits to which a member of the collective bargaining unit is entitled is established by the collective bargaining agreement at time of his or her retirement. Consistent with the applicable labor laws, the respective collective bargaining representatives do not represent members of the collective bargaining unit once they retire. Accordingly, at the time of retirement, the collective bargaining rights become individual contractual rights of the retiree for which the collective bargaining representatives do not have the right to negotiate on behalf of the retirees. 20. Based on the guarantees of these vested benefits, the individual members financially plan for their retirement and make irrevocable decisions regarding their retirement. 21. In order to obtain these retirement benefits, the collective bargaining unit forego other, more immediate, wages and benefits in exchange for the long-term security. 22. From the late 1980’s to 2013, the City of Hamtramck has implemented changes to the retiree health care. These changes were not challenged because the 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 7 of 22 Pg ID 7 8 retirees determined that they were equivalent or better than the plan referenced in the contracts or were too insignificant to warrant substantial litigation. 23. On or about July 1, 2013, Defendant Cathy Square was appointed by Michigan Governor Rick Snyder as the Emergency Manager of the City of Hamtramck. She is given her authority pursuant to Local Stability and Choice Act (Public Act 436 of 2012) (hereafter “PA 436”). 24. The Michigan Legislature had passed and Governor Snyder signed a nearly identical law (“PA 4”) that was repealed by the citizens of Michigan via referendum in November 2012. Undeterred by the stated desires of the electorate, in December 2012, Governor Snyder signed PA 436 into law, which was nearly identical to PA 4. However, PA 436 contained a relatively small spending provision, which inoculated the law from another referendum. 25. On or about January 29, 2014, Defendant Square issued Order S-008, which terminated the contractual provisions of various collective bargaining agreements that provide for retiree health care. In the Order, she relied on section 12(K) of PA 436 to take this action. 26. Defendant Square’s claim of authority from section 12(K) of PA 436 was misplaced. Section 12(K) of PA 436 provides that an Emergency Manager may only terminate a provision of an existing collective bargaining agreement once he or she has meet and conferred “with the appropriate bargaining representative.” The 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 8 of 22 Pg ID 8 9 Emergency Manager must determine from those meetings that “a prompt and satisfactory resolution is unlikely to be obtained.” 27. Allegedly, Defendant Square met with representatives from the respective police and fire unions. As these unions do not have the statutory or legal authority to represent retirees, they are not the representatives or agents of the retirees. The only bargaining representative of the retirees is the individual retirees or someone to whom they have granted authority to represent them. Accordingly, Defendant Square did not satisfy the statutory requirement that she meet and confer with the appropriate bargaining representative of Plaintiffs. 28. Defendant Square made no attempt to meet with Plaintiffs prior to issuing Order S-008. 29. Moreover, the authority to alter collective bargaining agreements only extends to “existing collective bargaining agreements” under Section 12(k) of PA 436. Therefore, she only has the statutory authority to terminate or modify collective bargaining agreements that are currently in force. At most, this would only allow her to modify or terminate the retiree health care provisions of the collective bargaining agreements that where in force at the time. Instead, she modified every collective bargaining agreement that had ever existed or at least existed since the late 1980’s when she modified and terminated the vested retiree benefits for all retirees, regardless of what collective bargaining agreement provided the vested right to 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 9 of 22 Pg ID 9 10 retiree health care. Moreover, those that had already retired under the current collective bargaining agreement, have an individual contract right to vested retirement health care, not a collective bargaining agreement subject to termination or modification under PA 436. 30. On or about March 1, 2014, Defendant Square implemented, without the consent of Plaintiffs, a dramatic change to their health insurance benefits. In summary of the material changes, the retirees would now be subject to $2,000 for single coverage deductibles and $4,000 for two person or family coverage deductible. Also, the prescription coverage for brand name drugs was increased by $30 per prescription. Other out-of-pocket expenses were also increased. Coverage for some medical services was eliminated altogether. Previously, the City annually contributed to a Health Savings Account or Health Reimbursement Account to cover some or all of the out-of-pocket expenses of previous health care plans. These contributions were eliminated. This alone creates an increase of up to $4,000 in out- of-pocket expenses. 31. On or about January 10, 2014, the Hamtramck Police and Fire Retiree Association filed a Complaint in Wayne County Circuit Court alleging breach of contract. The case number is 14-000316-CZ. 32. The effect of these changes has been thousands of dollars in increased out-of-pocket costs to retirees, where many are on a fixed income and did not include 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 10 of 22 Pg ID 10 11 such costs in their retirement planning. Many retirees are forced to make difficult and irrevocable decisions between forgoing the medical treatment that they or their family members may need and maintaining the basic necessities of life. 33. Plaintiffs repeat and re-allege all the preceding paragraphs as if fully set forth. 34. At all times relevant hereto, Defendants and its agents and employees were individuals acting under color of State law. 35. At all times relevant hereto, Plaintiffs and the putative Class Members were “citizen(s) of the United States or other person(s) within the jurisdiction” entitled to bring suit under 42 U.S.C. § 1983. 36. The Constitution of the United States provides that “[n]o State shall…pass any…law impairing the obligation of contracts.” U.S. Const. Article I, Sec. 10, Cl. 1. 37. The rights and protections of the Contracts Clause are fully applicable to state action. U.S. Const. Amendment XIV. 38. The agreements to provide vested retiree health care benefits create enforceable contract rights within the meaning of the Contracts Clause. 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 11 of 22 Pg ID 11 12 39. Under the retiree health care provisions of the various collective bargaining agreements, Defendant City of Hamtramck is contractually obligated to provide health insurance at a specific level of coverage and no lower. 40. Defendant violated the Contract Clause of the United States Constitution when it took actions impairing its contractual obligations to vested retirees by unilaterally increasing the contribution rates for premiums, the co- payments and deductibles, and other modifications to the health care plan to which it was contractually bound. 41. Acting under color of state statute, ordinance, custom and regulation, including the Defendant City of Hamtramck’s policy or custom, Defendant Square and Defendant City of Hamtramck have caused the deprivation of rights, privileges or immunities secured by the Contracts Clause. 42 U.S.C. § 1983 – VIOLATION OF THE TAKINGS CLAUSE OF THE UNITED STATES CONSTITUTION 42 U.S.C. § 1983 – VIOLATION OF THE PROCEDURAL DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION 42 U.S.C. § 1983 – VIOLATION OF THE CONTRACTS CLAUSE OF THE UNITED STATES CONSTITUTION 42. Defendants’ unilateral increase and modification of contribution rates, co-payments and deductibles diminish the benefit coverage and the contracts with these retirees and have no legitimate public purpose and/or constitute an abuse of power. 43. The actions at issue substantially impair the provisions in Plaintiffs’ contractual agreements. 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 12 of 22 Pg ID 12 13 44. As a direct and proximate result of Defendant’s actions, Plaintiffs sustained and will continue to sustain injury and damages, including but not limited, to the deprivation of their rights under the U.S. Constitution. WHEREFORE, Plaintiffs respectfully request: (a) certification of this action as a class action under Fed. R. Civ. P. 23, (b) a declaration that Defendant’s actions are unconstitutional, (c) permanent injunctive relief reinstating benefits consistent with Defendants’ contractual obligations and preventing further irreparable constitutional injury and breaches of the parties agreements, (d) entry of judgment in Plaintiffs’ favor in whatever amount Plaintiffs may be found to be entitled, plus interest, costs and attorneys’ fees, and (e) any and all other relief to which Plaintiffs are found to be entitled. 45. Plaintiffs repeat and re-allege all the preceding paragraphs as if fully set forth. 46. The Constitution of the United States provides that no person “shall be deprived of life, liberty, or property, without due process of law…” U.S. Const. Amendment V. 47. The rights and protections of the Fifth Amendment are fully applicable to state action. U.S. Const. Amendment XIV. 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 13 of 22 Pg ID 13 14 48. Plaintiffs have a vested contractual and constitutionally protected property interest in Defendant’s compliance with its contractual obligations to continue providing the same retiree contribution rate, co-payments, deductible and benefits as provided in the various collective bargaining agreements and to have Defendants refrain from unilaterally altering and modifying retirees’ contribution rates, deductibles, benefits and financial obligations as provided in the various collective bargaining agreements. 49. Defendants do not have the right to unilaterally modify the contractual obligations without due process of law. 50. Defendant substantially diminished Plaintiffs’ vested contractual and constitutionally protected interests without notice and without an opportunity to be heard before the deprivation took place, thus, causing a forfeiture of property without due process in violation of the due process clause. 51. Plaintiffs did not waive their right to adequate notice or the reasonable opportunity to be heard before being deprived of their vested contractual and constitutionally protected interest. 52. Defendant’s interest to deprive Plaintiffs without first providing notice and a reasonable opportunity to be heard are non-existent or minimal. 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 14 of 22 Pg ID 14 15 53. As a direct and proximate result of Defendants’ actions, Plaintiffs sustained and will sustain injury and damages, including but not limited, to the deprivation of their rights under the U. S. Constitution. WHEREFORE, Plaintiffs respectfully request: (a) certification of this action as a class action under Fed. R. Civ. P. 23, (b) a declaration that Defendants’ actions are unconstitutional, (c) permanent injunctive relief reinstating benefits consistent with Defendants’ contractual obligations and preventing further irreparable constitutional injury and breaches of the parties agreements, (d) entry of judgment in Plaintiffs’ favor in whatever amount Plaintiffs may be found to be entitled, plus interest, costs and attorneys’ fees, and (e) any and all other relief to which Plaintiffs are found to be entitled. 54. Plaintiffs repeat and re-allege all the preceding paragraphs as if fully set forth. 55. The Takings Clause of the Fifth Amendment to the United States Constitution, which applies to Michigan through the Fourteenth Amendment, provides that “private property [shall not] be taken for public use without just compensation.” 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 15 of 22 Pg ID 15 16 56. The rights of the Plaintiffs to receive contractually guaranteed vested retiree health insurance at a specific level constitutes private property within the meaning of the Takings Clause. 57. Defendants, acting under color of state law, have taken the private property of Plaintiffs without just compensation, in violation of the Takings Clause. 58. WHEREFORE, Plaintiffs respectfully request: (a) certification of this action as a class action under Fed. R. Civ. P. 23, (b) a declaration that Defendants’ actions are unconstitutional, (c) permanent injunctive relief reinstating benefits consistent with Defendants’ contractual obligations and preventing further irreparable constitutional injury and breaches of the parties agreements, (d) entry of judgment in Plaintiffs’ favor in whatever amount Plaintiffs may be found to be entitled, plus interest, costs and attorneys’ fees, and (e) any and all other relief to which Plaintiffs are found to be entitled. 59. Plaintiffs repeat and re-allege all the preceding paragraphs as if fully set forth. 60. Federal laws made pursuant to authority granted by express Constitutional authority are “the supreme law of the land” pursuant to the Supremacy 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 16 of 22 Pg ID 16 17 Clause of the United States Constitution. U.S. Const. art. VI, cl 2. Any conflicting state law is preempted. 61. The Bankruptcy Clause of the United States Constitution grants Congress the authority to enact “uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const. art. VI, cl 2. Pursuant to this authority, Congress has enacted Title 11 of the United States Code. 62. The federal Bankruptcy Code establishes a national, uniform system for the adjustment of municipal debts. 11 U.S.C. §903(1) provides; “a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition.” 63. The Plaintiffs in this action did not consent to a reduction in their vested retiree health care benefits. 64. The Plaintiffs are creditors of the City of Hamtramck. 65. The actions taken by Defendants reducing the contractually protected retiree health care benefits, allegedly pursuant to the authority granted by PA 436, is an attempt to prescribe a method of the composition of the indebtedness of the City of Hamtramck without the consent of Plaintiffs. WHEREFORE, Plaintiffs respectfully request: (a) certification of this action as a class action under Fed. R. Civ. P. 23, (b) a declaration that Defendants’ actions are unconstitutional, (c) permanent injunctive relief reinstating benefits consistent 4:14-cv-14112-LVP-MJH Doc # 1 Filed 10/24/14 Pg 17 of 22 Pg ID 17 18 with Defendants’ contractual obligations and preventing further irreparable constitutional injury and breaches of the parties agreements, (d) entry of judgment in Plaintiffs’ favor in whatever amount Plaintiffs may be found to be entitled, plus interest, costs and attorneys’ fees, and (e) any and all other relief to which Plaintiffs are found to be entitled. Respectfully submitted, 9. This action is brought by Plaintiffs on behalf of themselves and all other persons similarly situated, pursuant to Federal Rules of Civil Procedure, Rule 23(a) and 23(b)(1)(A) and (B)(2) and (3), whose joinder in this action is impracticable because the class is so numerous. Based on information and belief, there are over 100 members of the class. VIOLATION OF 11 U.S.C. § 903, THE BANKRUPTCY CLAUSE AND THE SUPREMACY CLAUSE

lose

(Willful and Knowing Violation of 47 U.S.C. § 227, et seq. – Telephone Consumer Protection Act) (on behalf of Plaintiff and the Class) 12. Defendant sent the above text message to Plaintiff from SMS code “313131.” 13. Shortly thereafter on the same day, Defendant sent an identical text message to Plaintiff’s cellular telephone number, ending in -6217, from SMS code “25827.” 14. Plaintiff received other similar text message calls from Defendant. 15. Defendant’s text messages were not addressed to Plaintiff by name and were written in a generic, impersonal manner. 16. Prior to sending these text messages, Defendant never informed Plaintiff and Class clearly, conspicuously, and in writing that they would receive recurring automated telemarketing and/or advertising text messages on their cellular phone. Additionally, Defendant never disclosed that consenting to receive such messages was not a condition of purchase for Defendant’s products or services. 17. As such, Defendant never received the requisite consent to send the text messages at issue. 18. Additionally, Defendant’s text messages do not include any instructions that explain how to opt out of their marketing campaign. 19. All Class Members received the exact same (or substantially similar) text messages from the Defendant. 20. The advertising and/or telemarketing text messages alleged herein were exclusively made by Defendant. Defendant made, or had made on their behalf, the same (or substantially the same) text messages en masse to thousands of cellular telephone numbers. 22. Class Definition: Plaintiff Sabrina Broomfield brings this action on behalf of herself and a class defined as follows: Class: All individuals in the United States whose wireless telephone number Defendant, or someone on Defendant’s behalf, called as part of Defendant’s text message marketing efforts. Excluded from the Class are: (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 their parents have a controlling interest and their 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. 23. 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 telemarketing and/or advertising text messages to thousands of consumers who fall into the definition of the Class. Class members can be identified through Defendant’s records. 25. 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. 26. 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 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. 28. Plaintiff reserves the right to revise the foregoing "Class Allegations" and "Class Definition" based on facts learned through additional investigation and in discovery. 29. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 30. In an effort to obtain more customers, Defendant made advertising and/or telemarketing text messages to Plaintiff and the Class' cellular telephones without their prior express written consent. 31. Defendant sent the text message s to Plaintiff and the Class's cellular telephone numbers using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers en masse. 33. By sending the telemarketing and/or advertising text messages to Plaintiff and members of the Class' cellular telephones without prior express written consent, and by utilizing an ATDS, Defendant violated 47 U.S.C. § 227(b)(I)(A)(iii). 34. By failing to provide an automated, interactive opt-out mechanism for the Plaintiff and Class to make a do-not-call request, Defendant also violated 47 U.S.C. § 35. As a result of Defendant’s unlawful conduct, 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 the 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) to ensure that Defendant’s violations of the TCPA do not continue into the future. 64.1200(b)(3).

win

15. When placing calls to consumers, Reliant Direct agents identify themselves either as Reliant Direct, an eFinancial partner, or directly as eFinancial. 16. When Plaintiff answered a call, or called Reliant Direct, he was told that he was dealing with eFinancial. 17. According to the Utah Insurance Department, John Paraiso, the owner of Reliant Direct is an agency affiliate of Defendant eFinancial: 3 The California Department of Insurance also shows that Paraiso has an agency affiliation with eFinancial: 4 18. As the California Department of Insurance shows in the image above, Paraiso is authorized to transact business only on behalf of eFinancial. eFinancial Directs, Authorizes, and/or Ratifies the Unlawful Telemarketing Conduct Reliant Direct Engages in to Solicit New Business 19. eFinancial receives payment for each life insurance plan Reliant Direct sells. 37. On July 28, 2018, Plaintiff registered his cellular telephone number on the DNC in order to avoid receiving unwanted calls. 51. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule 23(b)(3) on behalf of himself and all others similarly situated and seeks certification of the following four Classes: Autodialed No Consent Class: All persons in the United States who from four years prior to the filing of this action (1) Defendant Reliant Direct called on behalf of eFinancial, (2) on the person‟s cellular telephone number, (3) using the same dialing equipment used to call Plaintiff and (4) for whom either Defendant claims (a) it obtained prior express written consent in the same manner as either Defendant claims it obtained prior express written consent to call Plaintiff, or (b) the Defendants did not obtain prior express written consent. Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action (1) Defendant Reliant Direct called on behalf of eFinancial, (2) on the person‟s residential telephone number, (3) two or more times during any twelve month period, and (4) for whom either Defendant claims (a) it obtained prior express written consent in the same manner as either Defendant claims it obtained prior express written consent to call Plaintiff, or (b) the Defendants did not obtain prior express written consent. Internal Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action (1) Defendant Reliant Direct called on behalf of eFinancial, (2) on the person‟s residential telephone number, (3) two or more times during any twelve month period. 57. Plaintiff repeats and realleges paragraphs 1 through 56 of this Complaint and incorporates them by reference herein. 58. Reliant Direct and/or its agents made unwanted solicitation telephone calls to cellular telephone numbers belonging to Plaintiff and the other members of the Autodialed No Consent Class using an autodialer on behalf of eFinancial. 62. Plaintiff repeats and realleges the paragraphs 1 through 56 of this Complaint and incorporates them by reference herein. 63. 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.” 64. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) is “applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”9 69. Plaintiff Jones repeats and realleges paragraphs 1 through 56 of this Complaint and incorporates them by reference herein. Class Treatment Is Appropriate for Plaintiff’s TCPA Claims Reliant Direct Agents Repeatedly Called Plaintiff’s Cell Phone Number Without Plaintiff’s Consent, Despite Plaintiff Registering His Phone Number on the DNC Reliant Direct Markets Life Insurance Plans Exclusively on Behalf of Defendant eFinancial Telephone Consumer Protection Act (Violations of 47 U.S.C. § 227) (On Behalf of Plaintiff Jones and the Autodialed No Consent Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff Jones and the Do Not Call Registry Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff Jones and the Internal Do Not Call Class)

lose

57. Upon information and belief, the Class is so numerous that joinder of all individual members in one action would be impracticable. The disposition of the individual claims of the respective Class members through this class action will benefit both the parties and this Court. 58. Typicality: Plaintiffs claims are typical of the claims of the members of the Class. The claims of the Plaintiff and members of the Class are based on the same legal theories and arise from the same unlawful conduct. 59. Common Questions of Fact and Law: There is a well-defined community of interest and common questions of fact and law affecting members of the Class in that they all have been and/or are being denied their civil rights to full and equal access to, and use and enjoyment of, Defendants' facilities and/or services due to Defendants' failure to make its facilities fully accessible and independently usable as above described. 61. Adequacy of Representation: Plaintiff is an adequate representative of the class because her interests do not conflict with the interests of the members of the Class. Plaintiff will fairly, adequately, and vigorously represent and protect the interests of the members of the class and have no interests antagonistic to the members of the class. Plaintiff has retained counsel who are competent and experienced in the prosecution of class action litigation. 62. Class certification is appropriate pursuant to Rule 23(b )(2) because Defendants have 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. 63. The allegations contained in the previous paragraphs are incorporated by reference. 64. Defendants' facilities were required to be altered, designed, or constructed so that they are readily accessible and usable by disabled individuals, including individuals who use wheelchairs. See 42 U.S.C. § 12183(a)(l). 65. The architectural barriers described above demonstrate that Defendants' facilities were not altered, designed, or constructed in a manner that causes them to be readily accessible to and usable by individuals who use wheelchairs, including Plaintiff and the class she seeks to represent. 66. The architectural barriers described above demonstrate that Defendants have failed to remove barriers, as required by 42 U.S.C. § 12182(b)(2)(A)(iv). 68. Defendants are required to provide individuals who use wheelchairs full and equal enjoyment of its facilities. See 42 U.S.C. § 12182(a). 69. Defendants have discriminated against Plaintiff and the Class in that it has failed to make its facilities fully accessible to, and independently usable by, individuals who use wheelchairs in violation of the ADA, as described above. 70. Defendants' conduct is ongoing, and, given that Defendants have not complied with the ADA's requirements that public accommodations be fully accessible to, and independently usable by, individuals with disabilities, Plaintiff invokes her statutory right to declaratory and injunctive relief, as well as costs and attorneys' fees. 71. Without the requested injunctive relief, specifically including the request that the Court retain jurisdiction of this matter for a period to be determined after the Defendants certify that it is fully in compliance with the mandatory requirements of the ADA that are discussed above, Defendants' non-compliance with the ADA's requirements that its facilities be accessible to, and independently usable, by individuals with disabilities is likely to recur. VIOLATION OF THE ADA

win

2.1 AA (“WCAG 2.1 AA”), which is published by an independent third party known as the Worldwide Web Consortium (“W3C”). 24. Defendant is a fitness club that owns and operates its physical locations as well as its Website, www.clubgreenwood.com, offering features which should allow all consumers to access the goods and services offered in connection with its physical locations. 25. Defendant operates at least one location in Colorado, including its club located at 5801 S Quebec Street Greenwood Village, CO 80111. 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: club locations and hours, contact information, and related goods and services available both online and in the club. 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 psychical locations. 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 physical locations 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. 32. Due to the inaccessibility of Defendant’s Website, blind and visually impaired individuals such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public through 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 in order to perform functions equal to the sighted. 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 clubs 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. 36. 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 its Website. 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 club 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. 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”). 46. There is no DOJ administrative proceeding that could provide Plaintiff with Title III injunctive relief. 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.

lose

10. Defendant first called Plaintiff in March of 2017 at 7:52 AM. 11. Defendants contacted or attempted to contact Plaintiff from telephone numbers belonging to Defendants, including without limitation (702) 779-0245 and (917) 391-0764. 22. Plaintiff brings this action individually and on behalf of all others similarly situated, as a member the four proposed classes (hereafter, jointly, “The Classes”). The class concerning the ATDS claim for no prior express consent (hereafter “The ATDS Class”) is defined as follows: All persons within the United States who received any solicitation/telemarketing telephone calls from Defendants 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 23. The class concerning the ATDS claim for revocation of consent, to the extent prior consent existed (hereafter “The ATDS Revocation Class”) is defined as follows: All persons within the United States who received any solicitation/telemarketing telephone calls from Defendants 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 revoked any prior express consent to receive such calls prior to the calls within the four years prior to the filing of this Complaint. 8. Beginning in or around March of 2017, Defendant contacted Plaintiff on Plaintiff’s cellular telephone numbers ending in -1083 in an attempt to solicit Plaintiff to purchase Defendants’ services. 9. Defendants used an “automatic telephone dialing system” as defined by 47 U.S.C. § 227(a)(1) to place its calls 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 Defendants’ willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiff and the ATDS Class and ATDS Revocation 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 Defendants’ negligent violations of 47 U.S.C. §227(c)(5), Plaintiff and the DNC Class and DNC Revocation 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

12. In or around December 2013, Plaintiff Thrasher received a number of unsolicited phone calls to her wireless phone, for which Plaintiff provided no consent to call, in attempt to collect an alleged debt owed. 13. Such calls were often made by prerecorded voice message. 14. Specifically, on December 13, 2013, Plaintiff Thrasher received two unsolicited phone calls form CMRE, both which featured a prerecorded voice. 21. Plaintiff brings this action on behalf of herself and on behalf of and all others similarly situated (“the Class”). 22. Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any unsolicited telephone calls from Defendant or its agents on their paging service, cellular phone service, mobile radio service, radio common carrier service, or other service, through the use of any automatic telephone dialing system or artificial or pre-recorded voice system as set forth in 47 U.S.C. § 227(b)(1)(A)(3), which telephone calls by Defendant or its agents were not made for emergency purposes or with the recipients’ prior express consent, within four years prior to the filing of this Complaint. 33. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 34. Each such telephone call was made using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. By using such equipment, Defendant was able to effectively make thousands of phone calls simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention. These telephone calls were made without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 35. Defendant also made telephone calls featuring a prerecorded or artificial voice without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 39. Plaintiff incorporates by reference the above paragraphs 1 through 32 inclusive, of this Complaint as though fully stated herein. 40. Each such telephone call was made using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. By using such equipment, Defendant was able to effectively make thousands of phone calls simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention. These telephone calls were made without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 41. Defendant also made telephone calls featuring a prerecorded or artificial voice without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 45. As a result of Defendant’s, and Defendant’s agents’, negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 46. Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief prohibiting such conduct in the future. 47. Any other relief the Court may deem just and proper. 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. VIOLATION OF THE TCPA, 47 U.S.C. §§ 227 ET SEQ.

win

11. On information and belief, on or about March 21, 2012, Defendants transmitted by telephone facsimile machine an unsolicited facsimile to Plaintiff. A copy of the facsimile is attached hereto as Exhibit A. 12. On information and belief, Defendants receive some or all of the revenues from the sale of the products, goods and services advertised on Exhibit A, and Defendants benefit from the sale of the products, goods and services advertised on Exhibit A. 14. On information and belief, Defendants faxed the same and other unsolicited facsimiles to Plaintiff and more than 25 other recipients or sent the same and other advertisements by fax with the required opt out language without first receiving the recipients’ express permission or invitation. 15. There is no reasonable means for Plaintiff (or any other class member) to avoid receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent communications their owners desire to receive. 16. Defendants’ facsimile attached as Exhibit A did not display a proper opt-out notice as required by 47 C.F.R. § 64.1200. 17. In accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this class action pursuant to the JFPA, on behalf of the following class of persons: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice. Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. 2. A statement that the sender must honor a recipient’s opt-out request within 30 days and the sender’s failure to do so is unlawful – thereby encouraging recipients to opt-out, if they did not want future faxes, by advising them that their opt-out requests will have legal “teeth”; 20. Typicality (Fed. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received the same faxes as the faxes sent by or on behalf of the Defendants advertising products, goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted in the same or in a similar manner with respect to the Plaintiff and all the class members by sending Plaintiff and each member of the class the same faxes. 21. Fair and Adequate Representation (Fed. R. Civ. P. 23 (a) (4)): The Plaintiff will fairly and adequately represent and protect the interests of the class. It is interested in this matter, has no conflicts and has retained experienced class counsel to represent the class. 22. Need for Consistent Standards and Practical Effect of Adjudication (Fed. R. Civ. P. 23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by class members would: (a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties. 23. Common Conduct (Fed. R. Civ. P. 23 (b) (2)): Class certification is also appropriate because the Defendants have acted and refused to act in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demands such relief as authorized by 47 U.S.C. §227. 25. The JFPA makes it unlawful for any person to “use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . .” 47 U.S.C. § 227(b)(1)(C). 26. The JFPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227 (a) (5). 27. Opt-Out Notice Requirements. The JFPA strengthened the prohibitions against the sending of unsolicited advertisements by requiring, in § (b)(1)(C)(iii) of the Act, that senders of faxed advertisements place a clear and conspicuous notice on the first page of the transmission that contains the following among other things (hereinafter collectively the “Opt-Out Notice Requirements”): 29. The Fax. Defendants sent on or about March 21, 2012, advertisement and any other advertisements sent to Plaintiff and other members of the class via facsimile transmission from telephone facsimile machines, computers, or other devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Fax. The Fax was transmitted to persons or entities without their prior express permission or invitation and/or Defendants are precluded from asserting any prior express permission or invitation or that Defendants had an established business relationship with Plaintiff and the other members of the Class because of the failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder by sending the Fax via facsimile transmission to Plaintiff and members of the Class. 3. A statement advising the recipient that he or she may opt-out with respect to all of his or her facsimile telephone numbers and not just the ones that receive a faxed advertisement from the sender – thereby instructing a recipient on how to make a valid opt-out request for all of his or her fax machines. The requirement of (1) above is incorporated from § (b)(D)(ii) of the Act. The requirement of (2) above is incorporated from § (b)(D)(ii) of the Act and the rules and regulations of the Federal Communications Commission (the “FCC”) in ¶ 31 of its 2006 Report and Order (In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act, Junk Prevention Act of 2005, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on August 1, 2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and incorporated into the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the Opt-Out Notice Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are important consumer protections bestowed by Congress upon the owners of the telephone lines and fax machines giving them the right, and means, to stop unwanted faxed advertisements. 31. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. 32. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent. 33. The Defendants knew or should have known that (a) the Plaintiff and the other class members had not given express invitation or permission for the Defendants or anybody else to fax advertisements about the Defendants’ goods or services; (b) the Plaintiff and the other class members did not have an established business relationship; (c) Defendants transmitted advertisements; (d) the Faxes did not contain the required Opt-Out Notice; and (e) Defendants’ transmission of advertisements that did not contain the required opt-out notice was unlawful.

lose

13. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 14. The Class consists of (a) all individuals nationwide to whom Weltman, Weinberg & Reis Co., LPA mailed a collection letter (b) in an attempt to collect an amount owed or allegedly owed to SLM PRIVATE CREDIT STUDENT LOAN TRUST 2005-B (c) which failed to notify the recipient that interest, late fees, or other charges were accruing (d) which letter 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. 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 collects and/or have purchased debts. 17. There are questions of law and fact common to the Plaintiff Classes, 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 Exhibits A, violate 15 U.S.C. §§ 1692e. 18. The Plaintiffs’ claims are typical of the class members, as all are based upon the same facts and legal theories. 19. The Plaintiffs will fairly and adequately protect the interests of the Plaintiff Classes defined in this complaint. The Plaintiffs have retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiffs nor their attorneys have any interests, which might cause them not to vigorously pursue this action. 22. Depending on the outcome of further investigation and discovery, Plaintiffs 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). 23. 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. 24. Some time prior to November 03, 2016, an obligation was allegedly incurred to SLM 40. 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. 41. 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. 42. 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. 43. Defendant violated said section by:  Falsely representing the amount of the debt in violation of §1692e(2)  Making a false and misleading representation in violation of §1692e(10). 44. 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.

win

29. The crux of the FLSA and NJ State Law is, inter alia, that all employees are entitled to be paid mandated minimum wages for all hours worked. 31. Plaintiff and the members of the Classes were Tipped Employees employed by Defendants. Plaintiff’s Experience Working for Defendant 32. During the course of Plaintiff’s employment with Defendants, her hourly wage rate was $2.15 plus tips. 33. Plaintiff and the other servers recorded their tips on Defendants’ Point of Sale (“POS”) system at the end of each shift. 34. As set forth below, due to Defendants’ pay practices Plaintiff and the Tipped Employees were not paid all wages, including the statutory minimum wage, due and owing to them. 35. For example, despite earning insufficient tips on multiple occasions, Defendants never adjusted Plaintiff’s hourly rate to ensure that she earned at least the minimum wage for each hour worked. 36. Indeed, Defendants took the maximum tip credit for each hour worked by their Tipped Employees regardless of the amount of tips earned by Tipped Employees. 37. Additionally, Defendants Kolovos and Fakouras admitted in their sworn depositions in the Ponzios Litigation that they often altered the payroll records to reflect a higher tip amount than the Tipped Employees actually received during a given shift. 38. In addition, Defendants took the maximum tip credit for each hour worked by their Tipped Employees despite having failed to provide their Tipped Employees with the information required to do so. 39. Defendants also applied a $10.00 meal credit – pro-rated for each 40 hours worked to Plaintiff’s and all Tipped Employees’ weekly gross pay regardless of whether they actually received a meal during any given shift. 41. Defendants’ policies of not adjusting Tipped Employees’ hourly rate when insufficient tips were earned, inflating the tip amounts recorded by Tipped Employees, and improperly applying a meal credit to every Tipped Employees pay were uniform policies/procedures that applied to all Tipped Employees (and thus were applicable to the members of the Classes). The Tip Credit Provision & Requirements 42. Rather than pay its Tipped Employees the applicable minimum wage (either the applicable state minimum wage or the federal minimum wage, whichever is higher), Defendants chose to take a tip credit and pay these employees less than the applicable minimum wage. 43. Under applicable law, in certain circumstances, it is permissible for an employer to take a tip credit and pay its employees less than the mandated minimum wage, provided that the employee’s tips received from customers plus the tip credit wage paid by the employer equals at least the applicable minimum wage.1 44. According to the Department of Labor’s (“DOL”) Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA) (“Fact Sheet #15”): the maximum tip credit that an employer can currently claim under the FLSA is $5.12 per hour (the minimum wage of $7.25 minus the minimum required cash wage of $2.13). 46. Although New Jersey had a higher minimum wage during the period encompassed by this Complaint, it did follow the federal law in requiring only a cash wage of $2.13 to be paid to employees who customarily and regularly receive tips. 47. As is made plain in Fact Sheet #15, in order to claim a tip credit, the employer must notify its employees of its intention to take the tip credit and must also inform its employees that all tips received by the employee are to be retained by the employee (except for those tips that are part of a valid tip pooling arrangement). 48. Moreover, an employer must explicitly notify the employee as to the amount of the tip credit and inform the employee that the employee must still earn the mandated minimum of $7.25 per hour between the amount of the tip credit taken by the employer and the amount of tips earned by the employee. 49. An employer bears the burden of showing that it has satisfied the notification requirement of informing its employees that tips are being credited against the employee’s hourly wage.2 If an employer cannot demonstrate its compliance with this notification requirement, no credit can be taken and the employer is liable for the full minimum wage. 51. Under NJ State Law in effect at the time the Diner was in operation, an employer could pay a tipped employee as low as $2.13 per hour only if the employer could “demonstrate that the balance of the . . . minimum wage required under State law is paid through gratuities in accordance with N.J.A.C. 12:56-4 and 12:56-8.” N.J.A.C. 12:56-14.4(b). N.J.A.C. 12:56-4 pertains to certain record keeping requirements and N.J.A.C. 12:56-8 pertains to gratuities, food and lodging deductions/credits. 52. Like federal law, NJ State Law does not permit an employer using a food credit to offset the wages owed by more than the actual cost of the food to the employer. Thus, no amount of profit to the employer can be included in the meal credit. 53. With respect to the gratuities requirement, under NJ State Law the employer must have an agreement with its employees regarding how tips are calculated and that agreement must either be based on actual tips received, gross sales, or a method approved by the Commissioner. 75. Plaintiff brings this action on behalf of the FLSA Collective Class as a collective action pursuant to the FLSA. Plaintiff also brings this action as a class action pursuant to Rule 23 on behalf of herself and the NJ Class for claims under the NJ State Law. 76. The claims under the FLSA are being pursued by those who opted-in to this case pursuant to 29 U.S.C. § 216(b). The claims brought pursuant to the NJ State Law are being pursued by all similarly-situated persons who do not opt-out of the NJ Class pursuant to Rule 23. 77. The members of the NJ Class are so numerous that joinder of all members is impracticable. While the exact number of the members of the NJ Class can only be ascertained through Defendants’ records, Plaintiff reasonably believes there are over 330 individuals in the NJ Class. 78. Defendants acted or refused to act on grounds generally applicable to the Classes, thereby making final injunctive relief or corresponding declaratory relief with respect to the Classes as a whole, appropriate. 80. Common questions of law and fact exist as to the Classes that predominate over any questions only affecting them individually and include, but are not limited to, the following: a) Whether Defendants were precluded from claiming the tip credit during the period encompassed by this Complaint; b) Whether Defendants failed to pay minimum wages for each hour worked; c) Whether Defendants were precluded from applying a meal credit to the weekly pay of each of their Tipped Employees; and d) Whether Plaintiff and members of the Classes are entitled to compensatory damages, and if so, the means of measuring such damages. 81. Plaintiff will fairly and adequately protect the interests of the Classes as her interests are aligned with those of the members of the Classes. Plaintiff has no interests adverse to the Classes she seeks to represent, and has retained competent and experienced counsel. 82. The class action/collective action mechanism is superior to other available methods for a fair and efficient adjudication of the controversy. The damages suffered by individual members of the Classes may be relatively small when compared to the expense and burden of litigation, making it virtually impossible for members of the Classes to individually seek redress for the wrongs done to them. 83. Plaintiff and the Classes she seeks to represent have suffered and will continue to suffer irreparable damage from the illegal policy, practice and custom regarding Defendants’ pay practices. 85. Plaintiff, on behalf of herself and the FLSA Collective Class, re-alleges and incorporates by reference the paragraphs above as if they were set forth again herein. 86. At all relevant times, Defendants had gross revenues in excess of $500,000.00. 87. At all relevant times, Defendants were employers engaged in interstate commerce, within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 88. At all relevant times, Defendants employed Plaintiff and each of the FLSA Collective Class Members within the meaning of the FLSA. 89. Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees the federally-mandated minimum wage, Defendants took a tip credit and paid Tipped Employees only the tip-credit wage. 90. In addition, Defendants improperly claimed a meal credit by basing it off the retail price of the food. 91. Defendants violated the FLSA. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a). 92. Due to Defendants’ FLSA violations, Plaintiff, on behalf of herself and the members of the FLSA Collective Class, are entitled to recover from the Defendants compensation for unpaid wages; an additional equal amount as liquidated damages; and reasonable attorneys’ fees and costs and disbursements of this action, pursuant to 29 U.S.C. § 216(b). 93. Plaintiff, on behalf of herself and the members of the NJ Class, re-alleges and incorporates by reference the paragraphs above as if they were set forth again herein. 94. At all relevant times, Defendants employed Plaintiff and each of the NJ Class Members within the meaning of the NJ State Law. 95. Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees the applicable New Jersey minimum wage, Defendants improperly took a tip credit and paid Tipped Employees at a rate well below New Jersey’s minimum wage. 96. Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees the required minimum wage in New Jersey, Defendants took a tip credit and paid Tipped Employees only the tip-credit wage. 97. At relevant times in the period encompassed by this Complaint, Defendants had a willful policy and practice of failing to satisfy the notification requirements in order for Defendants to claim the tip credit. 98. At all relevant times in the period encompassed by this Complaint, Defendants had a willful policy of claiming the maximum tip credit even in instances where Tipped Employees did not receive enough in tips to earn minimum wage. FAIR LABOR STANDARDS ACT MINIMUM WAGE VIOLATIONS (On Behalf of Plaintiff and the FLSA Collective Class)

win

40. This action is brought as a class action. Plaintiff brings this action individually, and on behalf of all other persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. 41. The identities of all class members are readily ascertainable from the records of Professional Recovery Services, Inc. and those business and governmental entities on whose behalf it -14- attempts to collect debts. 42. Excluded from the Plaintiff's Class are the Defendants and all officers, members, partners, managers, directors, and employees of Professional Recovery Services, Inc., and all of their respective immediate families, and legal counsel for all parties to this action and all members of their immediate families. 43. There are questions of law and fact common to the Plaintiff's Class, which common issues predominate over any issues involving only individual class members. The principal issues are whether the Defendant's communications with the Plaintiff, such as the said claims, violate provisions of the Fair Debt Collection Practices Act. 44. The Plaintiff's claims are typical of the class members, as all are based upon the same facts and legal theories. 45. The Plaintiff will fairly and adequately protect the interests of the Plaintiff's 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. 46. 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's 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's Class and those questions predominate over any -15- questions or issues involving only individual class members. The principal issues are whether the Defendant's communications with the Plaintiff, such as the above stated claims, violate provisions of the Fair Debt Collection Practices Act. (c) Typicality: The Plaintiff's claims are typical of the claims of the class members. Plaintiff and all members of the Plaintiff's Class defined in this complaint have claims arising out of the Defendant's 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. Certification of a class under Rule 23(b)(l)(A) of the Federal Rules of Civil Procedure is appropriate because adjudications with respect to individual members create a risk of inconsistent or -16- varying adjudications which could establish incompatible standards of conduct for Defendants who, on information and belief, collect debts throughout the United States of America. 47. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate in that a determination that Defendant's communications with the Plaintiff, such as the above stated claims is tantamount to declaratory relief and any monetary relief under the FDCPA would be merely incidental to that determination. 48. 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. 49. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify one or more classes only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 50. Plaintiff re-states, re-alleges, and incorporates herein by reference, paragraphs one (1) through forty nine (49) as if set forth fully in this cause of action. 51. This cause of action is brought on behalf of Plaintiff and the members of two classes. 52. Class A consists of all persons (a) whom Defendant’s records reflect resided within the State of New York (b) who received telephonic messages from Defendant within one year prior to the date of the within complaint up to and including the date of the filing of this Complaint (c) involving telephone messages which were placed without setting forth that the -17- communication was from a debt collector and (d) that the telephone messages were in violation of 15 U.S.C. §§ 1692e(10) and 1692e(11). 53. Class B consists of all persons (a) whom Defendant’s records reflect resided in the state of New York (b) and whose neighbor, or similar party or even someone other than a spouse within the debtor’s home answered a telephone call from Defendant within one year prior to the date of the within complaint up to the date of the filing of the complaint; (c) the telephone calls were placed to the consumer's home or similar party seeking payment of a consumer debt by leaving a message with a third party directing the consumer to call the Defendant and (d) the Plaintiff asserts that the telephone messages were in violation of 15 U.S.C. §§ 1692c(b) and 1692d. 54. Pursuant to Federal Rule of Civil Procedure 23, a class action is appropriate and preferable in this case because: (a) Based on the fact that form telephonic messages are at the heart of this litigation, the class is so numerous that joinder of all members is impracticable. (b) There are questions of law and fact common to the class and these questions predominate over any question(s) affecting only individual class members. The principal question presented by this claim is whether the Defendant violated the Violations of the Fair Debt Collection Practices Act brought by Plaintiff on behalf of herself and the members of a class, as against the Defendant.

win

10. Mental Health and substance abuse treatment is a covered service. (Id. at 44). This includes biologically-based mental conditions, non-biologically based mental, behavior or emotional disorders. In-patient, intermediate treatments and outpatient services are all covered. (Id. at 44-46). All “wilderness” types of coverage, even those that include licensed mental health providers, psychotherapy and clinical programs, are expressly excluded by the certificate. (Id. at 45). 11. A.C., who is covered under her father’s plan and is thus entitled to receive health insurance coverage based on the same plan language as her father’s, has struggled for years with mental health issues such as depression, low self-esteem, suicidal ideation, and drug use. On May 24, 2016, her therapist concluded that A.C. was no longer treatable in an out-patient setting, and recommended an intensive, in-patient treatment. Her parents chose, and she was transmitted, to Evoke Therapy, a mental health service provider based in Santa Clara, Utah. 13. Cotten appealed Blue Cross’s denial on June 6, 2016. Two days later, Blue Cross affirmed its benefit denial. Again, the coverage denial was based exclusively on the plan’s exclusion for all wilderness-related treatment without regard to the services’ medical necessity. The denial affirmation expressly states that, with its determination, Cotten had exhausted Blue Cross’s internal administrative appeal process. 14. Blue Cross’s wilderness therapy exclusion violates the federal Parity Act. The Parity Act was “designed to end discrimination in the provision of coverage for mental health and substance use disorders as compared to medical and surgical conditions in employer-sponsored group health plans and health insurance coverage offered in connection with group health plans.” American Psychiatric Ass’n v. Anthem Health Plans, 50 F. Supp.3d 157, 160 (D. Conn. 2014). In relevant part, the Parity Act states: In the case of a group health plan (or health insurance coverage offered in connection with such a plan) that provides both medical and surgical benefits and mental health or substance use disorder benefits, such plan or coverage shall ensure that— (ii) the treatment limitations applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits covered by the plan (or coverage) and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits. 29 U.S.C. § 1185a(a)(3)(A)(ii). 16. Blue Cross’s plan violates the Parity Act in exactly the same manner. Its blanket exclusion for services rendered at wilderness treatment centers is a separate treatment limitation applicable only to mental health benefits and thus violative of the Parity Act. 17. Plaintiff brings this lawsuit on their own behalf and on behalf of the following class: All persons who are covered under any contract or plan of health insurance that is administered, underwritten or insured by Blue Cross and Blue Shield of Massachusetts HMO Blue that insures behavioral or mental health care and whose claim for coverage for wilderness therapy was denied because the contract or plan excluded such coverage. 19. Plaintiff’s claims are typical of all other class members. All class members’ claims are unified, as all were improperly denied coverage in a manner that violated the protection of the federal Parity Act. 20. Plaintiff’s interests are coincident with, and not antagonistic to, those of the other members of the class. 21. Plaintiff will adequately represent the class because he has interests in common with the proposed class members and plaintiff has retained attorneys who are experienced in class action litigation. 22. There is a well-defined community of interest in the questions of law and fact involving and affecting the class to be represented by plaintiff. Common questions of law and/or fact predominate over any questions affecting only individual members of the class. Common questions include, but are not limited to, the following: a. Whether defendant’s blanket denial of coverage for wilderness therapy violate the Parity Act? b. If the defendant’s acts violate the Parity Act, what is the appropriate remedy? c. What is the appropriate measure of damages? 24. The class action method is appropriate for the fair and efficient prosecution of this action. 25. Individual litigation of all claims that might be asserted by all class members would produce such a multiplicity of cases that the judicial system, having jurisdiction of the claims, would remain congested for years. Class treatment, by contrast, provides manageable judicial treatment calculated to bring a rapid conclusion to all litigation of all claims arising out of the conduct of the defendants. 26. The certification of the above class would allow litigation of claims that, in view of the expense of the litigation, may be an insufficient amount to support separate actions. A. Coverage

win