Datasets:

darrow-ai

/

USClassActions

like 1

Follow

Darrow 14

(Against All Defendants for Violations of Section 14(a) of the Exchange Act and 17 C.F.R. § 244.100 Promulgated Thereunder) (Against the Individual Defendants for Violations of Section 20(a) of the Exchange Act) (Against All Defendants for Violations of Section 14(a) of the Exchange Act and Rule 14a-9 Promulgated Thereunder) 1.pdf. See also The Spectranetics Corp., SEC Staff Comment Letter 1 (July 18, 2017) (“Item 4. The Solicitation or Recommendation Certain Spectranetics Forecasts, page 39 . . . [P]rovide the reconciliation required under Rule 100(a) of Regulation 23. Plaintiff brings this class action pursuant to Fed. R. Civ. P. 23 on behalf of himself and the other public shareholders of Hexcel (the “Class”). Excluded from the Class are Defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any Defendant. 25. Hexcel is an advanced composite company that develops, manufactures and markets lightweight, high-performance structural materials including carbon fibers, specialty reinforcements, prepregs and other fiber-reinforced matrix materials, honeycomb, adhesives, radio frequency/electromagnetic interference and microwave absorbing materials, engineered honeycomb and composite structures. The Company’s products are used in a wide variety of end applications, such as commercial and military aircraft, space launch vehicles and satellites, wind turbine blades, automotive, recreational products and other industrial applications. 27. Hexcel is well-positioned for financial growth and the Merger Consideration fails to adequately compensate the Company’s shareholders. It is imperative that Defendants disclose the material information they have omitted from the S-4, discussed in detail below, so that the Company’s shareholders can properly assess the fairness of the Merger Consideration for themselves and make an informed decision concerning whether or not to vote in favor of the Proposed Transaction. 28. If the false and/or misleading S-4 is not remedied and the Proposed Transaction is consummated, Defendants will directly and proximately have caused damages and actual economic loss (i.e. the difference between the value to be received as a result of the Proposed Transaction and the true value of their shares prior to the merger), in an amount to be determined at trial, to Plaintiff and the Class. II. The Materially Incomplete and Misleading S-4 30. The S-4 discloses that the first discussions relating to the Proposed Transaction took place on September 18, 2019, when Individual Defendant Nick L. Stanage discussed with Individual Defendant Thomas A. Gendron the potential benefits of a strategic transaction. S-4 53. Over the next roughly four months, the Merger Agreement and all other transactions contemplated by the merger were completed. Id. 53-60. From the description contained in the Background of the Merger, the expedited sales process appears to be flawed and designed to facilitate a transaction with Woodward. 32. Additionally, the S-4 fails to disclose the timing and the nature of the employment and governance communications between the Company and Woodward. These discussions are material because the Board’s interests are divergent from the shareholders in this regard and the content of the communications illustrates to shareholders if the Board was truly negotiating for their benefit. The Materiality of Financial Projections 33. A company’s financial forecasts are material information a board relies on to determine whether to approve a merger transaction and recommend that shareholders vote to approve the transaction. Here, the S-4 discloses that in connection with evaluating a possible transaction with Woodward, Hexcel’s management created certain unaudited prospective financial information for fiscal years 2020 through 2024, and projected EBITDA synergies for the next five years following the merger. Id. at 84-87. 34. When soliciting proxies from shareholders, a company must furnish the information found in Schedule 14A (codified as 17 C.F.R. § 240.14a-101). Item 14 of Schedule 14A sets forth the information a company must disclose when soliciting proxies regarding mergers and acquisitions. In regard to financial information, companies are required to disclose “financial information required by Article 11 of Regulation S-X[,]” which includes Item 10 of Regulation S- K. See Item 14(7)(b)(11) of 17 C.F.R. § 240.14a-101. 36. In order to facilitate investor understanding of the Company’s financial projections, the SEC provides companies with certain factors “to be considered in formulating and disclosing such projections[,]” including: (i) When management chooses to include its projections in a Commission filing, the disclosures accompanying the projections should facilitate investor understanding of the basis for and limitations of projections. In this regard investors should be cautioned against attributing undue certainty to management’s assessment, and the Commission believes that investors would be aided by a statement indicating management’s intention regarding the furnishing of updated projections. The Commission also believes that investor understanding would be enhanced by disclosure of the assumptions which in management’s opinion are most significant to the projections or are the key factors upon which the financial results of the enterprise depend and encourages disclosure of assumptions in a manner that will provide a framework for analysis of the projection. (ii) Management also should consider whether disclosure of the accuracy or inaccuracy of previous projections would provide investors with important insights into the limitations of projections. In this regard, consideration should be given to presenting the projections in a format that will facilitate subsequent analysis of the reasons for differences between actual and forecast results. An important benefit may arise from the systematic analysis of variances between projected and actual results on a continuing basis, since such disclosure may highlight for investors the most significant risk and profit-sensitive areas in a business operation. 17 C.F.R. § 229.10(b)(3) (emphasis added). 37. Here, Hexcel shareholders would clearly find complete and non-misleading financial projections material in deciding how to vote, considering that the Board specifically relied on the financial forecasts in reaching its decision to, among other things, approve the Merger Agreement and the transactions contemplated by it. S-4 60-63. 39. The S-4 discloses that in connection with evaluating a possible transaction with Woodward, Hexcel’s management created certain unaudited prospective financial information for fiscal years 2020 through 2024, and projected EBITDA synergies for the next five years following the merger. Id. at 84-87. 40. The S-4 goes on to disclose, inter alia, forecasted values for projected non-GAAP financial metrics for 2020 through 2024 for EBITDA, but fails to provide (i) the line items used to calculate the non-GAAP metric or (ii) a reconciliation of the non-GAAP projections to the most comparable GAAP measure. Id. at 87. 41. The S-4 does not define EBITDA, reconcile EBITDA to its most comparable GAAP measure or disclose the line items used to calculate EBITDA, rendering the S-4 materially false and/or misleading. Id. 42. Thus, the S-4’s disclosure of non-GAAP financial forecasts provides an incomplete and materially misleading understanding of the Company’s future financial prospects and the inputs and assumptions for which those prospects are based upon. It is clear that those inputs and assumptions were in fact forecasted and utilized in calculating the non-GAAP measure disclosed and relied on by the Board to recommend the Proposed Transaction in violation of Section 14(a) of the Exchange Act. 44. As such, this information must be disclosed in order to cure the materially misleading disclosures regarding both the financial projections developed by the Company as well as the projections relied upon by the Company’s financial advisors. The Financial Projections Violate Regulation G 45. The SEC has acknowledged that potential “misleading inferences” are exacerbated when the disclosed information contains non-GAAP financial measures1 and adopted Regulation G2 “to ensure that investors and others are not misled by the use of non-GAAP financial measures.”3 48. The SEC has required compliance with Regulation G, including reconciliation requirements in other merger transactions. Compare Youku Tudou Inc., et al., Correspondence to SEC 5 (Jan. 11, 2016) (Issuer arguing that Rule 100(d) of Regulation G does not apply to non- GAAP financials relating to a business combination),7 with Youku Tudou Inc., et al., SEC Staff Comment Letter 1 (Jan. 20, 2016) (“[The SEC] note[s] that your disclosure of projected financial information is not in response to the requirements of, or pursuant to, Item 1015 of Regulation M- A and is thus not excepted from Rule 100 of Regulation G.”);8 see Harbin Electric, Inc., Correspondence to SEC 29 (Aug. 12, 2011) (“Pursuant to the requirements of Regulation G, we have added a reconciliation of actual and projected EBIT to GAAP net income . . . .”).9 49. Compliance with Regulation G is mandatory under Section 14(a), and non- compliance constitutes a violation of Section 14(a). Thus, in order to bring the S-4 into compliance 7 Available at https://www.sec.gov/Archives/edgar/data/1442596/000110465916089133/ filename1.htm. 8 Available at https://www.sec.gov/Archives/edgar/data/1442596/000000000016062042/ filename1.pdf. 9 Available at https://www.sec.gov/Archives/edgar/data/1266719/000114420411046281/ filename1.htm. See also Actel Corporation, SEC Staff Comment Letter 2 (Oct. 13, 2010) (“Opinion of Actel’s Financial Advisor, page 24 . . . This section includes non-GAAP financial measures. Please revise to provide the disclosure required by Rule 100 of Regulation G.”), available at https://www.sec.gov/Archives/edgar/data/907687/000000000010060087/filename 72. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 73. Section 14(a)(1) of the Exchange Act makes it “unlawful for any person, by the use of the mails or by any means or instrumentality of interstate commerce or of any facility of a national securities exchange or otherwise, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors, to solicit or to permit the use of his name to solicit any [S-4] or consent or authorization in respect of any security (other than an exempted security) registered pursuant to section 78l of this title.” 15 U.S.C. § 78n(a)(1). 75. The failure to reconcile the non-GAAP financial measures included in the S-4 violates Regulation G and constitutes a violation of Section 14(a). 76. As a direct and proximate result of the dissemination of the false and/or misleading S-4 Defendants used to recommend that shareholders approve the Proposed Transaction, Plaintiff and the Class will suffer damages and actual economic losses (i.e. the difference between the value they will receive as a result of the Proposed Transaction and the true value of their shares prior to the merger) in an amount to be determined at trial and are entitled to such equitable relief as the Court deems appropriate, including rescissory damages. 77. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 78. SEC Rule 14a-9 prohibits the solicitation of shareholder votes in registration statements that contain “any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading[.]” 17 C.F.R. § 240.14a-9(a). 79. Regulation G similarly prohibits the solicitation of shareholder votes by “mak[ing] public a non-GAAP financial measure that, taken together with the information accompanying that measure . . . contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the presentation of the non-GAAP financial measure . . . not misleading.” 17 C.F.R. § 244.100(b) (emphasis added). 81. In so doing, Defendants made untrue statements of fact and/or omitted material facts necessary to make the statements made not misleading. Each of the Individual Defendants, by virtue of their roles as directors and/or officers, were aware of the omitted information but failed to disclose such information, in violation of Section 14(a). The Individual Defendants were therefore negligent, as they had reasonable grounds to believe material facts existed that were misstated or omitted from the S-4 but nonetheless failed to obtain and disclose such information to shareholders although they could have done so without extraordinary effort. 82. The Individual Defendants knew or were negligent in not knowing that the S-4 is materially misleading and omits material facts that are necessary to render it not misleading. The Individual Defendants undoubtedly reviewed and relied upon the omitted information identified above in connection with their decision to approve and recommend the Proposed Transaction. 83. The Individual Defendants knew or were negligent in not knowing that the material information identified above has been omitted from the S-4, rendering the sections of the S-4 identified above to be materially incomplete and misleading. 85. Hexcel is also deemed negligent as a result of the Individual Defendants’ negligence in preparing and reviewing the S-4. 86. The misrepresentations and omissions in the S-4 are material to Plaintiff and the Class, who will be deprived of their right to cast an informed vote if such misrepresentations and omissions are not corrected prior to the vote on the Proposed Transaction. 87. As a direct and proximate result of the dissemination of the false and/or misleading S-4 Defendants used to recommend that shareholders approve the Proposed Transaction, Plaintiff and the Class will suffer damages and actual economic losses (i.e. the difference between the value they will receive as a result of the Proposed Transaction and the true value of their shares prior to the merger) in an amount to be determined at trial and are entitled to such equitable relief as the Court deems appropriate, including rescissory damages. 88. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 90. Each of the Individual Defendants was provided with or had unlimited access to copies of the S-4 and other statements alleged by Plaintiff to be misleading prior to and/or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause the statements to be corrected. 91. In particular, each of the Individual Defendants had direct and supervisory involvement in the day-to-day operations of the Company and, therefore, is presumed to have had the power to control or influence the particular transactions giving rise to the Exchange Act violations alleged herein and exercised the same. The S-4 at issue contains the unanimous recommendation of each of the Individual Defendants to approve the Proposed Transaction. They were thus directly involved in preparing the S-4. 92. In addition, as the S-4 sets forth at length, and as described herein, that the Individual Defendants were involved in negotiating, reviewing, and approving the Merger Agreement. The S-4 purports to describe the various issues and information that the Individual Defendants reviewed and considered. The Individual Defendants participated in drafting and/or gave their input on the content of those descriptions. 93. By virtue of the foregoing, the Individual Defendants have violated Section 20(a) of the Exchange Act. I. The Proposed Transaction

lose

22. Broadspectrum serves the oil drilling industry by providing clients operating oil refineries with skilled personnel who specialize in planning, implementing, and executing safety protocols for oil refinery operations. Broadspectrum provides services throughout the United States, including in California. 47. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. 48. Plaintiff brings her FLSA claims as a collective action pursuant to 29 U.S.C. § 216(b) as to claims for failing to pay Plaintiff and Collective members for all hours worked, including minimum wage, wages at the agreed rate, and overtime compensation for all hours worked over 40 hours per week, liquidated damages, and attorneys’ fees and costs under the FLSA. The FLSA Collective that Plaintiff seeks to represent is defined as follows: All current and former hourly, non-exempt employees of Broadspectrum, Inc. in the United States during the time period three years prior to the filing of this Complaint until the resolution of this action. 49. Plaintiff’s claims for violations of the FLSA may be brought and maintained as an “opt-in” collective action pursuant to Section 216(b) of the FLSA because Plaintiff’s FLSA claims are similar to the claims of the Collective members. 50. The Collective members are similarly situated, as they have substantially similar job duties and requirements and are subject to a common policy, practice, or plan that required them to perform work without compensation and required them to perform work at an unlawfully reduced payment rate, in violation of the FLSA. 51. Plaintiff is representative of the Collective members and is acting on behalf of their interests, as well as Plaintiff’s own interests, in bringing this action. 52. Plaintiff will fairly and adequately represent and protect the interests of Collective members. Plaintiff has retained counsel competent and experienced in employment class action and collective action litigation. 54. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. 55. Plaintiff brings this case as a class action on behalf of herself and all others similarly situated pursuant to Federal Rule of Civil Procedure 23. The putative Class that Plaintiff seeks to represent is defined as follows: All current and former hourly, non-exempt employees of Broadspectrum, Inc. in California during the time period four years prior to the filing of this Complaint until the resolution of this action. 57. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. 58. The FLSA requires that covered employees receive compensation for all hours worked and overtime compensation not less than one and one-half times the regular rate of pay for all hours worked in excess of forty hours in a work week. 29 U.S.C. § 207(a)(1). 59. At all times material herein, Plaintiff and the Collective are covered employees entitled to the rights, protections, and benefits provided under the FLSA. 29 U.S.C. §§ 203(e) and 207(a). 60. Defendant is a covered employer required to comply with the FLSA’s mandates. 61. Defendant has violated the FLSA with respect to Plaintiff and the Collective, by, inter alia, failing to compensate Plaintiff and the Collective for all hours worked and, with respect to such hours, failing to pay the legally mandated overtime premium for such work and/or minimum wage. 62. Defendant has also violated the FLSA by failing to keep required, accurate records of all hours worked by Plaintiff and the Collective. 29 U.S.C. § 211(c). 68. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. 69. Labor Code § 200(a) defines wages as “all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis or other method of calculation.” 82. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. 83. During the applicable statutory period, California Labor Code §§, 1182.12 and 1197, and the Minimum Wage Order were in full force and effect and required that Broadspectrum’s hourly employees receive the minimum wage for all hours worked irrespective of whether nominally paid on a piece rate, or any other bases, at the rate of ten dollars and fifty cents ($10.50) per hour commencing January 1, 2017. 89. Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set forth herein. Failure to Pay Minimum Wages Pursuant to California Labor Code §§ 1182.11, 1182.12, 1194, 1197, and 1197.1 (On Behalf of the Class) Failure to Pay for All Hours Worked Pursuant to Labor Code § 204 (On Behalf of the Class) Failure to Pay Overtime Wages Pursuant to Labor Code § 510 (On Behalf of the Class) Violation of the Fair Labor Standards Act 29 U.S.C. §§ 201, et seq. (On Behalf of the Collective)

win

(Failure to Pay Overtime Wages) 18. Magellan operates and has operated “call centers” in Arizona and across the nation where telephone-dedicated employees similar to Plaintiff handle phone calls regarding various call center services including medical authorization and insurance inquiries offered by Magellan to its customers. 20. Magellan had the power to hire and fire Plaintiff and other persons similarly situated. 21. At the Magellan call center where Plaintiff Hayford worked, Magellan had managers on the floor of the call center during the workday, managing the work activities of the Plaintiff and other similarly situated persons. 22. Defendant does not allow telephone-based employees to use its phones and computers for any personal use. Additionally, Defendant generally prohibits and does not allow telephone-based employees to use their own personal cell phones on the call center floor. Under Defendant’s policies and practices, telephone-based employees are required to store their personal cell phones during the work day and can generally only use them on breaks and off the call center floor. 23. At the Magellan call center where Plaintiff worked, Magellan’s managers on the call center floor could and did regularly see with their own eyes that Plaintiff and similarly situated telephone-based employees arrived at their work stations before the start of their scheduled shift time, logged into Magellan’s computers, and began working on their computers prior to the start of their scheduled shift time. 24. Despite seeing and knowing that Plaintiff and similarly situated telephone- based employees performed work at their work stations prior to their scheduled shift time start, Defendant and its managers on the floor of the call center did not make any effort to stop or otherwise disallow this pre-shift work and instead allowed and permitted it to happen. 25. Defendant possesses, controls and/or has access to information and electronic data that shows the times Plaintiff and similarly situated telephone-based employees logged into their computers each day and the time they logged into their telephone systems. 27. Despite having this information and knowing that Plaintiff and similarly situated telephone-based employees logged into their computers, initialized necessary software programs, and read company issued emails and instructions prior to the start of their scheduled shift time, Defendant did not make any effort to stop or otherwise disallow this pre-shift work and instead allowed and permitted it to happen. 28. Defendant knowingly required and/or permitted Plaintiff and those similarly situated to her to perform unpaid work before and after the start and end times of their shifts, including but not limited to booting up computers, initializing several software programs, and reading company issued emails and instructions prior to the start of their scheduled shift time, and completing customer service calls, closing down the software programs, and logging off the system after the end of their scheduled shift times. 29. In addition, by having managers on the call center floor and having access to the electronic data, among other things, Defendant was aware that Plaintiff and those similarly situated to her also performed work for Defendant on their break periods, for which they were not paid. The work that Plaintiff and similarly situated employees performed during break periods includes, but is not limited to, completing customer orders, finishing customer service calls, logging back into the phone system, re-booting their computers and initializing software programs. 30. The amount of uncompensated time Plaintiff and those similarly situated to her spend or have spent on these required and unpaid work activities averages approximately fifteen to twenty minutes per day per person. 31. Defendant monitored and directed the work activities of Plaintiff and other similarly situated persons, including the unpaid work at issue. B. Defendant Knew of and Assented to the Pre-Shift Work 33. In order to be logged into Magellan’s telephone systems, Defendant required and/or permitted Plaintiff and similarly situated telephone-based employees to arrive at their work station prior to their scheduled shift time and boot up computers, initialize several software programs, and read company emails and instructions. 34. Defendant’s policy and practice disciplines telephone-based employees if they are not logged into their phones and ready to handle calls by the start of their scheduled shift time. 35. This policy and practice of Defendant results in telephone-based employees, including the Plaintiff, to boot up their computers, initialize several software programs and/or read company emails and instructions prior to their start of their scheduled shift time. 36. As set forth herein, via its policies and practices and through its own telephone and computer systems, Defendant knew and was aware that the telephone- based employees performed work prior to the start of their scheduled shift. 37. Defendant did not instruct Plaintiff and similarly situated telephone-based employees to not log into their computers or telephone, or to not read company emails prior to the start of their scheduled shift time. Rather, Defendant required, permitted and/or allowed Plaintiff and the putative class members to work prior to their scheduled shift time. 38. By knowing of, permitting and/or requiring Plaintiff and similarly situated telephone-based employees to log into their computers, initialize their various software programs and/or read company email and instructions prior to the start of their scheduled shift time, Defendant assented to them performing this work. C. Defendant’s Failure to Pay Overtime Wages to Its Telephone-Based Hourly Employees 40. Defendant’s managers reviewed and approved Plaintiff and other similarly situated persons’ time records prior to receiving their paychecks. 41. Defendant supervised and controlled the work schedule of Plaintiff and other similarly situated persons. 42. Defendant issued paychecks to Plaintiff other similarly situated persons, and was involved in determining the actual amount of compensation paid by the paycheck. 43. Plaintiff and those employees similarly situated are individuals who were, or are, employed by Defendant in customer service, sales, and similar positions at Magellan’s call centers who were not paid for some or all of their work activities prior to the beginning of their shifts, during meal and rest breaks, or after the end of their shifts. 44. Plaintiff and the other employees are similarly situated to one another because their duties consisted primarily of providing services related to handling phone calls regarding various call center services including medical authorization and insurance inquiries offered by Magellan to its customers while working in Magellan’s call centers. Plaintiff and others similarly situated all shared similar policies, job titles, job descriptions, training, job duties and compensation, among other things. 45. Plaintiff and the other employees are also similar because Defendant did not pay them for all time they actually worked. Defendant knowingly required Plaintiff and the similarly situated individuals to perform unpaid work before and after their scheduled shifts, including but not limited to booting-up computers, initializing several software programs, reading company emails and instructions, and completing customer service calls. Additionally, Defendant was aware that Plaintiff and those similarly situated to her also performed work for Defendant on their break periods, for which they were not paid. 47. Plaintiff and others similarly situated at times work or worked in excess of forty hours per week for Defendant in a given workweek. 48. Defendant’s policy and practice of requiring and/or permitting its employees, including Plaintiff and other non-exempt, hourly employees, to perform work without pay for such work performed, violates Section 6 of the FLSA, 29 U.S.C. § 206. 49. Defendant’s policy and practice of requiring its employees to perform work without pay in many instances has caused and continues to cause Plaintiff and certain other similarly situated hourly employees to work in excess of forty hours per week, without being properly compensated at a wage of 1.5 times their respective hourly rate for such work performed, as required by Section 7 of the FLSA, 29 U.S.C. § 207. 50. Defendant’s failure to compensate its non-exempt, hourly call center employees with the full amount of the applicable regular wage or overtime wage has caused Plaintiff and other similarly situated non-exempt call center employees to suffer harm. 51. Defendant’s non-exempt, call center hourly employees are entitled to compensation for all time they worked without pay in any given workweek. 52. Plaintiff brings Count I of this Complaint as a collective action on behalf of herself and all other current and former hourly employees of Defendant who Defendant required to perform the work described herein without pay at any time during the three years prior to the commencement of the action to present at call centers owned by Magellan. 54. Other employees similarly situated to Plaintiff work or have worked at Magellan call centers, but were not paid overtime at the rate of one and one-half their regular rate when those hours exceeded forty hours per workweek. 55. Although Defendant permitted and/or required the FLSA Class Members to work in excess of forty hours per workweek, Defendant has denied them full compensation for their hours worked over forty. Defendant has also denied them full compensation at the federally mandated minimum wage rate. 56. FLSA Class Members perform or have performed the same or similar work as Plaintiff. 57. FLSA Class Members regularly work or have worked in excess of forty hours during a workweek. 58. FLSA Class Members are not exempt from receiving overtime pay at the federally mandated wage rate under the FLSA. 59. As such, FLSA Class Members are similar to Plaintiff in terms of job duties, pay structure, and the denial of overtime wages. 60. Defendant’s failure to pay the overtime compensation wage rate required by the FLSA results from generally applicable policies or practices, and does not depend on the personal circumstances of the FLSA Class Members. 61. The experiences of Plaintiff, with respect to her pay, are typical of the experiences of the FLSA Class Members. 63. All FLSA Class Members, irrespective of their particular job requirements, are entitled to overtime compensation for hours worked in excess of forty during a workweek. 64. Although the exact amount of damages may vary among FLSA Class Members, the damages for the FLSA Class Members can be easily calculated by a simple formula. The claims of all FLSA Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by Defendant that caused harm to all FLSA Class Members. 65. As such, Plaintiff brings her FLSA overtime as a collective action on behalf of the following class, and Plaintiff’s Counsel seek to send notice of this lawsuit to the following described persons: All persons who worked for Defendant as telephone dedicated employees, however titled, who were compensated, in part or in full, on an hourly basis at Magellan call centers at any time between December 28, 2012 and the present who did not receive the full amount of overtime wages earned and owed to them. 66. There are questions of law or fact common to the employees described in paragraph 65. 67. Plaintiff is similarly situated to the employees described in paragraph 65, as Plaintiff’s claims are typical of the claims of those persons. 68. Plaintiff’s claims or defenses are typical of the claims or defenses of the persons described in paragraph 65. 69. This is not a collusive or friendly action. Plaintiff has retained counsel experienced in complex employment litigation, and Plaintiff and her counsel will fairly and adequately protect the interests of the persons described in paragraph 65. 71. At all relevant times, Defendant employed Plaintiff and the persons described in paragraph 65. 72. At all relevant times, Defendant paid Plaintiff and the persons described in paragraph 65 to work. 73. At all relevant times, Defendant has been an “employer” of Plaintiff and the persons described in paragraph 65, as the term “employer” is defined by Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 74. At all relevant times, Plaintiff and the persons described in paragraph 65 have been “employees” of Defendant as defined by Section 3(e) of the FLSA, 29 U.S.C. § 203(e). 75. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 74 as paragraph 75 of this Count I. 76. Plaintiff, individually and on behalf and the members of the class described in paragraph 65, asserts claims for unpaid overtime pursuant to the FLSA. 77. At any and all times relevant hereto, Defendant was an “enterprise engaged in commerce” within the meaning of Section 3(s) of the FLSA, 29 U.S.C. § 203(s). 78. At any and all times relevant hereto, Defendant was an “employer” of the Plaintiff and the members of the class described in paragraph 65 within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 79. At any and all times relevant hereto, Plaintiff and the members of the class described in paragraph 65 were “employees” of Defendant as defined by Section 3(e) of the FLSA, 29 U.S.C. § 203(e). 81. At all times relevant hereto, Defendant’s failure to pay Plaintiff and the members of the class described in paragraph 65 premium pay for all time worked over 40 hours in a week was willful in that, among other things: a. Defendant knew that the FLSA required it to pay time and one-half for all time worked over 40 hours in a week; b. Defendant failed to maintain true and accurate time records; and c. Defendant encouraged Plaintiff and other similarly situated employees to not record all time worked. 82. As a direct and proximate result thereof, Plaintiff and the members of the class described in paragraph 65 are due unpaid back wages and liquidated damages, pursuant to 29 U.S.C. § 216. A. Defendant’s Practice of Requiring and/or Permitting Telephone-Based Hourly Employees to Work Before the Start of Their Scheduled Shift Time

win

11. Bobcat is an American-based manufacturer and a leading provider of compact equipment for use in various markets, from agriculture to construction. 12. Bobcat introduced the world’s first skid-steer loader in 1960. Skid-steer loaders are labor-saving vehicles commonly used in the agriculture, construction, and landscaping industries to load and move heavy materials. Since 1960, Bobcat has continued to modify and update its loaders to meet the various individual needs of its customers. 13. Today, Bobcat designs, manufacturers, and sells large-frame loaders in thirteen different models. Bobcat offers a variety of options for customers looking to purchase a compact skid-steer loader, with size, engine, and operational characteristics unique to each model. Bobcat sells its skid-steer loaders in the State of Minnesota through authorized dealerships, including, but not limited to, Lano Equipment Inc., located in Loretto, Minnesota. 14. Consumers can also purchase skid-steer loaders from such companies as Caterpillar, John Deere, and Komatsu. B. Bobcat misrepresented certain qualities and characteristics of the Loaders. 15. Bobcat advertises the qualities and characteristics of its Loaders in materials specifically created for the purpose of disseminating product information to consumers throughout the United States. These materials include brochures, information 489847.4 6 packets, product specification sheets, warranties, and other promotional materials (hereinafter “promotional materials”). By all accounts, the promotional materials are intended to accurately inform consumers about Bobcat’s products, and that is indeed the expectation consumers, including Plaintiff, had for these materials. 16. Bobcat used the promotional materials in connection with the sale and purchase of the Loaders to both Plaintiff and the Class. Bobcat’s authorized dealerships throughout the United States, including in Minnesota, circulate the promotional materials to potential consumers; these same materials are also available on Defendants’ websites. 17. In contravention of consumers’ reasonable expectations, the Bobcat promotional materials contained misleading statements concerning the qualities and characteristics of its Loaders. For instance, starting as early as 2010, Bobcat claimed that its skid-steer loaders “feature[] a superior design that outperforms other brands while maximizing your uptime . . .,” with “[i]ncreased fuel capacity [that] gives you more time on the job without stopping to fill up.” This statement, which was incorrect and misleading, improperly induced Plaintiff and the Class to purchase the Loaders. 18. Likewise, the Bobcat promotional materials advertised incorrect data concerning the fuel tank capacities of various skid-steer loader models. In particular, the Bobcat S650 loader is advertised as having a fuel tank capacity of 27.2 or 27.3 gallons, depending on the brochure; the Bobcat website advertises a fuel tank capacity of 27.5 gallons for the same model. These numbers, which are incorrect and misleading, improperly induced Plaintiff and the Class to purchase the Loaders. 489847.4 7 19. Bobcat promotional materials also advertise a “2-Speed Option” that can “boost top travel speed by as much as 57 percent and reduce the time it takes to travel across a jobsite” as compared to the single-speed option. In particular, customers can purchase a Bobcat S650 loader equipped with the 2-Speed Option, which is advertised as being able to attain a top speed of 12.3 MPH, compared to 7.1 MPH for the single-speed option. These statements, which are likewise false since the speed linkage was not adjusted correctly by Bobcat, were made with the sole purpose of inducing customer reliance and were in fact relied upon by Plaintiff and the Class in purchasing the Loaders. 20. Bobcat also promoted the Loaders for use in providing snow removal services. According to the Bobcat website, “[w]hen customers count on you to get their snow removed, you need equipment you can count on. . . Bobcat machines are ready to tackle your toughest contract snow removal jobs.” “Even tough conditions like heavy snow, wet slush, and hard ice are no match for tough Bobcat machines and attachments.” 21. Bobcat’s affirmative representations that the Loaders were of superior quality and possessed certain characteristics and capabilities were the exact representations Plaintiff and the Class relied on in purchasing their Loaders – that Bobcat skid-steer loaders are equipment that can be counted on. But Bobcat misled Plaintiff and the Class concerning Loaders’ qualities, characteristics, and capabilities, and therefore performance abilities, to the detriment of both their checkbooks and potential business growth. 489847.4 8 C. Plaintiff purchased his Loader based on Bobcat’s misrepresentations in the promotional materials. 22. On October 15, 2013, Plaintiff entered into a contract for the sale and purchase of a Bobcat S650 loader from Lano Equipment, Inc., an authorized Bobcat dealership located in Minnesota. Plaintiff purchased the Bobcat S650 loader for use in providing snow removal services for the one hundred-plus customers of his business, Robert Gordon Homes, Inc. Plaintiff traded in his 2003 Bobcat S250 loader when purchasing the S650 model. 23. Plaintiff relied heavily on Defendants’ misleading promotional materials when assessing the capabilities of his Loader and its potential impact on his snow removal business, as compared to a competitor’s skid-steer loader. Specifically, Plaintiff’s snow removal route is based on the distance a skid-steer loader can travel before it requires refueling. The Loader appealed to Plaintiff, based on Bobcat’s promotional materials, because the further a skid-steer loader could travel on a single tank of fuel, the more customers Plaintiff could serve in a timely fashion; a factor important not only to Plaintiff, but also to potential customers. 24. Plaintiff decided to upgrade his Bobcat S250 loader to the S650 model based on the S650’s advertised larger fuel tank capacity. The Bobcat S650 loader was – and is still – advertised as holding 27.2 to 27.5 gallons of fuel, depending on the brochure or product specification sheet. Indeed, the “Operation & Maintenance Manual” for Plaintiff’s Loader states that it can hold up to 27.2 gallons of fuel. By comparison, the 489847.4 9 promotional materials advertised that the 2003 Bobcat S250 loader was capable of holding 25 gallons of fuel. 25. Therefore, Plaintiff expected an increase of no less than 2.2 gallons of fuel tank capacity based on the advertisements and representations made in the Bobcat promotional materials. Plaintiff’s expectations, much like the true fuel tank capacity of his Loader, proved to be off the mark. 26. Plaintiff discovered, upon running out of fuel in the middle of his snow removal route, that his Loader could hold a maximum of only 19.5 gallons of fuel – almost 6 gallons less than his previous 2003 Bobcat S250 model and 7.7 to 8.0 gallons less than his Loader’s advertised fuel tank capacity. Plaintiff immediately visited Lano Equipment, Inc. to have his new Loader inspected and repaired so that it would hold the amount of fuel advertised by Bobcat. Searching for a remedy, the dealer switched out the fuel suction tube at least two times but to no avail: the Loader’s fuel tank was still limited to a maximum of 19.5 gallons. To reiterate, Plaintiff’s Loader held 7.7 to 8.0 gallons less fuel than advertised in Bobcat’s promotional materials and reads empty after using only approximately 17 gallons of fuel. 27.2 to 27.5 gallon capacity advertised by Bobcat; iii. whether the coating on the Bobcat loaders is defective; iv. whether the Defendants knowingly and/or negligently misrepresented the Loaders to Class members; v. whether Defendants’ engaged in unfair and deceptive conduct;   vi. whether the value of the Loaders has been diminished as a result Defendants’ misconduct. 27. Thereafter, the authorized Bobcat dealership drained the fuel tank entirely, Plaintiff and a Bobcat representative then traveled to an authorized Bobcat filling station, and the Bobcat representative proceeded to fill the fuel tank to its maximum capacity, including the filler neck. This time, the fuel tank held 24 gallons. Nonetheless, this was still 3.2 to 3.5 gallons below the advertised fuel tank capacity for the Loader and a full gallon less than his previous 2003 Bobcat S250 model. 489847.4 10 28. Bobcat has refused to manufacture a fuel suction tube that would allow Plaintiff to access and use the additional 4.5 gallons of fuel at the bottom of his fuel tank. As a result, Plaintiff’s authorized Bobcat dealership was forced to “piece together” a new suction tube that would allow Plaintiff to access and use all 24 gallons of fuel in the fuel tank. Despite this, Plaintiff’s fuel tank still holds 3.2 to 3.5 gallons less fuel than advertised in Bobcat’s promotional materials. To date, Plaintiff’s fuel gauge incorrectly reads empty at approximately 17 gallons based on Bobcat’s refusal to recalibrate the fuel gauge. 29. Upon discovering the inadequate fuel tank capacity of his Loader, Plaintiff sought to determine whether his previous Bobcat S250 loader was similarly defective. Indeed, Plaintiff had a similar problem with the Bobcat S250 loader. Plaintiff made this discovery when he requested that a colleague re-fuel a Bobcat S250 loader and keep track of the precise amount of fuel dispensed. Thereafter, Plaintiff confirmed that the never filled the fuel tank with more than 19 gallons of gasoline. The fuel tank on the Bobcat S250 loader, it turns out, suffers from the same fuel tank capacity shortfall as the S650 model. 30. Specifically, Plaintiff’s 2003 Bobcat S250 loader was advertised as having a fuel tank capacity of 25 gallons. But the 2003 Bobcat S250 loader reached its fuel tank capacity at 19 gallons. That is, the 2003 Bobcat S250 loader had fuel tank capacity 6.0 gallons below the fuel tank capacity advertised in Bobcat promotional materials. 31. Upon information and belief, Bobcat manufactures only one size fuel tank per frame size. The Bobcat S650 loader and other models with the similar size and/or 489847.4 11 frame are incapable of holding a fuel tank larger than the advertised (but inaccurate) 27.2 to 27.5 gallon fuel tank. For instance, all four Bobcat loaders registering a width of 74 inches, which includes the Bobcat S650 loader, are advertised as holding a 27.2 to 27.5 gallon fuel tank. Furthermore, upon information and belief, the Bobcat S250 loader is incapable of holding a fuel tank larger than the advertised (but inaccurate) 23 to 25 gallon fuel tank. 32. Therefore, the issue of insufficient fuel tank capacity is not limited to the Bobcat S650 loader, but also impacts other Bobcat loader models with the similar size and/or frame, in addition to the S250 model. The issue of insufficient fuel tank capacity affects thousands of Bobcat customers. 33. This issue is particularly problematic because, upon information and belief, Bobcat customers are generally unaware of the discrepancy between advertised fuel tank capacities and actual fuel tank capacities due to the manner in which the customers fill their fuel tanks. The owners and operators of the Loaders generally re-fill their Loaders from fuel transfer tanks and are therefore unaware of their Loaders’ true fuel tank capacity. By comparison, vehicle operators who re-fill at gas stations, which track the precise amount of fuel dispensed, are aware of the true fuel tank capacities of their vehicles. 34. Defendant admitted that it has misrepresented the fuel tank capacity of the Bobcat S650 loader (and, by extension, loader models with the similar size and/or frame). Despite this admission, Defendant failed to take any remedial action to correct these misrepresentations in either its brochures, specification sheets, or other promotional 489847.4 12 materials. As a result, thousands of customers have purchased the Loaders based on a misunderstanding of the true fuel tank capacity. 35. Furthermore, the fuel tank issue is not covered by the Bobcat “12 Month Loader Warranty.” Bobcat warrants to the owners of new Bobcat skid-steer loaders that each new loader will be “free from proven defects in material and workmanship with respect to (i) all components of the product . . .” The warranty permits a Bobcat dealer to “repair or replace . . . any part of the Bobcat loader which fails because of a defect in material and/or workmanship during the warranty period. . .” Because the Loaders are not equipped to handle a larger fuel tank, the warranty does not cover this defect in that the fuel tank cannot be repaired or replaced. 36. Plaintiff has also experienced issues with the torque and/or related speed capability of his Loader. 37. Bobcat promotional materials advertise that the S650 can be purchased with a “2-Speed Option,” which can travel at a top speed of 12.3 MPH. The “Operation & Maintenance Manual” that accompanied Plaintiff’s Bobcat S650 loader states that Plaintiff’s loader can attain a top speed of 12.3 MPH. Plaintiff’s Bobcat S650 loader travels at a top speed of approximately half of the advertised speed. 38. Plaintiff incurred increased fuel and labor costs as a result of the fuel linkage problem. Plaintiff consumed more fuel while operating the Loader at full throttle, attaining half the advertised speed, for upwards of twice the amount of time than Plaintiff would have operated the Loader had the product been able to reach the advertised top speed. 489847.4 13 39. Upon information and belief, the reduced speed of the Bobcat S650 loader is due to an incorrect linkage adjustment at the Bobcat factory. As a result, the linkage problem is widespread and therefore impacts the Bobcat Loaders purchased by thousands of Bobcat customers. 40. On several occasions, Plaintiff notified his Bobcat dealership and the Bobcat headquarters of the issues with respect to the fuel tank capacity of his Bobcat S650 loader. 41. Specifically, in March of 2014, Plaintiff expressed his concerns with respect to the fuel tank capacity of his Loader to Tim Krahn, a District Sales Manager for Bobcat. 42. Upon learning of Plaintiff’s fuel tank issue and inspecting the Loader, Mr. Krahn offered to refund the cost of Plaintiff’s Loader, even though newer models sell for upwards of $8500 more than Plaintiff’s Loader. In the end, Plaintiff spent over $25,000, based on the price of the Bobcat’s S650 loader minus the trade-in value of his 2003 S250 model, to have a larger fuel tank so that he could better serve his customers and grow his business. 43. Plaintiff has also endured additional hardship and expense to ensure that his Loader meets the fuel tank specifications advertised in Bobcat’s promotional materials, a measurement of which the Loader still falls considerably short. D. Bobcat allowed for defective coating application on the S650 44. The Bobcat S650 loader is also manufactured with a defective coating that fails to cover exposed metal, leading to premature rusting. In fact, Bobcat’s promotional 489847.4 14 materials include photos that depict skid-steer loaders bearing rust and coating that is flaking. Upon information and belief, this defect also affects other Bobcat skid-steer loader models, including, but not limited to, the Loaders. 45. Plaintiff’s Loader displayed rust from the moment it was delivered to his business. Plaintiff raised his concern over the growing rust on his machine and spots of exposed metal, but Bobcat dismissed his concerns, stating that rust should be expected because the Loader is construction equipment. But this is false. Plaintiff did not agree to purchase a rusting Loader with a faulty coating and incomplete paint job simply because the Loader is a piece of construction equipment. Plaintiff bargained for a new Bobcat loader, in both appearance and performance. Indeed, Plaintiff was told he received a lesser value for his s250 on trade-in based on the rust appearing on this loader. Plaintiff, however, did not receive a discount purchase price based on the rust on his S650 Loader. V. 46. Plaintiff brings this action as a class action on his own behalf and pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of the following Class: All individuals who purchased a Bobcat S650 loader (or a model with the similar size and/or frame), through an authorized Bobcat dealership, from 2010 to the present. Excluded from the Class are Defendants, the officers and directors of Defendants, successors and assigns, and any entity in which Defendants have or had a controlling interest. 489847.4 15 47. The members of the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members is currently unknown, Plaintiff believes that the total number of Class members can be ascertained through appropriate discovery. Plaintiff believes that there are thousands of members in the Proposed Class. The Class is defined in such a way so that the identity of the Class members is objectively ascertainable, and the identity of the Class members may be confirmed from records maintained by Defendant. Additionally, Class members may be notified of the pendency of this action by mail, using notice similar to that customarily used in consumer protection litigation. 48. Plaintiff’s claims are typical of the claims of the Class, as all members of the Class are similarly affected by Defendants’ wrongful conduct in violation of the Minnesota Prevention of Consumer Fraud Act, breaches of both express and implied warranties, and other applicable law. Plaintiff will fairly and adequately protect the interests of the members of the Class. Plaintiff has no relevant conflicts of interest with other members of the Class, and has retained counsel competent and experienced in consumer protection class action litigation. 49. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members. Questions of law and fact common to the Class include: i. whether Defendant advertised the Bobcat S650 loader (and other models with the similar size and/or frame) as having a fuel tank capacity between 27.2 and 27.5 gallons; 489847.4 16 ii. whether the fuel tank capacity of the Bobcat S650 loaders (and other models with the similar size and/or frame) is substantially below the 50. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy, and Plaintiff knows of no unusual problems of management and notice. While the aggregate damage to the Class is significant, the damages suffered by individual Class members may be relatively small. The expense and burden of individual litigation thus make it impossible for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action. 51. Defendant has acted on grounds generally applicable to the entire Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. 489847.4 17 VI. 52. Plaintiff incorporates by reference and re-alleges each and every paragraph alleged above as though fully alleged herein. 53. Plaintiff is a resident of the State of Minnesota. 54. Minnesota’s Private Attorney General Statute (Minn. Stat. § 8.31, subd. 3a) allows Plaintiff and the Class to bring a claim under Minn. Stat. § 325F.69. 55. The Minnesota Prevention of Consumer Fraud Act prohibits “[t]he act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby. . .” Minn. Stat. § 325F.69(1). Defendant advertised and represented to Plaintiff and members of the Class that the Loaders possessed certain qualities and characteristics, including, but not limited to, specific fuel tank capacities. Other states across the Country have enacted substantially similar consumer protection statutes which require the same or similar showings of proof, and which prevent the unlawful conduct described herein.2 2 See Alaska Stat. § 45.50.471, et seq., Ark. Code § 4-88-101, et seq., Colo. Rev. Stat. § 6-1-105, et seq., Conn. Gen. Stat. § 42-110b, et seq., 6 Del. Code § 2511, et seq., D.C. Code § 28-3901, et seq., Fla. Stat. § 501.201, et seq., Ga. Code Ann. § 10-1-393, et seq. and Ga. Code Ann. § 10-1- 370 et seq., Haw. Rev. Stat. § 480, et seq., Idaho Code § 48-601, et seq., 815 ILCS § 505/1, et seq., Kan. Stat. § 50-623, et seq., Ky. Rev. Stat. § 367.110, et seq., La. Rev. Stat. § 51:1401, et 489847.4 18 56. Defendants’ advertisements and representations with respect to the fuel tank capacities of the Loaders were made in connection with the sale of Loaders to Plaintiff and the Class. 57. Defendants intentionally and/or knowingly misrepresented the true fuel tank capacities of the Loaders to Plaintiff and the Class. 58. Defendants boasted of an “[i]ncreased fuel capacity [that] gives you more time on the job without stopping to fill up,” indicating that the Bobcat S650 loader (and other loader models with the similar size and /or frame) held between 27.2 and 27.5 gallons of fuel. Defendants intended for Plaintiff and the Class to rely on, and accept as true, these advertisements and representations with respect to the fuel tank capacities of the Loaders in deciding whether to purchase a Bobcat brand skid-steer loader, and, if so, which model to purchase. 59. Defendants’ unfair or deceptive acts or practices were likely to deceive reasonable consumers about the Loaders’ true fuel tank capacities and, by extension, the true value of the Loaders. Plaintiff and the Class relied on, and were in fact deceived by, seq., M.G.L. c. 93A, et seq., Me. Rev. Stat. Ann. tit. 5, § 205-A, et seq., Md. Com. Law Code § 13-101, et seq., Mich. Stat. § 445.901, et seq., Missouri Stat. § 407.010, et seq., Neb. Rev. Stat. §§ 59-1601, et seq., Nev. Rev. Stat. § 598.0903, et seq., N.H. Rev. Stat. § 358-A:1, et seq., N.J. Rev. Stat. § 56:8-1, et seq., N.M. Stat. § 57-12-1, et seq., N.Y. Gen. Bus. Law § 349 et seq., N.D. Cent. Code § 51-15-01, et seq., Ohio Rev. Code Sec. 4165.01 et seq., Okla. Stat. 15 § 751, et seq., Or. Rev. Stat. § 646.605, et seq., R.I. Gen. Laws. § 6-13.1-1, et seq., S.C. Code Laws § 39- 5-10, et seq., S.D. Code Laws § 37-24-1, et seq., Tex. Bus. & Com. Code § 17.45, et seq., 9 Vt. § 2451, et seq., Va. Code § 59.1-196, et seq., Wash. Rev. Code. § 19.86.010, et seq., W. Va. Code § 46A-6-101, et seq., Wis. Stat. Ann. § 100.18, et seq. 489847.4 19 Defendants’ advertisements and representations with respect to the fuel tank capacities of the Loaders in deciding to purchase them over competitors’ skid-steer loaders. 60. Plaintiff and the Class were injured in fact and suffered actual damages as a result of their reliance on Defendants’ advertisements and representations with respect to the fuel tank capacities of the Loaders. Defendants’ wrongful conduct was the direct and proximate cause of the injuries to Plaintiff and the Class. Because of Defendants’ fraudulent conduct, the value of the Loaders has been greatly diminished, as a skid-steer loader with a larger fuel tank is worth more than an otherwise comparable skid-steer loader with a smaller fuel tank. 61. Had Plaintiff and the Class been aware of this defect, Plaintiff and the Class would have either paid less for their Loaders or would not have purchased them at all. Plaintiff and the Class did not receive the benefit of their bargain as a result of Defendants’ misconduct. 62. Pursuant to Minn. Stat. § 8.31, subd. 3a, Plaintiff and the Class seek actual damages, attorneys’ fees, and any other just and proper relief available under the Minnesota Prevention of Consumer Fraud Act. 63. Plaintiff incorporates by reference and re-alleges each and every paragraph alleged above as though fully alleged herein. 489847.4 20 64. Defendants marketed and sold their Loaders into the stream of commerce with the intent that the Loaders would be purchased by Plaintiff and the Class. 65. Defendants expressly warranted that their Loaders have higher fuel tank capacity than previous models. Defendants’ representations, through their written warranties (included in various advertisements, brochures, and other marketing materials) regarding the quality, characteristics, and capabilities of the Loaders, created express warranties that became part of the basis of the bargain Plaintiff and the Class entered into upon purchasing the Loaders from Defendants. 66. Defendants created express warranties through brochures, product specification sheets, and other promotional materials detailing the qualities and characteristics of the Loaders. 67. Defendants advertised and represented to Plaintiff and the Class that the Loaders possessed certain qualities and characteristics, including, but not limited to, specific fuel tank capacities. 68. Defendants’ advertisements and representations were affirmed by a Bobcat representative employed at an authorized Bobcat dealership. 69. Defendants’ advertisements and representations with respect to fuel tank capacities were made in connection with the sale of the Loaders to Plaintiff and the Class. 70. Defendants’ advertisements and representations with respect to fuel tank capacities constitute a basis of the bargain between Plaintiff and the Class in their purchases of the Loaders. 489847.4 21 71. Plaintiff and members of the Class relied on Defendants’ advertisements and representations with respect to the fuel tank capacities of the Loaders in deciding whether to purchase a Bobcat-brand skid-steer loader, and, if so, which model to purchase. 72. Defendants’ Loaders do not conform to Defendants’ advertisements and representations. 73. Plaintiff and the Class were injured as a result of their reliance on Defendants’ advertisements and representations with respect to fuel tank capacities of the Loaders. Defendants’ wrongful conduct was the direct and proximate cause of injuries to Plaintiff and the Class. 74. Plaintiff and the Class demand judgment against Defendant for an amount in excess of $5,000,000.00. 75. Plaintiff incorporates by reference and re-alleges each and every paragraph alleged above as though fully alleged herein. 76. At all times mentioned herein, Defendants manufactured or supplied the Loaders, and prior to the time said Loader was purchased by Plaintiff, Defendants impliedly warranted to Plaintiff that the Loader was of merchantable quality and fit for the use for which it was intended. 489847.4 22 77. Plaintiff relied on the promotional materials supplied and published by Defendants and also the statements of Defendants’ authorized agents. 78. The Loader, when sold and at all times thereafter, was unfit for its intended use and was not of merchantable quality as warranted by Defendants. Specifically, the Loader was not suited for performing landscaping, construction, snow removal and other similar services. The deficiencies in fuel tank capacities interferes with Plaintiff’s and Class members’ use of the Loaders to provide landscaping, construction, snow removal and other similar services. 79. The Loader was similarly unfit for its particular purpose. Defendants distributed, marketed, and sold the Loaders to consumers who would consider the size of a fuel tank when purchasing a skid-steer loader. Defendants knew, or should have known, that the Loaders would be purchased by consumers, such as Plaintiff and the Class, who would utilize the Loaders in businesses based on the stated fuel capacities. 80. Plaintiff and the Class relied on Defendants’ advertisements, representations, and implied warranties with respect to the fuel tank capacities of the Loaders in deciding whether to purchase a Bobcat-brand skid-steer loaders. 81. Defendants were provided notice of the issues alleged above after Plaintiff himself became aware of his damages as a result of the defective Loader. Notice was duly given to Defendants or Defendants’ agents with respect to the breach of implied warranties as a result of Plaintiff’s complaints to both Lano Equipment, Inc., an authorized Bobcat dealership, and to Bobcat headquarters. 82. Defendants failed to provide adequate remedy. 489847.4 23 83. As a direct and proximate result of the breach of said warranties, Plaintiff and the Class have suffered and will continue to suffer loss as alleged herein in an amount to be determined at trial in excess of $5,000,000.00. 84. Plaintiff incorporates by reference and re-alleges each and every paragraph alleged above as though fully alleged herein. 85. Defendants are a manufacturer, marketer, seller, and distributor of the Loaders. 86. Plaintiff is protected by these statutes as he purchased the Loader in Minnesota and for his business located in Minnesota. 87. Minnesota Statute § 325D.13 provides that, “no person shall, in connection with the sale of merchandise, knowingly misrepresent, directly or indirectly, the true quality, ingredients or origin of such merchandise.” 88. By engaging in the conduct described herein, Defendants violated and continue to violate Minn. Stat. § 325D.13 and the similar laws of other states. 89. Minnesota Statute § 325D.44, subd. 1, provides in part: a person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person: * * *  “(5) represents that goods or services have…characteristics, ingredients, uses, benefits, . . . that they do not have;” 489847.4 24 “(7) represents that goods or services are of a particular standard, quality, or grade, . . . if they are of another;” and “(13) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.” 90. Consumer protection laws of other states make similar conduct unlawful. 91. Where, as here, Plaintiff’s claims inure to the public benefit, Minnesota’s Private-Attorney General Statute, Minn. Stat. § 8.31, subd. 3a, allows individuals who have been injured through a violation of these consumer-protection statutes to bring a civil action and recover damages, together with costs and disbursements, including reasonable attorney’s fees.3 92. Defendants used and employed unfair methods of competition and/or unfair or deceptive acts or practices including, but not limited to, the following: a. Representing that goods have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that person has sponsorship, approval, status, affiliation or connection that he does not have; b. Representing that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another; c. Engaging in other fraudulent or deceptive conduct which created the likelihood of confusion or of misunderstanding; and d. Utilizing misrepresentations, knowing omissions, and other sharp business practices to mislead or create a misleading impression regarding the Loaders. 3As plead above, other states across have enacted substantially similar consumer protection statutes. 489847.4 25 93. Defendants knew or should have known that: (1) the Loaders were defective insofar as a consumer could not utilize the advertised fuel capacity; (2) the Loaders were manufactured with a defective coating that prematurely flakes; and (3) and the Loaders were otherwise not as warranted and represented by Defendants. 94. Defendants’ misrepresentations, concealment, omissions, and other deceptive conduct were likely to deceive or cause misunderstanding and did in fact deceive Plaintiff with respect to the suitability of the Loader for use in his snow removal business and for other uses common to skid-steer loaders, including the provision of landscaping and construction services. 95. Defendants intended that Plaintiff and the Class would rely on Defendants’ misrepresentations, concealment, warranties, deceptions, and/or omissions regarding the suitability of the fuel tank capacities of their defective Loaders. 96. Defendants’ conduct and omissions described herein occurred repeatedly in Defendants’ trade or business and were capable of deceiving a substantial portion of the consuming public. 97. The facts concealed or not disclosed by Defendants were material facts in that Plaintiff and any reasonable consumer would have considered them in deciding whether to purchase a Bobcat-brand skid steer loader, and, if so, which model to purchase. Had Plaintiff known the Loaders were incapable of meeting the standards advertised by Defendants, he would not have purchased the Loader or he would have either negotiated additional warranty coverage, negotiated a lower price to reflect the 489847.4 26 defect, or simply avoided the defect altogether by purchasing a loader from a competing company. 98. Defendants intended that Plaintiff would rely on the deception by purchasing the Loader, unaware of the undisclosed material facts. This conduct constitutes consumer fraud. 99. Defendants’ unlawful conduct is continuing, with no indication that Defendants intend to cease this fraudulent course of conduct. 100. Plaintiff has suffered actual, ascertainable losses and damages by virtue of having purchased the Loader. 101. Defendants have similarly violated the Unlawful Trade Practices Acts of the various states including, but not limited to, California, and these states allow for statutory damages. 102. As a direct and proximate cause of Defendants’ violations of the applicable state Unfair Trade Practices and Consumer Protection laws as set forth above, Plaintiff seeks injunctive or declaratory relief prohibiting Defendants from falsely advertising the qualities, characteristics, and capabilities of the Loaders; and, for California residents, all other damages available by statute and law. A. Bobcat designs, manufactures, and sells compact skid-steer loaders. Breach of Implied Warranties of Merchantability and Fitness For A Particular Purpose (MINN. STAT. § 336.2A-13, et seq.) Breach of Express Warranty (MINN. STAT. § 326.2A-210, et seq.) Breach of Contract 139. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 140. Defendants and Plaintiff and the Class entered into the contract when the Loaders were purchased. 141. Plaintiff and the Class performed under the contract by paying the purchase price for the Loaders 142. Defendants breached the contract by delivering a product that was substantially different than what Plaintiff and the Class bargained for. 143. Defendants’ breach of their contracts with Plaintiff and the Class caused Plaintiff and Class members to suffer damages in the form of purchasing a product of lesser value and/or a product they would never have purchased absent. 144. Plaintiff, individually and on behalf of the Class, seeks damages for Defendants’ breach of contract, as well as interest, reasonable attorneys’ fees, expenses, and costs to the extent allowable. 489847.4 34 False Advertising (MINN. STAT. § 325F.67, et seq.) 103. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 489847.4 27 104. Minnesota’s False Statement in Advertising Act (“FSAA”), Minn. Stat. § 325F.67, provides a cause of action to “any person, firm, corporation, or association” who purchases goods or services through advertising which “contains any material assertion, representation, or statement of fact which is untrue, deceptive, or misleading.” Consumer protection laws of other states make similar conduct unlawful. 105. Where, as here, Plaintiff’s claims inure to the public benefit, Minnesota’s Private-Attorney General Statute, Minn. Stat. § 8.31, subd. 3a, allows individuals who have been injured through a violation of the FSAA to bring a civil action and recover damages, together with costs and disbursements, including reasonable attorney’s fees. 106. By engaging in the conduct herein, Defendants violated and continue to violate Minn. Stat. § 325F.67 and the similar laws of other states. 107. Defendants’ misrepresentations, knowing omissions, and use of other sharp business practices include, by way of example: a. Defendants’ fraudulent, misleading, and deceptive statements relating to the true quality, characteristics, and capabilities of the Loaders; b. Defendants’ fraud and misrepresentations by omission with respect to information about the defective nature of the Loaders, the improper design of the Loaders, and Defendants’ knowledge of those defects; and c. Defendants’ concealment of the true nature of the Loaders’ fuel tank capacities. d.          Defendants’ omission of disclosing the Loaders’ defective coating that prematurely flakes  489847.4 28 108. Defendants, including its agents and distributors, also made untrue, deceptive, and misleading assertions and representations about the Loaders by making and repeating the various statements about the alleged quality, characteristics, and capabilities of the Loaders referenced herein. 109. As a result of Defendants’ conduct, Plaintiff has suffered actual damages in that he has purchased the Loader that was defective and worth less than the price he paid. There is an association between Defendants’ acts and omissions as alleged herein and the damages suffered by Plaintiff. 110. As a result of Defendants’ untrue, deceptive, and misleading assertions and representations about the Loaders, Plaintiff has and will continue to suffer damages that include not only the full cost to replace the Loader, but also include, without limitation, consequential and incidental damages. 111. Defendants have similarly violated the consumer-protection statutes of the various states including, but not limited to, the State of California. 112. Plaintiff and the class have been damaged in an amount in excess of $5,000,000.00. Fraudulent Inducement 133. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 134. To induce Plaintiff and the Class members purchasing the Loaders, Defendants misrepresented: (1) the true size of the fuel tanks; (2) the quality of the coating; and (3) therefore, the proper purpose and use for the Loaders in businesses. 135. Defendants knew that their representations about the Loaders were false. Defendants allowed their promotional materials to intentionally mislead consumers, such as Plaintiff and the Class. 136. Defendants made these misrepresentations specifically so as to induce Plaintiff’s and the Class’s purchase of the Loaders. 137. Plaintiff and the Class did in fact rely on these misrepresentations and purchased the Loaders to their detriment. Given the deceptive manner in which Defendants advertised, represented and otherwise promoted the Loaders, Plaintiff and the Class’s reliance on Defendants’ misrepresentations was justifiable. 489847.4 33 138. As a result of relying on Defendants’ misrepresentations, Plaintiff and Class members have suffered, and will continue to suffer, actual damages. Fraud by Omission 125. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 126. Based on Defendants’ material omissions, Plaintiff and the Class did not reasonably expect that the Loaders’ quality, characteristics, and capabilities would be inferior to those stated in the promotional materials. 127. Defendants concealed from and failed to disclose to Plaintiff and the Class that: (1) the Loaders’ fuel tank capacity was smaller than represented; and (2) the coating intended to protect exposed metal was defective 128. Defendants were under a duty to disclose to Plaintiff and members of the Class the true quality, characteristics, and capabilities of the Loaders because: (1) Defendants were in a superior position to know the true state of facts about their product; (2) Defendants were in a superior position to know the actual design of the Loaders; and (3) Defendants knew that Plaintiff and the Class could not reasonably have been expected to learn or discover that the Loaders were misrepresented in the promotional materials prior to purchasing the Loaders. 129. The facts concealed or not disclosed by Defendants to Plaintiff and the Class are material in that a reasonable consumer would have considered them to be important in deciding whether to purchase the Loaders. 130. Plaintiff and the Class justifiably relied on the omissions of Defendants to their detriment. 489847.4 32 131. The detriment is evident from the true quality, characteristics, and capabilities of the Loaders, which is inferior than advertised and represented by Defendants. 132. As a direct and proximate result of Defendants’ misconduct, Plaintiff and the Class have suffered and will continue to suffer actual damages Negligence, including Negligent Misrepresentation 113. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 114. Defendants had a duty to Plaintiff to exercise reasonable and ordinary care in the formulation, testing, design, manufacture, and marketing of the Loaders. 489847.4 29 115. Defendants breached their duty to Plaintiff by designing, manufacturing, advertising, marketing, and selling to Plaintiff a product that is defective and does not meet the advertised quality, characteristics, and capabilities of the Loaders, and by failing to promptly remove the Loaders from the marketplace or to take other appropriate remedial action. 116. Defendant knew or should have known that the quality, characteristics, and capabilities of the Loaders were not suitable for the intended use as advertised, and was otherwise not as warranted and represented by Defendant. Specifically, Defendants knew or should have known that: (1) the Loaders were defective in that a consumer could not utilize the advertised fuel tank capacity; (2) the Loaders were manufactured with a defective coating that prematurely flakes; and (3) and the Loaders were otherwise not as warranted and represented by Defendants. 117. As a direct and proximate cause of Defendants’ negligence, Plaintiff has suffered actual damages in that he purchased the Loader with diminished quality, characteristics, and capabilities than was represented by Defendants. These defect caused damage to Plaintiff’s business, including, but not limited to, it’s good-will and reputation, and will continue to cause Plaintiff to incur expenses. 118. Plaintiff and the class demand judgment against Defendant for an amount in excess of $5,000,000.00. 489847.4 30 Unjust Enrichment 119. Plaintiff incorporates by reference each of the allegations contained in the preceding paragraphs of this Complaint. 120. Substantial benefits have been conferred on Defendants by Plaintiff and the proposed Class through the purchase of the defective Loaders. Defendants knowingly and willingly accepted and enjoyed these benefits. 121. Defendants either knew or should have known that the payments rendered by Plaintiff were given and received with the expectation that the Loaders would perform as represented and warranted by Defendants. As such, it would be inequitable for Defendants to retain the benefit of the payments under these circumstances. 122. Defendants’ acceptance and retention of these benefits under the circumstances alleged herein make it inequitable for Defendant to retain the benefits without payment of the value to Plaintiff and the Class. 123. Plaintiff and the Class are entitled to recover from Defendants all amounts wrongfully collected and improperly retained by Defendants, plus interest thereon. 124. As a direct and proximate result of Defendants’ wrongful conduct and unjust enrichment, Plaintiff and the Class are entitled to damages in excess of $5,000,000. 489847.4 31 Unlawful Trade Practices (MINN. STAT. § 325D.13, et seq.) Violations of the Minnesota Prevention of Consumer Fraud Act (MINN. STAT. § 325F.68, et seq.)

win

16. Applied Consultants employs inspectors, such as Plaintiff, who perform a variety of inspection services on oil and gas pipelines for energy, public utility and pipeline companies in this judicial district and throughout the United States. 18. Applied Consultants charges its inspectors’ services out to Applied Consultants’ customers on a per project basis, including per diem charges for the inspectors, their mileage and other reimbursement items. 19. From April 2013 through August 2013, Plaintiff was employed as a non-exempt Welding Inspector with Applied Consultants, performing and reviewing welding inspections on gas pipelines. 20. Applied Consultants employed Plaintiff to inspect welding on a pipeline in and around Western Pennsylvania that stretched into West Virginia. 21. Plaintiff reviewed and aided colleagues in performing routine inspections of newly-laid pipes. Plaintiff observed other members of the Classes performing the same or substantially similar job duties. 22. Plaintiff and the FLSA Class members are blue collar workers who are primarily engaged in manual labor duties. 23. Plaintiff’s work required the utilization of techniques and procedure obtained primarily from industry manuals, standards and codes. See 29 C.F.R. § 541.203(g). Plaintiff observed other members of the Classes utilizing similar techniques and procedures in the performance of their jobs. 24. Plaintiff worked within the closely prescribed limits provided by Applied Consultants. See 29 C.F.R. § 541.203(g). Plaintiff observed other members of the Classes working in the same or substantially similar manner. 25. Applied Consultants has a policy or practice of failing to compensate Plaintiff and the Classes for all overtime hours worked. 27. Applied Consultants does not maintain accurate records of the hours that Plaintiff and the Classes worked each workday and the total number of hours worked each workweek as required by the FLSA. See 29 C.F.R. § 516.2(a)(7). 28. Plaintiff routinely worked up to seven (7) days per week and more than ten (10) hours per day. Plaintiff observed that the members of the Classes routinely worked similar schedules. 29. Applied Consultants did not pay Plaintiff and the Classes any compensation for hours worked over forty (40) per workweek. 30. In 2011, prior to the start of the relevant time period in this case, the United States Court of Appeals for the Tenth Circuit held that a similar daily rate compensation scheme by an oilfield services company was not only unlawful, but constituted a willful violation of the FLSA. See Mumby v. Pure Energy Services (USA), Inc., 636 F.3d 1266, 1268 (10th Cir. 2011). Since Mumby, many oil and gas service companies have reclassified their daily rate workers to come into compliance with the FLSA. Applied Consultants, however, has not done so. 31. As a subsidiary of Applied-Cleveland Holdings, Inc., which services the oil and gas industry throughout the United States, there is no question that Applied Consultants has access to human resource expertise and legal counsel who can advise Applied Consultants on its FLSA compliance obligations. 33. Moreover, during the entire relevant time period, Applied Consultants was aware that the Classes were not properly compensated under the FLSA and Pennsylvania state law, because the Class members’ timesheets clearly demonstrate that they were routinely working more than forty (40) hours per week but were not receiving overtime compensation. 34. Furthermore, Applied Consultants failed to properly track, monitor or record the actual number of hours per day that the FLSA Class members worked, as required by the FLSA. See 29 U.S.C.A. § 211(c); 29 C.F.R. §§ 516.5(a), 516.6(a)(1), 516.2(c) (requiring employers to maintain payroll records for three years and time sheets for two years, including the exact number of hours worked each day and each week). 35. Plaintiff brings this lawsuit pursuant to 29 U.S.C. § 216(b) as a collective action on behalf of the FLSA Class defined above. 36. Plaintiff desires to pursue his FLSA claim on behalf of any individuals who opt-in to this action pursuant to 29 U.S.C. § 216(b). 37. Plaintiff and the FLSA Class are “similarly situated,” as that term is used in 29 U.S.C. § 216(b), because, inter alia, all such individuals worked pursuant to Applied Consultants’ previously described common pay practices and, as a result of such practices, were not paid the full and legally mandated overtime premium for hours worked over forty (40) during the workweek. Resolution of this action requires inquiry into common facts, including, inter alia, Applied Consultants’ common compensation, timekeeping and payroll practices. 39. The similarly situated employees are known to Applied Consultants, are readily identifiable, and may be located through Applied Consultants’ records and the records of any payroll companies that Applied Consultants utilizes. Applied Consultants employs many FLSA Class Members throughout the United States. These similarly situated employees may be readily notified of this action through direct U.S. mail and/or other appropriate means, and allowed to opt into it pursuant to 29 U.S.C. § 216(b), for the purpose of collectively adjudicating their claims for overtime compensation, liquidated damages (or, alternatively, interest), and attorneys’ fees and costs under the FLSA. 40. Plaintiff brings this action as a class action pursuant to FED. R. CIV. P. 23 on behalf of himself and the Pennsylvania Class defined above. 41. The members of the Pennsylvania Class are so numerous that joinder of all members is impracticable. Upon information and belief, there are more than forty (40) members of the Pennsylvania Class. 42. Plaintiff will fairly and adequately represent and protect the interests of the Pennsylvania Class because there is no conflict between the claims of Plaintiff and those of the Pennsylvania Class, and Plaintiff’s claims are typical of the claims of the Pennsylvania Class. Plaintiff’s counsel are competent and experienced in litigating class actions and other complex litigation matters, including wage and hour cases like this one. 44. Plaintiff’s claims are typical of the claims of the Pennsylvania Class in the following ways, without limitation: (a) Plaintiff is a member of the Pennsylvania Class; (b) Plaintiff’s claims arise out of the same policies, practices and course of conduct that form the basis of the claims of the Pennsylvania Class; (c) Plaintiff’s claims are based on the same legal and remedial theories as those of the Pennsylvania Class and involve similar factual circumstances; (d) there are no conflicts between the interests of Plaintiff and the Pennsylvania Class members; and (e) the injuries suffered by Plaintiff are similar to the injuries suffered by the Pennsylvania Class members. 45. Class certification is appropriate under FED. R. CIV. P. 23(b)(3) because questions of law and fact common to the Pennsylvania Class predominate over any questions affecting only individual Class members. 47. A class action is superior to other available methods for adjudication of this controversy because joinder of all members is impractical. Further, the amounts at stake for many of the Pennsylvania Class members, while substantial, are not great enough to enable them to maintain separate suits against Applied Consultants. 48. Without a class action, Applied Consultants will retain the benefit of its wrongdoing, which will result in further damages to Plaintiff and the Pennsylvania Class. Plaintiff envisions no difficulty in the management of this action as a class action. 49. All previous paragraphs are incorporated as though fully set forth herein. 50. The FLSA requires that covered employees be compensated for all hours worked in excess of forty (40) hours per week at a rate not less than one and one-half (1 ½) times the regular rate at which he is employed. See 29 U.S.C. § 207(a)(1). 51. The FLSA provides that, if an employee is paid a flat sum for a day’s work or for doing a particular job, and if he receives no other form of compensation for services, the employee is entitled to extra half-time pay at his regular rate for all hours worked in excess of forty (40) in the workweek. See 29 C.F.R. § 778.112. 52. Applied Consultants’ compensation scheme applicable to Plaintiff and the FLSA Class failed to comply with either 29 U.S.C. § 207(a)(1) or 29 C.F.R. § 778.112. 54. During all relevant times, Plaintiff and the FLSA Class were covered employees entitled to the above-described FLSA protections. 55. In violating the FLSA, Applied Consultants acted willfully and with reckless disregard of clearly applicable FLSA provisions. 56. All previous paragraphs are incorporated as though fully set forth herein. 57. The Pennsylvania Minimum Wage Act of 1968 (“PMWA”) requires that covered employees be compensated for all hours worked in excess of forty (40) hours per week at a rate not less than one and one-half (1 ½) times the regular rate at which he is employed. See 43 P.S. § 333.104(c) and 34 PA. CODE § 231.41. 58. The PMWA provides that, if an employee is paid a flat sum for a day’s work, and if he receives no other form of compensation for services, the employee is entitled to extra half- time pay at his regular rate for all hours worked in excess of forty (40) in the workweek. See 34 PA. CODE § 231.43(b). 59. Applied Consultants is subject to the overtime requirements of the PMWA because Applied Consultants is an employer under 43 P.S. § 333.103(g). 60. During all relevant times, Plaintiff and the Pennsylvania Class were covered employees entitled to the above-described PMWA’s protections. See 43 P.S. § 333.103(h). 61. Applied Consultants’ compensation scheme that is applicable to Plaintiff and the Pennsylvania Class failed to comply with either 43 P.S. § 333.104(c) or 34 PA. CODE § 231.43(b). 65. All previous paragraphs are incorporated as though fully set forth herein. 66. Applied Consultants has received and benefited from the uncompensated labors of Plaintiff and the Pennsylvania Class, such that to retain said benefit without compensation would be inequitable and rise to the level of unjust enrichment. 67. At all relevant times hereto, Applied Consultants devised and implemented a plan to increase its earnings and profits by fostering a scheme of securing work from Plaintiff and the Pennsylvania Class without paying overtime compensation for all hours worked. 68. Contrary to all good faith and fair dealing, Applied Consultants induced Plaintiff and the Pennsylvania Class to perform work while failing to pay overtime compensation for all hours worked as required by law. 70. Accordingly, Plaintiff and the Pennsylvania Class are entitled to judgment in an amount equal to the benefits unjustly retained by Applied Consultants. Unjust Enrichment (On Behalf of the Pennsylvania Class) Violation of the FLSA (On Behalf of the FLSA Class) Violation of the Pennsylvania Minimum Wage Act (On Behalf of the Pennsylvania Class)

win

19. 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. 20. Some time prior to January 07, 2016, an obligation was allegedly incurred by Plaintiff to Capital One, N.A.. 21. The Capital One, N.A. obligation arose out of an alleged claim for unpaid student loans, a transaction in which money, property, insurance or service, which are the subject of the transaction, are primarily for personal, family or household purposes. 22. The alleged Capital One, N.A. obligation is a "debt" as defined by 15 U.S.C. §1692a(5). 23. Capital One, N.A. is a "creditor" as defined by 15 U.S.C. §1692a(4). 24. On or about January 31, 2015, Capital One, N.A. charged off the alleged debt. 25. Upon information and belief, at the time the alleged debt was charged off, Capital One, N.A. had no intention of continuing to charge interest on the account. 26. Sometime after January 31, 2015, Capital One, N.A. sold the alleged debt to BIGP. 27. BIGP directly or through an intermediary contracted CCLLC to collect the alleged debt. 28. Defendants contend that the alleged debt is in default. 29. Defendants collect and attempt 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 service, telephone and internet. 30. On or about January 07, 2016, the Defendant caused to be delivered to the Plaintiff a collection letter (the “Letter”) in an attempt to collect the alleged debt. See Exhibit A. 32. The Letter is a “communication” as defined by 15 U.S.C. §1692a(2). 33. The Letter attempts to provide the Validation Notice as required by 15 U.S.C. §1692g by stating in part: If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such verification or judgment. 34. The Plaintiff, as would any least sophisticated consumer, read the above statement and inferred that the only way to obtain verification of the debt or a copy of a judgment, the Plaintiff must dispute the entirety of the debt. 35. As the alleged debt includes principal, interest, and possibly other charges, the Plaintiff very likely may have a dispute regarding only a portion of the alleged balance. 36. By failing to notify the Plaintiff of his right to dispute a portion of the debt, the Plaintiff, along with other consumers, may be left confused which will cause them to lose their validation rights. 37. On information and belief, Defendant sent a written communication, in the form annexed hereto as Exhibit A to at least 50 natural persons in the United States within one year of the date of this Complaint. 38. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above herein with the same force and effect as if the same were set forth at length herein. 40. 15 U.S.C. § 1692g(a) sets forth the Validation Notice requirements incumbent on collection agencies and debt collection law firms. That provision states: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (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 or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 41. Pursuant to 15 U.S.C. § 1692g(a)(4), a debt collector must notify a debtor that - in order for a debtor to trigger his rights to obtain verification of the subject debt – the debtor must notify the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed. 42. The Letter failed to comply with the requirements of 15 U.S.C. § 1692g(a)(4), where it failed to make any mention of the statutory requirement of that provision, specifically that in order for the Plaintiff to trigger her rights to obtain verification of the subject debt, the Plaintiff should notify the Defendant that the debt, or any portion thereof, is disputed. 44. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq.

lose

23. Defendant manufactures, markets and sells the following misbranded Products throughout the United States: i. Ricola Cherry Honey herb throat drops ii. Ricola Honey Lemon with Echinacea cough suppressant throat drops iii. Ricola Lemon Mint herb throat drops iv. Ricola Sugar-free Lemon Mint herb throat drops v. Ricola Mixed Berry with Vitamin C supplement drops vi. Ricola Sugar-free Green Tea with Echinacea cough suppressant throat drops vii. Ricola Sugar-free Swiss Cherry herb throat drops ix. Any other Ricola cough suppressant, supplement and herb throat drops with misleading “Natural” claims. 24. The Products are available at large supermarket chains and major retail outlets throughout the United States, including but not limited to Whole Foods, Kroger, Food Lion, Meijer, Costco Wholesale and Ralphs. Defendant’s Natural Claims 25. The term “Natural” only applies to products that contain no non-natural or synthetic ingredients and/or consist entirely of ingredients that are only minimally processed. Defendant deceptively markets the Ricola Herb Drop Products as “Naturally Soothing” when they contain the synthetic ingredients Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid, 10 none of which are extracted from citrica fruits but industrially synthesized via complex chemical synthetic routes and thus cannot be considered “minimally processed.” 26. Ascorbic Acid occurs naturally in certain foods as Vitamin C, or L-ascorbic acid. However, Ascorbic Acid is produced commercially and used as a food additive. It is considered to be synthetic by federal regulation. 7 C.F.R. § 205.605(b). Ascorbic Acid used in foods is not naturally-occurring because it is synthetized through a process known as the Reichstein Process. The Reichstein Process uses the following steps: (1) hydrogenation of D-glucose to D-sorbitol, an organic reaction with nickel as a catalyst under high temperature and high pressure; (2) Microbial oxidation or fermentation of sorbitol to L-sorbose with acetobacter at pH 4-6 and 30º C; (3) protection of the 4 hydroxyl groups in sorbose by formation of the acetal with acetone and an acid to Diacetone-L-sorbose (2,3:4,6-Diisopropyliden-α-L-sorbose); (4) Organic oxidation with potassium permanganate followed by heating with water to yield 2-Keto-L-gulonic acid; and (5) a ring-closing step or gamma lactonization with removal of water. In recent years, Chinese chemists have developed a simplification of the Reichstein Process that substitutes biological oxidation using genetically engineered microorganisms for chemical oxidation. This manufacturing process places it outside of a reasonable consumer’s definition of “All Natural.” 27. Citric Acid (2-hydroxy-propane-1,2,3-tricarboxylic acid) is a synthetic, non- natural ingredient. While the chemical’s name has the word “citric” in it, Citric Acid is no longer extracted from the citrus fruit but industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger.3 A technical evaluation report for the substance citric acid compiled by the United States Department of Agriculture, Agricultural Marketing Service (“USDA AMS”) for the National Organic Program classified Citric Acid as 3 See, e.g., Belén Max, et al., Biotechnological production of citric acid, BRAZILIAN JOURNAL OF MICROBIOLOGY, 41.4 São Paulo (Oct./Dec. 2010). 11 “Synthetic Allowed”. See EXHIBIT B, Page 4. As one of the USDA AMS reviewers commented, “[Citric acid] is a natural[ly] occurring substance that commercially goes through numerous chemical processes to get to [its] final usable form. This processing would suggest that it be classified as synthetic.” Id. at 3. The report further explains, under the “How Made” question, that citric acid is made – “Traditionally by extraction from citrus juice, no longer commercially available. It is now extracted by fermentation of a carbohydrate substrate (often molasses) by citric acid bacteria, Aspergillus niger (a mold) or Candida guilliermondii (a yeast). Citric acid is recovered from the fermentation broth by a lime and sulfuric acid process in which the citric acid is first precipitated as a calcium salt and then reacidulated with sulfuric acid.” Id. at 4. 28. Malic Acid is a synthetic compound. U.S. International Trade Commission, Synthetic Organic Chemical Index, USTIC Pub. 2933 (Nov. 1995). It is synthetically produced by the hydration of fumaric or maleic acid. 21 C.F.R. § 184.1069. Both fumaric acid and maleic acid are hazardous substances. 40 C.F.R. 116.4. Malic Acid is not permitted in baby foods. 21 C.F.R. § 184.1069(d). Malic Acid is a preservative. 29. Because Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid are synthetic acids and cannot be reasonably considered natural ingredients, Defendant’s claim that the Products are “Naturally Soothing” is false, deceptive, and misleading, and the Products are misbranded under federal and state law. Defendant’s labeling as alleged herein is false and misleading and was designed to increase sales of the Products at issue. Defendant’s misrepresentations are part of its systematic labeling practice. 30. Defendant’s misleading marketing campaign begins with its unsubstantiated and well-promoted naturalness claims. Defendant’s Ricola Herb Drop Products are advertised as “Naturally Soothing” on the packaging of the Products and their respective product pages on the Ricola website. The “Naturally Soothing” claim is prominently represented in large font print at 12 the center of the packaging as the first thing a reasonable consumer who is looking to learn more about the Products will see, as shown below: 31. Defendant has already once changed the labeling on the Products in recent years from “Natural” to “Naturally Soothing”. Please see EXHIBIT C for images of example products bearing the old label. 32. Defendant is well aware of consumer tendencies to seek out food products labeled as “Natural” and takes advantage of them to mislead consumers. By engaging in this deceptive scheme, Defendant wrongfully capitalized on and reaped enormous profits by playing on consumers’ strong preference for food products made entirely of natural or minimally processed ingredients, while forgoing the additional expense of actually providing products that are free of non-natural, synthetic and/or chemically processed ingredients. 13 Defendant’s Natural Claims Violate Identical State and Federal Law 33. Defendant’s labeling and advertising of the Ricola Herb Drop Products as “Naturally Soothing” violate various state and federal laws against misbranding. 34. The federal Food, Drug, and Cosmetic Act (the “FDCA”) provides that “[a] food shall be deemed misbranded – (a) (1) its labeling is false or misleading in any particular.” 21 U.S.C. § 343 (a)(1). 35. Defendant’s “Naturally Soothing” claim also violates various state laws against misbranding which mirror federal law. New York, California and other state law broadly prohibit the misbranding of food in language identical to that found in regulations promulgated pursuant to the FDCA, 21 U.S.C. §§ 343 et seq.: Pursuant to N.Y. Agm. Law § 201, “[f]ood shall be deemed to be misbranded: 1. If its labeling is false or misleading in any particular… .” Pursuant to California’s Sherman Food, Drug and Cosmetics Law, California Health and Safety Code § 110660, “[a]ny food is misbranded if its labeling is false or misleading in any particular.” 36. Under the FDCA, the term “false” has its usual meaning of “untruthful,” while the term “misleading” is a term of art. Misbranding reaches not only false claims, but also those claims that might be technically true, although still misleading. If any one representation in the labeling is misleading, the entire food is misbranded. No other statement in the labeling cures a misleading statement. “Misleading” is judged in reference to “the ignorant, the unthinking and the credulous who, when making a purchase, do not stop to analyze.” United States v. El-O- Pathic Pharmacy, 192 F.2d 62, 75 (9th Cir. 1951). Under the FDCA, it is not necessary to prove that anyone was actually misled. 14 Definition of Natural 37. The FDA did not intend to and has repeatedly declined to establish a final rule with regard to a definition of the term “All Natural” in the context of food labeling. As such, Plaintiff’s state consumer protection law claims are not preempted by federal regulations. See Jones v. ConAgra Foods, Inc., 2012 WL 6569393, *6 (N.D. Cal. Dec. 17, 2012). Additionally, the primary jurisdiction doctrine does not apply “because the FDA has repeatedly declined to adopt formal rule-making that would define the word ‘natural.’” Id. at p. 8. 38. The “FDA has not developed a definition for use of the term natural or its derivatives,” but it has loosely defined the term “All Natural” as a product that “does not contain added color, artificial flavors, or synthetic substances.” According to federal regulations, an ingredient is synthetic if it is: [a] substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal, or mineral sources, except that such term shall not apply to substances created by naturally occurring biological processes. 7 C.F.R. §205.2. 39. Although there are no exact definitions of “Natural” in reference to food, cosmetic or oral care ingredients, there are no reasonable definitions of “Natural” that include ingredients that, even if sourced from “nature,” are subjected to extensive transformative chemical processing before their inclusion in a product. For example, the National Advertising Division of the Better Business Bureau (“NAD”) has found that a “All Natural” ingredient does not include one that, while “literally sourced in nature (as is every chemical substance), . . . is, nevertheless subjected to extensive processing before metamorphosing into the” ingredient that is included in the final product. 15 Plaintiffs were Injured as a Result of Defendant’s Misleading and Deceptive Conduct 40. Plaintiffs and Class members read the labels on Defendant’s Products, including statements making unlawful natural claims. 41. Defendant’s labeling claims were a material factor in Plaintiffs’ and Class members’ decisions to purchase the Products. Based on Defendant’s claims, Plaintiffs and Class members believed that the Products were a better and healthier choice than other available throat drop products. 42. As a result of Defendant’s deceptive and misleading labeling, Plaintiffs and Class members did not know that the Products are not “Naturally Soothing.” New York and California state laws broadly prohibit the misbranding of food in language identical to that found in the 50. Plaintiffs bring this action as a class action pursuant Rule 23 of the Federal Rules of Civil Procedure on behalf of the following class (the “Class”): All persons or entities in the United States who made retail purchases of the Products during the applicable limitations period, and/or such subclasses as the Court may deem appropriate. The New York Class 51. Plaintiff MINKER seeks to represent a class consisting of the following subclass (the “New York Class”): All New York residents who made retail purchases of the Products during the applicable limitations period, and/or such subclasses as the Court may deem appropriate. 17 The California Class 52. Plaintiff LIU seeks to represent a class consisting of the following subclass (the “California Class”): All California residents who made retail purchases of the Products during the applicable limitations period, and/or such subclasses as the Court may deem appropriate. The proposed Classes exclude current and former officers and directors of Defendant, members of the immediate families of the officers and directors of Defendant, Defendant’s legal representatives, heirs, successors, assigns, and any entity in which it has or has had a controlling interest, and the judicial officer to whom this lawsuit is assigned. 53. Plaintiffs reserve the right to revise the Class definition based on facts learned in the course of litigating this matter. 54. Numerosity: This action has been brought and may properly be maintained as a class action against Defendant under Rules 23(b)(1)(B) and 23(b)(3) of the Federal Rules of Civil Procedure. While the exact number and identities of other Class members are unknown to Plaintiffs at this time, Plaintiffs are informed and believe that there are hundreds of thousands of members in the Nationwide Class, New York Class and California Class. Based on sales of the Products, it is estimated that each Class is composed of more than 1,000 persons. Furthermore, even if subclasses need to be created for these consumers, it is estimated that each subclass would have thousands of members. The persons in each of the Classes are so numerous that joinder of all such persons is impracticable and the disposition of their claims in a class action rather than in individual actions will benefit the parties and the courts. 55. Common Questions Predominate: Questions of law and fact arise from Defendant’s conduct described herein. Such questions are common to all Classes because each Class member’s claim derives from the same false, misleading and deceptive misconduct. The 18 common questions of law and fact involved predominate over any questions affecting only Plaintiffs or individual Class members. Thus, proof of a common or single set of facts will establish the right of each member of the Classes to recover. Among the questions of law and fact common to the Classes are: a. whether labeling “Naturally Soothing” on Products containing one or more highly processed ingredients, including Ascorbic Acid (Vitamin C), was false and misleading; b. whether Defendant engaged in a marketing practice intended to deceive consumers by labeling Products as “Naturally Soothing,” even though such Products contained the synthetic, highly processed ingredients Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid; c. whether Defendant caused Plaintiffs and the Class to purchase Products that were artificial, synthetic, or otherwise unnatural; d. whether Defendant should be enjoined from marketing the Products as “Naturally Soothing” and whether Defendant should be required to disclose the fact that one or more ingredients were synthetic; e. whether Defendant’s website and other media representations violate federal, state or common law by misleading consumers; f. whether Defendant deprived Plaintiffs and the Class of the benefit of the bargain because the Products purchased were different than what Defendant warranted; g. whether Defendant deprived Plaintiffs and the Class of the benefit of the bargain because the Products they purchased had less value than what was represented by Defendant; 19 h. whether Defendant has been unjustly enriched at the expense of Plaintiffs and other Class members by its misconduct; and i. whether Defendant must disgorge any and all profits it has made as a result of its misconduct. 56. Typicality: Plaintiffs’ claims are typical of those of the Class members because Plaintiffs and the other Class members sustained damages arising out of the same wrongful conduct, as detailed herein. Plaintiffs purchased the Products during the Class Period and sustained similar injuries arising out of Defendant’s conduct in violation of the consumer protection laws of each of the fifty states and the District of Columbia. Defendant’s unlawful, unfair and fraudulent actions concern the same business practices described herein irrespective of where they occurred or were experienced. The injuries of the Class were caused directly by Defendant’s wrongful misconduct. In addition, the factual underpinning of Defendant’s misconduct is common to all Class members and represents a common thread of misconduct resulting in injury to all members of the Class. Plaintiffs’ claims arise from the same practices and course of conduct that give rise to the claims of the members of the Class and are based on the same legal theories. 57. Adequacy: Plaintiffs will fairly and adequately represent and pursue the interests of the Class and have retained competent counsel experienced in prosecuting nationwide class actions. Plaintiffs understand the nature of their claims herein, have no disqualifying conditions and will vigorously represent the interests of the Class. Neither Plaintiffs nor Plaintiffs’ counsel have any interests that conflict with or are antagonistic to the interests of the Class. Plaintiffs have retained highly competent and experienced class action attorneys to represent their interests and those of the Class. Plaintiffs and Plaintiffs’ counsel have the necessary financial resources to 20 adequately and vigorously litigate this class action, and Plaintiffs and counsel are aware of their fiduciary responsibilities to the Class and will diligently discharge those duties by vigorously seeking the maximum possible recovery for the Class. 58. Superiority: A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The damages suffered by any individual class member are too small to make it economically feasible for an individual class member to prosecute a separate action, and it is desirable for judicial efficiency to concentrate the litigation of the claims in this forum. Furthermore, the adjudication of this controversy through a class action will avoid the potentially inconsistent and conflicting adjudications of the claims asserted herein. There will be no difficulty in the management of this action as a class action. 59. The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(2) are met, as Defendant has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive or equitable relief with respect to the Class as a whole. 60. The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Class predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 61. The prosecution of separate actions by members of the Class would create a risk of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. Additionally, individual actions may be dispositive of the interest of all members of the Class, although certain Class members are not parties to such actions. 21 62. Defendant’s conduct is generally applicable to the Class as a whole and Plaintiffs seek, inter alia, equitable remedies with respect to the Class as a whole. As such, Defendant’s systematic policies and practices make declaratory relief with respect to the Class as a whole appropriate. 63. Plaintiff MINKER realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 64. Plaintiff MINKER brings this claim individually and on behalf of the other members of the New York Class for an injunction for violations of New York’s Deceptive Acts or Practices Law, Gen. Bus. Law (“NY GBL”) § 349. 65. NY GBL § 349 provides that “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.” 66. Under the § 349, it is not necessary to prove justifiable reliance. (“To the extent that the Appellate Division order imposed a reliance requirement on General Business Law [§] 349 … claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. App. Div. 2012) (internal citations omitted)). 67. Any person who has been injured by reason of any violation of the NY GBL may bring an action in their own name to enjoin such unlawful act or practice, an action to recover their actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual 22 damages up to one thousand dollars, if the court finds the Defendant willfully or knowingly violated this section. The court may award reasonable attorney's fees to a prevailing plaintiff. 68. The practices employed by Defendant, whereby Defendant labeled, packaged, and marketed their Products as “Naturally Soothing” were unfair, deceptive, and misleading and are in violation of the NY GBL § 349. 69. The foregoing deceptive acts and practices were directed at customers. 70. Defendant should be enjoined from labeling its Products as “Naturally Soothing”, as described above pursuant to NY GBL § 349. 71. Plaintiff MINKER, on behalf of himself and all others similarly situated, respectfully demands a judgment enjoining Defendant’s conduct, awarding costs of this proceeding and attorneys’ fees, as provided by NY GBL, and such other relief as this Court deems just and proper. 72. Plaintiff MINKER realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 73. By the acts and conduct alleged herein, Defendant committed unfair or deceptive acts and practices by misbranding their Products as “Naturally Soothing.” 74. The practices employed by Defendant, whereby Defendant advertised, promoted, and marketed that their Products are “Naturally Soothing” were unfair, deceptive, and misleading and are in violation of NY GBL § 349. 75. The foregoing deceptive acts and practices were directed at consumers. 23 76. Plaintiffs and the other Class members suffered a loss as a result of Defendant’s deceptive and unfair trade acts. Specifically, as a result of Defendant’s deceptive and unfair trade acts and practices, Plaintiffs and the other Class members suffered monetary losses associated with the purchase of Products, i.e., the purchase price of the Product and/or the premium paid by Plaintiffs and the Class for said Products. 77. Plaintiff LIU realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 78. Plaintiff LIU brings this claim individually and on behalf of the other members of the California Class for Defendant’ violations of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1761(d). 79. Plaintiff LIU and California Class members are consumers who purchased the Products for personal, family or household purposes. Plaintiff LIU and the California Class members are “consumers” as that term is defined by the CLRA in Cal. Civ. Code § 1761(d). Plaintiff LIU and the California Class members are not sophisticated experts with independent knowledge of corporate branding, labeling and packaging practices. 80. Products that Plaintiff LIU and other California Class members purchased from Defendant were “goods” within the meaning of Cal. Civ. Code § 1761(a). 81. Defendant’s actions, representations, and conduct have violated, and continue to violate the CLRA, because they extend to transactions that intended to result, or which have resulted in, the sale of goods to consumers. 24 82. Defendant violated federal and California law because Defendant’s representations in labeling, advertising, and marketing its Products as “Naturally Soothing” were unfair, deceptive, and misleading. 83. California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1770(a)(5), prohibits “[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses or benefits which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.” By engaging in the conduct set forth herein, Defendant violated and continues to violate Section 1770(a)(5) of the CLRA, because Defendant’s conduct constitutes unfair methods of competition and unfair or fraudulent acts or practices, in that it misrepresents that the Products have characteristics, ingredients, or benefits which they do not have. 84. Cal. Civ. Code § 1770(a)(9) further prohibits “[a]dvertising goods or services with intent not to sell them as advertised.” By engaging in the conduct set forth herein, Defendant violated and continues to violate Section 1770(a)(9), because Defendant’s conduct constitutes unfair methods of competition and unfair or fraudulent acts or practices, in that it advertises goods with the intent not to sell the goods as advertised. 85. Plaintiff LIU and the California Class members are not sophisticated experts about the corporate branding, labeling and packaging practices. Plaintiff LIU and the California Class acted reasonably when they purchased the Products based on their belief that Defendant’s representations were true and lawful. 86. Plaintiff LIU and the California Class suffered injuries caused by Defendant because (a) they would not have purchased the Products on the same terms absent Defendant’s illegal and misleading conduct as set forth herein; (b) they paid a price premium for the Products 25 due to Defendant’s misrepresentations that its Products were “Naturally Soothing”; and (c) the Products did not have the ingredients, characteristics or benefits as promised. 87. On or about September 11, 2015, prior to filing this action, a CLRA notice letter was served on Defendant which complies in all respects with California Civil Code § 1782(a). Plaintiff LIU sent Defendant, RICOLA USA, INC., on behalf of herself and the proposed Class, a letter via certified mail, return receipt requested, advising Defendant that they are in violation of the CLRA and demanding that they cease and desist from such violations and make full restitution by refunding the monies received therefrom. A true and correct copy of Plaintiff LIU’s letter is attached hereto as EXHIBIT D. 88. Wherefore, Plaintiff LIU seeks damages, restitution, and injunctive relief for these violations of the CLRA. 89. Plaintiff LIU realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 90. Plaintiff LIU brings this claim individually and on behalf of the members of the proposed California Class for Defendant’s violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. 91. The UCL provides, in pertinent part: “Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising ….” 26 92. Defendant violated federal and California law because Defendant’s representations in labeling, advertising, and marketing its Products as “Naturally Soothing” were unfair, deceptive, and misleading. 93. Defendant’s business practices, described herein, violated the “unlawful” prong of the UCL by violating the federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 343 et. seq., 21 U.S.C. §§ 343(a)(1), 343(k); N.Y. Agm. Law § 201; California Health and Safety Code §§ 110660, 110740, the CLRA, and other applicable law as described herein. 94. Defendant’s business practices, described herein, violated the “unfair” prong of the UCL in that their conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any alleged benefits. Defendant’s advertising is of no benefit to consumers. 95. Defendant violated the “fraudulent” prong of the UCL by misleading Plaintiff LIU and the California Class to believe that the “Naturally Soothing” representation made about the Products were lawful, true and not intended to deceive or mislead the consumers. 96. Plaintiff LIU and the California Class members are not sophisticated experts about the corporate branding, labeling, and packaging practices of the Products. Plaintiff LIU and the California Class acted reasonably when they purchased the Products based on their belief that Defendant’s representations were true and lawful. 97. Plaintiff LIU and the California Class lost money or property as a result of Defendant’s UCL violations because (a) they would not have purchased the Products on the same terms absent Defendant’s illegal conduct as set forth herein, or if the true facts were known concerning Defendant’s representations; (b) they paid a price premium for the Products due to 27 Defendant’s misrepresentations; and (c) the Products did not have the characteristics, benefits, or ingredients as promised. 98. Plaintiff LIU realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 99. Plaintiff LIU brings this claim individually and on behalf of the members of the proposed California Class for Defendant’s violations of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq. 100. Under the FAL, the State of California makes it “unlawful for any person to make or disseminate or cause to be made or disseminated before the public in this state, ... in any advertising device ... or in any other manner or means whatever, including over the Internet, any statement, concerning ... personal property or services, professional or otherwise, or performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” 101. Defendant engaged in a scheme of offering misbranded Products for sale to Plaintiff LIU and the California Class members by way of making false and misleading representations that such Products were “Naturally Soothing” on the Products’ packaging, labeling, and website. Such practice misrepresented the characteristics, benefits and ingredients of the misbranded Products. Defendant’s advertisements and inducements were made in California and come within the definition of advertising as contained in Bus. & Prof. Code § 17500, et seq. in that the product packaging was intended as inducements to purchase 28 Defendant’s Products. Defendant knew that these statements were unauthorized, inaccurate, and misleading. 102. Defendant violated federal and California law because Defendant’s representations in labeling, advertising, and marketing its Products “Naturally Soothing” were unfair, deceptive, and misleading. 103. Defendant violated § 17500, et seq. by misleading Plaintiff LIU and the California Class to believe that the “Naturally Soothing” representations made about the Products were true as described herein. 104. Defendant knew or should have known, through the exercise of reasonable care that the Products were and continue to be misbranded, and that its representations about the naturalness of the Products were untrue and misleading. 105. Plaintiff LIU and the California Class lost money or property as a result of Defendant’s FAL violations because (a) they would not have purchased the Products on the same terms absent Defendant’s illegal conduct as set forth herein, or if the true facts were known concerning Defendant’s representations; (b) they paid a price premium for the Products due to Defendant’s misrepresentations; and (c) the Products did not have the characteristics, benefits, or ingredients as promised. BREACH OF EXPRESS WARRANTIES (All States) 114. Plaintiffs reallege and incorporate herein by reference the allegations contained in all preceding paragraphs, and further allege as follows: 115. Defendant provided Plaintiffs and other members of the Class with written express warranties, including, but not limited to, warranties that their Products are “Naturally Soothing”. 116. This breach resulted in damages to Plaintiffs and the other members of the Class who bought Defendant’s Products but did not receive the goods as warranted in that the Products were not as healthy nor as pure as they appear to be. 117. As a proximate result of Defendant’s breach of warranties, Plaintiffs and the other Class members have suffered damages in an amount to be determined by the Court and/or jury, in that, among other things, they purchased and paid for Products that did not conform to what Defendant promised in their promotion, marketing, advertising, packaging and labeling, and they were deprived of the benefit of their bargain and spent money on products that did not have any value or had less value than warranted or products that they would not have purchased and used had they known the true facts about them. 31 Defendant’s Products INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349 (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT) NEGLIGENT MISREPRESENTATION (All States) 106. Plaintiffs reallege and incorporate herein by reference the allegations contained in all preceding paragraphs, and further allege as follows: 107. Defendant, directly or through its agents and employees, made false representations, concealments, and nondisclosures to Plaintiffs and members of the Class. 29 108. In making the false, misleading, and deceptive representations and omissions, Defendant knew and intended that consumers would pay a premium for Products labeled as “Naturally Soothing” over comparable products that are not so labelled, furthering Defendant’s private interest of increasing sales for its Products and decreasing the sales of products that are truthfully offered as “Naturally Soothing” by Defendant’s competitors, or those that do not claim to be “Naturally Soothing”. 109. As an immediate, direct, and proximate result of Defendant’s false, misleading, and deceptive representations and omissions, Defendant injured Plaintiffs and the other Class members in that they paid a premium price for Products that were not as represented. 110. In making the representations of fact to Plaintiffs and members of the Class described herein, Defendant has failed to fulfill their duties to disclose the material facts set forth above. The direct and proximate cause of this failure to disclose was Defendant’ negligence and carelessness. 111. Defendant, in making the misrepresentations and omissions, and in doing the acts alleged above, knew or reasonably should have known that the representations were not true. Defendant made and intended the misrepresentations to induce the reliance of Plaintiffs and members of the Class. 112. Plaintiffs and members of the Class relied upon these false representations and nondisclosures by Defendant when purchasing the Products, upon which reliance was justified and reasonably foreseeable. 113. As a result of Defendant’s wrongful conduct, Plaintiffs and members of the Class have suffered and continue to suffer economic losses and other general and specific damages, including but not limited to the amounts paid for the Products and any interest that would have 30 been accrued on those monies, all in an amount to be determined according to proof at time of trial. The Nationwide Class UNJUST ENRICHMENT (All States) 118. Plaintiffs reallege and incorporate herein by reference the allegations contained in all preceding paragraphs, and further allege as follows: 119. As a result of Defendant’s deceptive, fraudulent and misleading labeling, packaging, advertising, marketing and sales of Products, Defendant was enriched, at the expense of Plaintiffs and members of the Class, through the payment of the purchase price for Defendant’s Products. 120. Plaintiffs and members of the Class conferred a benefit on Defendant through purchasing the Products, and Defendant has knowledge of this benefit and have voluntarily accepted and retained the benefits conferred on it. 121. Defendant will be unjustly enriched if it is allowed to retain such funds, and each Class member is entitled to an amount equal to the amount they enriched Defendant and for which Defendant has been unjustly enriched. 122. Under the circumstances, it would be against equity and good conscience to permit Defendant to retain the ill-gotten benefits that they received from Plaintiffs, and all others similarly situated, in light of the fact Defendant have misrepresented that the Products are “Naturally Soothing” when in fact, the Products contain the synthetic, unnatural ingredients Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid. 123. Defendant profited from its unlawful, unfair, misleading, and deceptive practices and advertising at the expense of Plaintiffs and Class members, under circumstances in which it would be unjust for Defendant to be permitted to retain said benefit. 32 124. Plaintiffs have standing to pursue this claim as Plaintiffs have suffered injury in fact and has lost money or property as a result of Defendant’s actions, as set forth herein. Defendant is aware that the claims and/or omissions that it made about the Products are false, misleading, and likely to deceive reasonable consumers, such as Plaintiffs and members of the Class. 125. Plaintiffs and Class members do not have an adequate remedy at law against Defendant (in the alternative to the other causes of action alleged herein). 126. Accordingly, the Products are valueless such that Plaintiffs and Class members are entitled to restitution in an amount not less than the purchase price of the Products paid by Plaintiffs and Class members during the Class Period. 127. Plaintiffs and Class members are entitled to restitution of the excess amount paid for the Products, over and above what they would have paid if the Products had been adequately advertised, and Plaintiffs and Class members are entitled to disgorgement of the profits Defendant derived from the sale of the Products. VIOLATIONS OF CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT, Cal. Civ. Code § 1750, et seq. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, California Business & Professions Code §§ 17200, et seq. VIOLATION OF CALIFORNIA’S FALSE ADVERTISING LAW, California Business & Professions Code §§ 17500, et seq. VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349 (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)

lose

1. Grammer is a resident of the State of Indiana and is currently domiciled in Peru, Miami County, Indiana. Earlier in 2020, Grammer resided in Kokomo, Howard County, Indiana. During the first week after he was first hired by Wright (in early February 2020), Grammer resided in Greencastle, Putnam County, Indiana. 10. Pursuant to its systematic, class-wide practice, Wright is not compensating its hourly-paid Flagger employees for all work time at the beginning of each employee’s shift and at 5 the end of each employee’s shift. 11. Wright intentionally and knowingly violated Grammer’s and all Flagger employees’ rights to earned wages through Wright’s conscious and deliberate decision not to pay employees for all work time. 12. Grammer can provide a specific example. During the one week pay period from March 9, 2020 to March 15, 2020, Grammer was living in Kokomo, Indiana and was driving to work at job sites in and around Terre Haute, Vigo County, Indiana. If he encountered light traffic and took the quickest route, Grammer’s drive time from his home in Kokomo to the employer designated meeting location at 701 Fruitridge Avenue, Terre Haute, Indiana took two hours and ten minutes (2:10). Grammer’s round trip from home to the Terre Haute meeting location each day this week took at least four hours and twenty minutes (4:20). Grammer was driving his Wright work truck for work purposes and work travel at least two hours and twenty minutes (2:20) per work day greater than his normal commute time (one hour each way) and outside of Grammer’s normal commuting area. Grammer’s pay stub for this work week and his time sheets for this work week indicate that Grammer was paid for 53.00 hours of work and that Grammer drove round trip from his home to the same meeting location at 701 Fruitridge Avenue, Terre Haute, Indiana on 4 different days. Wright did not pay Grammer at all for the nine hours and twenty minutes that were greater than his normal commute time and outside his normal commuting area. These additional nine hours and twenty minutes were all compensable work hours. All were overtime hours, as well, over and above the 53.00 hours Wright did pay Grammer for the work week. At that point in time, Wright paid Grammer a base rate of pay at $12.50 per hour. His base overtime rate of pay was $18.75 per overtime hour. Wright owed 6 Grammer at least an additional $175.00 in overtime for the work week. Under the FLSA, that figure would be doubled with a presumptive liquidated damage to $350.00. Under the Indiana Wage Payment Statute, the nine hours and twenty minutes would be owed at Wright’s $12.50 per hour base rate of pay, for a total of $116.67. With liquidated damages under I.C. 22-2-5-2, Wright owes Grammer damages of $350.00 for this one work week. 13. For purposes of a separate example of wage violations, using the same one week pay period from March 9, 2020 to March 15, 2020, Grammer was required to report and begin working and performing work tasks at an employer designated meeting location at 701 Fruitridge Avenue, Terre Haute, Indiana. From that designated meeting location, Grammer and his Wright coworkers on his crew were required to drive to the work site for the day in other areas of Vigo County. On two of the four days, Grammer and coworkers, had to drive from the employer designated meeting location at 701 Fruitridge Avenue, Terre Haute, Indiana to a job site at 5621 E. Cottom Drive, Pimento, Vigo County, Indiana, a distance of 15 miles and a drive time of at least 23 minutes each direction. Wright did not pay Grammer and his coworkers for this work time spent driving from or returning to the designated meeting spot within the middle of their respective continuous workdays. This failure to pay Grammer and his coworkers for the work time spent driving from the designated meeting place to the actual job site resulted in Grammer and each coworker being underpaid wages and overtime wages of at least two to three hours for the work week over the four days. These additional two to three hours were all compensable work hours. All were overtime hours, as well, over and above the 53.00 hours Wright did pay Grammer for thatwork week. At that point in time, Wright paid Grammer a base rate of pay at $12.50 per hour. His base overtime rate of pay was $18.75 per overtime hour. Wright owed 7 Grammer at least an additional $37.50 in overtime for the work week. Under the FLSA, that figure would be doubled with a presumptive liquidated damage to $75.00. Under the Indiana Wage Payment Statute, the two hours would be owed at Wright’s $12.50 per hour base rate of pay, for a total of $25.00. With liquidated damages under I.C. 22-2-5-2, Wright owes Grammer damages of $75.00 for this one work week. 14. Wright is similarly underpaying wages and overtime compensation to all of Grammer’s similarly situated Flagger coworkers by failing to pay wages for hours and/or overtime hours for all work time spent in work travel outside and over and above normal commuting times and also for work travel from designated meeting locations to actual job sites that occurs during continuous workdays. 15. During many calendar weeks in 2020, Grammer worked in excess of forty hours and was owed additional overtime compensation based upon Wright’s unlawful failure to pay Grammer for all of his compensable work hours. In every work week, Grammer and his fellow Flagger employees lost wages as a result of Wright’s failure to pay for all work hours. Moreover, in every work week involving more then forty hours of work, Grammer and his fellow Flagger employees lost overtime wages as a result of Wright’s failure to pay for all work hours. 16. Grammer is expressly alleging that Wright acted in bad faith in violating its Flaggers’ rights under the FLSA and the Indiana Wage Payment Statute, and that Wright certainly did not seek to comply with the Indiana Wage Payment Statute in good faith. 17. By way of this Complaint, Grammer seeks for himself and for all other similarly situated Flagger employees all unpaid wages, all unpaid overtime, all available statutory 8 damages, including all liquidated damages, and payment of his reasonable attorneys’ fees, costs and expenses. 18. Grammer incorporates herein by reference paragraphs 1 - 17 above. 19. Grammer is pursuing claims individually, but this Complaint is brought also as a collective action and as a class action on behalf of other current and former Wright employees who were similarly denied payment of wages and overtime compensation under Wright’s compensation scheme that resulted in the failure to pay for all work time from the first principal activity each day through the last principal activity. 2. Defendant Wright of Indiana, LLC is a foreign limited liability company with a principal office address listed with the Indiana Secretary of State as 1200 Sharon Road, Suite 1, Beaver, Pennsylvania 15009. Grammer worked for Wright from its Indiana office located at 5420 Rock Hampton Court, Indianapolis, Indiana 46268. Wright is a traffic control service that employs safety workers such as Flaggers who protect utility workers. 20. This action is filed as a collective action pursuant to Section 16(b) of the Fair Labor Standards Act, 29 USC § 216(b), on behalf of Grammer and all Wright current and former Flagger employees who were damaged by Wright’s compensation system which required and resulted in significant uncompensated work and overtime violations. By virtue of the “collective action,” Grammer represents the identical and/or similar interests of former and current coworkers denied wages and overtime compensation under the same circumstances. Grammer anticipates that other Wright employees and former employees will opt in to the action. 21. With respect to FRCP 23(b)(3) class action claims under the Indiana Wage Payment Statute, Grammer will serve as class representative over a proposed class. The class will be as follows: Grammer will serve as class representative for the class-wide claims brought under the Indiana Wage Payment Statute. This Court has supplemental jurisdiction over Grammer’s Indiana statutory wage claims. This action is filed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of Grammer and on behalf of all eligible Wright current and former Flagger employees (who voluntarily resigned) who work or worked for the company and were damaged by Wright’s compensation 3See Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 973-974 (7th Cir. 2011) 9 system which required and resulted in uncompensated work performed by hourly-paid employees. By virtue of the class action, Grammer represents the identical and/or similar interests of former and current coworkers denied wages under the same circumstances. 22. Based upon information and belief, the number of potential class members is believed to be multiple hundreds of individuals, however, the actual number of Wright’s current and former employees who will be members of this collective action/class action is so great (numerosity) that joinder of all members is impractical. Instead, Grammer will pursue discovery to obtain the names of the other current and former Wright employees, to provide notice of the collective action, and to offer the opt in opportunity, and to provide notice of the class action and to offer the opt out opportunity. 23. Particularly with the types of wage claims and practices at issue in this case, there are questions of law and fact that are common to the entire collective group/class. 24. Grammer’s claims are typical of the claims of the whole collective group of current and former Wright hourly-paid Flagger employees harmed by Wright’s illegal wage practices. Grammer’s claims are typical of the claims of the whole class of current and former Wright hourly-paid Flagger employees harmed by Wright’s illegal wage practices. 25. Grammer will act to fairly and adequately protect the interests of the entire collective group of current and former Wright employees. Grammer will act to fairly and adequately protect the interests of the entire Rule 23 class of current and former Wright employees. 26. A “combined”3 collective action/class action is superior to other available means for the fair and efficient prosecution of these wage claims against Wright. For example, to prove 10 Wright’s illegal wage practices, Grammer and other members of this collective group/class would seek in discovery records about all similarly situated current and former Grammer Flagger employees who were similarly denied earned wages and overtime compensation under Wright’s compensation system which required and resulted in uncompensated work and underpayment of overtime wages. Individual lawsuits by the members of the collective group/class could lead to 1) inconsistent or varying outcomes in the cases, 2) duplicitous discovery, or 3) competition for limited funds. Further, as a practical matter, the first litigant to trial may achieve a result which would have bearing on all of the other individuals in the group. 27. A determination regarding the “similarness” of those able to participate in the collective action/class action would also allow litigation of claims that may not otherwise be cost effective, depending upon the amount of each individual group member’s damages. Particularly with the type of FLSA and Indiana statutory and contractual wage violations at issue in this litigation, some, if not most, of the individual group members may not be aware of their rights to their wages under the FLSA and Indiana law, or may not, because of financial means or experience, be in a position to seek the assistance of counsel to commence individual litigation. 28. A combined collective action/class action will result in an orderly and expeditious administration of the group members’ claims, and economies of time, court resources, effort and expense, and uniformity of decisions will be assured. 29. Because Wright’s compensation system which required and resulted in uncompensated work and underpaid overtime wages to hourly-paid employees results in wage violations that trigger issues of both federal and state law, this cause of action presents the ideal factual scenario supporting the Court’s exercise over the supplemental state law claims, as 11 common state and federal law issues predominate. 3. Flaggers set up traffic cones, traffic safety signs, hold signs and take other safety 1The truck Wright assigned to Grammer and the trucks assigned to all Flaggers are pickup trucks. All of the company pickup trucks weigh less than Ten Thousand (10,000) pounds. 3 measures to protect employees of customers who are performing utility work and other roadside work. Wright employs hundreds of Flaggers to perform work for it throughout and around the State of Indiana. Wright routinely and regularly dispatched Grammer and all other Flaggers to work on roadside projects at places in Indiana that were far and many hours of drive time from Wright’s Indianpolis office and from the employees’ homes. 4. Grammer was hired by Wright as a Flagger in early February 2020 and remains employed. Shortly after he was hired, Wright assigned Grammer a company truck1 for use with his work. Grammer drove the truck home with him each night and drove from home to work meeting places at the start of each work day. Wright instructed Grammer to use his work truck to transport traffic cones, work signs and other necessary safety equipment for his and other Flaggers’ use at roadside work sites around the State of Indiana. Wright has promoted Grammer to a Lead Flagger position. Grammer also fills out time sheets and other paper work for Flaggers on his team as part of his job. 5. During his employment with Wright, Grammer has resided at addresses that are roughly one hour’s drive time from the Wright office in Indianapolis. Grammer’s normal commute area from home to his employer’s Indianapolis office would be approximately one hour’s drive time at the beginning of each work day and the end of each work day. 6. At all times during his employment with Wright, Grammer has been paid wages on an hourly basis and treated as a non-exempt employee. 7. Wright has intentionally, knowingly, with reckless disregard and systematically 2Grammer and all of his Wright coworkers were required to meet at employer-designated meeting locations to receive instructions for the day’s work, to pick up and load equipment, and to perform other initial work tasks. 4 violated its Flaggers’ rights to earned overtime through Wright’s unlawful overtime calculation and payment policies. 8. Wright is creating wage and hour and overtime violations by failing to pay Grammer and his similarly situated Flagger coworkers for all hours of work each week. Wright pays its Flagger employees at an hourly rate of pay, but Wright has been substantially underpaying wages to Flaggers by failing to pay on a continuous workday basis. Specifically, Wright is not paying Flaggers from the moment of their first principal work activities - typically either 1) the moment the Flagger’s work travel time exceeds the normal work commute time or becomes outside the normal commuting area for his employer’s business or 2) the time the Flagger began work2 at an assigned meeting location designated by Wright - through the last principal work activity of the day - typically either 1) the moment the employee ended his work day by returning to the designated meeting location and completes final work tasks, or 2) the moment the Flagger’s return travel at the end of the work day enters the scope of his normal work commute time or becomes within his normal commuting area for his employer’s business. This systematically creates significant unpaid wage and overtime violations each week, causing each Flagger to lose hours per week in paid wages. 9. All of the time Wright’s Flagger employees spend at work, from first to last principal activity of each day, is work time and must be compensated under the law.

win

28. Plaintiffs and similarly situated employees work or worked for Defendants as general laborers during the applicable statutory period. 30. Defendants compensated Plaintiffs and similarly situated employees for their work on an hourly basis. 31. Defendants suffered and permitted Plaintiffs and similarly situated employees to work more than forty (40) hours per workweek. 32. Defendants have a common policy of not paying Plaintiffs and similarly situated employees at a rate of one and one-half (1.5) times their regular pay for the overtime hours they worked as required by the FLSA. 33. In calculating Plaintiffs and similarly situated employees, Defendants only paid them their regular rate (i.e., straight time rate), rather than the legally required one and one-half (1.5) times their regular rate of pay for hours in excess of forty (40) per workweek. 34. Defendants willfully operated under a common scheme to deprive Plaintiffs and similarly situated employees of overtime compensation by paying them less than what is required under federal law. 35. As a commercial and residential construction company that has been in existence for close to ten (10) years, Defendants were or should have been aware that Plaintiffs and similarly situated employees performed work that required proper payment of overtime compensation. 36. Defendants knew that Plaintiffs and similarly situated employees worked overtime hours without receiving proper overtime pay because Defendants maintained and recorded the hours worked by Plaintiffs and similarly situated employees. 38. Plaintiffs bring Counts I on behalf of themselves and all similarly situated individuals. The proposed collective class (“Class Members”) is identified as follows: All general laborers who worked for K & E Resources, LLC within the last three years. 39. Plaintiffs consent in writing to assert their claims for unpaid wages under the FLSA pursuant to 29 U.S.C. § 216(b). Plaintiffs’ signed consent forms are filed with the Court as Exhibit 1 and Exhibit 2 to this Complaint. 40. As the case proceeds, it is likely that other individuals will file consent forms and join as “opt-in” plaintiffs. 41. Members of the proposed Class Members are known to Defendants and are readily identifiable through Defendants’ records. 42. Plaintiffs and the Class Members are all victims of Defendants’ widespread, repeated, systematic, and consistent illegal policies that have resulted in willful violations of their rights under the FLSA, 29 U.S.C. § 201, et seq., and that have cause significant damage to Plaintiffs and the Class Members. 43. The Class Members would benefit from the issuance of court-supervised notice of this lawsuit and an opportunity to join by filing their written consent. 44. Plaintiffs realleges and incorporates by reference the above paragraphs as if fully set forth herein. 46. The FLSA, 29 U.S.C. § 207, requires covered employers like Defendants to pay non- exempt employees like Plaintiffs and the Class Members no less than one and one-half (1.5) times their regular rate of pay for all hours worked in excess of forty (40) in a workweek. 47. Plaintiffs and the Class Members regularly worked more than forty (40) hours per week for Defendants, but Defendants did not properly compensate them for all of their overtime hours as required by the FLSA. 48. Defendants have not made a good-faith effort to comply with the FLSA as it relates to the compensation of Plaintiffs and the Class Members. 49. Defendants knew Plaintiffs and the Class Members worked overtime without proper compensation, and it willfully failed and refused to pay Plaintiffs and the Class Members wages at the required overtime rate pursuant to 29 U.S.C. § 225. 50. Defendants’ willful failure and refusal to pay Plaintiffs and the Class Members overtime wages for time worked violates the FLSA, 29 U.S.C. § 207. 51. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs and the Class Members have suffered and will continue to suffer a loss of income and other damages. Plaintiffs and the Class Members are entitled to liquidated damages and attorney’s fees and costs incurred in connection with this claim.

win

43. The members of the Class are so numerous that joinder is impracticable. The number of Class Members is approximately 360. The number of job applicants harmed by Defendant’s violations of the law is significantly greater than feasibly could be addressed through joinder. The precise number is uniquely within Defendant’s possession, and Class Members may be notified of the pendency of this action by published and/or mailed notice. 44. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Defendant had a single, uniform credit check procedure that was used for all job applicants. Common questions include, but are not limited to: (1) Whether Defendant’s prior policy and practice to exclude job applicants based on negative credit histories had a discriminatory disparate impact on African American applicants; (2) Whether Defendant’s prior policy and practice to exclude job applicants based on their credit history is job-related and consistent with business necessity; (3) Whether there was a less discriminatory policy and practice that would have met Defendant’s legitimate needs; and 45. Plaintiff’s claim is typical of the claims of the Class: (1) Plaintiff applied for a job with Defendant within the relevant time period; (2) Plaintiff was processed through the same application procedure; (3) Plaintiff was subjected to the same screening device and hiring process; (4) Plaintiff was denied the position; and (5) Plaintiff has the same discrimination claim based on disparate impact. All claims are shared by each and every class member. 47. Plaintiff has retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof. 48. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b) due to: (1) the risk of inconsistent or varying adjudications with respect to individual Class Members through the prosecution of separate actions; and/or (2) the predominance of questions of law and/or fact common to Class Members over any questions affecting only individual members, and the superiority of a class action to other methods for fairly and efficiently adjudicating this controversy.

win

30. On April 29, 2014, Plaintiff registered his cell phone number on the 44. 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 Classes: Pre-recorded No Consent Class: All persons in the United States who from four years prior to the filing of this action through class certification (1) Defendant (or an agent acting on behalf of Defendant) called (2) using a pre-recorded voice message (3) on their cell phone number or residential landline (4) for substantially the same purpose Defendant called Plaintiff, and (5) for whom Defendant claims (a) it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff, or (b) Defendant 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 through class certification (1) Defendant (or an agent acting on behalf of Defendant) called more than one time (2) on their residential cell phone number or residential landline (3) within any 12-month period where the cellular telephone number had been listed on the National Do Not Call Registry for at least thirty days (4) for substantially the same purpose Defendant called Plaintiff, and (5) for whom Defendant claims (a) it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff, or (b) Defendant did not obtain prior express written consent. 50. Plaintiff repeats and realleges paragraphs 1 through 49 of this Complaint and incorporates them by reference herein. 54. Plaintiff repeats and realleges the paragraphs 1 through 49 of this Complaint and incorporates them by reference herein. 55. 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.” 56. 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). Class Treatment Is Appropriate for Plaintiff’s TCPA Claims Arising From Calls Made by Mutual of Omaha Mutual of Omaha Placed Pre-recorded Calls to Plaintiff’s Cell Phone Without His Consent, Despite the Fact That Plaintiff Registered his Phone Number on the DNC Mutual of Omaha Markets its Services by Placing Pre-recorded Calls to Consumers Without Their Consent Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Do Not Call Registry Class) Telephone Consumer Protection Act (Violations of 47 U.S.C. § 227) (On Behalf of Plaintiff Baesel and the Pre-recorded No Consent Class)

win

15 U.S.C. § 1681, et seq. On behalf of Plaintiff and the Class 37. On April 29, 2018, Plaintiff took a tour of Atlas Apartments (“Atlas”), a modern apartment complex located at 1036 7th Avenue NW, Issaquah, Washington 98027. 65. Class Definition: Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of himself and a class defined as follows: All persons in the United States who: (1) were the subject of a consumer report provided by RentGrow; (2) containing a reappearance of previously corrected inaccurate information; (3) about residential or tenant payment history. The following people are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parent has a controlling interest and their current or former employees, officers and directors; (3) Defendant’s insurer or its parent having a controlling interest and their current or former employees, officers and director; (4) persons who properly execute and file a timely request for exclusion from the Class; (5) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released; (6) Plaintiff’s counsel and Defendant’s counsel; and (7) the legal representatives, successors, and assigns of any such excluded persons. 66. Numerosity: The exact number of members in the Class is unknown and not available to Plaintiff, but it is clear that individual joinder is impracticable. On information and belief, hundreds or thousands of consumers fall into the definition of the Class based on Defendant’s volume of business. Members of the Class can be identified through Defendant’s records. 72. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 73. 15 U.S.C. § 1681e(b) states that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 74. Defendant is a consumer reporting agency that prepares consumer reports for third parties by preparing tenant screening reports that contain consumer’s residential or tenant history. 75. Defendant failed to establish or follow reasonable procedures to assure maximum possible accuracy of the information concerning Plaintiff and each member of the Class in violation of 15 U.S.C. § 1681e(b). 76. At all relevant times, Defendant failed to establish or follow reasonable procedures to prevent previously deleted inaccurate information about residential or tenant history from reappearing on its consumer reports about Plaintiff and each member of the Class in violation of 15 U.S.C. § 1681e(b).

win

23. Microwave ovens have been ubiquitous in American kitchens for several decades. Consumers have become accustomed to the simplicity and quick cooking that microwave ovens provide, and rely upon manufacturers, including Sharp, to ensure their safe and efficient use. 24. Sharp is a household name, and one in which consumers have relied upon for the safety and quality of microwave ovens for more than 40 years. Sharp introduced the first microwave oven with a turntable in the 1960s, and in the late 1970s, Sharp introduced low-cost microwave ovens for residential use.4 25. Upon information and belief, Sharp was the first to design, patent, and manufacture microwave drawers. In fact, Sharp owns the trademark for the term “Microwave Drawer.” 5 26. Sharp is engaged in the business of designing, manufacturing, warranting, marketing, advertising, distributing, and selling the Microwaves. Each of the Microwaves is branded with the “Sharp” logo or, upon information and belief, can be readily identified as being a Sharp designed, manufactured, and distributed product. 27. The Microwaves are used, and are intended by Sharp to be used, for safe food preparation. 28. Microwaves are high voltage appliances that are a considerable electrical hazard if they are defectively designed or manufactured. 49. In or around May of 2017, Plaintiff paid $849.00 for a Sharp-branded Microwave Oven Drawer, Model Number KB6524PS, for his home. 91. Plaintiff brings this action individually and as a class action pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and 23(b)(3) on behalf of the following Class: All persons residing in the State of Georgia who purchased a Sharp Microwave Drawer, model numbers

lose

(Violation of 47 U.S.C. § 227, et seq. – Telephone Consumer Protection Act) (on behalf of Plaintiff and the Class) 16. Given the relatively low cost associated with sending bulk text messages, many businesses have turned to disseminating advertising calls or promotions through mass text message campaigns. 17. Seeking to market “knock-off” skin care products, nutritional supplements, cosmetic products, and health care products to consumers and, in turn, grow the customer base of their clients, Defendant engaged in this especially invasive form of advertising. 18. Defendant made unauthorized text message advertising calls to the phones of thousands of consumers nationwide. Specifically, Defendant initiated or took steps necessary to place such text message advertising calls using an automated telephone dialing system and/or were so involved in placing the texts as to be deemed to have initiated them. 19. The nature of the text message calls sent by Defendant indicates that it used an automatic telephone dialing system (“ATDS”). Specifically, the hardware and/or software used by Defendant has the capacity to store, produce, and dial random and sequential numbers, and/or receive and store lists of telephone numbers, and to dial such numbers, en masse, in an automated fashion without human intervention. Defendant’s automated dialing equipment includes features substantially similar to a predictive dialer, inasmuch as it is capable of making numerous text message calls simultaneously (all without human intervention). 20. The text message advertising calls alleged herein were exclusively made by Defendant. Defendant made, or had made on their behalf, the same (or substantially the same) text message calls en masse to thousands of cellular telephone numbers nationwide. 22. Upon information and belief, Defendant made such calls without obtaining any form of consent from recipients, or, alternatively, such calls were made outside the scope of consent Defendant may have obtained. 23. Defendant violated the TCPA by failing to provide the clearly stated legal name of the business responsible for initiating the text message advertising calls at issue 24. Defendant violated the TCPA by failing to provide in every text message call sent an automated opt-out mechanism for the called person to make a do-not-call request. 26. Moreover, Plaintiff and members of the Class suffered injuries in the form of invasion of privacy and violations of their statutory rights, the monies paid to receive Defendant’s unsolicited text messages, the diminished value and utility of their telephone equipment and telephone subscription service (i.e. the value of such equipment and services is higher when unencumbered by repeated and harassing text messages), the amount of time lost answering and fielding unwanted telemarketing text messages, the wear and tear on their telephone equipment, the loss of battery (which becomes diminished with each incoming phone call), the loss of battery life (which has a finite number of charging cycles), and electricity costs required to recharge their cellular phones. 27. Defendant sent a text message call from an SMS-enabled phone number, 201- 701-8452, to Plaintiff’s telephone number, XXX-XXX-8049, on or about May 28th, 2017 containing the following: “167 available to Emily worthexpress.com” 28. The link “worthexpress.com” took Plaintiff to an online survey that, upon completion, provided a list of links for various unnamed nutritional supplements and anti-aging skin products for the recipient to claim as a “reward” for completing the survey. 30. The SMS-enabled phone number 201-701-8452 was and/or is utilized by Defendant to send text message advertising calls to consumers like Plaintiff. 31. Defendant is behind the advertising, promotion, sale, and/or offers for sale of “Instantly Ageless” skin product among countless other product brands they push to consumers nationwide.3 32. As such, the text message call received by Plaintiff did not include the legal name of the business responsible for initiating such calls. 33. Plaintiff has received similar text messages calls from Defendant in the past. 34. The software and/or hardware products or services used by Defendant to send the text message call also provided Defendant with the capacity to store, produce, and dial random and sequential numbers, and/or receive and store lists of telephone numbers, and to dial such numbers, en masse, in an automated fashion without human intervention. 35. Defendant created and/or controlled the content of the text message advertising call, initiated the call, took steps necessary to physically place the call and/or were so involved in placing the call at issue that they could be considered to have initiated it. 36. The call was an advertisement because its sole purpose was to promote and/or encourage the purchase of commercial skin care product “Instantly Ageless” among other products offered by Defendant. 38. Plaintiff did not provide prior express written consent to receive any text message calls from Defendant as there was no written agreement between Plaintiff and Defendant that included any or all of the following: a. Plaintiff’s legally recognized signature; b. Clear and conspicuous authorization for Defendant to deliver advertising messages via autodialed calls; c. Language indicating that signing such agreement is not a condition for purchasing skin care products; and d. Plaintiff’s telephone number to which she authorized advertisements or advertising messages to be delivered. 39. In fact, Plaintiff did not provide any form of consent to receive text messages from Defendant or text message advertisements for their products. 40. Defendant's intrusive text message adversely affected Plaintiff’s right to privacy. 41. Defendant was and is aware that the same or similar above-described text message calls were being made on a widespread basis, and that such text message calls were and are being made to consumers who have not provided prior express written consent to receive them. 43. 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. Upon information and belief, Defendant have sent text message advertising calls to thousands of consumers nationwide who fall into the definition of the Class. Class members can be identified through Defendant's records. 45. 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. 46. 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’ 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. 48. Plaintiff reserves the right to revise the foregoing "Class Allegations" and "Class Definition" based on facts learned through additional investigation and in discovery. 49. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 50. In an effort to obtain more customers, Defendant made unsolicited and unwanted text message advertising calls to Plaintiff and the Class' cellular telephones without their prior written express consent. 52. Defendant utilized equipment that sent the text message advertisements to Plaintiff and other members of the putative Class simultaneously and without human intervention. 53. By sending the text message advertising to Plaintiff and members of the Class's cellular telephones without prior express written consent, and by utilizing an ATDS, Defendant violated 47 U.S.C. § 227(b)(I)(A)(iii). 54. By failing to clearly state the legal name of the business responsible for initiating such calls and by failing to, Defendant also violated 47 U.S.C. § 64.1200(b)(1) 55. Moreover, by failing to provide in every text message call sent an automated opt-out mechanism for the called person to make a do-not-call request, Defendant violated 47 U.S.C. § 56. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the putative Class suffered actual damages and also have had their rights to privacy adversely impacted. Plaintiff and the Class are therefore entitled to, among other things, a minimum of $500 in statutory damages for each such violation under 47 U.S.C. § 227(b)(3)(B). 57. 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. 64.1200(b)(3).

win

10. The putative class is so numerous that joinder of all members is impracticable. The size of the putative class is believed to be in excess of 40 individuals. In addition, the names of all potential members of the putative class are not known. 11. Questions of law and fact common to the putative class predominate over any questions affecting only individual members. These questions of law and fact include, but are not limited to: (1) whether Denville entered into contracts that required the payment of prevailing wages and supplemental benefits to Named Plaintiff and members of the putative class; (2) whether Denville had a statutory and/or contractual requirement to pay prevailing wages and supplemental benefits for the work performed on Projects; and (3) whether Denville paid the Named Plaintiff and members of the putative class at the proper prevailing wage and benefit rate for all hours worked and under the correct trade designation. 12. The claims of the Named Plaintiff are typical of the claims of the putative class members. The Named Plaintiff, like all members of the putative class, worked on the Projects and was subject to Defendant’s policies and willful practice of refusing to pay employees prevailing wages and supplemental benefits. The Named Plaintiff and putative class members have thus sustained similar injuries as a result of the Defendant’s actions 13. Named Plaintiff and his counsel will fairly and adequately protect the interests of the putative class. Named Plaintiff has retained counsel experienced in complex wage and hour class action litigation, and in particular litigation relating to unpaid prevailing wages and supplemental benefits. 15. Upon information and believe, since at least January 2012, Denville has been a party to various contracts with prime contractors or with various state, county and municipal entities to perform installation or application of paint, epoxy, thermoplastic, polyurea, installation of tape, pavement reflectors, lens replacement and similar tasks at the sites of the Projects (the “Contracts”). 16. Upon information and belief, the Contracts that govern the Projects located in New York and New Jersey each contain a provision that requires Denville to pay workers employed on the Projects an hourly rate of prevailing wages and supplemental benefits set by the Comptroller of the City of New York, the New York State Department of Labor, the U.S. Department of Labor or the New Jersey Department of Labor depending on the worker’s trade designation and the location of the Project. 17. Upon information and belief, a schedule of the prevailing rates of wages and supplemental benefits were annexed to, or incorporated by reference, in each of the Contracts governing the Projects. 18. This promise to pay and ensure payment of the prevailing wage and supplemental benefit rates in the Contracts was made for the benefit of all workers furnishing labor on the Projects and, as such, the workers furnishing labor on the sites of the Projects are the beneficiaries of that promise. 20. The “prevailing rate of wage” and “supplemental benefit” is the rate of wage and benefit paid in the locality by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector. See New Jersey Statute §§ 34:11-56.27; 34:11- 21. Upon information and belief, a schedule of prevailing rates of wages and supplemental benefits to be paid to all workers furnishing labor on each of the New Jersey Projects was annexed to and formed a part of the New Jersey Contracts. 22. Upon information and belief, the New Jersey Contracts further required Denville to oversee the performance of the work, and to ensure that workers employed at the New Jersey Projects were paid prevailing wage and supplemental benefits. 23. New York State Labor Law § 220 provides that the wages to be paid to laborers, workmen and mechanics upon public work shall not be less than the “prevailing rate of wages.” 24. The “prevailing rate of wage” is the rate of wage paid in the locality by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sectors. See New York Labor Law § 220. 26. Upon information and belief, under the Contracts, the prevailing wage and supplemental benefit rate for non-overtime or premium hours worked was in excess of $50 to $80 per hour depending on the type of work performed, the location of the work performed, and the year it was performed. 27. The Named Plaintiff and members of the putative class performed various types of construction work at the sites of the Projects for Denville. 28. Named Plaintiff Stubits was employed by Denville between June 2011 and November 2016. 29. Named Plaintiff Stubits worked on various New York and New Jersey projects. 30. During his employment, Named Plaintiff regularly worked no less than eight hours per day on the Projects. 31. Named Plaintiff was not paid the correct wage and/or supplemental benefit rate for all hours worked on the Projects 32. Additionally, when Named Plaintiff worked overtime on the Projects, he was not paid the correct wage and/or supplemental benefit rate for all hours worked, including time worked in excess of eight hours per day or forty hours per week (overtime) and/or work performed on weekends, evenings, and holiday (premium wages). 33. Named Plaintiff repeats and realleges the allegations set forth in the preceding paragraphs. 35. Those prevailing rates of wages and supplemental benefits were made a part of the Contracts for the benefit of Named Plaintiff and the other members of the putative class. 36. Defendant Denville breached the Contracts by willfully failing to pay and ensure payment to Named Plaintiff and the other members of the putative class the prevailing rates of wages and supplemental benefits at the proper trade classification rates for all labor performed upon the Projects. 37. By reason of its breach of each Contract, Defendant Denville is liable to Named Plaintiff and the other members of the putative class in the amount to be determined at the trial, plus interest, costs and attorneys’ fees. 38. Named Plaintiff repeats and realleges the allegations set forth in the preceding paragraphs. 39. New Jersey Statute 34:11-56.40 concerning Wages on Public Work provides that “if any workman is paid less than the prevailing wage to which such workman is entitled under the provisions of this act such workman may recover in a civil action the full amount of such prevailing wage less any amount actually paid to him or her by the employer, together with costs and such reasonable attorney’s fees.” 41. Due to its failure to pay prevailing wages and supplemental benefits, Defendant Denville is liable to Named Plaintiff and the other members of the putative class in the amount to be determined at the trial, plus interest, costs and attorneys’ fees. WHEREFORE, Named Plaintiff and the members of the putative class demand judgment: (1) on their first cause of action against Defendant Denville in an amount to be determined at trial, plus interest, costs and attorneys’ fees; (2) on their second cause of action against Defendant Denville in an amount to be determined at trial, plus interest, costs and attorneys’ fees; (3) such other and further relief as to the Court may deem just and proper. Dated: New York, New York January 5, 2018 56.28. 7. This action is properly maintainable as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 8. This action is brought on behalf of the Named Plaintiff and a class consisting of every other person who performed paving, painting and construction-related work on Projects in New York and New Jersey between January 2012 and the present. AGAINST DENVILLE FOR FAILURE TO PAY THE NEW JERSEY PREVAILING WAGE AGAINST DEFENDANT DENVILLE -- BREACH OF THE CONTRACTS

win

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. 1. The amount of the debt; 10. Plaintiff brings this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 11. The Class consists of: a. all individuals with addresses in the State of New Jersey; b. to whom Defendant Portnoy sent an initial collection letter; c. attempting to collect a consumer debt; d. that failed to properly identify the name of the current creditor to whom the debt was allegedly owed; e. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (21) days after the filing of this action. 12. The identities of all class members are readily ascertainable from the records of Defendant and those companies and entities on whose behalf it attempts to collect and/or has purchased debts. 14. 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 1692g. 15. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiffs 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 his attorneys have any interests, which might cause them not to vigorously pursue this action. 17. 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. 18. 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). 2. The name of the creditor to whom the debt is owed; 20. On a date better known to Defendant, an obligation was allegedly incurred to creditor Citibank, N.A. 21. The alleged debt arose out of transactions in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes, specifically non-payment for credit card purchases. 22. The alleged Citibank obligation is a "debt" as defined by 15 U.S.C.§ 1692a (5). 23. Upon information and belief, Citibank transferred the debt to other parties. 24. Upon information and belief, the current creditor contracted with Portnoy to collect the alleged debt. 25. Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of themselves or other creditors using the United States Postal Services, telephone and internet. Violation I – August 14, 2020 Letter 26. On or about August 14, 2020 Defendant sent Plaintiff an initial collection letter regarding the alleged debt owed. A true and accurate copy of this letter from Defendant is attached as Exhibit A. 27. This letter allegedly contains some of the required disclosures set forth in 15 U.S.C. § 1692g (a). 28. The letter states: Our Client: CAVALRY SPV I, LLC Original Creditor: Citibank, N.A. 30. The term “our client” does not make it clear to the Plaintiff if this party is the current creditor, or what exactly their role is in the collections process. 31. It is deceptive not to clearly state who the current creditor is in a collection letter sent to a consumer. 32. The FDCPA requires that a letter must specifically and clearly state who is the current creditor. 33. Defendant failed to provide the consumer with a proper initial communication letter by failing to clearly identify the current creditor of the debt. 34. As a result of Defendant’s deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 35. Plaintiff repeats the allegations contained in the above paragraphs as if set forth here. 36. 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. 37. 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. 38. Defendant violated §1692e by failing to properly identify the current creditor. 39. By reason thereof, Defendant are 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. 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. § 1692f. 42. 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. 43. Defendant violated this section by failing to identify the current creditor pursuant to § 1692g. 44. By reason thereof, Defendant are liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692f et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. 45. Plaintiff repeats the allegations contained in the above paragraphs as if set forth here. 46. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 47. Pursuant to 15 USC §1692g: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – 49. By reason thereof, Defendant are liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq.

win

1. a statement that the recipient is legally entitled to opt-out of receiving future faxed advertisements – knowing that he or she has the legal right to request an opt-out gives impetus for recipients to make such a request, if desired; 14. Defendants transmitted by telephone facsimile machine the Fax Ads to Plaintiff on the following dates: June 4, 2015; July 1, 2015, September 23, 2015; October 21, 2015; November 18, 2015; December 16, 2015; January 21, 2016; and March 18, 2016, 15. On information and belief, Defendants receive some or all of the revenues from the sale of the products, goods and services advertised on the Fax Ads, and Defendant profits and benefits from the sale of the products, goods and services advertised on the Fax Ads. 16. Plaintiff had not invited or given permission to Defendants to transmit the Fax Ads to Plaintiff via its office facsimile machine. 17. On information and belief, Defendants faxed the same and other unsolicited facsimiles without the required opt out language to Plaintiff and more than 25 other recipients or sent the same and other advertisements by fax with the required opt-out language but without first receiving the recipients’ express invitation or permission. 18. 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. 19. The Fax Ads did not display a proper opt-out notice as required by 47 C.F.R. § 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. In accordance with F. 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 invitation or permission, or (4) which did not display a proper opt-out notice. 5 Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. Plaintiff seeks to certify a class which include but are not limited to the fax advertisements sent to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. 21. Class Size (F. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon such information and belief avers, that the number of persons and entities of the Plaintiff Class is numerous and joinder of all members is impracticable. Plaintiff is informed and believes, and upon such information and belief avers, that the number of class members is at least forty. 22. Commonality (F. R. Civ. P. 23 (a) (2)): Common questions of law and fact apply to the claims of all class members. Common material questions of fact and law include, but are not limited to, the following: a) Whether the Defendants sent unsolicited fax advertisements; b) Whether Defendants’ faxes sent to other persons not the Plaintiff constitute advertisements; c) Whether the Defendants’ faxes advertised the commercial availability or quality of property, goods, or services; d) The manner and method the Defendants used to compile or obtain the list of fax numbers to which they the Fax Ads, other unsolicited faxed advertisements, or other advertisements without the required opt-out language; e) Whether the Defendants faxed advertisements without first obtaining the recipient’s prior invitation or permission; f) Whether the Defendants sent the Fax Ads knowingly; g) Whether the Defendants violated the provisions of 47 U.S.C. § 227 and 6 the regulations promulgated thereunder; h) Whether the Fax Ads contain an “opt-out notice” that complies with the requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder, and the effect of the failure to comply with such requirements; i) Whether the Defendants should be enjoined from faxing advertisements in the future; j) Whether the Plaintiff and the other members of the class are entitled to statutory damages; and k) Whether the Court should award treble damages. 23. Typicality (F. 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 or similar 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 himself 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 or faxes which did not contain the proper opt-out language or were sent without prior express invitation or permission. 23. Common Conduct (F. 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. 24. Fair and Adequate Representation (F. 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. 24. Predominance and Superiority (F. R. Civ. P. 23 (b) (3)): Common questions of law and fact predominate over any questions affecting only individual members, and a class action is superior to other methods for the fair and efficient adjudication of the controversy because: a) Proof of the claims of the Plaintiff will also prove the claims of the class without the need for separate or individualized proceedings; b) Evidence regarding defenses or any exceptions to liability that the Defendants may assert and attempt to prove will come from the Defendants’ records and will not require individualized or separate inquiries or proceedings; c) The Defendants have acted and are continuing to act pursuant to common policies or practices in the same or similar manner with respect to all class members; d) The amount likely to be recovered by individual class members does not support individual litigation. A class action will permit a large number of relatively small claims involving virtually identical facts and legal issues to be resolved efficiently in one (1) proceeding based upon common proofs; and e) This case is inherently manageable as a class action in that: 8 (i) The Defendants identified persons or entities to receive the fax transmissions and it is believed that the Defendants’ and/or Defendants’ agents’ computer and business records will enable the Plaintiff to readily identify class members and establish liability and damages; (ii) Liability and damages can be established for the Plaintiff and the class with the same common proofs; (iii) Statutory damages are provided for in the statute and are the same for all class members and can be calculated in the same or a similar manner; (iv) A class action will result in an orderly and expeditious administration of claims and it will foster economics of time, effort and expense; (v) A class action will contribute to uniformity of decisions concerning the Defendants’ practices; and (vi) As a practical matter, the claims of the class are likely to go unaddressed absent class certification. Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq. 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). 25. Need for Consistent Standards and Practical Effect of Adjudication (F. 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 7 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. 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 9 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”): 28. 2006 FCC Report and Order. The JFPA, in § (b)(2) of the Act, directed the FCC to implement regulations regarding the JFPA, including the JFPA’s Opt-Out Notice Requirements and the FCC did so in its 2006 Report and Order, which in addition provides among other things: A. The definition of, and the requirements for, an established business relationship for purposes of the first of the three prongs of an exemption to liability under § (b)(1)(C)(i) of the Act and provides that the lack of an “established business relationship” precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006 Report and Order ¶¶ 8-12 and 17-20); B. The required means by which a recipient’s facsimile telephone number must be obtained for purposes of the second of the three prongs of the exemption under § (b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006 Report and Order ¶¶ 13-16); C. The things that must be done in order to comply with the Opt-Out Notice Requirements for the purposes of the third of the three prongs of the exemption under § (b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See 2006 Report and Order ¶¶ 24-34); 11 D. The failure of a sender to comply with the Opt-Out Notice Requirements precludes the sender from claiming that a recipient gave “prior express invitation or permission” to receive the sender’s fax (See Report and Order ¶ 48); As a result thereof, a sender of a faxed advertisement who fails to comply with the Opt- Out Notice Requirements has, by definition, transmitted an unsolicited advertisement under the JFPA. This is because such a sender can neither claim that the recipients of the faxed advertisement gave “prior express invitation or permission” to receive the fax nor can the sender claim the exemption from liability contained in § (b)(C)(1) of the Act. 29. The Fax. Defendants sent the Fax Ads on or about the following dates: June 4, 2015; July 1, 2015, September 23, 2015; October 21, 2015; November 18, 2015; December 16, 2015; January 21, 2016; and March 18, 2016. These Fax Ads were sent 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 Ads constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Fax Ads. The Fax Ads were transmitted to persons or entities without their prior express invitation or permission and/or Defendants are precluded from asserting any prior express invitation or permission 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 Ads via facsimile transmission to Plaintiff and members of the Class. Plaintiff seeks to certify a class which includes the Fax Ads and others sent during the four years prior to the filing of this action through the present. 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; 30. Defendants’ Other Violations. Plaintiff is informed and believes, and upon such 12 information and belief avers, that during the period preceding four years of the filing of this Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from telephone facsimile machines, computers, or other devices to telephone facsimile machines of members of the Plaintiff Class other faxes that constitute advertisements under the JFPA that were transmitted to persons or entities without their prior express invitation or permission (and/or that Defendants are precluded from asserting any prior express invitation or permission or that Defendants had an established business relationship because of the failure to comply with the Opt-Out Notice Requirements in connection with such transmissions). By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder. Plaintiff is informed and believes, and upon such information and belief avers, that Defendants may be continuing to send unsolicited advertisements via facsimile transmission in violation of the JFPA and the regulations promulgated thereunder, and absent intervention by this Court, will do so in the future. 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 13 advertisements; (d) the Fax Ads did not contain the required Opt-Out Notice; and (e) Defendants’ transmission of advertisements that did not contain the required opt-out notice or were sent without prior express invitation or permission was unlawful. 34. The Defendants’ actions caused damages to the Plaintiff and the other class members. Receiving the Defendants’ junk faxes caused the recipients to lose paper and toner consumed in the printing of the Defendants’ faxes. Moreover, the Fax Ads used the Plaintiff's and the other class members’ telephone lines and fax machine. The Fax Ads cost the Plaintiff and the other class members time, as the Plaintiff and the other class members and their employees wasted their time receiving, reviewing and routing the Defendants’ unauthorized faxes. That time otherwise would have been spent on the Plaintiff's and the other class members’ business activities. The Defendants’ faxes unlawfully interrupted the Plaintiff's and other class members' privacy interests in being left alone. WHEREFORE, Plaintiff Spine & Sports Chiropractic, Inc. individually and on behalf of all others similarly situated, demands judgment in its favor and against Defendants Advantage Medical Equipment & Supply, Inc., and John Does 1-10, jointly and severally, as follows: A. That the Court adjudge and decree that the present case may be properly maintained as a class action, appoint the Plaintiff as the representative of the class, and appoint the Plaintiff’s counsel as counsel for the class; B. That the Court award actual monetary loss from such violations or the sum of five hundred dollars ($500.00) for each violation, whichever is greater; C. That Court enjoin the Defendants from additional violations; and D. That the Court award pre-judgment interest, costs, and such further relief as the Court may deem just and proper. 14 Respectfully submitted, 4 4. The opt-out language must be conspicuous. 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). 10 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. 64.1200. Plaintiff Spine & Sports Chiropractic, Inc. (“Plaintiff”) brings this action on behalf of itself and all others similarly situated, through its attorneys, and except as to those allegations pertaining to Plaintiff or its attorneys, which allegations are based upon personal knowledge, alleges the following upon information and belief against Defendants Advantage Medical Equipment & Supply, Inc. and John Does 1-10 (“Defendants”):

win

13. Upon information and belief, on or about February 2, 2015, Defendants without Plaintiff’s express invitation or permission, arranged for and/or caused a telephone facsimile machine, computer, or other device to send unsolicited fax advertisements (hereinafter “the fax advertisements”), advertising the commercial availability or quality of any property, goods, or services, to Plaintiff’s fax machine located in Eatontown, New Jersey. 14. Copies of the fax advertisement are attached hereto as Exhibit A and are incorporated herein by reference. 15. The fax advertisements attached hereto as Exhibit A was wholly unsolicited in that it was sent to the Plaintiff by Defendants without Plaintiff’s express invitation or permission. 16. The fax advertisement attached hereto as Exhibit A contains no opt-out notice in violation of 47 U.S.C. §227(b)(2)(D). 17. Upon information and belief, Defendants either negligently, willfully and/or knowingly arranged for and/or caused the fax advertisements to be sent to Plaintiff’s fax machine. 19. Upon information and belief, the facsimile advertisements described in the preceding paragraph failed to contain a proper opt out notice, substantially similar or identical to the fax advertisements sent to Plaintiff that are attached hereto as Exhibit A. 22. Plaintiff brings this action individually and on behalf of and all others similarly situated (“the Class”). 24. Defendant and its employees or agents are excluded from the Classes. Plaintiff does not know the number of members in the Classes, but believe the Class members number in the thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 25. Plaintiff and members of the Classes were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through its agents, illegally contacted Plaintiff and the Class members via their telephone facsimile machines by either: 1) sending unsolicited fax advertisements; or 2) sending fax advertisements which failed to properly inform Plaintiff and the class members of their ability to opt-out of receiving such fax advertisements from Defendant in the future. Plaintiffs and the Class members were damaged thereby. 26. This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to expand the Class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 27. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the court. The Class can be identified through Defendant’s records or Defendant’s agents’ records. 29. As a recipient of unsolicited fax advertisements from Defendant and of fax advertisements which failed to properly advise of Plaintiff’s ability to opt-out, Plaintiff is asserting claims that are typical of the Class. Plaintiff will fairly and adequately represent and protect the interests of the Classes in that Plaintiff has no interests antagonistic to any member of the Classes. 30. Plaintiff and the members of the Classes have all suffered irreparable harm as a result of the Defendant’s unlawful and wrongful conduct. Absent a class action, the Classes will continue to face the potential for irreparable harm. In addition, these violations of law will be allowed to proceed without remedy and Defendant will likely continue such illegal conduct. Because of the size of the individual Class member’s claims, few, if any, Class members could afford to seek legal redress for the wrongs complained of herein. 32. 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 and state laws. The interest of Class members in individually controlling the prosecution of separate claims against Defendant is small because the maximum statutory damages in an individual action for violation of privacy are minimal. Management of these claims is likely to present significantly fewer difficulties than those presented in many class claims. 33. Defendant has acted on grounds generally applicable to the Classes, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the Class as a whole. 34. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully set forth herein at length. 35. At all times herein, Plaintiff was and is entitled to the rights, protections and benefits provided under the Telephone Consumer Protection Act, 47 U.S.C. § 227. 36. The transmission of facsimiles to Plaintiff as set forth above, violated 47 U.S.C. § 227(b)(1)(C). 37. Based upon the foregoing, Plaintiff is entitled to statutory damages pursuant to 47 U.S.C. § 227(b)(3)(B) and 227(b)(3)(C). 38. Based upon the foregoing, Plaintiff is entitled to an Order, pursuant to 47 U.S.C. § 227(b)(3)(A), enjoining Defendant from transmitting any advertisements in violation of 47 U.S.C. § 227(b)(1)(C). 40. At all times herein, Plaintiff was and is entitled to the rights, protections and benefits provided under the Telephone Consumer Protection Act, 47 U.S.C. § 227. 41. The transmission of facsimiles to Plaintiff as set forth above, violated 47 U.S.C. § 227(b)(2)(D). 42. Based upon the foregoing, Plaintiff is entitled to statutory damages pursuant to 47 U.S.C. §§ 227(b)(3)(B) and 227(b)(3)(C). 43. Based upon the foregoing, Plaintiff is entitled to an Order, pursuant to 47 U.S.C. § 227(b)(3)(A), enjoining Defendant from transmitting any advertisements in violation of 47 U.S.C. § 227(b)(2)(D). Individually, and on behalf of all others similarly Civil Action No.: situated, Plaintiff, -against- Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227

win

31. Pursuant to 29 U.S.C. §§ 207 & 216(b), Plaintiff brings his First Cause of Action as a collective action under the FLSA on behalf of himself and the following collective: All individuals employed by Defendants at any time since January 14, 2018 and through the entry of judgment in this case (the “Collective Action Period”) who worked as hourly employees at Joseph and/or Wellness (the “Collective Action Members”). 32. A collective action is appropriate in this circumstance because Plaintiff and the Collective Action Members are similarly situated, in that they were all subjected to Defendants’ illegal policy of failing to pay overtime premiums for all work performed in excess of forty (40) hours each week. As a result of this policy, Plaintiff and the Collective Action Members did not receive the legally-required overtime premium payments for all hours worked in excess of forty (40) hours per week. 33. Plaintiff and the Collective Action Members have substantially similar job duties and were paid pursuant to a similar, if not the same, payment structure. 34. Pursuant to the NYLL, Plaintiff brings his Second through Fourth Causes of Action under Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and the following class: All individuals employed by Defendants in New York at any time since May 31, 2014 and through the entry of judgment in this case (the “Class Period”) who worked as hourly employees at Joseph and/or Wellness (the “Class Members”). 36. The Class Members are so numerous that joinder of all members is impracticable. Although the precise number of Class Members is unknown to Plaintiff, the facts on which the calculation of that number can be based are presently within the sole control of Defendants. 37. Upon information and belief, there are in excess of forty (40) Class Members. 39. The Plaintiff’s claims are typical of the Class Members’ claims. Plaintiff, like all Class Members, was an employee of Defendants who worked for Defendants pursuant to their corporate policies. Plaintiff, like all Class Members, was, inter alia, not paid overtime premium pay for all hours worked over forty (40) hours in a given workweek, was not provided with accurate wage statements with each payment of wages, and was not provided with wage notices on the date he was hired or on or before February 1 of each subsequent year (up to and including February 1, 2015) or when his wage rate(s) changed. If Defendants are liable to the Plaintiff for the claims enumerated in this Complaint, they are also liable to all Class Members. 40. The Plaintiff and his Counsel will fairly and adequately represent the Class. There are no conflicts between Plaintiff and the Class Members, and Plaintiff bring this lawsuit out of a desire to help all Class Members, not merely out of a desire to recover his own damages. 41. Plaintiff’s counsel are experienced class action litigators who are well-prepared to represent the interests of the Class Members. 42. A class action is superior to other available methods for the fair and efficient adjudication of this litigation. 44. At all relevant times, Defendants have been in the pharmacy business in New York City. 45. According to Defendants’ websites, Joseph has been “The Upper West Side Pharmacy since ’92” and offers free same day Rx delivery and accepts all major insurances. (https://www.josephspharmacy.com). Joseph is open seven (7) days per week, Monday through Friday, 8:00 am to 7:00 pm, Saturday 9:00 am to 7:00 pm and Sunday 10:00 am to 6:00 pm. Id.2 46. Wellness is “the pharmacy for the UWS,” “stock[s] the widest range of medical products, offer[s] the highest quality health services, and retain[s] the best staff possible.” (https://www.wellnesspharmacy72.com). Wellness is also open seven (7) days per week, the “front end” is open Monday through Friday 8:00 am to 8:00 pm, Saturday 9:00 am through 7:00 pm and Sunday 10:00 am through 6:00 pm. The pharmacy is open Monday through Friday 9:00 am through 8:00 pm, Saturday 9:00 am through 7:00 pm and Sunday 11:00 am through 5:00 pm. 47. According to the New York State Department of State, Division of Corporations, Defendant S. Eltahawy is the chief executive officer of Aba Noub, Ltd. d/b/a Joseph Pharmacy. 48. Upon information and belief, the Individual Defendants have owned, operated and managed Corporate Defendants throughout the relevant time period. 49. Upon information and belief, the Individual Defendants are a constant presence at Joseph and Wellness, where they manage the operations of the pharmacies and take an active role in ensuring that the pharmacies are run in accordance with their procedures and policies. 51. Defendant L. Etahawy was present at Joseph on occasion and Wellness several times per week. L. Eltahawy would call Joseph and Wellness daily when she was not present. 52. At all relevant times, S. Eltahawy has been the president, CEO and pharmacist in charge of the Corporate Defendants. 53. At all relevant times, the Individual Defendants, either themselves directly or through their direction of their management, have had power over payroll and personnel decisions at Joseph and Wellness, including the power to hire and fire employees, set their wages, retain time and/or wage records, and otherwise control the terms and conditions of their employment. 54. At all relevant times, the Individual Defendants would supervise Plaintiff and the Collective and Class Members. Plaintiff’s Work for Defendant 55. Plaintiff Warren worked for Defendants as Vice President of Operations from on or about December 12, 2017 until on or about September 21, 2020 (the “Warren Employment Period”).3 57. From the beginning of the Warren Employment Period through in or around August of 2018, Warren typically worked Monday through Friday from ten o’clock in the morning (10:00 am) until nine o’clock in the evening (9:00 pm) and Saturdays from approximately nine o’clock in the morning (9:00 am) until one o’clock in the afternoon (1:00 pm), for a total of approximately fifty-nine (59) hours per week. Beginning in or around September of 2018, Warren worked the same schedule Monday through Friday, but no longer worked Saturdays, for a total of approximately fifty-five (55) hours per week. Beginning in or around end of February or early March of 2020, in light of the Covid-19 pandemic, until the end of the Warren Employment Period, Warren began working Monday through Friday from approximately eight o’clock in the morning (8:00 am) through approximately six o’clock in the evening (6:00 pm), for a total of approximately fifty (50) hours per week. 58. Warren worked at Joseph from the beginning of the Warren Employment Period until in or around July 2018 when he began to help the contracting process for Wellness which formally opened to the public on July 29, 2019. Once Wellness opened, Warren would occasionally work at Wellness although he continued to work primarily at Joseph. 59. Throughout the Warren Employment Period, Plaintiff Warren was paid an hourly rate of approximately twenty-five dollars ($25.00) per hour for all hours worked, including those beyond forty (40) in a given week. 61. Plaintiff Warren was required to clock in and out using a time tracking system built into the pharmacy software system PioneerRx. 62. At no time during the Warren Employment Period did Plaintiff Warren receive a wage notice as required by the NYLL, setting forth information such as his regular and overtime hourly rates, any deductions taken by Defendants, and contact information of his employer. 63. At no time during the Warren Employment Period did Plaintiff Warren receive a proper and accurate wage statement as required by the NYLL, setting forth the pay period, basis of payment, rates paid, allowances or credits applied against wages, gross wages, any deductions from wages, net wages, and contact information of his employer. 64. Warren was denied sick pay for the four (4) days he required it over the course of his employment with Defendants. Defendants’ Unlawful Corporate Policies 65. Plaintiff and the Collective and Class Action Members were paid by the same corporate policies of Defendants, including failing to pay overtime premiums and failing to provide wage statements or wage notices. 66. Plaintiff has spoken with other employees of Defendants who were similarly paid straight-time hourly rate for all hours worked, without overtime premium compensation for hours worked in excess of forty (40) in a given workweek. 68. Defendant S. Eltahawy admitted to Plaintiff that all of Defendants’ employees are paid by the hour. 69. Defendants pay the majority of their employees partially in cash “off the books” and partially by check “on the books.” 70. Defendants failed to provide Plaintiff and the Class Members with wage notices at the time of their hire, annually by February 1 of each year up to and through February 1, 2015, and/or when their wage rate(s) changed. 71. Defendants failed to provide Plaintiff and the Class Members with accurate wage statements or paystubs with each payment of wages. 72. Throughout the Class Period and, upon information and belief, Defendants likewise employed other individuals like Plaintiff in positions that require little skill and no capital investment. 73. Upon information and belief, throughout the Class Period and continuing until today, defendants failed to maintain accurate and sufficient time and payroll records or provide such records to employees. 74. Plaintiff, on behalf of himself and the Collective Action Members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 76. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a). 77. Defendants’ failure to pay overtime caused Plaintiff and the Collective Action Members to suffer loss of wages and interest thereon. Plaintiff and the Collective Action Members are entitled to recover from Defendants their unpaid overtime premium compensation, damages for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys’ fees and costs and disbursements of the action pursuant to 29 U.S.C. § 216(b). 78. Plaintiff, on behalf of himself and the Class Members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 79. Defendants willfully violated Plaintiff’s and the Class Members’ rights by failing to pay overtime compensation at a rate of not less than one and one-half times the regular rate of pay for hours worked in excess of forty (40) each week, in violation of the NYLL and regulations promulgated thereunder. 81. Plaintiff, on behalf of himself and the Class Members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 82. Defendants have willfully failed to supply Plaintiff and the Class Members notice as required by Article 6, § 195(1), in English or in the language identified by Plaintiff and the Class Members as their primary language, containing Plaintiff’s and Class Members’ rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; hourly rate or rates of pay and overtime rate or rates of pay, if applicable; the regular pay day designated by the employer in accordance with the NYLL, Article 6, § 191; the name of the employer; or 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; plus such other information as the commissioner deems material and necessary. 84. Plaintiff, on behalf of himself and the Class Members, repeats and realleges each and every allegation of the preceding paragraphs hereof with the same force and effect as though fully set forth herein. 85. Defendants have willfully failed to supply Plaintiff and the Class Members a proper wage statement as required by Article 6, § 195(3). 86. Due to Defendants’ violations of the NYLL, Plaintiff and the Class Members are entitled to recover from Defendants two hundred and fifty dollars ($250.00) per employee for each day that the violations occurred or continue to occur, or a total of five thousand dollars ($5,000.00) per employee, as provided for by NYLL §§ 190 et seq., liquidated damages as provided for by the NYLL, reasonable attorneys’ fees, costs, pre-judgment and post-judgment interest, and injunctive and declaratory relief. Defendants’ Pharmacies FAIR LABOR STANDARDS ACT-UNPAID OVERTIME (Brought on Behalf of Plaintiff and Collective Action Members) NEW YORK LABOR LAW – FAILURE TO PROVIDE WAGE STATEMENTS (Brought on Behalf of Plaintiff and the Class Members) NEW YORK LABOR LAW – UNPAID OVERTIME (Brought on Behalf of Plaintiff and Class Members) NEW YORK LABOR LAW – FAILURE TO PROVIDE WAGE NOTICE (Brought on Behalf of Plaintiff and Class Members)

win

15. Demark is a professional consulting and engineering firm that provides technical and support services for all aspects of the Power (Fossil, Wind, Solar, Nuclear) and Petro Chemical Industry. 16. Demark provides expertise and support services to major projects in the power industry across the United States.1 1 http://demarkinc.com/projects/ (last visited December 5, 2017). 3 17. Griffin was an hourly employee of Demark. 18. Demark hired Griffin around March of 2015. 19. Demark entered into an “Employment Agreement” with Griffin stating he would be paid “at an hourly rate for all approved hours of $83 per hour.” 20. Demark paid Griffin $83 per approved hour worked. 21. Griffin left Demark’s employment near the end of May 2017. 22. Griffin reported the hours he worked to Demark on a regular basis. 23. Demark required Griffin to “accurately complete, sign and assist Demark in gaining approval of [their] time records at the end of each pay period.” 24. If Griffin worked fewer than 40 hours in a week, he would be paid only for the hours worked. 25. For example, in the week period ending on December 28, 2015, Griffin worked 10 hours. 26. Griffin worked less than 40 hours in that week. 27. For that week, Demark paid Griffin for 10 hours at his hourly rate of $83. 28. But Griffin normally worked more than 40 hours in a week. 29. For example, in the week period ending on April 17, 2016, Griffin worked 72 hours. 30. For that week, Demark paid Griffin for 72 hours at his hourly rate of $83. 31. The hours Griffin and the Putative Class Members’ worked are reflected in Demark’s records. 32. Demark paid Griffin at the same hourly rate for all hours worked, including those in excess of 40 in a workweek. 33. Rather than receiving time and half as required by the FLSA, Griffin only received “straight time” pay for overtime hours worked. 4 34. This “straight time for overtime” payment scheme violates the FLSA. 35. Demark was aware of the overtime requirements of the FLSA. 36. The Department of Labor investigated Demark and found it in violation of the FLSA. 37. The Case ID of the Department of Labor investigation is 1816504. 38. The Department of Labor found overtime violations related to the straight time compensation policy for all hours worked. 39. This is the same compensation policy used to compensate Griffin. 40. Demark nonetheless failed to pay certain hourly employees, such as Griffin, overtime. 41. Demark’s failure to pay overtime to these hourly workers was, and is, a willful violation of the FLSA. 42. Demark’s illegal “straight time for overtime” policy extends beyond Griffin. 43. It is the “straight time for overtime” payment plan that is the “policy that is alleged to violate the FLSA” in this FLSA collective action. Bursell v. Tommy’s Seafood Steakhouse, No. CIV.A. H- 06-0386, 2006 WL 3227334, at *3 (S.D. Tex. Nov. 3, 2006); Wellman v. Grand Isle Shipyard, Inc., No. CIV.A. 14-831, 2014 WL 5810529, at *5 (E.D. La. Nov. 7, 2014) (certifying “straight time for overtime” claim for collective treatment). 44. Demark paid hundreds of hourly workers using the same unlawful scheme. 45. Any differences in job duties do not detract from the fact that these hourly workers were entitled to overtime pay. 46. The workers impacted by Demark’s “straight time for overtime” scheme should be notified of this action and given the chance to join pursuant to 29 U.S.C. § 216(b). 47. Therefore, the class is properly defined as: All hourly employees of Demark, Inc. who were, at any point in the past 3 years, paid “straight time for overtime.” (the “Putative Class Members”). 5 48. By failing to pay Griffin and those similarly situated to him overtime at one-and-one- half times their regular rates, Demark violated the FLSA’s overtime provisions. 49. Demark owes Griffin and those similarly situated to him the difference between the rate actually paid and the proper overtime rate. 50. Because Demark knew, or showed reckless disregard for whether its pay practices violated the FLSA, Demark owes these wages for at least the past three years. 51. Demark is liable to Griffin and those similarly situated to him for an amount equal to all unpaid overtime wages as liquidated damages. 52. Griffin and those similarly situated to him are entitled to recover all reasonable attorneys’ fees and costs incurred in this action.

win

13. Defendant employs personnel who provide consulting services to its customers. Upon information and belief, these personnel are specialized project management employees for the clients of Defendant and are essentially temporary employees assigned to work at Defendant’s clients’ locations for the duration of such projects. Regardless of their job titles or job duties, upon information and belief, these employees were not paid any compensation for their ninth and tenth hours of work for each work day and were not paid time and a half overtime rates for hours worked over forty in a week. 14. Plaintiff and other Analysts, however, were not paid on a salary basis. When Plaintiff and other Analysts worked more than one but less than 40 hours in a workweek, they received less in weekly compensation than when they worked a full 40 hours in a workweek. Similarly, if Plaintiff and other Analysts worked a partial day (less than eight hours in a day), Defendant deducted the number of hours missed on that day from the employee’s weekly pay (a practice known as deductions for “partial day absences”). For example, during the pay period ending on July 15, 2014, Plaintiff worked—and reported on her timesheet—three hours on July 8 and, as a result, received less in compensation during the pay period than if she had worked an eight-hour day on July 8. Accordingly, Defendant did not pay Plaintiff or other Analysts on a salary basis, such that they have not been exempt from overtime under federal or state law while they have worked as Analysts for Defendant. 16. Defendant has been aware of the requirement to pay Plaintiff and other Analysts their regular rate for all hours worked and the requirement to pay time and one-half overtime compensation to employees who are not paid on a salary basis. 17. Defendant’s knowledge of the legal requirement to pay employees overtime when they are not paid on a salary basis is directly relevant here because Defendant will not be able to make the good faith showing required to avoid an award of double liquidated damages under the 19. Plaintiff brings her First Claim For Relief for violations of the FLSA as a collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b) on behalf of the FLSA Collective Action Members, who include all persons nationwide who have worked for Defendant as Analysts within the applicable statutory time period. 20. Plaintiff and the FLSA Collective Action Members are similarly situated because they are subject to Defendant’s common practice of unlawfully paying straight time rates for overtime work hours even though they are not paid on a salary basis. 22. The names and addresses of the FLSA Collective Action Members are available from Defendant. Accordingly, Plaintiff prays herein for an order requiring Defendant to provide the names and all available contact information for all FLSA Collective Action Members, so notice can be provided to them of the pendency of this action, and their right to opt-in to this action. 23. Plaintiff brings all claims alleged herein under New York law as a statewide class action on behalf of all persons who worked for Defendant in New York as Analysts during the time period covered herein. Plaintiff seeks to certify a class pursuant to the Federal Rules of Civil Procedure, Rule 23 comprised of: All persons who are or have worked as CRM Business Analysts for Defendant in the State of New York during the period commencing six years from the filing of this action through the entry of final judgment in this action. 24. The class claims herein have been brought and may properly be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure because (1) the class is so numerous that joinder of all class members is impracticable; (2) there are questions of law and or fact common to the class; (3) the claims of the proposed class representatives are typical of the claims of the class; and (4) the proposed class representative and her counsel will fairly and adequately protect the interests of the class. In addition, the questions of law or fact that are common to the class predominate over any questions affecting only individual class members and a class action is superior to other available means for fairly and efficiently adjudicating the controversy. 27. Typicality: Plaintiff’s claims are typical of the claims of the other New York Class Members. Defendant’s common course of unlawful conduct has caused Plaintiff and similarly situated New York Class Members to sustain the same or similar injuries and damages caused by the same practices of Defendant. Plaintiff’s claims are thereby representative of and co-extensive with the claims of the other New York Class Members. 28. Adequacy of Representation: Plaintiff is a member of the Rule 23 Class defined herein, does not have any conflicts of interest with other New York Class Members, and will prosecute the case vigorously on behalf of the Class. Plaintiff will fairly and adequately represent and protect the interests of the New York Class Members. Plaintiff’s counsel are competent and experienced in litigating large employment class actions, including large wage and hour class actions. 29. Superiority: The expense and burden of individual litigation by each member makes or make it impractical for New York Class Members to seek redress individually for the wrongful conduct alleged herein. Should separate actions be brought, or be required to be brought, by each individual New York Class Member, the resulting multiplicity of lawsuits would cause undue hardship and expense for the Court and the litigants. The prosecution of separate actions would also create a risk of inconsistent rulings, which might be dispositive of the interests of other New York Class Members who are parties to the adjudication and/or may substantially impede their ability to adequately protect their interests. 47. The allegations of each of the preceding paragraphs are re-alleged and incorporated herein by reference, and Plaintiff alleges as follows a claim of relief on behalf of herself and the above-described Rule 23 Class of similarly situated New York Class Members. 49. At all relevant times, Defendant was aware of, and under a duty to comply with, the overtime provisions of New York Labor Law and its enacting regulations including, but not limited to, N.Y. COMP. CODES R. & REGS., tit. 12, § 142-2.2. 50. N.Y. COMP. CODES R. & REGS., tit. 12, § 142-2.2 provides, in pertinent part: An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of Section 7 and Section 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended . . . . The FLSA, in turn, requires each covered employer, such as Defendant, to compensate all non- exempt employees at the rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty (40) hours in a workweek. 51. N.Y. COMP. CODES R. & REGS., tit. 12, §142-2.9 provides that “[t]he minimum and overtime wage provided by this Part shall be required for each week of work, regardless of the frequency of payment, whether the wage is on a commission, bonus, piece rate, or any other basis.” 52. During the New York Class Period, Defendant refused to compensate Plaintiff and New York Class Members for all of the overtime wages earned, in violation of N.Y. COMP. CODES R. & REGS., tit. 12, §§ 142-2.2, 142-2.9. 53. By refusing to compensate Plaintiff and New York Class Members for overtime wages earned, Defendant violated the New York Labor Law provisions and enacting regulations cited herein. FAILURE TO PAY OVERTIME COMPENSATION (FAIR LABOR STANDARDS ACT, 29 U.S.C. § 201, ET SEQ.) (ON BEHALF OF PLAINTIFF AND UNLAWFUL FAILURE TO PAY WAGES (N.Y. LAB. LAW § 191) (ON BEHALF OF PLAINTIFF AND UNLAWFUL FAILURE TO PAY OVERTIME WAGES (N.Y. COMP. CODES R & REGS., tit. 12, §§ 142-2.2, 142-2.9) (ON BEHALF OF PLAINTIFF AND NEW YORK CLASS MEMBERS)

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. 20. Defendant is a clothing and accessories retailer that operates DIAMOND SUPPLY COMPANY stores as well as the www.diamondsupplyco.com website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. 21. Defendant operates DIAMOND SUPPLY COMPANY in New York City, at 286 Lafayette St, New York, NY 10012. 22. These stores constitute places of public accommodation. Defendant’s stores provide to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including store locations and hours, the ability to browse and purchase Store products online for pickup or delivery, including clothing and related products, available both in store and online. 24. Due to the accessibility barriers encountered on the Website, such as lack of alternate text and broken links, Plaintiff was not able to shop for the items he was looking for, including accessories within his budget. 25. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s stores. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s stores and the numerous goods and services and benefits offered to the public through the Website. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical stores on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 32. 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. 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. 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 2.1 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.1 guidelines; b. Regularly check the accessibility of the Website under the WCAG 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of 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. 42. 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. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of 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 stores 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 stores. The Website is a service that is integrated with these locations. 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of 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. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 77. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 78. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 82. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of 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. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 89. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYSHRL

lose

11. Plaintiff brings claims, pursuant to the Federal Rules of Civil Procedure (hereinafter “FRCP”) Rule 23, individually and on behalf of the following nationwide consumer class (the “Class”):  All New York consumers who were sent collection letters and/or notice from Defendant attempting to collect an obligation owed to or allegedly owed to 3 PayPal Inc., that contain at least one of the alleged violations arising from Defendant's violation of 15 U.S.C. §1692 et seq..  The Class period begins one year to the filing of this Action. 13. The Class satisfies all the requirements of Rule 23 of the FRCP for maintaining a class action:  Upon information and belief, the Class is so numerous that joinder of all members is impracticable because there are hundreds and/or thousands of persons who have received debt collection letters and/or notices from the Defendant that violate specific provisions of the FDCPA. Plaintiff is complaining of a standard form letter and/or notice that is sent to hundreds of persons (See Exhibit A, except that the undersigned attorney has, in accordance with Fed. R. Civ. P. 5.2 partially redacted the financial account numbers in an effort to protect Plaintiff’s privacy);  There are questions of law and fact which are common to the Class and which predominate over questions affecting any individual Class member. These common questions of law and fact include, without limitation: a. Whether Defendant violated various provisions of the FDCPA; b. Whether Plaintiff and the Class have been injured by Defendant’s conduct; c. Whether Plaintiff and the Class have sustained damages and are entitled to restitution as a result of Defendant’s wrongdoing and if so, what is the proper measure and appropriate statutory formula to be applied in determining such damages and restitution; and 4 d. Whether Plaintiff and the Class are entitled to declaratory and/or injunctive relief.  Plaintiff’s claims are typical of the Class, which all arise from the same operative facts and are based on the same legal theories.  Plaintiff has no interest adverse or antagonistic to the interest of the other members of the Class.  Plaintiff will fairly and adequately protect the interest of the Class and has retained experienced and competent attorneys to represent the Class.  A Class Action is superior to other methods for the fair and efficient adjudication of the claims herein asserted. Plaintiff anticipates that no unusual difficulties are likely to be encountered in the management of this class action.  A Class Action will permit large numbers of similarly situated persons to prosecute their common claims in a single forum simultaneously and without the duplication of effort and expense that numerous individual actions would engender. Class treatment will also permit the adjudication of relatively small claims by many Class members who could not otherwise afford to seek legal redress for the wrongs complained of herein. Absent a Class Action, class members will continue to suffer losses of statutory protected rights as well as monetary damages. If Defendant’s conduct is allowed proceed to without remedy they will continue to reap and retain the proceeds of their ill-gotten gains. 5  Defendant has acted on grounds generally applicable to the entire Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 14. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered “1” through “13” herein with the same force and effect as if the same were set forth at length herein. 15. Some time prior to July 7, 2014, an obligation was allegedly incurred to PayPal, Inc. 16. The PayPal, Inc. obligation arose out of a transaction in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. 17. The alleged PayPal, Inc. obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 18. PayPal, Inc. is a "creditor" as defined by 15 U.S.C.§ 1692a(4). 19. Defendant contends that the PayPal, Inc. debt is past due. 20. Defendant 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. 21. PayPal, Inc. directly or through an intermediary contracted Defendant to collect the alleged debt. 22. On or about July 7, 2014, the Defendant caused to be delivered to the Plaintiff a collection letter in an attempt to collect the alleged debt. See Exhibit A. 23. The July 7, 2014 letter was sent or caused to be sent by persons employed by Defendant as a “debt collector” as defined by 15 U.S.C. §1692a(6). 6 24. The July 7, 2014 letter is a “communication” as defined by 15 U.S.C. §1692a(2). 25. The July 7, 2014 letter stated in part; “Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater…..” 26. Upon information and belief, the Defendant will not increase the Plaintiff’s account due to fees, late charges or other charges. 27. Defendant could have taken the steps necessary to bring its actions within compliance with the FDCPA, but neglected to do so and failed to adequately review its actions to ensure compliance with the law. 28. On information and belief, Defendant sent a written communication, in the form annexed hereto as Exhibit A to at least 50 natural persons in the State of New York within one year of the date of this Complaint. 29. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered “1” through “28” herein with the same force and effect as if the same were set forth at length herein. 30. 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. 31. Pursuant to 15 U.S.C. §1692e, a debt collector is prohibited from using false, deceptive, or misleading representation in connection with the collection of a debt. 7 32. The Defendant violated 1692e by falsely suggesting that immediate payment of their balance would benefit them financially by stating that the amount may change due to interest or other charges that may be added after the date of the letter. As the amount Defendant seeks to collect never varies from the date of issuance, and Defendant never makes an adjustment after it receives payment in the amount of the initial letter, the statement in its letter is false, deceptive and misleading. 33. 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. 34. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered “1” through “33” herein with the same force and effect as if the same were set forth at length herein. 35. Pursuant to 15 USC §1692g, a debt collector: (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – (1) The amount of the debt; (2) The name of the creditor to whom the debt is owed; (3) A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt-collector; (4) A statement that the consumer notifies the debt collector in writing within thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be 8 mailed to the consumer by the debt collector; and (5) A statement that, upon the consumer’s written request within the thirty- day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 36. The Defendant further violated 1692g by failing to accurately state the balance of the debt by stating that the outstanding balance may increase. Therefore, leaving the least sophisticated consumer to reasonably conclude that he must pay the balance stated in the letter immediately or possibly owe a larger amount, causing the consumer to be uncertain of his rights. 37. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692g et seq. of the FDCPA, actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq.

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. 20. Defendant operates GYMGUYZ facilities as well as the GYMGUYZ 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 Personal Training services. 21. Defendant operates GYMGUYZ Personal Training Facilities (hereinafter its “Facilities”) across the United States, with at least one of its facilities located in New York City. 22. These Facilities constitute places of public accommodation. Defendant’s Facilities provide to the public important services. Defendant’s Website provides consumers with access to an array of information and services including Facility locations and hours, access to details regarding its many programs and services, including information related to its Personal Training Services, Its Find GYMGUYZ Near You feature, its Become a Franchisee feature, promotional information, and other services available online and in Facilities. 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 Facilities. 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 Facilities 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 his intention to do so. 31. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and learn about Defendant’s operations as sighted individuals do. 32. 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. 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 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 facilities and services offered in Defendant’s physical locations, 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 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’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. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of 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). 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). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of 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. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 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". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the 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. 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 himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 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 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. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, 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 his right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind consumers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

win

(Declaratory Relief) (on behalf of Plaintiff and the Class) 106. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 107. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that the Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of the Website and by extension the Hardware Store, which Defendant 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. 108. 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 City Human Rights Law, N.Y.C. Administrative Code § 8-102, 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) 20. Plaintiff, on behalf of himself 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 the 6 Website and as a result have been denied access to the enjoyment of goods and services offered by Defendant, during the relevant statutory period.” 21. 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 the Website and as a result have been denied access to the enjoyment of goods and services offered by Defendant, during the relevant statutory period.” 22. 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. 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. 23. 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 the Website and the Hardware Store. 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 the Website and by extension the goods and services offered through the Website by the Hardware Store. 24. There are common questions of law and fact common to the class, including without limitation, the following: a. Whether the Website is a “public accommodation” under the ADA; b. Whether the Website is a “place or provider of public accommodation” under the laws of New York; 7 c. Whether Defendant through its Website 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 denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the laws of New York. 25. 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 Defendant has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on the Website, so it can be independently accessible to the Class of people who are legally blind. 26. 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. 27. 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. 8 28. 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. 29. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the Class, unless otherwise indicated. 30. Defendant owns and operates the Hardware Store, with more than 4,000 retail locations throughout 58 countries. 31. The Website is a service and benefit offered by Defendant throughout the United States, including New York State. The Website is owned, controlled and/or operated by Defendant. 32. Among the features offered by the Website are the following: (a) the ability to purchase a variety of hardware supplies and products; (b) project ideas; (c) information about store locations; (d) and information about Defendant. 33. This case arises out of Defendant’s policy and practice of denying the blind access to the Website, including the goods and services offered by Defendant through the Website. Due to Defendant’s failure and refusal to remove access barriers to the Website, blind individuals have been and are being denied equal access to the Hardware Store, as well as to the numerous goods, services, and benefits offered to the public through the Website. 34. Defendant denies the blind access to goods, services and information made available through the Website by preventing them from freely navigating the Website. 9 35. 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. 36. 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. 37. There are well established guidelines for making websites accessible to blind people. These guidelines have been in place for at least several years and have been followed successfully by other large business entities in making their websites accessible. The Web Accessibility Initiative (“WAI”), a project of the World Wide Web Consortium which is the leading standards organization of the Web, has developed guidelines for website accessibility, called the Web Content Accessibility Guidelines (“WCAG”). The federal government has also promulgated website accessibility standards under Section 508 of the Rehabilitation Act. These guidelines are readily available via the Internet, so that a business designing a website can easily access them. These guidelines recommend several basic components for making websites accessible, including, but not limited to: ensuring that all functions can be performed using a keyboard and not just a mouse; adding alternative text to non-text content; and adding headings so that blind people can easily navigate the site. Without these very basic components, a website will be inaccessible to a blind person using a screen reader. 38. The Website 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 10 include but are not limited to: the denial of keyboard access; insufficient labeling; the lack of alt- text on graphics; and an inability to skip repeated blocks of content. 39. The Website contains functions that cannot be completed using the keyboard. On the “Lasko Wind Machine Fan” page, the “Add to Cart” button is not accessible via the keyboard. Yet, according to WCAG 2.0 Guideline 2.1.1, 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, the Website’s inaccessible design denies Plaintiff and blind customers the ability to independently navigate the Website and purchase products. 40. The Website lacks sufficient labeling to ensure that Plaintiff and other blind users can reliably access the Website and purchase products. On the “Floor Fans, Box Fans, Pedestal & Drum Fans” page, the “Sort By” function lacks labels for the different methods to sort the products, such as by price or relevance. On the “Lasko Wind Machine Fan” page, the radio buttons for shipping availability are not labeled, so Plaintiff and blind users cannot understand which shipping method they are selecting when they wish to purchase a product. Thus, the Website is inaccessible to blind users attempting to browse and purchase products. 41. WCAG 2.0 Guideline 2.4.4 states that the purpose of each link must be determinable. Sighted users can ascertain the purpose of links by reading the link text and the surrounding descriptions and by recognizing the images that the links are embedded in. Blind users, however, must rely on a combination of screen reading software and proper coding to determine what sighted users can recognize at a glance. In the header, the search bar is labeled “edit blank” and the search link is labeled “button,” so blind users cannot determine what the 11 function or how to search for products. Thus, the Website is inaccessible to blind users attempting to use, browse, and purchase products on the Website. 42. 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 a sighted user sees 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 the Website that lack a text equivalent. On the “Floor Fans, Box Fans, Pedestal & Drum Fans” page, the images of the various fans lack sufficient alt- text, preventing screen readers from accurately vocalizing a description of the graphics. As a result, Plaintiff and blind customers are unable to determine what is on the Website, browse the site, or investigate the Hardware Store’s products. 43. According to WCAG 2.0 Guideline 2.4.1, a mechanism is necessary to bypass blocks of content that are repeated on multiple webpages because requiring users to extensively tab before reaching the main content is an unacceptable barrier to accessing the Website. Plaintiff must tab through every menu option on the Website in order to reach the main content. Additionally, Plaintiff must tab through every product category in the sidebar before reaching product lists. Thus, the Website’s inaccessible design denies Plaintiff and blind customers the ability to independently navigate the Website. 44. The Website thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use the Website and who would otherwise be able to fully and equally enjoy the benefits and services of the Hardware Store. 45. Plaintiff has made numerous attempts to purchase a fan on the Website, most recently in April 2018, but was unable to do so independently because of the many access barriers 12 on the Website. These access barriers have caused the Website to be inaccessible to, and not independently usable by, blind and visually impaired individuals. 46. As described above, Plaintiff has actual knowledge of the fact that the Website contains access barriers causing it to be inaccessible, and not independently usable by, blind and visually impaired individuals. 47. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of the Website and the Hardware Store. 48. Defendant 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 blind class members with knowledge of the discrimination; and/or (b) constructing and maintaining a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 49. Defendant utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 50. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 51. Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182(a), provides that “No individual shall be discriminated against on the basis of disability in the full and 13 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Title III also prohibits an entity from “[u]tilizing standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.” 42 U.S.C. § 12181(b)(2)(D)(I). 52. The Hardware Store is a sales establishment and public accommodation within the definition of 42 U.S.C. § 12181(7)(E). The Website is a service, privilege or advantage of Defendant. The Website is a service that is by and integrated with the Hardware Store. Independent of the Hardware Store, the Website is also a public accommodation. 53. Defendant is subject to Title III of the ADA because it owns and operates the Website. 54. 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. 55. 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. 56. 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, 14 unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.” 57. 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.” 58. 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 websites accessible, including but not limited to ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make the Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 59. 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 Defendant who are blind have been denied full and equal access to the Website, 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. 60. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 61. As such, Defendant discriminates, and will continue in the future to discriminate 15 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 the Website and the Hardware Store in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing regulations. 62. 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. 63. 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. 64. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 65. 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. 66. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 67. 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.” 68. The Hardware Store is a sales establishment and public accommodation within the 16 definition of N.Y. Exec. Law § 292(9). The Website is a service, privilege or advantage of the Hardware Store. The Website is a service that is by and integrated with the Hardware Store. Independent of the Hardware Store, the Website is a public accommodation. 69. Defendant is subject to New York Human Rights Law because it owns and operates the Hardware Store and the Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 70. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to the Website, causing the Website and the services integrated with the Hardware Store 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. 71. 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.” 72. 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.” 17 73. 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 websites accessible, including but not limited to ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make the Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 74. 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. 75. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 76. 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 the Website and the Hardware Store 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 members of the subclass will continue to suffer irreparable harm. 18 77. 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. 78. 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. 79. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 80. 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. 81. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 82. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 83. 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 . . . .” 84. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . 19 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.” 85. The Hardware Store located in New York State is a sales establishment and public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). The Website is a service, privilege or advantage of the Hardware Store. The Website is a service that is by and integrated with the Hardware Store. 86. Defendant is subject to New York Civil Rights Law because it owns and operates the Hardware Store and the Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 87. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to the Website, causing the Website and the services integrated with the Hardware Store 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. 88. 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 the Website accessible, including but not limited to: ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make the Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 89. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall 20 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 . . . .” 90. Specifically, 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 . . . .” 91. Defendant has failed to take any prompt and equitable steps to remedy its 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 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. 93. 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. 94. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 95. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful 21 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.” 96. The Hardware Store is a sales establishment and public accommodation within the definition of N.Y.C. Administrative Code § 8-102(9). The Website is a service, privilege or advantage of the Hardware Store. Independent of the Hardware Store, the Website is a public accommodation. 97. Defendant is subject to City Law because it owns and operates the Hardware Store and the Website. Defendant is a person within the meaning of N.Y.C. Administrative Code § 8-102(1). 98. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to the Website, causing the Website and the services integrated with the Hardware Store to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. Specifically, Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Administrative Code § 8-107(15)(a). 99. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and 22 § 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. 100. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 101. 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 the Website and the Hardware Store 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 subclass will continue to suffer irreparable harm. 102. The actions of Defendant were and are in violation of City law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 103. 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. 104. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 105. Pursuant to 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 23 below.

lose

21. Defendant is a media company that owns and operates the website, www.cnn.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 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. 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 himself 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 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. 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 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. 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

19. The 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 persons in the City of New York who have attempted to access the Defendant’s website and as a result have been denied access to the equal enjoyment of goods and services offered in the Defendant’s physical locations, during the relevant statutory period. 20. Common questions of law and fact exist among the class, including: whether the Defendant’s website is a “public accommodation” under the ADA; whether the Defendant’s website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; whether the Defendant’s website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to individuals with visual disabilities, violating the ADA; and whether the Defendant’s website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to individuals with visual disabilities, violating the NYSHRL or NYCHRL. 21. There are common questions of law and fact common to the class, including without limitation, the following: a. Whether www.mansurgavriel.com is a “public accommodation” under the 34. The Defendant’s website is offered to the public. The website offers features that should allow all individuals to access the goods and services that the Defendant offers through their physical location(s). Defendant’s website provides consumers with access to ready to wear fashion pieces for both men and women. An array of goods and services, ranging from jackets, dresses, skirts, blouses, bottoms, leather shoes and bags and services including store locations and hours, the ability to browse and purchase store products. 35. It is, upon information and belief, the Defendant’s policy and practice to deny the Plaintiff, along with other blind or visually-impaired users, access to the Defendant’s website, and to therefore specifically deny the goods and services -11- that are offered and are heavily integrated with the Defendant’s locations. Due to the Defendant’s failure and refusal to remove access barriers to its website, the Plaintiff and other visually-impaired persons have been and are still being denied equal access to Defendant’s store locations, information pertaining to good availability, information about store amenities, including hours of operation, and related goods and services. 36. The Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. The Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. The Plaintiff has visited the website on separate occasions using the NVDA screen-reader. 37. During the Plaintiff’s visits to the website, the last occurring in November 2018, the Plaintiff encountered multiple access barriers that denied the Plaintiff full and equal access to the goods and services offered to the public and made available to the public; and that denied the Plaintiff the full enjoyment of the goods, and services of the website, as well as to the goods, and services of the Defendant’s locations in New York by being unable to learn more information about store locations, information pertaining to availability of goods, information about store amenities, including hours of operation, and related goods and services, among other things readily available to sighted individuals. 38. While attempting to navigate the website, the Plaintiff encountered multiple accessibility barriers for blind or visually-impaired individuals that include, but are not limited to: (1) Lack of alternative text (“alt-text”), or a text equivalent. Alt- -12- text is an invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that screen- reading software can speak the alt-text where a sighted user sees pictures, which includes captcha prompts. Alt-text does not change the visual presentation, but instead a text box shows when the mouse moves over the picture. The lack of alt- text on these graphics prevents screen readers from accurately vocalizing a description of the graphics. As a result, the Defendant’s visually-impaired customers are unable to determine what is on the website, browse, look for store locations, information about store amenities, including hours of operation, and related goods and services. (2) 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. (3) Redundant links where adjacent links go to the same URL address which results in additional navigation and repetition for keyboard and screen-reader users. (4) 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. 39. Due to the inaccessibility of the Defendant’s website, blind and visually- impaired customers such as the Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services the Defendant offers to the public on its website. The access barriers the Plaintiff encountered have caused a denial of the Plaintiff’s full and equal access in the past, and now deter the Plaintiff on a regular basis from accessing the website. -13- 40. These access barriers on the Defendant’s website have deterred the Plaintiff from visiting the Defendant’s physical store location(s) and enjoying them equal to sighted individuals because: the Plaintiff was unable to find the location and hours of operation of the Defendant’s locations on its website, preventing the Plaintiff from visiting the locations to view and purchase goods and/or services. The Plaintiff intends to visit the Defendant’s website and physical locations in the near future if the Plaintiff could access the Defendant’s website. 41. If the website was equally accessible to all, the Plaintiff could independently navigate the website and complete a desired transaction, as sighted individuals do. 42. The Plaintiff, through the Plaintiff’s attempts to use the website, has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired persons. 43. Because basic compliance with WCAG 2.0 would provide the Plaintiff and other visually-impaired persons with equal access to the website, the Plaintiff alleges that the Defendant engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: constructing and maintaining a website that is inaccessible to visually-impaired persons, including the Plaintiff; failing to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired persons, including the Plaintiff; and failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired persons , such as the Plaintiff, as a member of a protected class. 44. The Defendant therefore uses standards, criteria or methods of administration -14- that have the effect of discriminating or perpetuating the discrimination against others, as alleged herein. 45. The ADA expressly contemplates the injunctive relief that the 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). 46. Because the Defendant’s website has never been equally accessible, and because the Defendant lacks a corporate policy that is reasonably calculated to cause the Defendant’s website to become and remain accessible, the Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring the Defendant to retain a qualified consultant acceptable to the Plaintiff to assist the Defendant to comply with WCAG 2.0 guidelines for the Defendant’s website. The website must be accessible for individuals with disabilities who use desktop computers, laptops, tablets, and smartphones. The Plaintiff seeks that this permanent injunction require the Defendant to cooperate with the agreed-upon consultant to: train the Defendant’s employees and agents who develop the website on accessibility compliance under the WCAG 2.0 guidelines; regularly check the accessibility of the website under the WCAG 2.0 guidelines; regularly test user accessibility by blind or vision-impaired persons to ensure that the Defendant’s website complies under the WCAG 2.0 guidelines; and develop an -15- accessibility policy that is clearly disclosed on the Defendant’s website, with contact information for users to report accessibility-related problems and require that any third-party vendors who participate on the Defendant’s website to be fully accessible to the disabled by conforming with WCAG 2.0. 47. If the Defendant’s website were accessible, the Plaintiff and similarly situated blind and visually-impaired persons could independently access information about store locations, information about store amenities, including hours of operation, and related goods and services. 48. Although the Defendant may currently have centralized policies regarding maintaining and operating the Defendant’s website, the Defendant lacks a plan and policy reasonably calculated to make the Defendant’s website fully and equally accessible to, and independently usable by, blind and other visually- impaired persons. 49. The Defendant has, upon information and belief, invested substantial sums in developing and maintaining the Defendant’s website and the Defendant has generated significant revenue from the Defendant’s website. These amounts are far greater than the associated cost of making the Defendant’s website equally accessible to visually impaired customers. 50. Without injunctive relief, the Plaintiff and other visually-impaired persons will continue to be unable to independently use the Defendant’s website, violating their rights. 51. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every -16- 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). 53. Defendant’s stores 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 store(s). The Website is a service that is integrated with these location(s). 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 -17- 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. 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. 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 State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. 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, -18- withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 61. Defendant’s physical location(s) are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 62. 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). 63. 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, services that Defendant makes available to the non-disabled public. 64. 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". 65. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also -19- 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.” 66. 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. 67. 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. 68. Defendant has failed to take any prompt and equitable steps to remedy their -20- discriminatory conduct. These violations are ongoing. 69. Defendant discriminates and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 70. 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. 71. 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. 72. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 73. 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. 74. 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. 75. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. -21- 76. 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 . . .” 77. 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.” 78. Defendant’s New York State physical location(s) 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. 79. Defendant is subject to New York Civil Rights Law because it owns and operates its physical location(s) and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 80. 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 -22- services integrated with Defendant’s physical location(s) 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. 81. 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 . . .” 82. 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 ...” 83. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 84. 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. -23- 85. 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. 86. 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. 87. 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.” 88. Defendant’s location(s) 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 establishment(s). 89. 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). 90. 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, -24- products, and services that Defendant makes available to the non-disabled public. 91. 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). 92. 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. 93. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 94. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless -25- the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 95. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 96. 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. 97. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 98. 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. 99. 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. 100. 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 and services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and -26- N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 101. 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 NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

lose

10. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 11. The Class consists of: a. all individuals with addresses in the State of New York; b. to whom Defendant sent a response to a consumer’s dispute; c. that failed to include billing statements that verified the amount sought by the Defendant; d. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (2l) days after the filing of this action. 12. The identities of all class members are readily ascertainable from the records of Defendant and those companies and entities on whose behalf they attempt to collect and/or have purchased debts. 13. 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. 15. 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 his attorneys have any interests, which might cause them not to vigorously pursue this action. 17. 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. 18. 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). 20. Some time prior to March 27, 2021, an obligation was allegedly incurred to creditor U.S. Bank National Association (hereinafter “U.S. Bank”). 21. The U.S. Bank obligation arose out of transactions involving personal, family or household purposes obtained by Plaintiff from U.S. Bank and was incurred primarily for personal, family or household purposes. 22. Specifically, Plaintiff allegedly bought goods for personal and/or family use using his Harley-Davidson Visa Signature Credit Card. 23. The alleged U.S. Bank obligation is a "debt" as defined by 15 U.S.C.§ 1692a (5). 24. U.S. Bank is a "creditor" as defined by 15 U.S.C.§ 1692a (4). 25. Defendant subsequently purchased the defaulted U.S. Bank debt for the purpose of debt collection. Therefore, Defendant is a “debt collector” as defined by 15 U.S.C.§ 1692a (6). Violation – March 27, 2021 Collection Letter 26. On or about March 27, 2021, Defendant sent the Plaintiff a response to a dispute made by the Plaintiff regarding the alleged debt, originally owed to U.S. Bank (See “Letter” attached as Exhibit A). 27. Towards the top right portion of the Letter on page one, it lists in relevant part: Balance: $20,750.03. 28. The Letter claims to include documents that establish its “validity,” however the credit card statement included does not match the balance provided on page one. 30. The Defendant failed to provide any explanation in page one as to why the balance increased. The omission of an explanation leaves open several options in the mind of a consumer; either: (1) the Defendant failed to include the most recent credit card statement, which potentially explains the $417.59 increase in the total balance due; (2) the Defendant made a mistake on the total “balance” of page 1, which would leave the Plaintiff with a decreased remaining balance due. (3) the Defendant is charging additional interest or fees to the charge off amount from the original Creditor. 31. Therefore, the Letter provided by the Defendant which ostensibly intends to validate the Plaintiff’s debt has no meaning and serves only to mislead and confuse the consumer as the true balance cannot be determined from the Letter. 32. The Plaintiff could not determine the correct amount owed from the Letter because multiple balances were provided without any explanation for the difference between the balances. 33. Plaintiff incurred an informational injury as he could not ascertain from the deceptive and misleading Letter the total amount he currently owed on the debt. 34. Further, Defendant’s letter is potentially a false representation of the amount of the debt due, depending on what motivated Defendant’s total balance – either a mistake, failing to provide the most recent credit card statement, or charging additional interest or fees. 36. As a result of Defendant’s false, deceptive, and misleading debt collection practices, Plaintiff has been damaged. 37. 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. 38. 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. 39. 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. 40. Defendant violated §1692e : a. As the Letter is open to more than one reasonable interpretation, at least one of which is inaccurate in violation of §1692e(2); b. By making a false and misleading representation in violation of §1692e(10). 41. By reason thereof, Defendant is liable to Plaintiff for judgment in 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

(Collective Action Claim for FLSA Violations) (Individual Claims for FLSA Violations) 21. Plaintiffs repeat and re-allege all previous paragraphs of this Complaint as though fully incorporated in this section. 22. Defendant’s primary business purpose is to coordinate and conduct medical research and clinical trials in various areas, including non-alcoholic fatty liver disease, ulcerative colitis and Crohn’s disease, among other services.1 Defendant employed employees such as Plaintiffs and the collective members to accomplish these purposes. 23. Within three years prior to the filing of this Complaint, Defendant hired Plaintiffs, among other individuals, to perform relevant duties such as taking patients’ vital signs and taking patient information. 24. Plaintiff Perez worked for Defendant as an hourly-paid Clinical Research Coordinator from approximately January 2017 through December 2019. 26. As hourly-paid employees, Plaintiffs performed tasks such as taking patients’ vital signs and taking patient information, as well as other work, for Defendant. Other hourly-paid employees for Defendant also performed the same type of work. 27. Defendant hired Plaintiffs and the members of the collective and set their work schedules, including the hours to be worked, and paid them an hourly wage. 28. Defendant exercised comprehensive control over the employment of their employees, including the employment of Plaintiffs and the collective members. 29. Defendant dictated the hours worked by their employees, including Plaintiffs and the collective members. 30. Defendant established the method and rate of pay for their employees, including Plaintiffs and the collective members. 31. In addition to their hourly rate of pay, Defendant paid Plaintiffs and other hourly-paid employees additional compensation in the way of bonuses based on the quantity and quality of work performed using objective criteria defined by Defendant in advance. 32. Defendant did not include bonus payments when calculating overtime wages for Plaintiffs and other hourly-paid employees. 33. Plaintiffs and other hourly-paid employees regularly worked in excess of forty (40) hours per week for Defendant. 35. Because Defendant did not include bonus payments in the overtime wage calculations, Plaintiffs and other hourly-paid employees were not properly paid overtime wages for all overtime hours worked by them. 36. Defendant knew, or showed reckless disregard for whether, the way it paid Plaintiffs and other hourly-paid employees violated the FLSA. 37. Defendant knew or should have known that the job duties of Plaintiffs and other hourly-paid employees required them to work hours in excess of forty (40) per week, yet Defendant failed and refused to compensate them for their work as required by the 40. Plaintiffs repeat and re-allege all previous paragraphs of this Complaint as though fully incorporated in this section. 41. Plaintiffs bring 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). 43. Plaintiffs are unable to state the exact number of members of the Collective, but believe that membership exceeds fifteen (15) persons. 44. Defendant can readily identify the members of the Collective, who are a certain portion of the current and former employees of Defendant. 45. The proposed Collective members are similarly situated in that they have been subject to uniform practices by Defendant which violated the FLSA, including: A. Defendant’s uniform practice of requiring Collective members to work hours in excess of forty per week; B. Defendant’s uniform practice of paying Collective members bonus payments which do not exceed fifty percent of pay during the representative period; C. Defendant’s failure to include bonus payments when calculating overtime wages for the Hourly Collective members; and D. Defendant’s failure to pay members of the Collective proper overtime compensation for all hours worked over forty (40) per week in violation of the FLSA, 29 U.S.C. § 201, et seq. 46. Because Collective members are similarly situated to Plaintiffs and are owed overtime for the same reasons, the class is properly defined as follows: Each hourly-paid employee within the three years preceding the filing of this Original Complaint. 47. This action is properly brought as a collective action pursuant to the collective action procedures of the FLSA. 49. In addition, and in the alternative, Plaintiffs bring this action in their individual and personal capacities, separate and apart from the collective claims set forth herein. VI. 50. Plaintiffs repeat and re-allege all the preceding paragraphs of this Complaint as if fully set forth in this section. 51. 29 U.S.C. §§ 206 and 207 require any enterprise engaged in commerce to pay all employees a minimum wage for all hours worked up to forty (40) in one week and to pay one and one-half times regular wages for all hours worked over forty (40) hours in a week, unless an employee meets certain exemption requirements of 29 U.S.C. § 213 and all accompanying Department of Labor regulations. 52. During the relevant time period, Defendant unlawfully refrained from paying Plaintiffs, as hourly employees, a lawful overtime premium for hours worked over forty (40) per week. 53. Defendant’s failure to properly pay overtime wages to Plaintiffs stems from Defendant’s acts failing to include all bonuses in the calculation of Plaintiffs’ overtime wages. 54. Defendant’s failure to pay Plaintiffs all overtime wages owed was willful. 56. Alternatively, should the Court find that Defendant acted in good faith in failing to pay Plaintiffs as provided by the FLSA, Plaintiffs are entitled to an award of prejudgment interest at the applicable legal rate. 57. Plaintiffs repeat and re-allege all previous paragraphs of this Complaint as though fully incorporated in this section. 58. Plaintiffs, on behalf of all others similarly situated, assert this claim for damages and declaratory relief pursuant to the FLSA, 29 U.S.C. § 201, et seq. 59. During the relevant time period, Defendant unlawfully refrained from paying its hourly employees a lawful overtime premium for hours worked over forty per week. 60. Plaintiffs propose to represent a class of individuals who are owed overtime wages and other damages for the same reasons as Plaintiffs, which may be defined as follows: All hourly-paid employees who received a bonus in connection with work performed during any week in which they worked over forty hours in the past three years. 61. Defendant’s failure to pay the Collective members overtime wages owed was willful. 63. Alternatively, should the Court find that Defendant acted in good faith in failing to pay Plaintiffs and all those similarly situated as provided by the FLSA, Plaintiffs and all those similarly situated are entitled to an award of prejudgment interest at the applicable legal rate.

lose

21. Plaintiff incorporates the foregoing paragraphs as if fully restated herein. 22. Plaintiff Olvera reviewed the Product’s label, nutritional label, supplement facts and marketing material prior to purchasing the Product. 23. Defendant provides retailers such as BB with label images and marketing materials. 24. Plaintiff Olvera reasonably relied on the information provided by Defendant when making the decision to purchase the Product. 25. Plaintiff would have purchased another Pre-Workout product, if any at all, if she was made aware of the presence of an illegal methamphetamine analog in the Product. 26. On information and belief, Defendant has intentionally manufactured the Product to contain a methamphetamine analog, N,α-diethylphenylethylamine (N,α-DEPEA). 27. “The supplement is labeled as containing a dendrobiumorchid extract comprising several phenylethylamines including N,N-diethyl-phenylethylamine Case3:13-cv-04830-JSC Document1 Filed10/17/13 Page5 of 20 40. Plaintiff incorporates the foregoing paragraphs as if fully restated herein. 41. Plaintiff brings this action on his own behalf and as a Class Action Pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiff seeks certification of the following Class: California Class: All Persons in the State of California who have spent money purchasing the Product from four years Case3:13-cv-04830-JSC Document1 Filed10/17/13 Page8 of 20 49. Plaintiff incorporates the foregoing paragraphs as if fully restated herein. 50. Cal. Bus. & Prof. Code § 17200 prohibits any “unlawful, unfair or fraudulent business act or practice.” 51. The acts, omissions, misrepresentations, practices, and non- disclosures of Defendant as alleged herein constitute “unlawful” business acts and practices in that Defendants’ conduct violates the False Advertising Law and the Consumer Legal Remedies Act. 52. Defendant’s conduct is further “unlawful” because it violates the Federal Food, Drug, and Cosmetic Act and its implementing regulations in at least the following ways: (1) Defendant’s deceptive statements violate 21 U.S.C. § 343(a), which deems food (including nutritional supplements) misbranded when the label contains a statement that is “false or misleading in any particular”; (2) Defendant’s deceptive statements violate 21 C.F.R. § 101.14(b)(3(i), which mandates “substances” in dietary supplements consumed must contribute and retain “nutritional value” as defined Case3:13-cv-04830-JSC Document1 Filed10/17/13 Page12 of 20 58. Plaintiff incorporates the foregoing paragraphs as if fully restated herein. 59. This cause of action is brought pursuant to California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et. seq (the “CLRA”). 60. Plaintiff is a consumer as defined by the CLRA. 61. Defendant is a supplier or seller as defined by the CLRA. 62. Defendant’s conduct described herein involves consumer transactions as defined in CLRA. 63. Plaintiff is further given the rights to bring the suit himself under Civ. Code § 1780 and on behalf of the class under § 1781. Case3:13-cv-04830-JSC Document1 Filed10/17/13 Page14 of 20 71. Plaintiff incorporates the foregoing paragraphs as if fully restated herein. 72. Bus. & Prof. Code § 17500, et seq. (the “FAL”) provides, in pertinent part: “It is unlawful for any … corporation… with intent or indirectly to dispose of real or personal property… or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, … any statement, concerning that real or personal property… or concerning any circumstance or matter of fact connected with the proposal…disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading… or … to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property… so advertised… as so advertised.” Case3:13-cv-04830-JSC Document1 Filed10/17/13 Page17 of 20 Violation of California Legal Remedies Act Cal. Civ. Code § 1750 et seq. (On Behalf of Plaintiff and the Class Against Defendant) Violation of California Business and Professions Code § 17200 et seq. (On Behalf of Plaintiff and the Class Against Defendant) Violation of the False Advertising Law, Business and Professions Code Sections 17500 et seq. (On Behalf of Plaintiff and the Class Against Defendant)

lose

10. Defendant John Andrew Baio is the owner or operator of Pro Tree Service. 11. Defendants John Baio is involved in the daily operation of Defendant Pro Tree Service including but not limited to: a) hiring and firing employees b) directing employees' work; and c) exercising control over Plaintiff's and similarly situated employees' schedule, payment, and other terms of employment. 12. Plaintiff has worked as a laborer removing and disposing of trees for public and private properties on behalf of Defendants from approximately February 2016 through approximately the end of April 2018. 4 13. Plaintiff was paid $14.00 per hour by Defendants for approximately the first year of his employment. 14. Subsequent to the first year of his employment, Plaintiff was paid approximately $16.00 per hour through the end of his employment. 15. Throughout the relevant time period, Plaintiff and other similarly situated employees were regularly directed to work, and did in fact work, in excess of forty hours per week. 16. Throughout the relevant time period, Plaintiff and other similarly situated employees were compensated at their regular rate for all time worked, including all time worked in excess of forty (40) hours per week. 17. Defendant’s failure to compensate Plaintiff and other similarly situated employees for all time worked in excess of forty hours per week at an overtime rate was a violation of the FLSA and IMWL. 18. Plaintiff and other similarly situated employees were required to wear uniforms while working for Defendants. 19. Defendants deducted the cost of the uniforms from the weekly wages of Plaintiff and other similarly situated employees. 20. The deductions from the weekly wages from Plaintiff and other similarly situated employees were made without the employee’s express written consent, freely given at the time of the deduction. 21. Plaintiff will seek to certify this case both as a collective action as to the overtime claim arising under the FLSA (Count I) and as a class action pursuant to Fed. R. 5 Civ. P. Rule 23 for his state law overtime claim (Count II) arising under the IMWL, and his state law unlawful deduction claim arising under the IWPCA (Count III). 22. The class that Plaintiff seeks to represent with regard to his IMWL overtime claim (Count II) is defined as: “Plaintiff and all other similarly situated employees of Pro Tree Service and John Andrew Baio not exempt from the overtime provisions of the IMWL from June 26, 2015 up to and including the date of judgment.” 23. The class that Plaintiff seeks to represent with regard to his IWPCA unlawful deduction claim (Count III) is defined as: “Plaintiff and all other similarly situated employees of Pro Tree Service and John Andrew Baio who had deductions made from their wages for the cost of uniforms from June 26, 2008 up to and including the date of judgment.” 24. Counts II and III are 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: b. While the precise number of Class Members has not been determined at this time, Plaintiff is informed and believes that Defendants have employed more than 60 individuals in the IMWL Overtime Class during the class period and in the IWPCA Unlawful Deduction class period; c. 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 Defendants otherwise compensated Plaintiff and the IMWL Class for all time worked at their regular rate in each work week in which they worked in excess of forty (40) hours; ii. Whether Defendants made deductions from the wages of Plaintiff and the IWPCA Uniform Deduction Class for uniforms; and 6 iii. Whether Defendants obtained Plaintiff and the IWPCA Uniform Deduction Class’ express written consent for such uniform deductions freely given at the time the deduction was made. d. Plaintiff will fairly and adequately represent and protect the interests of the Class members. Plaintiff’s Counsel is competent and experienced in litigating wage and hour and other employment class actions; e. The class representative and the members of the class have been equally affected by Defendants’ failure to pay overtime wages for all compensable time in excess of forty (40) hours in individual work weeks; f. The class representative and the members of the class have been equally affected by Defendants’ deductions from pay for uniforms; g. The class representative, class members and Defendants have a commonality of interest in the subject matter and remedies sought and the class representative are able to fairly and adequately represent the interest of the class. 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, Defendants, and the Court. 25. Therefore, a class action is an appropriate method for the fair and efficient adjudication of this lawsuit. 26. Plaintiffs incorporate and re-allege paragraphs 1 through 25 of this Complaint as though set forth herein. 27. The matters set forth in this Count arise from Defendants’ violation of the FLSA for their failure to pay non-exempt employees for all hours worked at their regular rate of pay in individual work weeks in which they work in excess of forty (40) hours and to pay them overtime wages for all time worked in excess of forty (40) hours in such work weeks. 7 28. In the three years prior to the filing of this complaint, Defendants suffered or permitted Plaintiff and other similarly situated employees to work without compensation as described more fully in ¶¶ 9 – 20, supra, 29. Plaintiff and other similarly situated employees were not exempt from the overtime provisions of the FLSA. 30. In individual work weeks in which Plaintiff and other similarly situated employees worked in excess of forty (40) hours, they were entitled to be compensated at their regular rate of pay for all time worked. 31. Defendants’ failure to compensate Plaintiff and other similarly situated employees at their regular rate of pay for all time worked in individual workweeks in which they worked in excess of forty (40) hours violated the FLSA. 32. In individual work weeks in which Plaintiff and other similarly situated employees worked in excess of forty (40) hours, they were entitled to be compensated at the rate of one and a half times their regular rate of pay for all time worked in excess of forty (40) hours. 33. Defendants’ failure to compensate Plaintiff and other similarly situated employees at the rate of one and a half times their regular rate of pay for all time worked in excess of forty (40) hours violated the FLSA. 34. Plaintiff and other similarly situated employees are entitled to recover unpaid wages and overtime wages as described herein for up to three (3) years prior to Plaintiffs filing their complaint because Defendants’ violation was willful. WHEREFORE, Plaintiff, on behalf of himself and other similarly situated employees, prays for a judgment against Defendants as follows: 8 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 unpaid regular wages for all the time Plaintiff and similarly situated employees worked in individual work weeks in which they worked in excess of forty (40) hours for Defendants; C. A judgment in the amount of unpaid overtime wages for all the time Plaintiff and similarly situated employees worked in excess of forty (40) hours in individual work weeks for Defendants; D. Liquidated damages in the amount equal to the unpaid wages; E. That the Court declare the Defendants violated the FLSA; F. That the Court enjoin the Defendants from continuing to violate the 35. Plaintiffs incorporate and re-allege paragraphs 1 through 34 of this Complaint as though set forth herein. 36. The matters set forth in this Count arise from Defendants’ violation of the IMWL for their failure to pay non-exempt employees for all hours worked at their regular rate of pay in individual work weeks in which they work in excess of forty (40) hours and to pay them overtime wages for all time worked in excess of forty (40) hours in such work weeks. 9 37. In the three years prior to the filing of this complaint, Defendants suffered or permitted Plaintiffs and other similarly situated employees to work without compensation as described more fully in ¶¶ 9 – 19, supra. 38. Plaintiffs and other similarly situated employees were not exempt from the overtime provisions of the IMWL. 39. In individual work weeks in which Plaintiff and other similarly situated employees worked in excess of forty (40) hours, they were entitled to be compensated at their regular rate of pay for all time worked. 40. In individual work weeks in which Plaintiff and other similarly situated employees worked in excess of forty (40) hours, they were entitled to be compensated at the rate of one and a half times their regular rate of pay for all time worked in excess of forty (40) hours. 41. Defendants’ failure to compensate Plaintiff and other similarly situated employees at the rate of one and a half times their regular rate of pay for all time worked in excess of forty (40) hours violated the IMWL. WHEREFORE, Plaintiff, on behalf of himself and other similarly situated employees, prays for a judgment against Defendants 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 unpaid regular wages for all the time Plaintiff and similarly situated employees worked in individual work weeks in which they worked in excess of forty (40) hours for Defendants; C. Liquidated damages in the amount equal to the unpaid wages; D. That the Court declare the Defendants violated the IMWL; 10 E. That the Court enjoin the Defendants from continuing to violate the 42. Plaintiff incorporates and re-allege paragraphs 1 through 42 of this Complaint as though set forth herein. 43. The matters set forth in this Count arise from Defendants’ violation of the IWPCA for deducting the cost of uniforms from Plaintiff and other similarly situated employees’ weekly wages without express written consent, freely given at the time of the deduction as described in more detail in ¶¶ 9 – 20, supra. 44. In the ten years prior to the filing of this claim the Plaintiff and similarly situated employees had deductions made from their weekly wages for the purpose of paying for uniforms required by the Defendants. 45. In the ten years prior to filing this claim the Plaintiff and similarly situated employees had this money deducted from their paychecks without express written consent, freely given at the time of the deduction. 46. The deduction for uniforms was not a. required by law; b. to the benefit of the employee; or c. in response to a valid wage assignment or wage deduction order. 11 47. The deductions made from Plaintiff and other similarly situated employees’ earned wages for the costs of uniforms required by the employer violated the 9. Defendant Pro Tree Service is a corporation specializing in landscaping. Violation of the Fair Labor Standards Act Overtime Wages Section 216(b) Collective Action Violation of the Illinois Wage Payment and Collection Act Unauthorized Uniform Deductions Class Action Violation of the Illinois Minimum Wage Law Overtime Wages Class Action

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is a Hotelier that operates the EVEN HOTELS as well as the EVEN HOTELS website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with its Hotel. 22. Defendant operates EVEN HOTELS (its “Hotel”) in New York City, at 321 W 35th Street, New York, NY 10001. 23. Its Hotel constitutes a place of public accommodation. Defendant’s Hotel provides to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including Hotel locations, information pertaining to room availability and room rates, information about hotel amenities, including hours of operation, and related goods and services. 24. Defendant offers the commercial website, www.ihg.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: Hotel locations, information pertaining to room availability and room rates, information about hotel amenities, including hours of operation, and related goods and services. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 27. During Plaintiff’s visits to the Website, the last occurring in August 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, 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 Hotel locations, information pertaining to room availability and room rates, information about hotel amenities, including hours of operation, and related goods and services. 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Hotels 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. 31. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 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. 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. 35. 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). 37. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, locate Defendant’s physical locations and hours of operation, shop for and otherwise research related goods and services available via the Website. 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. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 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 goods and services offered in Defendant’s physical locations, 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, NYSYRHL 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. 49. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Defendant’s Hotels 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 Hotels. 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 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 herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 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, services that Defendant makes available to the non-disabled public. 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 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. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 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. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 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). 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 . . .” 80. 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 ...” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 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). 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). 90. 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. 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 97. 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. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

win

18. In an effort to increase business, Smartpay has sent thousands of text messages to consumers nationwide. 19. In early 2016, Plaintiff received a cellular phone from Defendant. However, a few months later, due to defective equipment, Plaintiff returned the item and ceased any relationship with Defendant. 20. Plaintiff maintains no debt with Defendant and Defendant has never contacted Plaintiff concerning any debt owed. 36. 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”). 37. Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any unsolicited, promotional text message 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), which text messages 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. 47 U.S.C. §§ 227 ET SEQ. 47 U.S.C. §§ 227 ET SEQ. 53. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 59. Plaintiff incorporates by reference the above paragraphs 1 through 38 inclusive, of this Complaint as though fully stated herein. 60. Each such text message 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 sent thousands of text messages simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention. These text messages were made without the prior express consent of the Plaintiff to receive such text messages. 64. 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). 65. Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief prohibiting such conduct in the future. 66. 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). 67. Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. * * * KNOWING AND/OR WILLFUL VIOLATIONS OF THE TCPA 47 U.S.C. §§ 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TCPA 47 U.S.C. §§ 227 ET SEQ.

win

21. Plaintiff repeats and realleges the allegations of paragraphs 1 through 20 of this complaint and incorporates them by reference. 5. Snow Joe is a distributor of snow blowers, lawn mowers, and other tools. Violation of 47 U.S.C. § 227 (On Behalf of Plaintiff and the ATDS Class)

lose

45. The members of the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to Plaintiff at this time and can only be ascertained through appropriate discovery, Plaintiff believes that there are at least thousands of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by Loma Negra or its transfer agent and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions. 46. Plaintiff’s claims are typical of the claims of the members of the Class, as all members of the Class are similarly affected by Defendants’ wrongful conduct in violation of federal law that is complained of herein. 47. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class and securities litigation. 48. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are: (a) whether Defendants violated the Securities Act; (b) whether the Registration Statement contained false or misleading statements of material fact and omitted material information required to be stated therein; and (c) to what extent the members of the Class have sustained damages and the proper measure of damages. 50. Plaintiff incorporates all the foregoing by reference. 51. This Cause of Action is brought pursuant to § 11 of the Securities Act, 15 U.S.C. § 77k, on behalf of the Class, against all Defendants. 52. The Registration Statement contained untrue statements of material facts, omitted to state other facts necessary to make the statements made not misleading, and omitted to state material facts required to be stated therein. 53. Defendants are strictly liable to Plaintiff and the Class for the misstatements and omissions. 54. None of the Defendants named herein made a reasonable investigation or possessed reasonable grounds for the belief that the statements contained in the Registration Statement were true and without omissions of any material facts and were not misleading. 55. By reason of the conduct herein alleged, each Defendant violated or controlled a person who violated § 11 of the Securities Act. 56. Plaintiff acquired Loma Negra ADS pursuant to the Registration Statement. 57. Plaintiff and the Class have sustained damages. The value of Loma Negra ADS has declined substantially subsequent to and due to Defendants’ violations. 59. Plaintiff incorporates all the foregoing by reference. 60. By means of the defective Prospectus, Defendants promoted, solicited, and sold Loma Negra shares to Plaintiff and other members of the Class. 61. The prospectus for the IPO contained untrue statements of material fact, and concealed and failed to disclose material facts, as detailed above. Defendants owed Plaintiff and the other members of the Class who purchased Loma Negra shares pursuant to the prospectus the duty to make a reasonable and diligent investigation of the statements contained in the Prospectus to ensure that such statements were true and that there was no omission to state a material fact required to be stated in order to make the statements contained therein not misleading. Defendants, in the exercise of reasonable care, should have known of the misstatements and omissions contained in the prospectus as set forth above. 62. Plaintiff did not know, nor in the exercise of reasonable diligence could Plaintiff have known, of the untruths and omissions contained in the prospectus at the time Plaintiff acquired Loma Negra shares. 64. Plaintiff incorporates all the foregoing by reference. 65. This Cause of Action is brought pursuant to § 15 of the Securities Act against all Defendants. 66. The Individual Defendants were controlling persons of Loma Negra by virtue of their positions as directors or senior officers of Loma Negra. The Individual Defendants each had a series of direct and indirect business and personal relationships with other directors and officers and major shareholders of Loma Negra. The Selling Shareholder controlled the Company. The Company controlled the Individual Defendants and all of Loma Negra’s employees. 67. Loma Negra, the Selling Shareholder, and the Individual Defendants were culpable participants in the violations of §§ 11 and 12(a)(2) of the Securities Act alleged in the First and Second Causes of Action above, based on their having signed or authorized the signing of the Registration Statement and having otherwise participated in the process which allowed the IPO to be successfully completed. For Violation of § 11 of the Securities Act Against All Defendants For Violation of § 12(a)(2) of the Securities Act Against All Defendants For Violation of § 15 of the Securities Act Against All Defendants

lose

20. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23, on behalf of the following “Class”: All persons in the United States who purchased tickets for travel on a Swoop flight scheduled to operate to, from, or within the United States whose flights were cancelled or were subject to a significant schedule change and not refunded. 21. Subject to additional information obtained through further investigation and discovery, the foregoing definition of the Class may be expanded or narrowed by amendment to the complaint or narrowed at class certification. 22. Specifically excluded from the Class are Defendant, Defendant’s officers, directors, agents, trustees, parents, children, corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or entities controlled by Defendant, and their heirs, successors, assigns, or other persons or entities related to or affiliated with Defendant and/or Defendant’s officers and/or directors, the judge assigned to this action, and any member of the judge’s immediate family. 24. Typicality. The claims of the representative Plaintiff are typical of the claims of the Class in that the representative Plaintiff, like all members of the Class, paid for a Swoop flight that was cancelled, and did not receive a refund for the cancelled flight or for any consequential damages and cancelations caused by the original cancelled flight. The representative Plaintiff, like all members of the Class, has been damaged by Defendant’s misconduct in the very same way as the members of the Class. Further, the factual bases of Defendant’s misconduct are common to all members of the Class and represent a common thread of misconduct resulting in injury to all members of the Class. 26. Adequacy of Representation. Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has retained counsel who are highly experienced in complex consumer class action litigation, and Plaintiff intends to vigorously prosecute this action on behalf of the Class. Plaintiff has no interests that are antagonistic to those of the Class. 27. Superiority. A class action is superior to all other available means for the fair and efficient adjudication of this controversy. The damages or other financial detriment suffered by members of the Class is relatively small compared to the burden and expense of individual litigation of their claims against Defendant. It would, thus, be virtually impossible for members of the Class, on an individual basis, to obtain effective redress for the wrongs committed against them. Furthermore, even if members of the Class could afford such individualized litigation, the court system could not. Individualized litigation would create the danger of inconsistent or contradictory judgments arising from the same set of facts. Individualized litigation would also increase the delay and expense to all parties and the court system from the issues raised by this action. By contrast, the class action device provides the benefits of adjudication of these issues in a single proceeding, economies of scale, and comprehensive supervision by a single court, and presents no unusual management difficulties under the circumstances. 29. Plaintiff incorporates and realleges each preceding paragraph as though fully set forth herein. 30. Plaintiff brings this claim on behalf of herself and members of the Class against Defendant. 31. Plaintiff and the Class conferred a benefit on Defendant in the form of monies paid to purchase airline tickets for flights that were later cancelled or subject to a significant schedule change by Swoop. 32. Defendant has knowledge of these benefits. 33. Defendant voluntarily accepted and retained these benefits. Defendant voluntarily retained the benefit of the purchase price of the tickets in addition to consequential damages resulting from the cancelation (such as associated fees). 34. Because this benefit was obtained unlawfully, namely by selling airline tickets for flights that were later cancelled by Swoop, it would be unjust and inequitable for the Defendant to retain it without paying the value thereof. 35. Plaintiff incorporates and realleges each preceding paragraph as though fully set forth herein. 37. Plaintiff and members of the Class have an ownership right to the monies paid for the tickets for cancelled flights sold by Defendant, as well as for the consequential damages resulting therefrom. 38. Defendant has wrongly asserted dominion over the payments illegally diverted to them for the cancelled flights, and consequential damages resulting therefrom. Defendant has done so every time that Plaintiff and members of the Class paid to purchase a ticket for a flight that was later cancelled or subject to a significant schedule change by Emirates Airlines. 39. As a direct and proximate cause of Defendant’s conversion, Plaintiff and members of the Class suffered damages in the amount of the payments made for each time they purchased a ticket for a flight that was cancelled or subject to a significant schedule change by Emirates Airlines, and in the amount of consequential damages resulting therefrom. 40. Plaintiff incorporates and realleges each preceding paragraph as though fully set forth herein. 41. Plaintiff brings this claim on behalf of herself and members of the Class. 42. Defendant entered into contracts with Plaintiff and members of the Class to provide services in the form of flights in exchange for a set amount of money. 43. Defendant has breached these contracts by retaining Plaintiff and members of the Class’ ticket prices while not providing flight services. 45. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 46. Plaintiff brings this claim individually and on behalf of the members of the proposed Class against Defendant. 47. Defendant received money in the form of airline ticket fees that was intended to be used for the benefit of Plaintiff and the Class. 48. Those airline ticket fees were not used for the benefit of Plaintiff and the Class, and Defendant has not given back or refunded the wrongfully obtained money and airline ticket fees to Plaintiff and the Class. 49. Defendant obtained roughly money in the form of airline ticket fees that was intended to be used to provide flights for Plaintiff and the Class. However, Defendant has retained all of the airline ticket fees while cancelling its flights that Plaintiff and members of the Class were supposed to be passengers on. 50. Plaintiffs incorporate by reference the allegations in the preceding paragraphs as if fully set forth herein. Breach of Contract Conversion Money Had And Received Unjust Enrichment

win

29. During the Federal Robocall Class Period, Spark initiated, to residential telephones lines and to telephone numbers assigned to a cellular telephone service, thousands of telephone calls using a prerecorded voice to deliver a message for the purpose of encouraging the purchase or rental of energy-discount services provided by Spark. 30. During the Federal Do-Not-Call Class Period, Spark, thousands of times during a 12-month period, initiated multiple telephone calls to residential telephones lines for the purpose of encouraging the purchase or rental of energy-discount services provided by Spark. 31. During the New York Class Period, Spark made, to telephone numbers with an area code of 212, 315, 332, 347, 516, 518, 585, 607, 631, 646, 680, 716, 718, 845, 914, 917, 929, or 934 (“New York Telephone Numbers”), thousands of telephone calls that disseminated a prerecorded message for the purpose of encouraging the purchase or rental of energy-discount services provided by Spark (the “New York Telephone Calls”). 32. The persons on whose behalf this Complaint asserts claims in connection with the telephone calls described in paragraph “29” are the members of the Federal Robocall Class. 33. The persons on whose behalf this Complaint asserts claims in connection with the telephone calls described in paragraph “30” are the members of the Federal Do-Not-Call Class. 34. The persons on whose behalf this Complaint asserts claims in connection with the telephone calls described in paragraph “31” are the members of the New York Class. 35. The telephone calls described in paragraph “29” were not preceded by the written consent of anyone who had the legal authority to provide such consent. 36. The New York Telephone Calls were made with equipment that was capable of storing telephone numbers to be called and that was used, either alone or in conjunction with 5 other equipment, to disseminate a prerecorded message to the telephone numbers that were called without the use of an operator. 37. The Prerecorded Material of the New York Telephone Calls (the “New York Prerecorded Material”) did not state the name of the person on whose behalf the New York Telephone Calls were placed. 38. The New York Prerecorded Material did not state the address of the person on whose behalf the New York Telephone Calls were placed. 39. The New York Prerecorded Material did not state the telephone number of the person on whose behalf the New York Telephone Calls were placed. 40. On July 22, 2019, Bank, while located in the Eastern District of New York, received, on his residential telephone line, a New York Telephone Call. 41. On July 23, 2019, Bank, while located in the Eastern District of New York, received, on his residential telephone line, a New York Telephone Call. 42. On August 1, 2019, Bank, while located in the Eastern District of New York, received, on his residential telephone line, a New York Telephone Call. 43. On August 2, 2019, Bank, while located in the Eastern District of New York, received, on his residential telephone line, a New York Telephone Call. 44. Bank repeats and re-alleges, and incorporates herein, each and every allegation contained in paragraphs “1” through “43” inclusive of this Complaint as if fully set forth herein. 45. Spark violated 47 U.S.C. Section 227(b)(1) with respect to Bank and the other members of the Federal Robocall Class. 46. Bank and the other members of the Federal Robocall Class are entitled to an Order, pursuant to 47 U.S.C. Section 227(b)(3)(A), enjoining Spark from violating 47 U.S.C. 6 Section 227(b)(1). 47. Bank and the other members of the Federal Robocall Class are entitled to statutory damages of $500 per violation pursuant to 47 U.S.C. Section 227(b)(3)(B). 48. In the event that Spark willfully or knowingly violated 47 U.S.C. Section 227(b)(1), Bank and the other members of the Federal Robocall Class are entitled to up an additional $1,000 per violation pursuant to 47 U.S.C. Section 227(b)(3)(C). 49. Bank repeats and re-alleges, and incorporates herein, each and every allegation contained in paragraphs “1” through “43” inclusive of this Complaint as if fully set forth herein. 50. Spark violated 47 C.F.R. Section 64.1200(c)(2) with respect to Bank and the other members of the Federal Robocall Class. 51. Bank and the other Members of the Federal Do-Not-Call Class are entitled to an Order, pursuant to 47 U.S.C. Section 227(c)(5)(A), enjoining Spark from violating 47 C.F.R. Section 64.1200(c)(2). 52. Bank and the other Members of the Federal Do-Not-Call Class are entitled to statutory damages of $500 per violation pursuant to 47 U.S.C. Section 227(c)(5). 53. In the event that Spark willfully or knowingly violated 47 C.F.R. Section 54. Bank repeats and re-alleges, and incorporates herein, each and every allegation contained in paragraphs “1” through “43” inclusive of this Complaint as if fully set forth herein. 55. Spark violated GBL Section 399-p(3)(a) with respect to Bank and the other members of the Federal Robocall Class. 7 56. Bank and the other members of the New York Class are entitled to an Order, pursuant to GBL Section 399-p(9), enjoining Spark from violating GBL Section 399-p(3)(a). 57. Bank and the other members of the New York Class are entitled to statutory damages of $50 pursuant to GBL Section 399-p(9). 58. Bank and the other members of the New York Class are entitled to reasonable legal fees pursuant to GBL Section 399-p(9). 59. Bank, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, brings this action as a Class Action on behalf of: (i) the other Members of the Federal Robocall Class; (ii) the other Members of the Federal Do-Not-Call Class; and (iii) the other Members of the New York Class. 60. Bank, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, brings this action individually, and as a Class Action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) on behalf of: (i) the other Members of the Federal Robocall Class; (ii) the other Members of the Federal Do-Not-Call Class; and (iii) the other Members of the New York Class. 61. Bank believes, with respect to the Federal Robocall Class, Federal Do-Not-Call Class, and New York Class (the “Classes”), that there are thousands of persons whose claims are similar to Bank’s individual claims, and, furthermore, that Bank’s individual claims are typical of the claims of the other Class members. 62. Bank would fairly and adequately protect the interests of each Class. Bank has no interests that are antagonistic to, or in conflict with, the members of the Classes. Indeed, Bank’s interests are, for purposes of this litigation, coincident with the interests of the other Class members. 8 63. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Because the membership of each of the Classes is so numerous that joinder of all members is impracticable, and because the damages suffered by most of the individual members of the Classes are too small to render prosecution of the claims asserted herein economically feasible on an individual basis, the expense and burden of individual litigation make it impracticable for members of the Classes to adequately address the wrongs complained of herein. Bank knows of no impediments to the effective management of this action as a class action. 64.1200(c)(2), Bank and the other Members of the Federal Do-Not-Call Class are entitled to up an additional $1,000 per violation pursuant to 47 U.S.C. Section 227(c)(5). 64. Common questions of law and fact predominate over questions that affect only individual members of the Federal Robocall Class. Among these questions are: (i) whether Spark violated Section 227(b)(1) of the TCPA; (ii) whether Spark willfully or knowingly violated Section 227(b)(1) of the TCPA; (iii) whether the members of the Federal Robocall Class are entitled to injunctive relief as a result of Spark’s violations of Section 227(b)(1) of the TCPA; and (iv) whether the members of the Federal Robocall Class are entitled to damages as a result of Spark’s violations of Section 227(b)(1) of the TCPA, and, if so, how much. 65. Common questions of law and fact predominate over questions that affect only individual Federal Do-Not-Call Class Members. Among these questions are: (i) whether Spark violated 47 C.F.R. Section 64.1200(c)(2); (ii) whether Spark willfully or knowingly violated 47 C.F.R. Section 64.1200(c)(2); (iii) whether the members of the Federal Do-Not-Call Class are entitled to injunctive relief as a result of Spark’s violations of 47 C.F.R. Section 64.1200(c)(2); and (iv) whether the members of the Federal Do-Not-Call Class are entitled to damages as a result of Spark’s violations of 47 C.F.R. Section 64.1200(c)(2), and, if so, how much. 66. Common questions of law and fact predominate over questions that affect only 9 individual members of the New York Class. Among these questions are: (i) whether Spark violated GBL Section 399-p(3)(a); (ii) whether the members of the New York Class are entitled to injunctive relief as a result of Spark’s violations of GBL Section 399-p(3)(a); (iii) whether the members of the New York Class are entitled to damages as a result of Spark’s violations of GBL Section 399-p(3)(a); and (iv) whether the members of the New York Class are entitled to reasonable legal fees as a result of Spark’s violations of GBL Section 399-p(3)(a).

lose

15. The Papacy, or the office of the Pope, known as the Supreme Pontiff, operates and controls the HOLY SEE. The Pope is assisted in the administration of the HOLY SEE and the world-wide Roman Catholic Church by the Roman Curia, which is the administrative headquarters of the HOLY SEE. 16. The HOLY SEE and the Vatican City State are unique and atypical entities. The HOLY SEE runs, directs, supervises and oversees the business, activities, organizations and employees of the worldwide Roman Catholic Church. The HOLY SEE, as an instrumentality of the Vatican City State, maintains diplomatic relations and enters into treaties and agreements with other nation states, including the United States. 18. The Catholic Church is divided into geographic territories or sections it identifies as dioceses and archdioceses. The dioceses are operated by bishops. An archdiocese is a primary diocese in a region identified as a province, headed by an archbishop. An archbishop holds a position of honor among bishops of dioceses, but his position is parallel to that of the diocesean bishops in that an archbishop does not exercise authority over a bishop. Archbishops and bishops, also known as Ordinaries, have authority to conduct the activities of the Catholic Church in their respective territories (herein dioceses and archdioceses are collectively referred to as “Dioceses,” and bishops and archbishops are collectively referred to as “Bishops”). 19. The HOLY SEE has substantial involvement in, and the unqualified right to, control the day-to-day business and operations of its agents and instrumentalities, including the conduct of Diocesan activities by Bishops. 20. The HOLY SEE operates in part from funds raised by Dioceses for its sole benefit, which is a major source of revenue. The Dioceses are obligated to provide funds to support the HOLY SEE (Canon 1271 of the 1983 Code), which funds are provided by the donations of members and parishioners in the Dioceses. Fundraising for the HOLY SEE is accomplished, for example, through a program known as Peter’s Pence, which is coordinated between the HOLY SEE and Bishops, among other agents of the HOLY SEE. 22. A Diocese is created by the Pope. No other official or body in the Catholic Church has this authority. 23. A Bishop is appointed by the Pope. No other official or body in the Catholic Church has this authority. 24. The Pope is the supreme legislator of the Catholic Church, including its Dioceses. The Pope alone has the authority to enact laws and interpret laws governing the Church and its activities. While a Bishop has authority to legislate within the territory of a Diocese, this authority is limited by the Pope and must be consistent with any papal policy statements. Papal policy statements are distributed by the office of the Pope to the Bishops, who are responsible for implementing them and communicating them to the Catholic faithful or directing that they be maintained in secrecy. 25. The Pope is also the supreme administrator of all Church property, including property that is nominally in the name of a Diocese or entity created by a Diocese. 27. A Bishop of a Diocese is required to submit detailed reports concerning the Diocese to the HOLY SEE every five years, known as Quinquennial Reports. This Report is presented to the Pope in a mandatory official visit by the Bishop to the Vatican. A Bishop is otherwise required to send reports and other information concerning the activities or business of the Diocese to the HOLY SEE on demand. 28. The Pope requires that a Bishop take the “Oath of Fidelity” to the HOLY SEE. As the name indicates, the Oath is a promise of total fidelity to the Pope. The failure to comply with the Oath would be a basis for the Pope to use his authority to remove the Bishop. 29. The three primary roles of authority in the Church are Deacons, Priests and Bishops. Deacons and Priests are approved for ministry and are “ordained,” which is the educational and ceremonial process by which individuals become Deacons and Priests. The office of the Bishop is the highest of what are known as “holy orders.” The Bishop is selected, appointed and assigned only by the Pope. A Bishop is the superior of all Priests and other clergy assigned to work within his Diocese. This includes Priests ordained in the Diocese, Priests of a Catholic religious order, and Priests from other Dioceses working in the Diocese. 31. The HOLY SEE has known for centuries that Catholic priests were using their positions and roles in Catholic parishes and schools to sexually molest children. At all relevant times, this was a widespread, ubiquitous and systemic problem in the Catholic Church. 32. The first formal legislations referring to sexual abuse by clerics dates from the Synod of Elvira which took place in the year 309. In the 11th century, St. Peter Damien composed a book, Liber Gomorrhianus (Book of Gommorah), addressed to then Pope Leo IX. The book is a denunciation against sexual immorality in the Church. It condemns as epidemic among clerics in the Church “sodomy,” which encompasses acts of sexual abuse of boys and adolescents. It advocates for the enforcement of severe punishment of the offending clerics, including public humiliation, required fasting, imprisonment in a monastic cell, and custody of the cleric by two monks to prevent future child sexual abuse offenses. 33. The problem of child sexual abuse in the Church nonetheless has continued for centuries, prompting the issuance of policies and standards dictating how Bishops were to respond to allegations of child sexual abuse by Catholic clergy. In 1866 the HOLY SEE issued express instructions to Bishops requiring strict secrecy and perpetual silence concerning allegations of child sexual abuse. These instructions applied to all individuals in the Church having or acquiring knowledge of allegations of child sexual abuse under the penalty of excommunication. This instruction was reiterated and developed in further detail in documents issued by the HOLY SEE in 1922, 1962, 2001 and 2010. 35. The official name of this confidential document is the Instruction on The Manner of Proceeding in Cases of Solicitation (The Vatican Press, 1922) (hereinafter referred to as “Crimen Sollicitationis”. The heading of the document states, “From the Supreme and Holy Congregation of the Holy Office To All Patriarchs, Archbishops, Bishops and Other Diocesan Ordinaries . . . .” It contains specific instructions regarding the handling of child sex abuse by clergy. According to the document itself, it is an “instruction, ordering upon those to whom it pertains to keep and observe it in the minutest detail.” Crimen Sollicitationis, ¶ 11. It sets forth the following secrecy requirement: What is treated in these cases has to have a greater degree of care and observance so that those same matters be pursued in a most secretive way, and, after they have been defined and given over to execution, they are to be restrained by a perpetual silence. (Instruction of the Holy Office, February 20, 1867, n. 14). Each and everyone pertaining to the tribunal in any way or admitted to knowledge of the matters because of their office, is to observe the strictest secret, which is commonly regarded as a secret of the Holy Office, in all matters and with all persons, under the penalty of excommunication latae sententiae, ipso facto and without any declaration [of such a penalty] having been incurred and reserved to the sole person of the Supreme Pontiff, even to the exclusion of the Sacred Penitentiary, are bound to observe [this secrecy] inviolably. Crimen Sollicitationis, ¶ 11. This same document was reissued in substantially the same form by the HOLY SEE on March 16, 1962. 37. The HOLY SEE’s mandatory policy of secrecy under penalty of immediate removal from the Church (excommunication) applies to all those involved in any way with the investigation or processing of a complaint of sexual abuse under the 1922 and 1962 documents. The penalty of automatic excommunication applies to all clerics involved. This penalty may also be imposed on lay persons involved in a case. The grave obligation of absolute and perpetual secrecy applies to all. Through this policy and others, implemented by the Bishops, the HOLY SEE condoned and enabled child sex abuse by Catholic clergy working in the territory of a Diocese. 38. Crimen Sollicitationis reflected a specific procedure and policy that Bishops were required to follow without material discretion, on penalty of excommunication. Compliance with this secrecy policy mandated, among other things, that Bishops (i) not disclose allegations of clergy sexual abuse to law enforcement; (ii) direct victims and their families to not report incidents of clergy sexual abuse to law enforcement; and (iii) provide no warning or disclosure that may protect other Catholic parishioners and students from sexual abuse. The HOLY SEE’s secrecy policy mandated that the Bishop follow a specific course of action in response to an allegation of child sexual abuse. 40. The HOLY SEE has the right to control the organizational body of U.S. Bishops, known as the U.S. Conference of Catholic Bishops (USCCB). Upon information and belief, policy or legislation proposed by the USCCB is subject to approval by the HOLY SEE, particularly that concerning the handling of allegations of clergy sex abuse. In 2018, the HOLY SEE directed that the USCCB table a proposal the USCCB was prepared to vote on and approve that would have established standards for clergy conduct and a process for the evaluation of Bishops in complying with these standards. In May 2019, the Pope issued a Motu Proprio, i.e., a worldwide order to Bishops and other Church officials, which set forth standards and procedures for response to allegations of clergy sex abuse. The Bishops of the USCCB are required to comply with the Motu Proprio. 41. At all relevant times, the Dioceses’ acts and omissions were subject to the HOLY SEE’S direction and control. Specifically, the HOLY SEE had the right to direct the Bishops how to respond to an allegation or report of clergy sexual abuse of a child. As demonstrated by the above-described policy statements, the HOLY SEE did so direct the Bishops to respond by maintaining the strict secrecy of the allegations under penalty of removal and excommunication. C. Non-Immunity of Agent or Instrumentality of a Foreign State Under 28 U.S.C. § 1605(a) 42. This action is for money damages sought against an agency or instrumentality of a foreign state, the HOLY SEE, for personal injuries occurring in the United States. 44. The claim for relief set forth herein is based upon the exercise or performance of mandatory duties or functions required of the Bishops by the HOLY SEE. In particular, the HOLY SEE imposed mandatory policies that required the Bishops to maintain the strict secrecy of allegations and reports of clergy sex abuse. The Bishops had no discretion to deviate from this secrecy policy and were forbidden by the HOLY SEE from disclosing or reporting clergy sex abuse. 45. The Bishops’ response to allegations or reports of child sexual abuse by clergy had no element of independent decision making or considerations of public policy or morals. The Bishops were forbidden from taking actions or making decisions in noncompliance with the secrecy mandates of the HOLY SEE. 46. The HOLY SEE’s secrecy policy enabled and emboldened child sexual predators among clergy working in the Dioceses, creating an environment and system which they could engage in child sexual abuse with impunity. As a result, children encountering clergy in the Dioceses were placed at foreseeable risk of child sexual abuse by clergy sexual predators. D. The New York Dioceses’ Compensation Programs 47. Each of the Dioceses located in the State of New York instituted programs or plans in which victims of child sexual abuse by clergy could make claims and receive some compensation for their damages. 49. Essentially the same IRCP was instituted by each of the Diocese of Brooklyn, Diocese of Rockville Centre, Diocese of Syracuse and Diocese of Ogdensburg. As with the Archdiocese of New York, the IRCPs for these Dioceses were administered by Kenneth R. Feinberg and Camille S. Biros. 50. The Diocese of Buffalo initiated an IRCP in 2018, administered by former state court Judges. The Diocese of Albany began a compensation program in 2004. The Diocese of Rochester also instituted its own compensation program in 2018. 51. In all of the IRCPs and compensation programs, the Diocese’s objective was to obtain releases from victims of clergy sexual abuse preventing them from bringing their claims in court. The settlements required that the victim execute a release in favor of the Diocese and its agents in exchange for the compensation being paid. 52. The IRCPs and other compensation programs instituted by the Dioceses located in the State of New York were a response to legislative initiatives in New York State that would revive claims for child sexual abuse that had been barred by the expiration of the statute of limitations. The programs were designed to settle claims at a substantial discount on the premise that the claims would remain barred by the statute of limitations and the victims had no recourse to file their claims in court. 54. Given the purpose and intent of the settlement programs, the victims of child sexual abuse settling their claims in these programs received only a small fraction of the damages to which they would have been entitled in a court of law. 55. The PLAINTIFFS and the CLASS all have claims for negligence set forth herein that were previously time barred and qualify for the revival of the statute of limitations pursuant to Section 214-g of the New York Civil Practice Law and Rules, effective August 14, 2019. These claims are timely filed within the window of § 214-g. 55. Upon information and belief, the releases executed by each of the Plaintiff and members of the CLASS do not release the Defendant HOLY SEE. E. Nature of Conduct Causing Injuries to PLAINTIFFS and the CLASS 56. PLAINTIFFS and the members of the CLASS all suffered physical, psychological and emotional injuries as a result of conduct which constitutes a sexual offense on a minor as defined in Article 130 of the New York Penal Law, including without limitation, conduct constituting rape (consisting of sexual intercourse) (N.Y. Penal Law §§ 130.25 – 130.35); criminal sexual act (consisting of oral or anal sexual conduct) (N.Y. Penal Law §§ 130.40 – 130.53), and/or sexual abuse (consisting of sexual contact) (N.Y. Penal Law §§ 130.55 – 130.77). 57. This action is brought and may properly be maintained as a class action under the provisions of Rule 23(b)(3) of the Federal Rules of Civil Procedure. 59. The members of this putative CLASS are so numerous that separate actions or joinder of parties, whether required or permitted, is impracticable. 61. The claims of PLAINTIFFS are typical of the claims of the CLASS, in that they were all sexually abused as children by Catholic clergy in the State of New York; they all presented claims to IRCP or other compensation programs instituted by the respective Dioceses; they all received some monetary compensation on their claims which were premised on the compensation program being their only recourse because their claims had expired under the statute of limitations then in effect; they all executed releases in substantially the same form which released the Diocese but did not release the HOLY SEE; and they all have claims that qualify under the revival statute, Section 214-g of the Civil Practice Law and Rules, which allow their claims against the HOLY SEE to be filed and prosecuted at this time. 62. A class action is superior to other available methods for the fair, just, and efficient adjudication of the claims asserted herein. Joinder of all the members of the CLASS is impracticable and it would be impractical for individual members of the CLASS to pursue separate claims. At the same time, the CLASS members, while numerous, are identifiable as they each submitted and released claims in claims settlement programs instituted by the Dioceses. Moreover, prosecution of separate actions by individual members of the CLASS would create the risk of varying and inconsistent adjudications and would unduly burden the courts. 64. PLAINTIFFS have no interest antagonistic to the interests of the other members of the CLASS with respect to this action or the claims for relief herein. 65. PLAINTIFFS are committed to the vigorous prosecution of this action and have retained competent legal counsel. 66. HERMAN LAW is experienced in group/class claims and the representation of victims-survivors of childhood sexual abuse. 67. HERMAN LAW devotes its practice to the representation of victims of sexual abuse in civil claims. It has represented over 1,000 victims of sexual abuse in civil cases. HERMAN LAW has experience representing substantial groups of victims in clergy sexual abuse cases against entities of the Roman Catholic Church. 68. PLAINTIFFS are adequate representatives of the CLASS and, together with their attorneys, are able to, and will fairly and adequately, protect the interests of the CLASS. 69. PLAINTIFFS and their counsel anticipate no difficulty in the management of this litigation as a class action. A. Agency Relationship Between Defendant HOLY SEE and Catholic Bishops

lose

FOR OVER HALF OF TOTAL IQ LOSS FROM CHILDREN’S EXPOSURES TO ARSENIC AND LEAD IN BABY FOOD ............................................................ 36 APPENDIX F: DATA AND CALCULATIONS—AVERAGE HEAVY METALS LEVELS FROM CHILDREN’S EXPOSURES TO ARSENIC AND LEAD IN BABY FOOD Healthy Babies Bright Futures (HBBF) commissioned a new study from Abt Associates (Abt) to quantify the health impacts posed by multiple heavy metals in baby food. This work gives first-ever estimates of the population-wide decline in IQ from children’s exposures to lead and arsenic in food, from birth to 24 months of age. It also gives the 15 baby foods that collectively account for 55 percent of the total IQ loss from these exposures. OF THE RISK. RICE-BASED FOODS TOP THE LIST. Our research substantiates the widespread presence of toxic heavy metals in baby foods found in prior studies, almost no enforceable limits or guidelines on what’s allowed, and the common occurrence of arsenic and lead in excess of recommended levels to protect children’s health (Table 1, page 12). Although many foods are contaminated, a few stand out: 15 foods consumed by children under 2 years of age account for 55 percent of the risk to babies’ brains, according to a new study commissioned by HBBF and detailed in this report (see Findings section and Appendix E). These include apple and grape juice, oat ring cereal, macaroni and cheese, puff snacks and 10 other foods. But topping the list are rice-based foods—infant rice cereal, rice dishes and rice-based snacks. These popular baby foods are not only high in inorganic arsenic, the most toxic form of arsenic, but also are nearly always contaminated with all four toxic metals. The new study, completed by the nationally recognized toxicology and economic research firm Abt Associates, estimates that lead and arsenic in rice-based foods account for one-fifth of the more than 11 million IQ points children lose from birth to 24 months of age from all dietary sources. This concentrated risk underscores the need for swift action from FDA and baby food companies to reduce arsenic levels in rice-based foods.

lose

14. Plaintiff brings claims, pursuant to the Federal Rules of Civil Procedure (hereinafter “FRCP”) Rule 23, individually and on behalf of the following consumer class (the “Class”) consisting of: a) All consumers who have an address in the state of Texas b) who were sent an initial collection letter from the Defendant c) attempting to collect a consumer debt d) which does not clearly identify the creditor to whom the debt is allegedly owed (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. 16. Excluded from the Plaintiff Classes 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 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 Exhibit A, violate 15 U.S.C. § 1692e and 1692g. 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 above herein with the same force and effect as if the same were set forth at length herein. 24. Some time prior to August 12, 2016, Plaintiff incurred an obligation that arose out of a transaction for personal, family or household purposes. 25. The alleged obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 26. Defendant contends that the debt is past due. 27. Defendant is a company that uses mail, telephone or facsimile in a business the principal purpose of which is the collection of debts, or that regularly collects or attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors. 28. The creditor of this obligation directly or through an intermediary contracted the Defendant to collect the alleged debt. 29. On or about August 12, 2016, the Defendant caused to be delivered to the Plaintiff a collection letter in an attempt to collect the alleged debt. See Exhibit A. 30. Upon information and belief, the August 12, 2016 letter was the first communication between the Defendant and Plaintiff regarding the alleged debt. 32. The August 12, 2016 letter is a “communication” as defined by 15 U.S.C. §1692a(2). 33. The Plaintiff received and read the Letter sometime after August 12, 2016. 34. The Letter stated in part: Total Balance Due: $1,869.55” 35. The Letter further stated: 36. By listing a different creditor and current creditor, the plaintiff was left unsure as to which creditor the Defendant was seeking to collect for. 37. Pursuant to 15 U.S.C. §1692g(a)(2) a debt collector must within five days after the initial communication, send the consumer a written notice containing the name of the creditor to whom the debt is owed. 38. The obligation is not only to identify the name of the creditor, but to convey the name of the creditor clearly and explicitly. 40. “Thus, in order to comply with the requirements of section 1692g, more is required than the mere inclusion of the statutory debt validation notice in the debt collection letter, the required notice must also be conveyed effectively to the debtor.” See, Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir .1991). Moreover, the validation notice required by the Act “is to be interpreted from the perspective of the ‘least sophisticated debtor.’ ” Graziano, 950 F.2d at 111 41. Congress further desired to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S.Rep. No. 95–382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699. 42. The rights afforded to consumers under Section 1692g are amongst the most powerful protections provided by the FDCPA. A consumer who receives notice of the rights provided by that section, and who exercises his right to dispute the debt, has the power to stop collection activity until verification of the debt is provided. 43. By failing to identify the current creditor to whom the debt is owed, the Defendant caused the Plaintiff real harm, by depriving her of information which she had a statutorily granted right to receive. 44. 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. 46. The Defendant violated said provision by using false representation or deceptive means to collect or attempt to collect a debt in violation of 1692e(10). 47. The Defendant further violated said provision by failing to clearly convey the name of the current creditor in violation of 1692g(a)(2). 48. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692 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. §1692 et seq.

win

21. Defendant is a 3D printed kids toys company that owns and operates the website, shop.make.toys (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. 38. Upon information and belief, because TOYBOX LABS, INC.’s Website has never been accessible and because TOYBOX LABS, INC. does not have, and has never had, an adequate 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: a. that TOYBOX LABS, INC. retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so the goods and services on them may be equally accessed and enjoyed by individuals with vision related disabilities; b. that TOYBOX LABS, INC. work with the Mutually Agreed Upon Consultant to ensure that all employees involved in website development and content development be given web accessibility training on a periodic basis, including onsite training to create accessible content at the design and development stages; c. that TOYBOX LABS, INC. work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; d. that TOYBOX LABS, INC. work with the Mutually Agreed Upon Consultant to perform end-user accessibility/usability testing on a periodic basis with said testing to be performed by individuals with various disabilities to evaluate whether its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; e. that TOYBOX LABS, INC. work with the Mutually Agreed Upon Consultant to create an accessibility policy that will be posted on its Website, along with an e-mail address and tollfree phone number to report accessibility-related problems; and f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two years after the Mutually Agreed Upon Consultant validates it is free of accessibility errors/violations to ensure it has adopted and implemented adequate accessibility policies. 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. 46. 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. 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. 51. 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). 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). 61. 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). 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. 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 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

15. At all times relevant, Plaintiff Wolf was an individual residing in the State of Maryland. However, from 2010 to 2014, Plaintiff resided in Philadelphia, Pennsylvania. 16. Plaintiff is, and at all times mentioned herein was, a “person” as defined by 27. Plaintiff brings this action on behalf of herself and on behalf of all other persons similarly situated (hereinafter referred to as “the Class”). 28. Plaintiff proposes the following Class definition, subject to amendment as appropriate: All persons within the United States who, on or after October 16, 2013, received a SMS text message to a cellular telephone advertising membership in the “Lyft Pioneer” program, and for whom Lyft cannot demonstrate prior express written consent. Collectively, all these persons will be referred to as “Class members.” Plaintiff represents, and is a member of, the Class. Excluded from the Class are Lyft and any entities in which Lyft has a controlling interest, Lyft’s agents and employees, any Judge to whom this action is assigned and any member of such Judge’s staff and immediate family, and claims for personal injury, wrongful death and/or emotional distress. 8 See 2012 Declaratory Ruling, 27 F.C.C.R. at 1844 (¶33). Case4:15-cv-01441-JSW Document1 Filed03/30/15 Page5 of 10 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 1220377.1 - 6 - 38. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if fully stated herein. 39. The foregoing acts and omissions of Lyft constitute numerous and multiple knowing and/or willful violations of the TCPA, including but not limited to each of the above-cited provisions of 47 U.S.C. § 227 et seq. Case4:15-cv-01441-JSW Document1 Filed03/30/15 Page7 of 10 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 1220377.1 - 8 - 42. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 43. The foregoing acts and omissions of Lyft constitute numerous and multiple violations of the TCPA, including but not limited to each of the above cited provisions of 47 U.S.C. § 227 et seq. 44. As a result of Lyft’s violations of 47 U.S.C. § 227 et seq., Plaintiff and Class members are entitled to an award of $500.00 in statutory damages for each and every SMS text message in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 45. Plaintiff and Class members are also entitled to and do seek injunctive relief prohibiting Lyft’s violation of the TCPA in the future. 46. Plaintiff and Class members are also entitled to an award of attorneys’ fees and costs. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ. VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ.

lose

14. At all times relevant, Plaintiff was a citizen of the State of Florida. Plaintiff is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153 (39). 15. Blowoutpicks.com is, and at all times mentioned herein was, a corporation and “persons,” as defined by 47 U.S.C. § 153 (39). 16. At all times relevant Blowoutpicks.com conducted business in the State of Florida and in Broward County, within this judicial district. 17. Blowoutpicks.com utilizes bulk SPAM text messaging, or SMS marketing, to send unsolicited text messages, marketing and advertising of Blowoutpicks.com’s sports gambling prediction services, including at least 6 unsolicited text messages to Plaintiff. 20. Plaintiff was at no time given an option to “opt-out” of receiving future unsolicited text messages from Blowoutpicks.com. 21. At no time did Plaintiff provide Plaintiff’s cellular phone number to Blowoutpicks.com through any medium, nor did Plaintiff consent to receive such an unsolicited text message. 22. Plaintiff has never signed-up for, and has never used, Blowoutpicks.com’s services, and has never had any form of business relationship with Blowoutpicks.com. 23. Through the unsolicited SPAM text messages, Blowoutpicks.com contacted Plaintiff several times on Plaintiff’s cellular telephone regarding an unsolicited service via an “automatic telephone dialing system,” (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) and prohibited by 47 U.S.C. § 227(b)(1)(A). 24. Upon information and belief, this ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 25. Upon information and belief, this ATDS has the capacity to store numbers on a list and to dial numbers from a list without human intervention. 26. The telephone number Blowoutpicks.com called was assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 27. This text message constituted a call that was not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i). 28. Plaintiff did not provide Blowoutpicks.com or its agents prior express consent to receive text messages, including unsolicited text messages, to his cellular telephone, pursuant to 32. Plaintiff brings this class action under rules 23(a) and 23(b)(2) & (b)(3) of the Federal Rules of Civil Procedure on behalf of itself and of a similarly situated “Class” or “Class Members” defined as: All persons in 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. 33. Excluded from the Class are: any Defendant, and any subsidiary or affiliate of that Defendant, and the directors, officers and employees of that Defendant or its subsidiaries or affiliates, and members of the federal judiciary. 35. Numerosity: At this time, Plaintiff does not know the exact number of Class Members, but among other things, given the nature of the claims and that Blowoutpicks.com’s conduct consisted of a standardized SPAM text messaging campaign electronically sent to particular telephone numbers, Plaintiff believes, at a minimum, there are greater than forty (40) Class Members. Plaintiff believes that the Class is so numerous that joinder of all members of the Class is impracticable and the disposition of their claims in a class action rather than incremental individual actions will benefit the Parties and the Court by eliminating the possibility of inconsistent or varying adjudications of individual actions. 36. Upon information and belief, a more precise Class size and the identities of the individual members thereof are ascertainable through Blowoutpicks.com’s records, including, but not limited to Blowoutpicks.com’s text and marketing records. 37. Members of the Class may additionally or alternatively be notified of the pendency of this action by techniques and forms commonly used in class actions, such as by published notice, e-mail notice, website notice, fax notice, first class mail, or combinations thereof, or by other methods suitable to this class and deemed necessary and/or appropriate by the Court. 40. Typicality: Plaintiff’s 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 course of conduct that violates the TCPA. 41. Plaintiff and members of the Class each received at least one SPAM text advertisement, advertising the casino and betting services, which contained no purported opt-out notice, which Blowoutpicks.com sent or caused to be sent to Plaintiff and the members of the Class. 42. Adequacy of Representation: Plaintiff is an adequate representative of the Class because Plaintiff’s 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 has no interests antagonistic to the members of the Class. Plaintiff has retained counsel, who are competent and experienced in litigation in the federal courts, TCPA litigation and class action litigation. 44. Class-Wide Injunctive Relief and Rule 23(b)(2): Moreover, as an alternative to or in addition to certification of the Class under Rule 23(b)(3), class certification is warranted under Rule 23(b)(2) because Blowoutpicks.com has acted on grounds generally applicable to Plaintiff and members of Class, thereby making appropriate final injunctive relief with respect to Plaintiff and Class Members as a whole. Plaintiff seeks injunctive relief on behalf of Class Members on grounds generally applicable to the entire Class in order to enjoin and prevent Defendant Blowoutpicks.com’s ongoing violations of the TCPA, and to order Blowoutpicks.com to provide notice to them of their rights under the TCPA to statutory damages and to be free from unwanted text messages. 45. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 44 of this Complaint as though fully stated 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, Par. 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 above. 49. 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. 50. Defendant has, therefore, violated Sec. 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. 51. The foregoing acts and omissions of Blowoutpicks.com constitutes numerous and multiple violations of the TCPA, including but not limited to each and every one of the above- cited provisions of 47 U.S.C. § 227 et seq. 52. As a result of Blowoutpicks.com’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). 54. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 44 and 46 – 48 of this Complaint as though fully stated herein. 55. At all relevant times, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 56. 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. 57. Because Defendant knew or should have known that Plaintiff and Class Members did not give prior express consent to receive autodialed calls, the Court should treble the amount of statutory damages available to Plaintiff and members of the putative Class pursuant to § 227(b)(3) of the TCPA. 58. As a result of Blowoutpicks.com’s knowing and/or willful violations of 47 U.S.C. § 227(b), Plaintiff and The Class 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). KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227(b) VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227(b)

lose

(Fair Labor Standards Act Violations) (Violations of Ohio Revised Code 4111.03) 16. Defendant is a home health care business. 17. Plaintiff Richard Wells has been employed by Defendant since November 2015. 4 18. At all times relevant herein, Plaintiff has been employed by Defendant as a home health aide. 19. Other similarly-situated employees were employed by Defendant as home health aides. 20. Plaintiff and other similarly-situated home health aides were employed by Defendant as non-exempt employees under the FLSA. 21. Plaintiff and other similarly-situated home health aides were paid an hourly wage. (Failure to Pay Overtime Compensation) 22. Plaintiff and other similarly-situated home health aides worked more than 40 hours per week, but Defendant failed to pay them overtime compensation for the hours they worked over 40 each workweek. 23. Rather than paying overtime compensation, Plaintiff and other similarly-situated home health aides were only paid straight time for the hours they worked over 40 each workweek. (Failure to Pay For All Hours Worked) 24. Plaintiff brings Count One of this action on his own behalf pursuant to 29 U.S.C. 216(b),3 and on behalf of all other persons similarly situated who have been, are being, or will be adversely affected by Defendant’s unlawful conduct. 24. Plaintiff and other similarly-situated home health aides were paid by Defendant for time spent at client appointments. 25. The class which Plaintiff seeks to represent and for whom Plaintiff seeks the right to send “opt-in” notices for purposes of the collective action, and of which Plaintiff is himself a member, is composed of and defined as follows: All current and former home health aides employed by Noor Home Health Care LLC at any time between January 1, 2015 and the 3 Plaintiff’s Consent Form is attached hereto. 6 present. 25. Plaintiff and other similarly-situated home health aides performed work between client appointments, including but not limited to driving to and from client homes and taking clients to appointments. 26. The amount of overtime hours Plaintiff and other similarly situated home health aides worked are reflected on their time sheets and pay stubs. 26. However, Defendant did not pay Plaintiff and other similarly-situated home health aides for all of the hours they worked between client appointments. 5 27. All of these activities occurred between the commencement of their first principal activity and the completion of their last principal activity during the workday, and thus, are compensable under the continuous workday rule. 27. Plaintiff estimates, that on average he worked between ten (10) and twenty (20) overtime hours per week. 28. As a result of Defendant’s practice and policy of not paying Plaintiff and other similarly-situated home health aides for all of the work they performed between client appointments, Plaintiff and other similarly-situated home health aides were denied significant amounts of overtime compensation. (Failure to Keep Accurate Records) 28. Plaintiff is unable to state at this time the exact size of the potential class, by upon information and belief, avers that is consists of at least 100 persons. 29. Defendant failed to make, keep and preserve accurate records of the unpaid work performed by Plaintiff and other similarly-situated home health aides, including time worked between client appointments. (Defendant Willfully Violated the FLSA) 29. 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. In addition to Plaintiff, numerous current and former employees are similarly situated with regard to their wages and claims for unpaid wages and damages. Plaintiff is representative of those other employees and is acting on behalf of their interests as well as his own in bringing this action. 30. 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. 30. Defendant knowingly and willfully engaged in the above-mentioned violations of the FLSA. 31. Plaintiff brings Count Two of this action pursuant to Fed. R. Civ. P. 23(a) and (b)(3) on behalf of himself and all other members of the class (“the Ohio Class”) defined as: All current and former home health aides employed by Noor Home Health Care LLC at any time between January 1, 2015 and the present. 7 32. The Ohio Class is so numerous that joinder of all class members is impracticable. Plaintiff is unable to state at this time the exact size of the potential Ohio Class, but upon information and belief, avers that it consists of at least 100 persons. 33. There are questions of law or fact common to the Ohio Class, including but not limited to the following: (a) whether Defendant failed to pay overtime compensation to its home health aides for hours worked in excess of 40 each workweek; and (b) what amount of monetary relief will compensate Plaintiff Richard Wells and other members of the class for Defendant’s violation of R.C. 4111.03 and 4111.10. 34. The claims of the named Plaintiff Richard Wells are typical of the claims of other members of the Ohio Class. Named Plaintiff’s claims arise out of the same uniform course of conduct by Defendant, and are based on the same legal theories, as the claims of the other Ohio Class members. 35. Named Plaintiff Richard Wells will fairly and adequately protect the interests of the Ohio Class. His interests are not antagonistic to, but rather are in unison with, the interests of the other Ohio Class members. The named Plaintiff’s counsel has broad experience in handling class action wage-and-hour litigation, and is fully qualified to prosecute the claims of the Ohio Class in this case. 36. The questions of law or fact that are common to the Ohio Class predominate over any questions affecting only individual members. The primary questions that will determine Defendant’s liability to the Ohio Class, listed above, are common to the class as a whole, and predominate over any questions affecting only individual class members. 8 37. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Requiring Ohio Class members to pursue their claims individually would entail a host of separate suits, with concomitant duplication of costs, attorneys’ fees, and demands on court resources. Many Ohio Class members’ claims are sufficiently small that they would be reluctant to incur the substantial cost, expense, and risk of pursuing their claims individually. Certification of this case pursuant to Fed. R. Civ. P. 23 will enable the issues to be adjudicated for all class members with the efficiencies of class litigation. 38. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 39. Defendant’s practice and policy of not paying Plaintiff and other similarly- situated home health aides overtime compensation at the rate of one and one-half times their regular rate of pay for the hours they worked over 40 each workweek violated the FLSA, 29 43. Plaintiff in corporates by reference the foregoing allegations as if fully rewritten herein. 44. Defendant’s practice and policy of not paying Plaintiff and other similarly- situated home health aides overtime compensation at the rate of one and one-half times their regular rate of pay for the hours they worked over 40 each workweek violated the OMFWSA,

win

26. Defendants operate a luxury car and limousine transportation business, using an integrated network of transportation, communication, and dispatch facilities. 27. During the relevant periods, upon information and belief, Carey N.Y. has employed over two hundred Drivers to pick up, transport, and drop off passengers, at times and locations, and for prices, determined by Defendants. The Drivers transport passengers to and from the major commercial airports in the New York City metropolitan area, including John F. Kennedy Airport, LaGuardia Airport, and Newark Airport. The Drivers also transport passengers on other non-airport runs that are contracted between Defendants and their customers. 29. Defendants employ dispatchers, customer service representatives, and other managerial employees at their dispatch facilities, who obtain and assign customers and jobs to the Drivers. Upon information and belief, Defendants’ managerial employees have supervisory responsibility over the Drivers. Upon information and belief, the customer service representatives field complaints about the Drivers, which may then be used to discipline the Drivers. Defendants’ dispatchers instruct the Drivers where to go and which passengers to pick up. The Drivers interact with Defendants’ personnel throughout their workday. 30. During relevant the statutory period, Carey mandated the clothes that the Drivers were required to wear, including a Carey-designed black and silver tie, a black conservative suit, and a white dress shirt. 31. The Drivers are required to provide vehicles that comply with Defendants’ specifications. The vehicles must be black and must be one of the specified models approved by Defendants. The vehicles must be more under three years old. 33. Upon information and belief, until fall 2013, the Drivers were required to participate in an insurance policy from a single underwriter (hereinafter, the “Policy”) which covered all Drivers. The Drivers paid Defendants insurance premium at a rate determined by Defendants, and Defendants paid collective premium to the underwriter for the Policy. Drivers had no control over the terms and condition of the Policy, including the premium amount and deductibles. Upon information and belief, insurance policies which provided substantively the same coverage as the Policy were available in the market at lower premium. 34. Upon information and belief, the total of premium payments collected from the Drivers exceeded the collective premium payment made to the insurance underwriter for the Policy. Upon information and belief, Defendants retained the excess amount collected from the Drivers. For example, Defendants paid approximately $1,056,881 to an insurance underwriter for an insurance policy which covered all Drivers from January 31, 2013 to January 31, 2014. Upon information and belief, Defendants collected more than two million dollars of insurance premium from the Drivers for the insurance policy during the same time period. 35. Upon information and belief, since fall 2013, the Drivers were able to purchase insurance policies which provided substantively the same coverage as the Policy at lower premium from other insurance underwriters. 37. Upon information and belief, the Drivers are required to accept jobs assigned to them by Defendants, or the Drivers will be punished by getting written up and/or by the withholding of other assignments, forcing the Drivers to sit idly without receiving pay. 38. Upon information and belief, during the relevant time period, the Drivers have routinely worked more than ten hours a day and more than 40 hours a week. They have been required by Carey to work late nights, weekends, and holidays. 39. Upon information and belief, the Drivers do not cruise for customers, and cannot accept passengers who attempt to hail the Drivers on the street without a prior reservation made through Defendants. Until around the fall of 2013 (approximately the time when other lawsuits similar to this one were being litigated against Carey affiliates in other states), the Drivers were not permitted to provide services independent of Defendants’ dispatch system without Defendants’ consent, upon threat of discipline. Throughout the relevant time period, Drivers have depended on Defendants for the opportunity to render their services and receive pay. 40. Defendants control the compensation paid to the Drivers. Defendants unilaterally set the prices charged to customers for the services rendered by the Drivers. Pursuant to contracts with the Drivers, Defendants have agreed to pay the Drivers a specified percentage of the fees Defendants charge the customers, minus various employment-related deductions. The Drivers have no control over the rates charged to Defendants’ customers. 42. Defendants promulgate and enforce detailed rules and policies that govern, among other things, Driver appearance, vehicle appearance, and specific items that must be contained in the vehicle. Drivers must pay for business cards bearing the Driver’s name and the Company’s reservation telephone number and logo. If a Driver violates the Company’s rules, the Company may terminate the Driver’s employment, while retaining the significant “base fee” payments the Driver has made to the Company. 43. Upon information and belief, Carey International arranges reservations for a substantial percentage of the passengers driven by Plaintiffs and the Class Members. Upon information and belief, Carey International communicates with Carey N.Y., which then relays Carey International’s job assignments to the Drivers. Upon information and belief, Carey International is responsible for paying Drivers and mailing their paychecks. 44. Plaintiffs and similarly-situated Drivers perform the services that are the central, essential portion of Defendants’ business: providing and operating the vehicles that transport Defendants’ customers. 45. Despite Defendants’ pervasive control over the Drivers’ work, Defendants have uniformly classified and treated the Drivers as non-employee “independent operators.” 47. As a result of Defendants misclassifying the Class Members as “independent operators,” and the long hours Defendants have required the Class Members to work, Defendants have willfully and knowingly failed to pay premium overtime compensation to Plaintiffs and similarly-situated Class Members for hours worked in excess of 40 hours per week. 48. As a result of Defendants misclassifying the Class Members as “independent operators,” and the long hours Defendants have required the Class Members to work, and taking into account the employment-related expenses and deductions the Class Members are forced to bear, Defendants have failed to pay minimum wage compensation to Plaintiffs and similarly- situated Class Members for all hours worked. 49. As a result of Defendants misclassifying the Class Members as “independent operators,” Defendants have willfully and knowingly failed to pay an additional hour’s pay at the minimum hourly wage rate for each day on which Plaintiffs and the Class Members worked ten or more hours. 51. Plaintiffs are informed, believe, and on that basis allege, that as a result of Defendants misclassifying the Class Members as “independent operators,” Defendants have not properly maintained payroll records showing the actual hours worked each day by the Class Members, including Plaintiffs. 52. As a result of Defendants misclassifying the Class Members as “independent contractors,” Defendants have willfully and knowingly failed to pay Drivers, upon termination of employment, all accrued compensation due. 53. Defendants, by and through their agents, induced and/or coerced Plaintiffs and certain Class Members, on threat of non-assignment of future work, to pay Defendants’ agents part of their earned compensation as a “kickback.” Upon information and belief, the Drivers have been coerced to pay Defendants’ dispatchers as much as one thousand dollars per month to be assigned desirable work. Upon information and belief, Drivers who do not participate in the “kickback” scheme are punished by being assigned fewer customers than the Drivers who do. 54. Upon information and belief, Defendants’ managerial employees were aware of the “kickback” scheme but failed to take any corrective measures. 56. Plaintiffs bring this action on behalf of themselves and other employees similarly situated as authorized under the FLSA, 29 U.S.C. § 216(b). The similarly- situated employees are: Collective Class: All persons who worked as drivers for Carey N.Y. during the period commencing six years prior to the filing of the action entitled Lim v. Carey Limousine NY, Inc., 14 Civ. 05883 (WFK)(JO) (E.D.N.Y.) (filed on October 7, 2014) through the entry of final judgment in this action (tolled for failure to post notice and based on prior filing) who are not covered by the settlement of the Prior Action or opted out of the settlement of the Prior Action. 57. Upon information and belief, Defendants suffered and permitted Plaintiffs and the Collective Class to work more than 40 hours per week without overtime compensation, and at a rate sometimes below the minimum wage. 58. Defendants’ unlawful conduct has been repeated and consistent. 59. Upon information and belief, Defendants knew that Plaintiffs and the Collective Class performed work that required overtime pay. Defendants have operated under a scheme to deprive these employees of appropriate overtime compensation. 61. Defendants misclassified Plaintiffs and the Collective Class members as independent contractors who were not offered the protection of Federal minimum wage and overtime laws. Defendants misrepresented to these employees that they were independent contractors and therefore not entitled to minimum wages or overtime pay. Class Action Allegations 62. Plaintiffs bring the New York law claims alleged herein as a class action on behalf of all persons who worked as Drivers for Carey N.Y. during the Class Period covered herein who opted out of the class action settlement agreement in the action Lim v. Carey Limousine NY, Inc., 14 Civ. 05883 (WFK)(JO) (E.D.N.Y.). Plaintiffs seek to pursue their claims on behalf of the following class: New York Class: All persons who worked as drivers for Carey N.Y. during the period commencing six years prior to the filing of the action entitled Lim v. Carey Limousine NY, Inc., 14 Civ. 05883 (WFK)(JO) (E.D.N.Y.) (filed on October 7, 2014) through the entry of final judgment in this action, who are not covered by the settlement of the Prior Action or opted out of the settlement of the Prior Action. 63. The New York class claims may properly be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure. The claims satisfy the requirements of Rule 23, and the proposed Class is easily ascertainable. 65. Typicality: Plaintiffs’ claims are typical of those of the New York Class Members. Plaintiffs, like other Class Members, worked as Drivers for Defendants and were misclassified as independent contractors. Plaintiffs and the Class Members have all sustained similar damages in that they have been under-compensated due to Defendants’ misclassification of them. Plaintiffs’ duties were typical of the Class, and Plaintiffs were subject to the same common policies and practices by which Defendants controlled the conduct of other Class Members. Like other Class Members, Defendants paid Plaintiffs lower amounts than they were promised under their contracts with Carey N.Y. 66. Adequacy: Plaintiffs are members of the Class, do not have any conflicts of interest with the Class, and will prosecute the case vigorously on behalf of the Class. Plaintiffs will fairly and adequately protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, and in particular, misclassification litigation. 67. Commonality: There are questions of law and fact common to Plaintiffs and the Class Members that predominate over any question affecting only individual members of the class. These common questions of law and fact include, without limitation: 68. Whether the Class Members have served Defendants as employees rather than independent contractors under New York law; 70. Whether Defendants have knowingly and intentionally made improper deductions from the compensation paid to the Class Members in violation of NYSLL § 193; 71. Whether Defendants have required, encouraged, or permitted the Class Members to work in excess of 40 hours per week; 72. Whether Defendants knew or should have known that the Class Members regularly worked over 40 hours per week; 73. Whether Defendants have knowingly and intentionally failed to pay the Class Members minimum wage for all hours worked in violation of NYSLL § 652; 74. Whether Defendants have failed to pay the Class Members overtime wages for time worked in excess of 40 hours per week in violation of NYSLL § 652 and 83. Plaintiffs repeat and re-allege each and every allegation in the foregoing paragraphs as if set forth fully herein. 84. Plaintiffs consent in writing to be parties to this action, pursuant to 29 U.S.C. § 216(b). Plaintiffs’ written consent forms are attached hereto. Plaintiffs anticipate that other individuals will continue to sign consent forms and join as Plaintiffs. 85. At all relevant times, notwithstanding Defendants’ classification of Plaintiffs and similarly-situated Drivers as independent contractors, Defendants exercised control over the terms and conditions their work so that they were actually “employees” within the meaning of 29 U.S.C. § 203(d). 87. Defendants, as owners, officers and/or management of Defendants, were responsible for the wage and hour practices complained of herein and are therefore considered “employers” within the definition of 29 U.S.C. § 203(d). 88. Plaintiffs and the Drivers directly facilitated the movement of passengers engaged in business that included interstate transactions, and also transported passengers across state lines. Plaintiffs and the Drivers are therefore employees “engaged in commerce or in the production of goods for commerce” as defined in 29 U.S.C. §§ 206(a), 207(a). 89. Defendants’ operations, individually and collectively, constitute an “enterprise” as defined in 29 U.S.C. § 203(r). The annual gross volume of sales made or business done by Defendants’ operations, individually and collectively, is in excess of $500,000. Accordingly, Defendants are an “enterprise engaged in commerce” within the meaning of 29 U.S.C. § 203(s)(1). 90. Pursuant to Section 206 of the Fair Labor Standards Act, 29 U.S.C. § 206, the federal minimum wage for the three years preceding the filing of this Complaint was $7.25 per hour. 91. During the Class Period, Plaintiffs and the other Drivers have each worked weeks in which they earned less than the federal minimum wage, after deductions and expenses. 92. Defendants, by the above acts, have violated 29 U.S.C. § 206. 94. Plaintiffs repeat and re-allege each and every allegation in the foregoing paragraphs as if fully set forth herein. 95. At all relevant times, notwithstanding Defendants’ classification of Plaintiffs and the Class Members as independent contractors, Defendants exercised control over the terms and conditions of Plaintiffs’ and the Class Members’ work so that they were actually “employees” within the meaning of NYSLL § 651. 96. Defendants, through integrated operations, were Plaintiffs’ and the Class Members’ “employers” within the meaning of NYSLL § 651. 97. Defendants, as owners and/or officers of Defendants, were responsible for the wage and hour practices complained of herein and are therefore considered “employers” within the definition of NYSLL § 651. 98. Pursuant to Section 652 of the NYSLL, the minimum rate of wage for the six years preceding the filing of this complaint was $7.15 per hour until July 23, 2009; $7.25 per hour from July 24, 2009 to December 30, 2013; and $8.00 per hour from December 31, 2013 to December 30, 2014; and $8.75 per hour from December 31, 2014 to December 30, 2015; and $9.00 per hour from December 31, 2015 to the present. 99. During the Class Period, Plaintiffs and the Class Members have each worked weeks in which they earned less than the applicable minimum wage, after deductions and expenses. 100. Defendants, by the above acts, have violated NYSLL § 652 and 12 Failure to Pay Overtime Wage – NYSLL (Brought on behalf of Plaintiffs and the New York Class) 107. Plaintiffs repeat and re-allege each and every allegation in the foregoing paragraphs as if set forth fully herein. 108. At all relevant times, Defendants have not paid Plaintiffs and the Class Members at the statutorily required overtime rate of 1.5 times their normal hourly rate for the hours worked in excess of 40 hours in a week. 109. Defendants, by the above acts, have violated NYSLL § 652 and 12 Failure to Pay Minimum Wage – NYSLL (Brought on behalf of Plaintiffs and the New York Class) Failure to Pay Wages When Due – NYSLL (Brought on behalf of Plaintiffs and the New York Class) 122. Plaintiffs repeat and re-allege the allegations set forth in the foregoing paragraphs as if set forth fully herein. 123. Defendants misclassified Plaintiffs and the Drivers as independent contractors, and therefore failed to pay them overtime and minimum wage when due, among other wages owed. 124. Plaintiffs and the Class Members were “manual workers” as defined in Failure to Pay Overtime Wage – FLSA (Brought on behalf of Plaintiffs and the Collective Class) 102. Plaintiffs repeat and re-allege each and every allegation in the foregoing paragraphs as if set forth fully herein. 103. Plaintiffs and the similarly-situated Drivers regularly worked more than 40 hours per week during their employment with Defendants. 104. At all relevant times, Defendants have not paid Plaintiffs and the Drivers at the statutorily required overtime rate of 1.5 times their normal hourly wage for the hours worked in excess of 40 hours in a week. 105. Defendants, by the above acts, have violated 29 U.S.C. § 207. 106. Upon information and belief, said violations are willful within the meaning of 29 U.S.C. § 255(a). Failure to Pay Minimum Wage – FLSA (Brought on behalf of Plaintiffs and the Collective Class) Failure to Pay Spread of Hours Pay – NYSLL (Brought on behalf of Plaintiffs and the New York Class) 111. Plaintiffs repeat and re-allege the allegations set forth in the foregoing paragraphs as if set forth fully herein. 112. For each day in which the “spread of hours” from the beginning of Plaintiffs’ and the Class Members’ day to the end of the day exceeded ten hours, Defendants failed to pay them an additional hour’s pay at the minimum hourly wage rate. 113. Defendants, by the above acts, have violated NYSLL § 652 and 12 Notice and Recordkeeping Requirements – NYSLL (Brought on behalf of Plaintiffs and the New York Class) 128. Plaintiffs repeat and re-allege each and every allegation in the foregoing paragraphs as if recited at length herein. 129. Pursuant to NYSLL § 195, Defendants were required to furnish Plaintiffs and the Class Members with an annual notice containing the rate or rates of pay and the basis thereof, whether paid by 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 191 of the NYSLL; 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 such other information as the commissioner deems material and necessary. 130. Defendants failed to provide Plaintiffs and the Class Members with any such notice at any time during their employment. 131. Defendants had no good faith basis to believe that their actions were in compliance with the law, within the meaning of NYSLL § 198.

win

26. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23, individually and on behalf of the stockholders of Proteostasis’ common stock who are being and will be harmed by Defendants’ actions described herein (the “Class”). The Class specifically excludes Defendants herein, and any person, firm, trust, corporation or other entity related to, or affiliated with, any of the Defendants. 34. Proteostasis engages in the discovery and development of novel therapeutics to treat Cystic Fibrosis (“CF”). The Company's lead product candidates for the treatment of CF include PTI- 801, a cystic fibrosis transmembrane conductance regulator (CFTR) corrector agent; PTI-808, a CFTR potentiator; and PTI-428, a CFTR amplifier. The Company has collaboration agreements with the Cystic Fibrosis Foundation, Inc. to research, develop, and commercialize products for the treatment of CF, non-classical CF, and other pulmonary diseases in the United States or the European Union; and Genentech, Inc. for licensing the technology and materials relating to therapeutic small molecule modulators. 35. On June 1, 2020, the Company announced it was evaluating its PTI-129 cystic fibrosis drug as a treatment for COVID-19. 36. Speaking on the possibility and need of these studies, Defendant Chhabra, President and CEO of Proteostasis, stated, “The ongoing COVID-19 pandemic is a public health crisis that demands the investigation of all possible avenues of resolution," said Defendant Chhabra, ‘We are exploring ways to further our understanding of PTI-129's potential in fighting COVID-19, and are seeking support from governmental agencies to accelerate this program.” Vice President Chatterjee added, “The urgent need to develop effective treatments against COVID-19 is a global priority, and Calibr is committed to studying a broad spectrum of compounds and pathways, such as the UPR modulator, PTI-129, in the fight against this disease.” 85. Plaintiff repeats all previous allegations as if set forth in full herein. 86. The Individual Defendants have violated their fiduciary duties of care, loyalty and good faith owed to Plaintiffs and the Company’s public stockholders. 96. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 97. Defendants Proteostasis and Yumanity knowingly assisted the Individual Defendants’ breaches of fiduciary duty in connection with the Proposed Transaction, which, without such aid, would not have occurred 98. As a result of this conduct, Plaintiff and the other members of the Class have been and will be damaged in that they have been and will be prevented from obtaining a fair price for their shares. 99. Plaintiff and the members of the Class have no adequate remedy at law. Aiding and Abetting the Board’s Breaches of Fiduciary Duty (Against Defendants Proteostasis and Yumanity) Claim for Breach of Fiduciary Duties (Against the Individual Defendants) Company Background

lose

11. Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure (“F.R.C.P.”) Rule 23, on behalf of all employees who were paid their wages in cash 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”). 12. 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. 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 F.R.C.P. 23. 13. The proposed Class is so numerous such 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 presently within the sole control of Defendants, there is no doubt that there are more than forty (40) members of the Class. 15. Plaintiff is able to fairly and adequately protect the interests of the Class and have no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in both class action litigation. 17. 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. b) Whether Defendants failed to withhold taxes from the wages of Plaintiff and the Class. c) Whether Defendants provided Plaintiff and the Class with accurate tax statements for each tax year that they worked; 18. Plaintiff, JORGE PACHECO was employed by Defendants as a dishwasher from in or around July 2015 until in or around September 2017. 19. From the commencement of his employment by Defendants in or about July 2015 to in or about September 2017, Plaintiff PACHECO was employed by Defendants to work for both of Defendants’ Penn Station Chickpea Restaurant locations. During his employment, Plaintiff was routinely transferred between the two locations in Penn Station, pursuant to instructions of Defendants and of managerial employees of Chickpea, on an as needed basis, until his termination in September 2017. 20. Throughout his entire employment, Plaintiff PACHECO was paid in cash, and was not given any form of wage statement when he received his pay. 21. Defendants failed to withhold any of Plaintiff’s wages for tax purposes. 23. Defendants knew or should have known that they had a legal duty to withhold taxes from all of Plaintiff’s earnings and to provide Plaintiff with accurate W-2 tax statements for each tax year during which Plaintiff worked. 24. Defendants’ actions were willful, and showed reckless disregard for the provisions of the Internal Revenue Code. 25. Defendants had a legal obligation to file accurate tax statements with the IRS. 26. Plaintiff realleges and reavers Paragraphs 1 through 25 of this class action Complaint as if fully set forth herein. 27. By failing to provide Plaintiff and the Collective Action with accurate IRS Forms W-2 for all of the tax years during which they were employed by Defendants, and failing to properly record, account for, and report to the IRS all monies paid to Plaintiff and the Class as compensation for all of the work Plaintiff and the Class performed during the course of their employment with Defendants, and failing to withhold amounts listed on W-2 forms as monies withheld, Defendants filed fraudulent information returns with the IRS, in violation of 26 U.S.C. § 7434. CIVIL DAMAGES FOR FRAUDULENT FILING OF INFORMATION RETURNS UNDER 26 U.S.C. § 7434(a)

lose

13. At all times material hereto, Defendants were each agents, servants, employees and/or representatives of each other and acted within the course and scope of their employment and/or agency and/or acted for a common purpose or as part of a joint venture. 14. This Class Action lawsuit deals with all current and former guests at all Sandals’ resorts, including but not limited to: Turks and Caicos Islands, St. Lucia, Antigua, and Barbuda who were charged a local government tax and/or deceived into paying such tax that in whole or in part was secretly retained by Sandals for their own use and benefit. This fraudulent deceptive practice has been ongoing for decades. 25. At all times material hereto, the Class Representative and Class Members were paying guests at Sandals’ resorts. 26. This action is brought by Plaintiff on his own behalf, and on behalf of all others similarly situated, under the provisions of Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. 27. Plaintiff brings this action as a class action and proposes the following two classes, as defined below: 41. This Count is brought pursuant to the Florida Deceptive and Unfair Trade Practices Act 52. Sandals received certain monies from Plaintiff and others similarly situated as a result of its uniform charging of a local government tax that was surreptitiously retained in whole or in part by Sandals. 53. The benefits conferred on Sandals by Plaintiff and others similarly situated was non- gratuitous, and Sandals had knowledge of these benefits and voluntarily retained these benefits. A. Class Definitions UNJUST ENRICHMENT Plaintiff re-alleges, adopts, and incorporates by reference the allegations in paragraphs 1 through forty (40) as though alleged originally herein and further alleges: VIOLATION OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT Plaintiff re-alleges, adopts, and incorporates by reference the allegations in paragraphs 1 through forty (40) as though alleged originally herein and further alleges:

lose

91. Aside from selecting proprietary mutual funds that charged excessive fees and had a track record of poor performance, Defendants also failed to adequately investigate non- mutual fund alternatives such as collective trusts and separately managed accounts. 93. Separate accounts offer a number of advantages over mutual funds, including the ability to negotiate fees and greater control by the plan sponsor or fiduciary over the investment guidelines. 94. While certain of the Plan’s options used institutional share classes, costs within separate accounts are typically much lower than even the institutional share class of mutual funds. 95. For example, Deutsche Bank itself offers its institutional clients separately- managed accounts in the same investment styles as the Plan’s proprietary mutual funds, including the Deutsche Large Cap Value, Capital Growth, and Real Estate Securities funds. Deutsche Bank’s advertising materials state that the minimum investment for these separate accounts is $25 to $30 million, with fee schedules that decline as assets increase. The Plan’s proprietary funds generally far exceed that threshold; the Plan has over $100 million invested in each of the three proprietary funds mentioned above, for example. 97. Similarly, Defendants could have reduced the expenses paid in the Deutsche Large Cap Value fund from 68 to 47 basis points by converting the mutual fund to the separate account structure advertised by Deutsche Bank to its institutional clients. 98. Moreover, unlike mutual funds, which by law must charge the same fee to all investors, separate account fee schedules are subject to negotiation. Industry data shows that actual fee schedules on separate accounts are typically lower than advertised fee schedules, particularly when the plan or investor has a large amount of assets to invest, as did the Plan here. Accordingly, the fee savings that Defendants could have obtained for the Plan were even greater than the amounts reflected in the investment managers’ advertised fee schedules. COLLECTIVE TRUSTS

win

10. In the Complaint, RPI alleges breach of contract and breach of trust causes of action against Deutsche Bank. RPI alleges that, although required by the Governing Agreements and its duty as trustee, Deutsche Bank willfully ignored and failed to effectuate the repurchase of mortgage loans in the Covered Trusts that had breached the representations and warranties from the originators, warrantors and/or sellers ("Warrantors"), despite receiving extensive notification of and possessing actual knowledge of specific breaches, and possessing knowledge from numerous sources of pervasive substandard underwriting and outright fraud in the origination of those loans. Deutsche Bank took virtually no action to protect the investors because its primary concern was preserving its lucrative business interests with the deal parties responsible for making the repurchases. 12. The Complaint expressly and repeatedly alleges that Deutsche Bank acted negligently and engaged in willful misconduct. See ^172, 174, 176, 178, 179, 197, 199. 13. For example, the Complaint catalogs a series of lawsuits regarding specific loans in the specific Covered Trusts that informed Deutsche Bank that there were numerous defective mortgage loans in the Covered Trusts that breached the Warrantors' representations and warranties. ^97. Moreover, Deutsche Bank had granular visibility into the breaches of representations and warranties, such as misstated income or debt ratios, learned through the bankruptcies of the mortgage loan borrowers and through the due diligence of its own affiliates. ^99-114. 14. Deutsche Bank discovered rampant failures by the Servicers to service the loans in conformance with the customary and usual standards of loan servicing practice, which constituted numerous Events of Default under the Governing Agreements. In as early as 2008, Deutsche Bank learned that one of the servicers of the Covered Trusts, Saxon, was violating several state laws, again an Event of Default under the Governing Agreements. ^119. In addition, the Servicers botched numerous foreclosure actions due to gross errors, blatant misrepresentations or criminal conduct. Courts noted that Deutsche Bank was even acquiescing in or actively participating in this misconduct; yet Deutsche Bank did not take action to protect the certificateholders as it was required to do under the prudent-person standard, a duty of care akin to that of a fiduciary. ^124-128. 16. Deutsche Bank and its counsel have consistently incurred unreasonable expenses in defending itself in the Litigation by using scorched earth tactics. For example, the court struck an unauthorized letter brief (Litigation Dkt. 252) that had no purpose other than to inform the court "that lawyers sometimes cite different cases depending on what side of an issue they are on." See Transcript of Aug. 12, 2016 Hearing at 4:23-5:2. Furthermore, it has insisted on taking depositions of witnesses with little or no knowledge of information relevant to the Litigation, despite being offered the testimony of those witnesses regarding nearly identical issues in similar matters. Deutsche Bank has also conducted inappropriately oppressive discovery, such that the court ordered Deutsche Bank to pay RPI's legal fees in relation to a reopened Fed. R. Civ. P. 30(b)(6) deposition. 18. Deutsche Bank's improper use of the Covered Trusts' funds reduces the amount of money that the certificateholders are entitled to receive as part of their beneficial ownership of the certificates. Certificateholders have a beneficial interest in the interest and principal payments derived from the mortgage loans that serve as the corpus for each Covered Trust. However, before the certificateholders receive their monthly remittances, the trustee (and certain other deal parties) to the Governing Agreements may withdraw funds from the Covered Trusts' assets to pay for their costs administering the trust or servicing the loans. While the certificateholders are not a party to the Governing Agreements, the 19. Governing Agreements require Deutsche Bank to administer the Covered Trust for the sole benefit of the certificateholders. See, e.g., FFML 2006-FF9 PSA §2.01(a). Thus, as the only intended beneficiaries of the Covered Trusts, they are directly damaged whenever assets or funds are wrongly siphoned from the Covered Trusts' assets. Accordingly, it is the certificateholders themselves that are funding the defense of their adversary, Deutsche Bank, the party that wronged them, in the Litigation. The Governing Agreements 21. 34. current and former investors who held RMBS certificates in the Covered Trusts during the time when Deutsche Bank improperly paid for its legal fees and costs in the Litigation from the Covered Trusts' assets and were damaged as a result (the "class"). Excluded from the class are Deutsche Bank, the loan originators, the Warrantors, the Master Servicers and the Servicers of the Covered Trusts, and their officers and directors, their legal representatives, successors or assigns, and any entity in which they have or had a controlling interest. The members of the class are so numerous that joinder of all members is 35. impracticable. While the exact number of class members is unknown to plaintiff at this time and can only be ascertained though appropriate discovery, plaintiff believes that there are at least hundreds of members of the proposed class. Record owners and other members of the class may be identified from records maintained by Deutsche Bank, Depository Trust Company or others and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions. Plaintiffs claims are typical of the claims of the members of the class, as they all 37. Plaintiff will fairly and adequately protect the interests of the members of the class and has retained counsel competent and experienced in class action and RMBS litigation. 38. Deutsche Bank has acted in a manner that applies generally to the class because each class member is impacted through any improper charge to the Covered Trusts' assets. Accordingly, declaratory or injunctive relief will apply to the class as a whole. Common questions of law and fact exist as to all members of the class and 40. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all class members is impracticable. There will be no difficulty in the management of this action as a class action. 41. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 43. As alleged herein, Deutsche Bank took actions not permitted by the Governing Agreements and therefore breached the Governing Agreements. Deutsche Bank's contractual breaches deprived plaintiff, the class and the Covered Trusts of the consideration they bargained for, i.e., they did not obtain RMBS certificates with a trustee that complied with its obligations under the Governing Agreements and could be relied on to properly bill its legal expenses. These breaches of the Governing Agreements by Deutsche Bank caused plaintiff, the class and the Covered Trusts to suffer damages caused by the improperly billed legal expenses. 44. Plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when Deutsche Bank took actions that resulted in the payment of legal fees and costs from the Covered Trusts incurred in defending against allegations of bad faith and willful or negligent misconduct. 45. Furthermore, plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when Deutsche Bank took actions that resulted in it receiving an advancement of legal fees and costs from the Covered Trusts incurred in relation to the Litigation. 46. Finally, plaintiff and the class did not receive the benefit of their bargain under the Governing Agreements when Deutsche Bank billed unreasonable legal fees and costs to the Covered Trusts. 48. In addition, Deutsche Bank has engaged in multiple, new and additional breaches of the Governing Agreements by continuing to take further actions as alleged herein, in both the Litigation and this action, and will cause plaintiff, the class and the Covered Trusts to suffer additional damages. 49. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 50. Deutsche Bank has received a specific benefit from its use of the Covered Trust funds for legal fees and costs at the expense of plaintiff and the class. 51. As trustee, Deutsche Bank had a fiduciary relationship to plaintiff, the class and the Covered Trusts, and Deutsche Bank was aware of that relationship. 52. In light of the egregious use of Covered Trust funds to finance the defense of the Litigation, restitution is necessary because equity and good conscience cannot permit Deutsche Bank to retain the legal fees and costs. 53. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 55. By using Covered Trust funds for unlawful and unreasonable legal fees and costs, Deutsche Bank has wrongfully converted Covered Trust funds belonging to plaintiff and the class. 56. As a direct and proximate result of Deutsche Bank's wrongful taking and interference of Trust Funds, plaintiff and the class have sustained damages and losses equal to the specific and identifiable amount of legal fees and costs misappropriated by Deutsche Bank. 57. At no point did plaintiff or class members consent to Deutsche Bank's use of Covered Trust funds for defending itself in the Litigation. Deutsche Bank's conduct was gross, willful and wanton, and at the least was 58. undertaken with reckless disregard of plaintiff's rights, and therefore warrants the imposition of punitive damages. 59. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 60. Under the common law, Deutsche Bank had a duty to plaintiff and the class to only seek indemnification of permitted legal fees and costs incurred for the benefit of the Covered Trusts. As a result of Deutsche Bank's actions in relation to allegations in the Litigation, 61. Deutsche Bank is not entitled to indemnity. 63. In addition, Deutsche Bank breached its duty of trust owed to plaintiff and the class by seeking unreasonable legal fees and expenses from the Covered Trusts assets. 64. Furthermore, Deutsche Bank has continued bill the Covered Trusts as alleged above and thus has continued to fail to fulfill its duty of trust, and has thereby engaged in numerous, continuing additional breaches of its duty of trust to the present time, in both the Litigation and this action. 65. As a result of Deutsche Bank's breach of its duty of trust, unpermitted legal fees and costs were billed to and paid from the Covered Trusts assets, causing the plaintiff and class damages. Deutsche Bank's conduct was gross, willful and wanton, and at the least was 66. undertaken with reckless disregard of plaintiff's rights, and therefore warrants the imposition of punitive damages. 67. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. As an RMBS trustee, Deutsche Bank had, and continues to have, a fiduciary 68. relationship with and duty to certificateholders regarding the assets of the Covered Trusts in which certificateholders have a beneficial interest. 69. The funds held in the Covered Trusts are entrusted to Deutsche Bank's administration and oversight. 70. Deutsche Bank's fiduciary duty and control of entrusted funds impose a burden of accounting. 72. Deutsche Bank has declined to provide such an accounting upon plaintiff's request. 73. Plaintiff repeats and realleges each and every allegation set forth in the preceding paragraphs as if fully set forth herein. 74. A valid and justiciable controversy exists between plaintiff and Deutsche Bank regarding Deutsche Bank's right to indemnification from the Covered Trusts for legal fees and costs Deutsche Bank incurred in defending the Litigation. Plaintiff contends, and Deutsche Bank denies, that Deutsche Bank is not entitled to indemnification from the Covered Trusts for any loss, liability or expense associated with the Litigation because the Governing Agreements and New York law prohibit: (a) indemnification of first-party claims or those between indemnitor and indemnitee; (b) the use of Covered Trust funds for legal fees and costs incurred in defending against allegations of negligence, bad faith and willful misconduct; (c) using the Covered Trust funds for the unreasonable legal fees and costs incurred in defending itself in the Litigation; and (d) obtaining advancement of Deutsche Bank's legal fees and costs from the Covered Trusts incurred in relation to the Litigation. 9. that case, RPI alleges that Deutsche Bank failed to fulfill its duties as trustee of the Covered Trusts and thereby damaged RPI and the class of RMBS certificateholders. The operative complaint in the Litigation (the "Complaint") is found at Dkt. No. 1 of the Litigation and incorporated by reference herein. Breach of Contract Breach of Trust Conversion DECLARATORY AND INJUNCTIVE RELIEF Plaintiff, vs. Declaratory Judgment Regarding Deutsche Bank's Right to Indemnification for Legal Fees and Costs Incurred in Defending the Litigation from the Covered Trusts Equitable Accounting Plaintiff brings this action as a class action on behalf of a class consisting of all RPI is the plaintiff in the Litigation currently proceeding against Deutsche Bank. In Unjust Enrichment

lose

12. Shortly thereafter, Plaintiff began receiving text messages from Capital One on his cellular phone. 13. The Plaintiff’s cellular phone number is identified as 757-###-5014. 14. Based upon information and belief, the Defendant sent the text messages using an automatic dialing system as defined by 47 U.S.C. § 227(a)(1). 15. After receiving the messages, the Plaintiff texted “STOP” from his cell phone to shortcodes 227898 and 728464 pursuant to the Capital One Terms and Conditions Agreement that governed his banking relationship with Capital One. 16. The Plaintiff sent the “STOP” requests on multiple occasions, including but not limited to, November 3, 2018, and November 4, 2018. 17. Notwithstanding that Plaintiff followed Capital One’s instructions explicitly to get the text messages to stop, the Plaintiff continued to receive text messages from Capital One. 18. On or about November 5, 2018, the Plaintiff sent a letter by U.S. Mail to Capital One requesting that it stop sending text messages to his cell phone. 19. The Plaintiff continued to receive text messages from the Defendant. 20. On or about November 9, 2018, the Plaintiff sent an email to Capital One requesting that it stop sending text messages to his cell phone. 21. The Plaintiff continued to receive text messages from the Defendant. 22. On or about November 27, 2018, the Plaintiff sent a second letter to Capital One requesting that it stop sending text messages to his cell phone. 24. Despite the Defendant receiving multiple notifications from the Plaintiff that he did not want to receive text messages from Capital One, the Defendant continued to send text messages to the Plaintiff’s cellular phone. 25. The Defendant failed to comply with the requirements of the TCPA and associated governing F.C.C. Rules and Regulations by continuing to transmit unwanted text messages via an ATDS to the Plaintiff after he had revoked his consent, causing the Plaintiff to sustain damages to include, but not limited to: intrusion on the Plaintiff’s privacy, occupation of the capacity of the Plaintiff’s cell phone, wasting of the Plaintiff’s time, additional cellular charges, and accompanying emotional distress. 26. The Defendant is aware of its obligations under the TCPA. 27. In 2014, the Defendant settled one of the largest TCPA class action lawsuits in history. 28. One of the terms of the settlement agreement was that the Defendant was required to overhaul its TCPA compliance procedures. 29. Despite knowing these legal obligations, the Defendant acted consciously in breaching its known duties and violated the Plaintiff’s rights by failing to cease sending text messages to Plaintiff’s cell phone using an ATDS after the Plaintiff revoked his consent. 30. The Defendant’s conduct was not a mere mistake or accident. Instead, it was the intended result of their standard operating procedures, and the Defendant’s violations were willfully and knowingly committed. 31. From November 3, 2018 (the date that the Plaintiff first revoked his consent) to present, he has received at least 153 text messages from the Defendant. 32. The Plaintiff restates each of the allegations in paragraphs 1 through 30 as if set forth at length herein. 33. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Plaintiff brings this action for himself and on behalf of a class defined as follows: All natural persons residing in the United States (a) who opened a Capital One checking account, (b) within the four-year period preceding the filing of this action and during its pendency, (c) to whom Capital One thereafter sent text messages using an ATDS, (d) after such date as the class member revoked his or her consent. Excluded from the class definition are any employees, officers, or directors of Capital One, any attorney appearing in this case, and any judge assigned to hear this action. 34. The Plaintiff also bring this action on behalf of a portion of the Class described as the following subclass: The Short Code Subclass All natural persons residing in the United States (a) who opened a Capital One checking account, (b) within the four-year period preceding the filing of this action and during its pendency, and (c) to whom Capital One thereafter sent text messages using an ATDS, (d) after such date as the class member revoked his or her consent by sending the phrase “STOP” to short code 227898 or to short code 728464. Excluded from the class definition are any employees, officers, or directors of Capital One, any attorney appearing in this case, and any judge assigned to hear this action. 36. The Plaintiff’s claim is typical of those of the class members. All are based on the same facts and legal theories. Capital One’s failure to stop sending text messages using an ATDS after a person revokes consent is typical of its regular business practices and policies. 37. The Plaintiff will fairly and adequately protect the interests of the class. The Plaintiff has retained counsel experienced in handling class actions. Neither the Plaintiff nor his counsel has any interests that might cause them to not vigorously pursue this action. The Plaintiff is aware of his responsibilities to the putative class and has accepted such responsibilities. 38. Certification of a class under Rule 23(b)(1) of the Federal Rules of Civil Procedure is proper. Prosecuting separate actions would create a risk of adjudications that would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair their ability to protect their interests. 39. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure is appropriate in that the Defendant has acted on grounds generally applicable to the class, thereby making appropriate declaratory relief with respect to the class as a whole. 41. Capital One violated 47 U.S.C. § 227(b)(1)(A)(iii) by using an ATDS to send text messages to the Plaintiff and purported class members’ phones lines after they revoked their consent. 42. The Defendant’s conduct was not a mere mistake or accident. Instead, it was the intended result of their standard operating procedures 43. As a result of Capital One’s conduct and actions, the Plaintiff and purported class members suffered actual damages. 44. As a result of Capital One’s conduct and actions, the Plaintiff and purported class members, are entitled to statutory damages. 45. Defendant’s violations of 47 U.S.C. § 227(b)(1)(A)(iii) were willfully and knowingly committed, rendering the Defendant liable for actual or statutory damages, and treble damages under 47 U.S.C. § 227(b)(3).

win

10. Cabela’s is a specialty retailer and is the world’s largest direct marketer, of hunting, fishing, camping, and related outdoor merchandise. In 2015, Cabela’s had nearly $4 billion in revenue. 11. At the end of 2015, Cabela’s operated 77 retail stores in 36 states and in six Canadian provinces. 12. Cabela’s, through a wholly-owned bank subsidiary, World’s Foremost Bank (“WFB” or “Cabela’s CLUB”), issues and manages the Cabela’s CLUB Visa credit card, a rewards based credit card program. WFB is a special purpose, FDIC insured, Nebraska state- chartered bank. 13. During 2015, Cabela’s had approximately 1.9 million active credit card accounts. 14. When consumers sign up for a Cabela’s CLUB Visa credit card issued by WFB, they are presented with disclosures that make it clear that Defendant makes autodialed and prerecorded calls: You agree that WFB, its affiliates and agents ("Covered Parties") has express consent to contact you at any telephone number you provide to WFB, or from which you call or may be called by WFB (including but not limited to telephone numbers publically associated with you), and you further agree that such contacts are not unsolicited. You additionally agree that the Covered Parties may contact you at those number(s) via text message, automatic dialer calls, live operator and/or pre-recorded/artificial voice messages. You agree to be contacted by the Covered Parties via all of these methods whether or not the phone number is a home phone or work phone, or whether it connects to any type of mobile/wireless device, and also regardless of whether you will be charged by your telecommunications service provider for receipt of the calls/messages at those phone number(s). https://www.cabelas.com/assets/instantcredit/regs.html 5 15. Cabela’s also represents how it utilizes autodialed and prerecorded calls when attempting to collect debts from a Cabela’s CLUB Visa credit card holders: “Collection and Recoveries. We employ a “cradle to grave” collection approach whereby a collector will work all delinquency categories. We classify an account as delinquent when the minimum payment due on the account is not received by the payment date specified by the statement cycle. Accounts are placed in collection status with an internal or third party collector at various stages of delinquency. All delinquent accounts enter collections no later than 15 days delinquent. We employ an autodialer, which distributes accounts to collectors. Current account to collector ratios are as follows:” (emphasis added) http://www.nasdaq.com/markets/ipos/filing.ashx?filingid=2765524 16. Pursuant to the TCPA, a company must obtain prior express consent before using an ATDS or a prerecorded message when calling a cellular telephone. See 47 U.S.C. § 227, et seq. In many instances, Cabela’s calls to consumer’s cellular telephones violate the TCPA because (1) the telephone owner did not consent to receiving the calls (i.e., the consent, if it was obtained at all, was obtained from the prior owner of that telephone number) and/or (2) the current cellular telephone owner has expressly requested not to receive such calls. 17. Indeed, last year, the FCC explicitly held that: the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone) and that caller best practices can facilitate detection of reassignments before calls. We generally agree with commenters who oppose granting these requests that there are solutions in the marketplace to better inform callers of reassigned wireless numbers; that businesses should institute new or better safeguards to avoid calling reassigned wireless numbers and facing TCPA liability; and that the TCPA requires consent from the actual party who receives a call. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02-278, WC No. 07-135, FCC 15-72 (rel. July 10, 2015), available at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order. 6 18. While some Cabela’s customers may elect to receive autodialed and/or prerecorded calls, anyone in the United States may receive autodialed and/or prerecorded calls from Cabela’s on their cellular phone even if they do not have any relationship with Cabela’s. As happened with Plaintiff, Cabela’s places autodialed and prerecorded calls to owners of recycled cellular numbers (many of whom do not even have a relationship with Cabela’s, such as a credit card account) who have not consented to receiving such autodialed or prerecorded calls. For various reasons, cellular telephone subscribers deactivate and relinquish their cellular telephone numbers. Once deactivated, the cellular telephone carrier reassigns the number to another subscriber – a practice known as “recycling.” Recycling times (i.e., the time between deactivation and reassignment) vary across carriers, generally ranging from thirty (30) days to six (6) months depending on location and demand. During the recycling period, the cellular telephone number is considered disconnected. 19. In some instances, the prior owner of a recycled telephone number may have consented to receiving autodialed and/or prerecorded calls from Cabela’s. But, even if the prior owner consented, that consent does not transfer to the new recycled cellular number’s owner. 20. The mobile marketing industry is acutely aware of cellular number recycling and, in particular, the risk associated with placing autodialed and/or prerecorded calls to non- consenting recycled numbers. To help mobile marketers navigate regulatory compliance, the Mobile Marketing Association (“MMA”) publishes guidelines based on accepted industry practices for all mobile marketers. In its October 2012 U.S. Consumer Best Practices for Messaging, the MMA recommends that mobile marketers, such as Cabela’s, “have appropriate and effective systems and processes for managing deactivation and recycled number information. These systems and processes should be designed to ensure that mobile content programs 7 subscribed to by previous holders of a specific phone number do not continue to be delivered or billed to a subsequent holder of that number when it is reassigned.” The MMA further advises mobile marketers to “process deactivation information within three business days of receipt.”1 21. In response to the liability risk associated with recycled numbers, numerous commercially available services exist to help mobile marketers, such as Cabela’s, identify recycled numbers and non-consenting cellular subscribers in real-time. For instance, companies such as Neustar2 Experian3, Early Warning4, Idiology5, and Infutor6 advertise their abilities to instantly identify and flag disconnected telephone numbers from cellular telephone number data lists on a recurring basis (such as weekly or monthly) or on a real-time basis. This type of service can identify disconnected numbers before they are recycled, thereby alerting mobile marketers that any consent associated with those telephone numbers has been terminated. In addition, these services help telemarketers and debt collectors ensure that companies are: (1) identifying the current phone type: landline or wireless before they call, (2) verifying in real-time the current owner of a phone number to avoid calling a recycled phone number, (3) updating and appending accurate address and phone information, and (4) identifying active phone numbers. 22. Despite industry guidelines, commercially available resources and the obvious lack of consent associated with recycled numbers, Cabela’s fails to take the necessary steps to insure that its autodialed and/or prerecorded calls are placed only to consenting recipients. 1The MMA is a global trade organization that issues codes of conduct, best practices, guidelines, rules and instructions for companies engaged in mobile marketing. Its U.S. Consumer Best Practices for Messaging are based on accepted industry practices, common wireless carrier policies and regulatory guidance. With over 800 members, the MMA is the preeminent source for mobile marketing information and expertise 2 https://www.neustar.biz/services/tcpa-compliance 3 http://www.experian.com/assets/consumer-information/white-papers/Flyer-TCPA-110215.pdf 4 https://www.earlywarning.com/pdf/mnv-tcpa-infographic.pdf 5 https://www.idology.com/TCPA_number_verification 6 http://www.infutor.com/industry-data-solutions/tcpa-compliance/ 8 23. To that end, Cabela’s simply treats the new recycled cellular telephone number owner as if he or she were the previous owner. That is, if the previous owner gave consent to receive Cabela’s autodialed and/or prerecorded calls, Cabela’s continues to treat that consent as the consent of the new (unassociated) owner. New owners are then forced to incur the cost and bother of receiving Cabela’s autodialed and/or prerecorded calls. Notably, new owners are provided no express means to contact Cabela’s to make the autodialed and/or prerecorded calls stop. Sometimes, the autodialed and/or prerecorded calls do not even identify “Cabela’s” as the sender or maker of the calls, and consumers, having no prior relationship with Cabela’s, may be completely unaware that the autodialed and/or prerecorded calls are coming from Cabela’s. And, as evidenced by numerous complaints on internet message boards, Cabela’s often disregards consumers’ “stop” requests. 24. Cabela’s knows, or consciously disregards the fact, that its autodialed and/or prerecorded calls are placed to non-consenting, recycled cellular number subscribers. Indeed, Cabela’s has received numerous consumer complaints alerting it to this very fact and requesting that the autodialed and/or prerecorded calls stop. Ultimately, Cabela’s is responsible for verifying cellular telephone number ownership and obtaining consent before placing autodialed and/or prerecorded calls to cellular telephone subscribers. Even with prior cellular subscriber consent, Cabela’s is liable under the TCPA for placing autodialed and/or prerecorded calls to cellular numbers reassigned to new subscribers without the new subscriber’s consent. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 641 (7th Cir. 2012) (under the TCPA, “[c]onsent to call a given number must come from its current subscriber,” not its prior subscriber); Breslow v. Wells Fargo, 2014 WL 2565984 (11th Cir. 2014) (consent from “called party” means consent from the person subscribing to the called number at the time the call was made, not the former 9 subscriber); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, ¶ 123, 18 FCC Rcd. 14014, 2003 WL 21517853 (2003) (“we reject proposals to create a good faith exception for inadvertent autodialed or prerecorded calls to wireless numbers…”) 25. Given the multitude of readily available commercially feasible resources to identify such consumers, Cabela’s had ready means to identify those consumers or obtain their consent before placing autodialed and/or prerecorded calls. 26. Cabela’s also places autodialed and/or prerecorded calls to cellular subscribers who have expressly “opted-out” or requested not to receive its autodialed and/or prerecorded calls. Notably, many of these cellular subscribers never consented to receiving Cabela’s autodialed and/or prerecorded calls in the first place. But, even with prior consent, Cabela’s is required to honor each stop-request as a termination of any prior consent. Accordingly, any autodialed or prerecorded calls made to a cellular subscriber after receiving an express stop request is done without express consent. 27. Cabela’s simply ignores statutory duties and accepted industry guidelines. Instead, Cabela’s makes it notoriously difficult for consumers to opt-out or unsubscribe from autodialed and/or prerecorded calls. 28. Despite receiving numerous express stop requests from cellular subscribers, Cabela’s continues to place autodialed and/or prerecorded calls to these subscribers, sometimes for months afterwards. 29. Cabela’s knows, or consciously disregards the fact, that its autodialed and/or prerecorded calls to these cellular subscribers are unauthorized. 30. The following sample of consumer complaints regarding autodialed and/or 10 prerecorded calls evidences Cabela’s practice of disregarding recycled numbers and placing autodialed and/or prerecorded calls to non-consenting (and often non-Cabela’s customer) cellular telephone owners: • Called and when answered dead air....then disconnect. - http://whocallsme.com/Phone-Number.aspx/8773386191 • Keep receiving these infuriating messages. They then hang up the phone. - http://callercheck.org/phonenumber/8773386191 • The person said they were calling about our Cabela’s VISA card. They would not tell the spouse what it was in regards to but asked my name, which I didn’t give them. They have been calling our number several times a day. - http://findwhocallsyou.com/1-877-338-6191 • This number will call back to back to back. - http://findwhocallsyou.com/1-877- 338-6191 • Calls 20-30 times a day! Hangs up, never leaves a message! - http://www.smallercaller.com/numbers/1-877-338-6191 31. Plaintiff Franklin Eldridge is the subscriber to and customary user of a personal cellular telephone number. 32. In or around February 2016, Plaintiff obtained a new cellular telephone number from Cricket Wireless. Shortly after obtaining his new cell phone number, Plaintiff began receiving autodialed and prerecorded calls to his cellular telephone number from Cabela’s, in an attempt to collect an alleged outstanding debt owed by an unknown third party named “Jonathon Reed,” presumably a prior owner of Plaintiff’s cellular telephone number. 33. Plaintiff Eldridge has received (and continues to receive) approximately 5-10 autodialed and/or prerecorded calls on his cellular telephone number each week, all seeking to collect an outstanding debt allegedly owed by the prior owner of Plaintiff’s cellular telephone number. Below is a partial log of the calls that Plaintiff has received from Defendant from 877-338-6191 11 and 800-707-1374: (Figure 1.) 34. In some cases when Plaintiff answers Cabela’s calls, he hears a pre-recorded message, and other times the calls are silent and then disconnects, which often signifies that the call was made using an autodialing system without human intervention. Other times, Plaintiff noticed a pause and then an agent came onto the line to speak, instead of a mere hang-up. 35. Plaintiff is not a Cabela’s customer and never provided his consent for Cabela’s to contact him. He did not express an interest in receiving information about Cabela’s to any person or entity, including Defendant. 12 36. Plaintiff did not provide his phone number to Defendant or any third-party operating on its behalf, let alone provide his consent to receive autodialed and/or prerecorded calls from Cabela’s. 37. Defendant, or others acting on its behalf, placed these autodialed and/or prerecorded calls to Plaintiff and thousands of members of the putative Classes using equipment having the capacity to store or produce telephone numbers to be called and to dial such numbers, en masse, simultaneously and without human intervention. 37. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 38. Starting in February 2016, Plaintiff has repeatedly asked Defendant to stop calling him, but Defendant has continued to place autodialed and prerecorded calls to Plaintiff, including as recently as July 19, 2016, despite Plaintiff’s requests for them to stop calling and his advising them, on no fewer than three separate occasions, that he was not the person they were seeking and to stop calling him. 38. Defendant made unsolicited and unwanted telemarketing calls to telephone numbers belonging to Plaintiffs and the other members of the Autodialed No Consent Class— without their prior express written consent—in an effort to sell its products and services. 39. Defendant failed to provide any of the language required to obtained prior express written consent under the TCPA, including a disclosure that the consumer was consenting to being called with an autodialer or that providing his or her cellphone number wasn’t a requirement of purchase. 39. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) on behalf of himself and the four classes defined as follows: Autodialed No Consent Class: All persons in the United States from the last four years to the present who (1) Cabela’s (or a third person acting on behalf of Cabela’s) called using an ATDS, (2) on the person’s cellular telephone number, (3) for the purpose of selling Defendant’s products and services, and (4) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it supposedly obtained prior express consent to call the Plaintiff. Pre-recorded No Consent Class: All persons in the United States from the last four years to the present who (1) Cabela’s (or a third person acting on behalf of Cabela’s) called, (2) on the person’s cellular telephone, (3) using a pre-recorded voice, and (4) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it supposedly obtained prior express consent to call the Plaintiff. Autodialed Stop Class: All persons in the United States from the last four years to the present who (1) Cabela’s (or a third person acting on behalf of Cabela’s) 13 called using an ATDS, (2) on the person’s cellular telephone number, (3) after the person informed Cabela’s that s/he no longer wished to receive calls from Cabela’s, and (4) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it supposedly obtained prior express consent to call the Plaintiff. Pre-recorded Stop Class: All persons in the United States from the last four years to the present who (1) Cabela’s (or a third person acting on behalf of Cabela’s) called, (2) on the person’s cellular telephone, (3) used a pre-recorded voice, (4) after the person informed Cabela’s that s/he no longer wished to receive calls from Cabela’s, and (5) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it supposedly obtained prior express consent to call the Plaintiff. 40. The following people are excluded from the Classes: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and its current or former employees, officers and directors; (3) persons who properly execute and file a timely request for exclusion from the Classes; (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. 40. Defendant made the telephone calls 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. 41. Defendant utilized equipment that made the telephone calls to Plaintiff and other members of the Autodialed No Consent Class simultaneously and without human intervention. 16 41. Numerosity: The exact number of members within the Classes 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 made telephone calls to tens of thousands of consumers who fall into the definition of the Classes. Members of the Classes can be identified through Defendant’s records. 42. By making unsolicited telephone calls to Plaintiff and members of the Autodialed No Consent Class’s cellular telephones without prior express consent, and by utilizing an ATDS, Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii). 42. Typicality: Plaintiff’s claims are typical of the claims of other members of the Classes, in that Plaintiff and the members of the Classes sustained damages arising out of Defendant’s uniform wrongful conduct. 14 43. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the Autodialed No Consent Class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA. 43. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Classes and has retained counsel competent and experienced in complex class actions. Plaintiff has no interests antagonistic to those of the Classes, and Defendant has no defenses unique to Plaintiff. 44. Should the Court determine that Defendant’s conduct was willful and knowing, the Court should, pursuant to section 227(b)(3)(C), treble the amount of statutory damages recoverable by Plaintiff and the other members of the Autodialed No Consent Class. 44. Commonality and Predominance: There are several questions of law and fact common to the claims of Plaintiff and the Classes, and those questions predominate over any questions that may affect individual members of the Classes. Common questions for the Classes include, but are not necessarily limited to the following: (a) Whether Defendant used an ATDS; (b) Whether Defendant’s conduct violated the TCPA; (c) Whether Defendant continued to call members of the Classes after they requested to have the calls stopped; (d) Whether Defendant had prior written express consent to call members of the Autodialed No Consent Class and the Prerecorded No Consent Class; (e) Whether Cabela’s had a duty to filter out recycled numbers from its call list; and (f) Whether Plaintiff and the members of the Classes are entitled to statutory and treble damages based on the willfulness of Defendant’s conduct. 45. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 45. Superiority: This case is also appropriate for class certification because class proceedings are superior to all other available methods for the fair and efficient adjudication of this controversy. Joinder of all parties is impracticable, and the damages suffered by the individual members of the Classes will likely be relatively small, especially given the burden and expense of individual prosecution of the complex litigation necessitated by Defendant’s actions. 15 Thus, it would be virtually impossible for the individual members of the Classes to obtain effective relief from Defendant’s misconduct. Even if members of the Classes could sustain such individual litigation, it would still not be preferable to a class action, because individual litigation would increase the delay and expense to all parties due to the complex legal and factual controversies presented in this Complaint. By contrast, a class action presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single Court. Economies of time, effort and expense will be fostered and uniformity of decisions ensured. 46. Defendant made unsolicited and unwanted telemarketing calls to telephone numbers belonging to Plaintiff and the other members of the Pre-recorded No Consent Class on their cellular telephone in an effort to sell its products and services using a pre-recorded voice as defined in the TCPA. 47. Defendant made the telephone calls 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. 48. Defendant utilized equipment that made the telephone calls to Plaintiff and other members of the Pre-recorded No Consent Class simultaneously and without human intervention. 49. By making unsolicited telephone calls to Plaintiff and members of the Pre- 17 recorded No Consent Class’s cellular telephones using a pre-recorded voice, Cabela’s violated 47 U.S.C. § 227(b)(1)(B) by doing so without prior express consent. 50. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the Pre-recorded No Consent Class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA. 51. In the event that the Court determines 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 other members of the Pre-recorded No Consent Class. 52. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 53. Defendant made unsolicited and unwanted telemarketing calls to telephone numbers belonging to Plaintiff and the other members of the Autodialed Stop Class on their cellular telephone after such persons had informed Defendant that they no longer wished to receive such calls from Defendant. 54. Defendant made the telephone calls 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. 55. Defendant utilized equipment that made the telephone calls to Plaintiff and other members of the Autodialed Stop Class simultaneously and without human intervention. 56. By making unsolicited telephone calls to Plaintiff and other members of the Autodialed Stop Class’s cellular telephones after they requested to no longer receive calls, 18 Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii) by continuing to call them without prior express consent. 57. As a result of Defendant’s unlawful conduct, Plaintiff and the other members of the Autodialed Stop Class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA. 58. Should the Court determine that Defendant’s conduct was willful and knowing, the Court should, pursuant to section 227(b)(3)(C), treble the amount of statutory damages recoverable by Plaintiff and the other members of the Autodialed Stop Class. 59. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 60. Defendant made unsolicited and unwanted pre-recorded calls to telephone numbers belonging to Plaintiff and the other members of the Pre-recorded Stop Class on their cellular telephone after such persons had informed Defendant that they no longer wished to receive such calls from Defendant. 61. Defendant made the telephone calls using equipment that had the capacity to play a pre-recorded voice message and 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. 62. Defendant utilized equipment that made the telephone calls to Plaintiff and other members of the Pre-recorded Stop Class simultaneously and without human intervention. 63. By making unsolicited telephone calls to Plaintiff and other members of the Pre- 19 recorded Stop Class’s cellular telephones using a pre-recorded voice after they requested to no longer receive such calls, Cabela’s violated 47 U.S.C. § 227(b)(1)(B) by doing so without prior express consent. 64. As a result of Defendant’s unlawful conduct, Plaintiff and the members of the Pre-recorded Stop Class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular phones and, under Section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500 in damages for each such violation of the TCPA. 65. 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 other members of the Pre-recorded Stop Class. Violation of the TCPA, 47 U.S.C. § 227 (On behalf of Plaintiff and the Pre-recorded Stop Class) Violation of the TCPA, 47 U.S.C. § 227 (On behalf of Plaintiff and the Autodialed No Consent Class) Violation of the TCPA, 47 U.S.C. § 227 (On behalf of Plaintiff and the Pre-recorded No Consent Class) Violation of the TCPA, 47 U.S.C. § 227 (On behalf of Plaintiff and the Autodialed Stop Class)

win

10. Plaintiff, via his counsel, sent Defendant written correspondence dated May 22, 2012, regarding his account ending in 5618, and in such correspondence, notified Defendant that he was represented by counsel and demanded that Defendant cease and desist from engaging in any and all direct communications with Plaintiff, telephonic or otherwise. 11. The May 22, 2012 letter was written by Tracey Tiedman, an attorney at Weisberg & Meyers, LLC, and sent to Chase Card Services. It stated, in relevant part: Please be advised that this office represents the above-named individual regarding the aforementioned account. Having been formally notified of our representation, we respectfully demand you not contact our client for any reason. Instead, please direct all future contact and correspondence to this office and in fact consider this letter express and unequivocal revocation of any permission our client may have provided you to call them….. We reserve the right to seek injunctive relief and damages under federal and state law should you fail to honor these directives. 12. Upon information and good-faith belief, Defendant received Plaintiff’s notice of representation and request to cease and desist communications on or before May 28, 2012—the date on which Defendant responded to the May 22, 2012 letter. 23. The proposed Class specifically excludes the United States of America, the State of Colorado, counsel for the parties, the presiding United States District Court Judge, the Judges of the United States Court of Appeals for the Tenth Circuit, and the Justices of the United States Supreme Court, any entity in which Defendant has or had a controlling interest, all officers and agents of Defendant, and all persons related to within the third degree of consanguinity or affection to any of the foregoing individuals. 24. The Class is averred to be so numerous that joinder of all members is impracticable. 25. The exact number of members of the Class is unknown to Plaintiff at this time and can be ascertained only through appropriate discovery. 26. Upon information and good-faith belief, the proposed Class is ascertainable in that the names and addresses of all members of the Class can be identified in business records maintained by Defendant. 28. Plaintiff’s claims are typical of the claims of the members of the Class he seeks to represent. 29. Plaintiff and all members of the Class’s claims originate from the same conduct, practice, and procedure on the part of Defendant, and Plaintiff possesses the same interests and has suffered the same injuries as each Class member. Like all proposed members of the Class, Plaintiff received telephone calls from Defendant using an automatic telephone dialing system, and/or an artificial or prerecorded voice, in violation of 47 U.S.C. § 227. Thus, if brought and prosecuted individually, the claims of each of the members of the Class would require proof of the same material and substantive facts. 30. Plaintiff will fairly and adequately protect the interests of the members of the Class and has no interests that are contrary to or in conflict with the members of the Class. 31. Plaintiff is willing and prepared to serve this Court and the proposed Class. 33. Class certification is appropriate under Fed. R. Civ. P. 23(b)(1)(A) and 23(b)(1)(B). The prosecution of separate actions by individual members of the proposed Class would, as a practical matter, be dispositive of the interests of other members of the Class who are not parties to the action or could substantially impair or impede their ability to protect their interests. 34. The prosecution of separate actions by individual members of the proposed Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class, which would establish incompatible standards of conduct for the parties opposing the Class. Such incompatible standards of conduct and varying adjudications, on what would necessarily be the same essential facts, proof, and legal theories, would also create and allow the existence of inconsistent and incompatible rights within the Class. 35. 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 proposed Class, making final declaratory or injunctive relief appropriate. 36. 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 proposed Class predominate over any questions affecting only individual members. 38. There will be no difficulty in the management of this action as a class action. 39. Absent a class action, Defendant’s violations of the law will be allowed to proceed without a full, fair, judicially supervised remedy. 40. Plaintiff repeats and re-alleges each and every allegation above. 41. Defendant violated 47 U.S.C. 227(b)(1)(A)(iii) by utilizing an automatic telephone dialing system and/or an artificial or prerecorded voice to make and/or place telephone calls to Plaintiff’s cellular telephone number. 42. Defendant willingly or knowingly violated 47 U.S.C. 227(b)(1)(A)(iii) as Defendant was advised that it did not have consent to call Plaintiff’s cellular telephone, yet repeatedly used an automatic telephone dialing system and/or an artificial or prerecorded voice to make and/or place telephone calls to Plaintiff’s cellular telephone number anyway. 9. Prior to May 2012, Defendant began placing telephone calls to Plaintiff’s cellular telephone number. VIOLATION OF 47 U.S.C. § 227(b)(1)(A)(iii)

lose

10. Defendant used an “automatic telephone dialing system” as defined by 47 U.S.C. § 227(a)(1) to place its calls to Plaintiff seeking to solicit its services. 22. Plaintiff brings this action individually and on behalf of all others similarly situated, as a member the two 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 Defendant to said person’s 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 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. 8. Beginning in or around May of 2016 and continuing through October of 2018, Defendant contacted Plaintiff on Plaintiff’s telephone numbers ending in in -1636 and -0106 in an attempt to solicit Plaintiff to purchase Defendant’s services. 9. Defendant contacted or attempted to contact Plaintiff from a telephone number belonging to Defendant, including but not limited to (424) 282-9217. 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. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(c) • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(c)(5), Plaintiff and the DNC 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(c)(5). • 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(b) • As a result of Defendant’s negligent violations of 47 U.S.C. §227(b)(1), Plaintiff and the ATDS Class members are entitled to and request $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(b)(3)(B). • Any and all other relief that the Court deems just and proper.

lose

18. Portfolio Recovery Associates, L.L.C. is a debt collection company and operates several call centers throughout the United States.2 19. Plaintiff and the Putative Class Members’ job duties consisted of making and answering phone calls made by debtors, and would attempt to collect on these outstanding debts. 20. Plaintiff Scott was employed by PRA in customer service in Hampton, Virginia from approximately November 2017 until February 2020. 21. Plaintiff and the Putative Class Members are non-exempt call-center employees who were (and are) paid by the hour. 22. Plaintiff and the Putative Class Members typically worked approximately forty (40) “on-the-clock” hours per week. 23. In addition to their forty (40) “on-the-clock” hours, Plaintiff and the Putative Class Members worked up to five (5) hours “off-the-clock” per week and have not been compensated for that time. 24. Plaintiff and the Putative Class Members have not been compensated for all the hours they worked for PRA as a result of PRA’s corporate policy and practice of requiring their hourly call- center employees to clock-in only when ready to take their first call. 26. If Plaintiff and the Putative Class Members are not ready and on the phone at shift start they can be subject to discipline. 27. If Plaintiff and the Putative Class Members clock in prior to their shift start time, they are also subject to discipline. 28. Therefore, the only way to be ready on time, and avoid discipline, is to prepare the computer “off-the-clock.” 29. During this start up time, Plaintiff and the Putative Class Members were not compensated although they were expected to have completed this process in advance of their official start times. 30. PRA provides the Plaintiff and the Putative Class Members with one unpaid lunch break per shift. 31. However, PRA requires the Plaintiff and the Putative Class Members to perform “off- the-clock” work during their unpaid lunch break. 32. Plaintiff and the Putative Class were required to stay on the clock and on call until the minute their lunch break began, clock out, then log out of the phone system or otherwise go into an aux mode, and then log off of their computer prior to leaving their desk for lunch. 33. Plaintiff and the Putative Class Members were required to log back into their computer, log back into the phone system, then clock in, and be back on the phone right at the moment their lunch break ends. 34. The log off process used prior to going to lunch can take 1-3 minutes. 36. This lengthy log off and log in procedure had to be performed during Plaintiff and the Putative Class Members’ lunch break per PRA policy. 37. Further, Plaintiff and the Putative Class Members’ computers crashed multiple times each week and required Plaintiff and the Putative Class Members to reset them, which took ten (10) minutes or more each time. 38. Plaintiff and the Putative Class Members were also not compensated for the time they worked for PRA rebooting PRA’s computers after they crashed. 39. Plaintiff and the Putative Class Members were always scheduled to work exactly forty (40) hours each week. 40. Plaintiff and the Putative Class Members were (and still are) not permitted to hang up on customers and must finish every call regardless of how long it takes. 41. Plaintiff and the Putative Class Members frequently found (and continue to find) themselves handling calls past the end of their shift end time on the last day of the week. 42. This call would cause Plaintiff and the Putative Class Members to go over their forty (40) hour work shift in one week. However, PRA would shave that time off and not pay Plaintiff and the Putative Class Members any overtime. 43. In addition, PRA also enforced a uniform company-wide policy wherein they improperly required their non-exempt hourly employees—Plaintiff and the Putative Class Members— to clock out for rest breaks lasting twenty minutes or less. 29 C.F.R. § 785.18; see also Sec’y U.S. Dep’t of Labor v. Am. Future Sys., Inc., 873 F.3d 420, 425 (3d Cir. 2017). 45. As a result of PRA’s corporate policy and practice of requiring Plaintiff and the Putative Class Members to perform their computer start up tasks before the beginning of their shifts, perform log-in log out processes during their unpaid lunch break, and requiring Plaintiff and the Putative Class Members to clock out for short breaks, Plaintiff and the Putative Class Members were not compensated for all hours worked, including all worked in excess of forty (40) in a workweek at the rates required by the FLSA. 46. PRA has employed other individuals who perform(ed) the same or similar job duties under the same pay provisions as Plaintiff. 47. PRA is aware of their obligation to pay overtime for all hours worked and the proper amount of overtime for all hours worked in excess of forty (40) each week, but have failed to do so. 48. Because PRA did not pay Plaintiff and the Putative Class Members for all hours worked and time and a half for all hours worked in excess of forty (40) in a workweek, PRA’s pay policies and practices violate the FLSA. V. 49. Plaintiff Scott incorporates by reference all paragraphs and allegations set forth in the statement of facts of this complaint as though fully and completely set forth herein. 50. The FLSA Collective is defined as: 66. All previous paragraphs are incorporated as though fully set forth herein. 67. Pursuant to 29 U.S.C. § 216(b), this is a collective action filed on behalf of all of PRA’s employees who have been similarly situated to Plaintiffs with regard to the work they performed and the manner in which they have not been paid. 68. Other similarly situated employees of PRA have been victimized by PRA’s patterns, practices, and policies, which are in willful violation of the FLSA. 69. The FLSA Collective Members are defined in Paragraph 50. 70. PRA’s failure to pay Plaintiff and the FLSA Collective Members for all hours worked and overtime compensation at the rates required by the FLSA, results from generally applicable policies and practices of PRA, and does not depend on the personal circumstances of Plaintiff or the FLSA Collective Members. 71. Thus, Plaintiff’s experiences are typical of the experiences of the FLSA Collective Members. 72. The specific job titles or precise job requirements of the various FLSA Collective Members do not prevent collective treatment. 73. All of the FLSA Collective Members—regardless of their specific job titles, precise job requirements, rates of pay, or job locations—are entitled to be paid for all hours worked and at the proper overtime rate for all hours worked in excess of forty (40) hours per workweek. 74. Although the issues of damages may be individual in character, there is no detraction from the common nucleus of liability facts. 76. 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. 77. Accordingly, the FLSA collective of similarly situated plaintiffs should be certified as defined as in Paragraph 50 and notice should be promptly sent. VI. A. FLSA COVERAGE

win

10. The link from the text message is connected to a website for “Paul R. Marino, Principal Broker Landfall Properties, LLC.” 11. There is a link on that site that indicates that the sight is “POWERED BY REALBIRD” 13. The Website further indicates that the service includes two text messages per phone call in a section labeled “How much does it cost?” “The SMS listing marketing is included with the RealBird Pro service but requires a SMS capable phone number from Twilio (http://www.twilio.com). The cost for the SMS number is only $1/month. In addition, each SMS costs 1 cent (ie. 2 cents per lead) (See Attachment B). 14. The Plaintiff did not give his consent to receive these text messages. 15. The second text message was sent immediately after the first. 16. Neither text allowed the Plaintiff to opt out of receiving additional text messages. 17. The Plaintiff called the number on the realtor’s sign at 10:29 am and received the text messages attached as Attachment A at 10:29 am. 18. Given the speed at which the text was received and the duplicative content of the message the Defendant used an autodialer to send these messages. 19. "For autodialed or prerecorded-voice telemarketing calls to wireless numbers, prior express consent must be written." TCPA OMNIBUS DECLARATORY RULING AND ORDER, JULY 10, 21. The proposed Class is believed to be so numerous that joinder of all members is impracticable. The exact number of members of the Class is unknown to Plaintiff at this time and can only be ascertained through appropriate discovery. The proposed Class is believed to be ascertainable in that the contact information of all members of the Class can be identified in business records maintained by Defendant or the Defendant’s principal or agent. 22. Plaintiff’s claims are typical of the claims of the members of the Class because Plaintiff and all Class members’ claims originate from the same conduct, practice and procedure on the part of the Defendant and Plaintiff has suffered the same injuries as each member of the class. Like all proposed members of the Class, Plaintiff received autodialed or predictive dialed calls to his cellular phone for which he did not give consent. 23. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel experienced in consumer protection litigation. Plaintiff’s counsel has co- counseled consumer class action litigation and has an established ongoing association with experienced consumer class action attorneys with nationwide reach and resources. 25. Issues of law and fact common to the members of the Class predominate over any questions that may affect only individual members, in that Defendants have acted on grounds generally applicable to the Class. Among the issues of law and fact common to the Class are: i. Defendant’s violations of the TCPA as alleged herein; ii. The existence of Defendant’s identical conduct particular to the matters at issue; including but not necessarily limited to the placement of automatically dialed text messages to cellular phones without the consent of the called individual. 26. Absent a class action, Defendant’s violations of the law will be allowed to proceed without a full, fair, judicially supervised remedy. 27. A heretofore unknown number of consumers are without a remedy for these violations of Federal Law. 28. Plaintiff repeats and re-alleges each and every allegation contained herein as if fully stated within this count. 30. The Statutory scheme of the TCPA provides for a private action for violations of the statute: “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.” 47 U.S.C. § 227(b)(3). 31. “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 subparagraph (B) of this paragraph.” 47 U.S.C. § 227(b)(3). 32. “[A]n act may be ‘intentional’ for purposes of civil liability even if the actor lacked actual knowledge that [their] conduct violated the law.” Jerman v. Carlisle, McNellie, Rini, Kramer, 130 S. Ct. 1605, 1612 (2010). See also Kolstad v. American Dental Assn., 527 US 526, 549 (1999) (holding that willful violations can be found where a defendant acts with “careless” or “reckless” disregard for federally protected rights). 33. Here, Defendant has used an “automatic telephone dialing system” to text the Plaintiff on his cellular telephone. 34. In the alternative Defendant has used a “predictive telephone dialing system” to text the Plaintiff on his cellular telephone. 35. The Defendant did not have Plaintiff’s consent to contact his cell phone. 36. The Defendant sent these texts with careless or reckless disregard that their conduct violated the law. 38. The claims on the Defendant’s website implies that the Defendant has conducted these violations in a widespread manner. 39. A heretofore unknown number of consumers have the same or similar claims against the Defendant and are entitled to the relief provided for by Federal Law. WHEREFORE, Plaintiff requests this Honorable Court enter the following relief: a. Determine that this action is a proper class action and designating Plaintiff as class representative under Rule 23 of the Federal Rules of Civil Procedure; b. Adjudge that Defendant violated 47 U.S.C. § 227; c. Enjoin the Defendant from any further violations of 47 U.S.C. § 227; d. Award Plaintiff and members of the Class statutory damages for each phone call made in violation of this statute, pursuant to 47 U.S.C. § 227(b)(3); e. Award Plaintiff and members of the Class triple damages pursuant to 47 U.S.C. § 227(b)(3); f. Award Plaintiff any pre-judgment and post-judgment interest as may be allowed under the law; g. Approve or award attorneys’ fees as appropriate for representing the plaintiff and the class; h. Issue such other and further relief as the Court may deem just and proper. 7. The Plaintiff called the telephone number on a real estate agent's sign with his cellular phone. 8. The call was not answered. 9. Upon hanging up the call the Plaintiff received two text messages from the Defendant each communicating the following: “Thank you for your real estate inquiry. Please see this link for details http://bitly/1g4TnYy. Or call (884) 3733657 for more info.” (See Attachment A) DEFENDANT’S VIOLATIONS OF 47 U.S.C. § 227

win

(CONVERSION) (UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200 ET SEQ.) (UNJUST ENRICHMENT) (VIOLATION OF CAL. CIV. CODE § 980(A)(2), COMMON LAW MISAPPROPRIATION, COMMON-LAW UNFAIR COMPETITION) (VIOLATION OF RIGHTS OF PUBLICITY UNDER CAL. CIV. CODE §§ 3344 AND 3344.1) (VIOLATION OF RIGHTS OF PUBLICITY UNDER CALIFORNIA COMMON LAW) 1.  State Law Protection for Pre-1972 Recordings ............................................... 5  17. In the 1950s and 1960s, Arthur Sheridan owned and operated several recording companies specializing in recording and selling doo-wop, jazz, and rhythm and blues music. These music labels produced recordings by some of the most influential musicians of the era, including the Flamingos (inducted to the Rock and Roll Hall of Fame in 2001), Little Walter (inducted to the Blues Hall of Fame in 1986 and the Rock and Roll Hall of Fame in 2008), and the Moonglows (inducted to the Vocal Group Hall of Fame in 1999 and the Rock and Roll Hall of Fame in 2000). 18. Arthur Sheridan owns many pre-1972 master recordings, including but not limited to the following fixtures of jazz, blues, and doo-wop music: “Slow Down Woman,” “The Mojo,” “I Want my Baby,” and “How Can I Leave” by J.B. Lenoir; “That’s my Desire” and “You Ain’t Ready” by The Flamingos; “Evening Sun” by Johnny Shines; “Love is a Pain,” “No Need of Your Crying,” “I Had a Feeling,” and “Meet Me Baby” by Rudy Greene; “Nervous Wreck” and “No More Love” by Willie Nix; “Just a Lonely Christmas,” “Whistle My Love,” “Baby Please,” and “Hey Santa Claus” by The Moonglows; “She Is Going to Ruin Me” and “I Can’t Stand Being Away From You” by T-Bone Walker; “I Just Keep Loving Her” by Little Walter; “Merry Lee,” “Down Home,” “Sweet and Lovely,” and “The Talk of the Town” by Howard McGhee; and “High and Lonesome” and “Roll and Rhumba” by Jimmy Reed. 19. Barbara Sheridan owns the pre-1972 master sound recording of “Golden Teardrops” by The Flamingos, critically acclaimed when it was recorded and still regarded as a classic. 2.  Sirius XM ........................................................................................................ 6  20. Arthur and Barbara Sheridan own the intellectual property and contract rights associated with the recordings. These rights include, without limitation, the right to control the use and distribution of the recording, the right to use the publicity rights, including the well-known voices, names, images, and likenesses of the associated recording artists such as the Flamingos and Little Walter, to promote the recordings, and the right to receive royalty payments from the exploitation of the master recordings described above. The publicity rights of the recording artists behind the recordings are valuable and highly sought-after by commercial entities. Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page6 of 23 3.  Pandora Internet Radio .................................................................................... 8  V.  57. Plaintiffs Arthur and Barbara Sheridan bring this action under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) on their own behalf and on behalf of the following class of plaintiffs (the “Misappropriation Class”): All owners of reproduction and public performance rights in Pre-1972 Recordings that have been publicly performed, copied, or otherwise exploited by Defendants, without a license or other authorization, in the marketing, sale, and provision of satellite and internet radio services. 58. The persons in the Misappropriation Class are so numerous that individual joinder of all members is impracticable under the circumstances of this case. Although the precise number of such persons is unknown, the exact size of the Misappropriation Class is easily ascertainable, as each class member can by identified by using Defendants’ records. Plaintiffs are informed and believe that there are many thousands of Misappropriation Class members. 59. There are common questions of law and fact specific to the Misappropriation Class that predominate over any questions affecting individual members, including: (a) Whether Defendants copy, publicly perform, or otherwise exploit Pre-1972 Recordings in their satellite and internet radio services without authorization or permission; (b) Whether such uses are unlawful; (c) Whether Defendants’ conduct violates California Civil Code § 980(a)(2); (d) Whether Defendants’ conduct constitutes misappropriation; (e) Whether Defendants’ conduct constitutes unfair competition; (f) Whether Defendants’ conduct constitutes conversion; (g) Whether class members have been damaged by Defendants’ conduct, and the amount of such damages; (h) Whether treble damages are appropriate and the amount of such damages; (i) Whether punitive damages are appropriate and the amount of such damages; (j) Whether statutory damages are appropriate and the amount of such damages; Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page12 of 23 70. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 71. Plaintiffs, the Misappropriation Class, and/or their predecessors-in-interest spent substantial time, skill, effort, and money to create the Pre-1972 Recordings, and Plaintiffs and the Misappropriation Class have property interests in them as recognized by Cal. Civ. Code § 980(a)(2) and California common law. 72. By duplicating the Pre-1972 Recordings without authorization from Plaintiffs and Class Members, and publicly performing those Recordings to their users for their own gain, Defendants engaged in the misappropriation of the Plaintiffs’ and Class Members’ valuable work product and/or intellectual property rights, whereby Defendants profited to the disadvantage of the Plaintiffs and Class Members, who have been and continue to be injured by Defendants’ conduct. 73. As a result of Defendants’ misappropriation of the Pre-1972 Recordings, Plaintiffs and Class Members are entitled to an order enjoining Defendants from continuing to use those recordings without authorization and compensation, and to an order imposing a constructive trust on Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page15 of 23 75. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 76. Plaintiffs and the Misappropriation Class are the owners of the Pre-1972 Recordings, and have an intangible property interest in them as recognized by California Civil Code § 980(a)(2). 77. By their conduct described above, Defendants wrongfully converted those rights and interests for their own use and profit. 78. By their conduct described above, Defendants engaged in a wrongful, unpermitted exercise of control over the property of Plaintiffs and Class Members. As a result, Plaintiffs and Class Members lost control over their rightful property and did not receive compensation for the use of their valuable sound recordings, and were thereby damaged. 79. As a result of Defendants’ conversion of the Pre-1972 Recordings, Plaintiffs and Class Members are entitled to an order enjoining Defendants from continuing to use those recordings without authorization and compensation, and to an order imposing a constructive trust on any money Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page16 of 23 81. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 82. Defendants have knowingly and intentionally used and continue to use the publicity rights of Plaintiffs and the Publicity Rights Class, including names, voices, and likenesses, for the purposes of advertising Defendants’ satellite and internet radio services; providing those radio services; selling subscriptions and advertisements in connection with those radio services; and/or advertising and selling other products and services. 83. Defendants are high-profile, large-scale media companies, intimately familiar with the mechanics of the music industry and the law governing rights of publicity. Defendants’ actions, as described herein, were committed maliciously, intentionally, fraudulently and with a willful and conscious disregard of the rights of Plaintiffs and the Publicity Rights Class, making an award of punitive damages appropriate in order to punish and deter Defendants from continuing to engage in the conduct alleged herein. 84. As a result of Defendants’ violation of their publicity rights, Plaintiffs and the Publicity Rights Class have been injured. Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page17 of 23 85. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 86. Defendants have utilized and continue to utilize names, voices, and/or likenesses of recording artists associated with the Pre-1972 Recordings in Defendants’ satellite and internet radio services. 87. Defendants have intentionally used and continue to use names, voices, and likenesses of recording artists associated with the Pre-1972 Recordings with full and complete knowledge that their use of such rights was unauthorized and without prior license or consent. 88. Defendants have used and continue to use names, voices, and likenesses of recording artists associated with the Pre-1972 Recordings for their own commercial advantage as a means of generating interest in and profits for Defendants’ satellite and internet radio services. 89. Plaintiffs hold licenses to promote the Pre-1972 Recordings using the names, voices, and/or likenesses of recording artists associated with the Pre-1972 Recordings. 90. Defendants’ actions, as described herein, were committed maliciously, intentionally, fraudulently, and with a willful and conscious disregard of Plaintiffs’ and the Publicity Rights Class’s rights, making an award of punitive damages appropriate in order to punish and deter Defendants from engaging in the conduct alleged herein. 91. As a result of Defendants’ misappropriation of valuable publicity rights, Plaintiffs and the Publicity Rights Class have been injured. 92. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 93. Defendants’ conduct, as alleged above, constituted and constitutes an unlawful and unfair business practice in violation of Section 17200, et seq., of the California Business and Professions Code. Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page18 of 23 99. Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully set forth herein. 100. To the detriment of Plaintiffs and the Class, Defendants have been and continue to be unjustly enriched as a result of the unlawful and/or wrongful conduct alleged herein. Defendants have unjustly benefitted through the sale of subscriptions and advertisements in connection with their satellite and internet radio services that use without authorization the Pre-1972 Recordings and the publicity rights contained therein, and have also used such publicity rights in the advertising and marketing of those services—leveraging for profit the hard-earned fame and reputation of Plaintiffs and the Class. Defendants have therefore benefitted from the use of Pre-1972 Recordings, as well as the name, voice, and likeness rights of Plaintiffs and the Publicity Rights Class. 101. The publicity rights of Plaintiffs and the Publicity Rights Class also have considerable commercial value, deriving from Plaintiffs’ and Class Members’ stature and fame in American popular culture. 102. Defendants have intentionally used and continue to use Pre-1972 Recordings owned by Plaintiffs and Misappropriation Class Members without license or authorization. Defendants have intentionally used and continue to use names, voices, and likenesses of recording artists associated with the Pre-1972 Recordings without Plaintiffs’ or Class Members’ consent. 103. It would be unjust for Defendants to retain the benefits attained by their unlicensed and wrongful use of the Plaintiffs’ Recordings and violations of Plaintiffs’ rights to use the publicity rights of recording artists associated with the Pre-1972 Recordings. Accordingly, Plaintiffs seek, on behalf of themselves and the Publicity Rights Class, full restitution of Defendants’ enrichment, benefits, and ill-gotten gains acquired as a result of the unlawful and/or wrongful conduct alleged herein. Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page20 of 23 A. Arthur and Barbara Sheridan A. Misappropriation Class Allegations A.  Arthur and Barbara Sheridan ....................................................................................... 4  B.  Defendants Exploit Plaintiffs’ and Class Members’ Rights Without Permission or Compensation ....................................................................................... 5  A.  Misappropriation Class Allegations .......................................................................... 10  B.  Publicity Rights Class Allegations ............................................................................ 11  C.  Allegations Pertaining to Both Classes ..................................................................... 12  COMMON LAW) ................................................................................................................. 16  COUNT V (UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200 ET SEQ.) ................................................................................................................................ 16  MISAPPROPRIATION, COMMON-LAW UNFAIR COMPETITION) ............................ 13  COUNT II (CONVERSION) ............................................................................................................ 14  COUNT III (VIOLATION OF RIGHTS OF PUBLICITY UNDER CAL. CIV. CODE MISAPPROPRIATION PRAYER FOR RELIEF ............................................................................ 19  RIGHT OF PUBLICITY PRAYER FOR RELIEF ........................................................................... 19  DEMAND FOR JURY TRIAL ......................................................................................................... 20  Case3:15-cv-04081-MEJ Document1 Filed09/08/15 Page2 of 23

lose

29.   Defendant hired Plaintiffs and other similarly situated employees to perform various food and beverage service tasks. 30.   Plaintiffs and others similarly situated hold or held the title of server. Their duties were typical of those associated with their role. Their duties primarily consisted of serving food and drinks to patrons. They had to wait on tables and describe daily specials. They were required to regularly check on patrons throughout their meal. At the end of a customer’s meal, they were also required to collect payment. 31.   In exchange for their work, Plaintiffs and others similarly situated typically received tips from patrons. However, they also performed work that did not give them the ability to earn tips. This work did not involve interacting with, nor serving food and beverages to customers. 32.   Plaintiffs and other servers had to perform various preparatory tasks. They had to prepare and affix labels to sauces, prepare the drink machines and ensure the sugar caddies were full. They also spent a considerable amount of time polishing dishes and were constantly required to roll silverware throughout their shifts. 33.   Plaintiffs and other servers also had to perform tasks relating to sanitation, health and maintenance. Sanitizing the kitchen and dining areas are common examples. They also had to bag and take out the trash. 35.   For the performance of this work, Plaintiffs and others similarly situated did not have the opportunity to earn tips. These tasks were often performed out of the customers’ sight or at times customers were not present. 36.   At all times relevant, Defendant required Plaintiffs and other servers to perform all of the tasks described above, regardless of whether these tasks gave them the ability to earn tips. 37.   Plaintiffs and other similarly situated employees performed their tasks to the extent required by Defendant. 38.   For the aforementioned work, from approximately May 2017 to February 2018, Plaintiff Belt was classified as a tipped employee. In addition to tips, he received bi-weekly payments reflecting an hourly tip-credit wage of two dollars and thirty-five cents ($2.35) per hour. 39.   Plaintiff Council was also classified as a tipped employee. From approximately November 2014 to the present, she received bi-weekly payments reflecting an hourly tip-credit wage of two dollars and thirty-five cents ($2.35) per hour, as well as tips. 40.   Plaintiff Harris was also classified as a tipped employee. From September 1, 2015 until the present, he received bi-weekly payments reflecting an hourly tip credit rate of two dollars and thirty-five cents ($2.35) per hour, plus tips. 41.   For the entirety of his employment, Plaintiff Belt worked at the P.F. Chang’s in McLean, Virginia. 42.   Plaintiff Council was employed at the P.F. Chang’s in Warrington, Pennsylvania. She also worked at the P.F. Chang’s in Princeton, New Jersey. 43.   For the entirety of his employment, Plaintiff Harris worked at the P.F. Chang’s in Pittsburgh, Pennsylvania. 46.   Plaintiffs and others similarly situated regularly performed these untipped tasks throughout their shifts. During a given shift, they would spend approximately two (2) to four (4) hours performing this untipped work. 47.   Much of this untipped work was completed while Plaintiffs and others similarly situated were “clocked in” as tipped employees. Thus, they were only paid their tip-credit rate for their work; they failed to receive the full minimum wage. 48.   Defendant used a standard point-of-sale system to record the hours worked by both its tipped and non-tipped employees. Through this system, Defendant could have created different “clock in” codes that would have allowed tipped employees to clock in at the full minimum wage rate when performing non-tipped work, while clocking in at a subminimum, tip-credit wage rate when serving customers. 49.   Defendant failed to utilize this system to account for the times when Plaintiffs and others similarly situated performed non-tipped related tasks. At all times that Plaintiffs and others similarly situated were on-the-clock, the tip-credit wage rate was enforced. 50.   Despite the nature of their work, Plaintiffs were treated as tipped employees, even when they were assigned to perform tasks that did not give them the opportunity to earn tips. 51.   Defendant’s unlawful pay practices caused Plaintiffs and others similarly situated to be denied the wages they rightfully earned. They were consistently paid below the minimum wage for the untipped work they performed. 52.   There is no bona fide dispute that Plaintiffs and other similarly situated employees are owed at least the minimum wage during periods when they spent more than twenty (20) percent of their time performing untipped work. 54.   Defendant was well aware of the untipped work being performed by Plaintiffs and others similarly situated. 55.   Defendant knew that Plaintiffs and other similarly situated employees customarily spent more than twenty (20) percent of their time performing untipped work. 56.   In bad faith, Defendant withheld the minimum wages owed to Plaintiffs and others similarly situated. 57.   As a direct result of not receiving the required minimum wage for each hour of work, Plaintiffs and other similarly situated employees were also not paid correctly for overtime. During weeks when they worked over forty (40) hours, they were never paid at time and a half the rate that their regular hourly wage should have been. 58.   Thus, on behalf of themselves and all those similarly situated, Plaintiffs seek their wages owed and other available relief through this Complaint. 59.   Plaintiffs and other similarly situated employees work or worked as servers for Defendant. Defendant employs servers across the United States. 60.   Upon information and belief, these similarly situated employees were subject to the same unlawful practices described within this Complaint; Defendant paid these similarly situated employees a tip-credit rate when they performed untipped work. This practice was in violation of the FLSA. 61.   The FLSA requires employers to compensate non-exempt employees such as Plaintiffs and others similarly situated with at least the minimum wage for each hour of work. 63.   The FLSA requires that the non-tipped work related to a tipped employee’s occupation cannot exceed twenty (20) percent of his or her time worked. If the non-tipped work exceeds twenty (20) percent, the tipped employee must receive the full minimum wage. 64.   Defendant knew, or should have known, that Plaintiffs and other similarly situated tipped employees were performing non-tipped work related to their tipped occupation. This work regularly exceeded twenty (20) percent of their time worked. Defendant failed to properly pay the full minimum wage rate for this work. As a direct result, Plaintiffs and other servers also failed to receive proper overtime compensation. During weeks when they worked over forty (40) hours, they were not paid “time and a half” at the rate their regular wage should have been. 65.   Pursuant to the FLSA, Plaintiffs commence this collective action on behalf of themselves and those similarly situated for the payment of minimum and overtime wages owed for all hours worked. Plaintiffs make these same demands on behalf of all members of the collective class. 66.   Plaintiffs consent to be Party Plaintiffs in this matter; Plaintiffs’ consent forms are attached to this Complaint as Exhibits 1 – 3. 67.   It is likely that other individuals will join Plaintiffs during the litigation of this matter and file written consents to “opt in” to this collective action. 68.   There are numerous similarly situated current and former employees of Defendant that have been harmed by Defendant’s common scheme to underpay its employees in violation of the FLSA. 69.   These similarly situated persons are known to Defendant and/or are readily identifiable through Defendant’s records. 71.   Upon information and belief, others similarly situated will choose to join Plaintiffs in this action and opt in to this lawsuit to recover unpaid wages and other available relief. 72.   Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and other employees, current and former, that served as servers for Defendant and were subject to the following practices and policies: denial of minimum and overtime wages under the PMWA for hours worked over forty (40) in a single workweek. 73.   Plaintiffs are members of the proposed class they seek to represent. 74.   The claims alleged by Plaintiffs are typical of the claims of the proposed class members. 75.   The potential members of the class are sufficiently numerous so that joinder of all class members is impractical. 76.   There are questions of law and fact common to the class that predominate over any questions exclusive to the individual class members. 77.   Counsel for the proposed class is qualified and experienced in litigating class actions and other complex litigation matters; furthermore, counsel is capable of providing adequate representation for all members of the proposed class. 78.   A class action is superior to other available methods for the fair and efficient adjudication of this case and will serve to promote judicial economy to the benefit of this Court, as well as the involved parties. 80.   Plaintiffs are members of the proposed class they seek to represent. 81.   The claims alleged by Plaintiffs are typical of the claims of the proposed class members. 82.   The potential members of the class are sufficiently numerous enough so that joinder of all class members is impractical. 83.   There are questions of law and fact common to the class that predominate over any questions exclusive to the individual class members. 84.   Counsel for the proposed class is qualified and experienced in litigating class actions and other complex litigation matters; furthermore, counsel is capable of providing adequate representation for all members of the proposed class. 85.   A class action is superior to other available methods for the fair and efficient adjudication of this case and will serve to promote judicial economy to the benefit of this Court, as well as the involved parties.

lose

20. On July 2, 2019, Harborside (then named Lineage Grow company Ltd.), filed with the Canadian securities regulatory authorities its Unaudited Condensed Interim Consolidated Financial Statements For The Three Months Ended April 30, 2019 And 2018 (the " 1 Q 19 Report"), which was signed by Defendant Bilodeau and Szweras. 21. The lQ 19 Report provided the following financial information regarding the Company: 51. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a class consisting of all persons other than defendants who acquired Harborside securities publicly traded on the OTC Pink market during the Class Period, and who were damaged thereby (the "Class"). Excluded fi-om the Class are Defendants, the officers and directors of Harborside and its subsidiaries, members of the Individual 70. Plaintiff repeats and realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 71. During the class period, the Individual Defendants participated in the operation and management of Harborside, and conducted and participated, directly and indirectly, in the conduct of Harborside's business affairs. Because of their senior positions, they knew the adverse non-public information about Harborside's false financial statements. 72. As officers and/or directors of a publicly owned company, the Individual Defendants had a duty to disseminate accurate and truthful information with respect to Harborside's financial condition and results of operations, and to correct promptly any public statements issued by Harborside which had become materially false or misleading. 73. Because of their positions of control and authority as senior officers, the Individual Defendants were able to, and did, control the contents of the various reports, press releases and public filings which Harborside disseminated in the marketplace during the Class Period concemlng Harborside's results of operations. Throughout the Class Period, the Individual Defendants exercised their power and authority to cause the Company to engage in the wrongful acts complained of herein. The Individual Defendants therefore, were "controlling persons" of the Company within the meaning of Section 20(a) of tlie Exchange Act. In this capacity, they participated in the unlawful conduct alleged which artificially inflated the market price of Harborside securities. Materially False and Misleading Statements Issued During the Class Period Violations of Section 20(a) of the Exchange Act Against the Individual Defendants

lose

14. Defendant FullStory develops a software of the same name that provides marketing analytics. 15. One of FullStory’s features is called “Session Replay,” which purports to help businesses improve their website design and customer experience. 16. Session Replay provides a real-time recording of a user’s interactions on a website. FullStory says that “Session replay tools capture things like mouse movements, clicks, typing, scrolling, swiping, tapping, etc.” 17. FullStory touts that Session Replay relies on real video of a user’s interactions with a website, or, in another words, a “recorded session.”2 41. Plaintiff seeks to represent a class of all California residents who visited the Website, and whose electronic communications were intercepted or recorded by FullStory. Plaintiff reserves the right to modify the class definition as appropriate based on further investigation and discovery obtained in the case. 42. Members of the Class are so numerous that their individual joinder herein is impracticable. On information and belief, members of the Class number in the thousands. The precise number of Class members and their identities are unknown to Plaintiff at this time but may be determined through discovery. Class members may be notified of the pendency of this action by mail and/or publication through the distribution records of Defendants. 43. Common questions of law and fact exist as to all Class members and predominate over questions affecting only individual Class members. Common legal and factual questions include, but are not limited to, whether Defendants have violated the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code §§ 631 and 635 and invaded Plaintiff’s privacy rights in violation of the California Constitution; and whether class members are entitled to actual and/or statutory damages for the aforementioned violations. 44. The claims of the named Plaintiff are typical of the claims of the Class because the named Plaintiff, like all other class members, visited the Website and had her electronic communications intercepted and disclosed to FullStory through the use of FullStory’s wiretaps. 45. Plaintiff is an adequate representative of the Class because her interests do not conflict with the interests of the Class members she seeks to represent, she has retained competent counsel experienced in prosecuting class actions, and she intends to prosecute this action vigorously. The interests of Class members will be fairly and adequately protected by Plaintiff and her counsel. 48. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set forth herein. 49. Plaintiff brings this claim individually and on behalf of the members of the proposed Class against Defendants. 59. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set forth herein. 60. Plaintiff brings this claim individually and on behalf of the members of the proposed Class against Defendants. 61. California Penal Code § 635 provides, in pertinent part: Every person who manufactures, assembles, sells, offers for sale, advertises for sale, possesses, transports, imports, or furnishes to another any device which is primarily or exclusively designed or intended for eavesdropping upon the communication of another, or any device which is primarily or exclusively designed or intended for the unauthorized interception or reception of communications between cellular radio telephones or between a cellular radio telephone and a landline telephone in violation of Section 632.5, or communications between cordless telephones or between a cordless telephone and a landline telephone in violation of Section 632.6 , shall be punished by a fine not exceeding two thousand five hundred dollars. 62. At all relevant times, by implementing FullStory’s wiretaps, each Defendant intentionally manufactured, assembled, sold, offered for sale, advertised for sale, possessed, transported, imported, and/or furnished a wiretap device that is primarily or exclusively designed or intended for eavesdropping upon the communication of another. 66. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set forth herein. 67. Plaintiff brings this claim individually and on behalf of the members of the proposed Class against Defendants. 68. Plaintiff and Class Members have an interest in: (1) precluding the dissemination and/or misuse of their sensitive, confidential PII; and (2) making personal decisions and/or conducting personal activities without observation, intrusion or interference, including, but not limited to, the right to visit and interact with various Internet sites without being subjected to wiretaps without Plaintiff’s and Class Members’ knowledge or consent. 69. At all relevant times, by implementing FullStory’s wiretaps on Blue Nile’s Website, each Defendant intentionally invaded Plaintiff’s and Class Members’ privacy rights under the California Constitution, and procured the other Defendant to do so. 70. Plaintiff and Class Members had a reasonable expectation that their PII and other data would remain confidential and that Defendants would not install wiretaps on the Website. 71. Plaintiff and Class Members did not consent to any of Defendants’ actions in implementing FullStory’s wiretaps on the Website. 72. This invasion of privacy is serious in nature, scope and impact. 73. This invasion of privacy alleged here constitutes an egregious breach of the social norms underlying the privacy right. I. Overview Of The Wiretaps Invasion Of Privacy Under California’s Constitution Violation Of The California Invasion Of Privacy Act, Cal. Penal Code § 631 Violation Of The California Invasion Of Privacy Act, Cal. Penal Code § 635

lose

22. From the time the Safe Rides program launched until approximately June 21, 2014, drivers on the LIberX platform did so under a form contract with Rasier, LLC; that contract—first implemented in 2013 was called the "Transportation Provider Service Agreement." (A true and correct copy of that agreement is attached to this Complaint as E3chibit B and will be referred to as the "2013 Agreement."). 23. From approximately June 21, 2014 until approximately November 10, 2014, drivers on the LIberX platform did so under an identical form contract, which geographically assigned one of two Rasier entities as the other party (Rasier-CA, LLC, for California drivers and Rasier, LLC, for the rest of the United States); that contract was called the "Rasier Software Sublicense & Online Services Agreement." (A true and correct copy of that agreement is attached to this Complaint as Exhibit C and will be referred to as the "June 2014 Agreement."). 24. From approximately November 10, 2014 unril approximately December 11, 20l 5, drivers on the LlberX platform did so under an identical form contract, which geographically assigned one of three Rasier entities as the other party (Rasier-CA, LLC, for California drivers, Racier-PA, LLC, for Pennsylvania drivers, and Racier, LLC, for the rest of the L.Inited States); that agreement was called the "Software License and Online Services Agreement." (A true and correct copy of that agreement is attached to this Complaint as E~ibit D and will be referred to as the "November 2014 Agreement.") 28. The relevant provisions from the November 2014 Agreement are excerpted below: • "Company [i,e., the geographically-assigned Rasier entity], a subsidiary of Llber Technologies, Inc. ("L.Iber"), provides lead generation to independent providers of rideshare or peer-to-peer (collectively, "P2P") passenger transportation services using the Llber Services (as defined below). The L.Iber Services enable an authorized transportation provider to seek, receive and fulfill re9uests for transportation services from an authorized user of Uber's mobile applications, You desire to enter into this Agreement for the purpose of accessing and using the L.Iber Services. • You acknowledge and agree that Company is a technology services provider that does not provide transportation services. • "Territory" means the city or metro areas in the Linited States in which you are enabled by the Driver App to provide Transportation Services. • "Transportation Services" means your provision of P2P passenger transportation services to Users via the L.Iber Services in the Territory using the Vehicle. • "Uber Services" mean Uber's on-demand lead generation and related services licensed by Llber to Company that enable transportation providers to seek, receive and fulfill on-demand requests for transportation services by Users seeking transportation services, which services include LIber's software, websites, payment services as described in Section 4 below, and related support services systems, as mad be updated or modified from time to time. • "User" means an end user authorized by L[ber to use the Llber mobile application for the 76. Plaintiff Chuck Congdon began working as an LIber driver on the LIberX platform in January 2014, before the Safe Rides program began. 77. Plaintiff Congdon undertook approacimately 208 minimum fare trips, and due to its actions, LIber reduced those fares on those trips by the amount of the Safe Rides Fees. Class Representative Ryan Cowden 78. Plaintiff Ryan Cowden began working as an LIber driver on the LIberX platform in August 2015, after the Safe Rides program began. 79. Plaintiff Cowden undertook approximately 5 minimum fare trips, and due to its actions, j LIber reduced those fares on those trips by the amount of the Safe Rides Fees. Class Representative Anthony Martinez 80. Plaintiff Anthony Martinez began worlang as an Uber driver on the LIberX platform in April 2014, before the Safe Rides program began. 81. Plaintiff Martinez undertook 145 minimum fare trips, and due to its actions, LIber reduced those fares on those trips by the amount of the Safe Rides Fees. Class Representative Jason Rosenberg 82. Plainriff Jason Rosenberg began working as an L.Iber driver on the LIberX platform in October 2013, before the Safe Rides program began. 83. Plaintiff Rosenberg undertook approximately 119 minimum fare trips, and due to its actions, Llber reduced those fares on those trips by the amount of the Safe Rides Fees. Class Representative Jorge Zuniga 86. All Plaintiffs represent and are members of a proposed Main Class asserting claims under Rule 23(b)(3) for Breach of Contract in Count L 87. The Main Class is defined as: (A) all persons in the United States; (B) who entered the 2013 Agreement, the June 2014 Agreement, the November 2014 ~' Agreement, or a combination of those agreements (regardless of whether the person also later entered the December 2015 Agreement); (C) and provided at least one minimum fare ride on the LlberX platform for which a Safe Rides Fee applied before Uber changed its local fare webpages in November 2015 to state that minimum fares would include Safe Rides fees. 88. Plaintiffs Congdon and Martinez represent, and are also members of, a Declaratory and Injunctive Relief Class asserting claims under Rule 23(b)(2) for final declaratory and injunctive relief in Count II. 89. The Declaratory and Injunctive Relief Class is defined as: (A) all persons in the United States; (B) who entered the 2013 Agreement, the June 2014 Agreement, the November 2014 Agreement, the December 2015 Agreement, or a combination of those agreements if the Court does not find the arbitration provision in the last Uber driver contract the person executed was unenforceable; and (C) did not opt-out of arbitration under the last Uber driver contract the person executed. Class Representative Chuch Congdon Definitions of the Main Class, the Declaratory and Injunctive Relief Class and the Issue Class The Arbitration Clauses and Class Action WaiversTo~ether Render Relief Ineffectual and Require that LIber be Enjoined from Arbitrating Driver Claims 137. To the extent the claims alleged in Count I are otherwise subject to arbitration for any class members, Plaintiffs Congdon and Martinez reallege paragraphs 1 to 116 on behalf of a proposed Issue Class. l 38. As with Count II, the relief sought in Count III with respect to individuals who signed the 2013 Agreement, the June 2014 Agreement, and the November 2014 Agreement (in which the arbitration provisions have been previously determined to be unenforceable) but did not enter into the December 2015 Agreement, is conditioned on the contractual arbitration provisions in the 2013 The History of the Uber Driver Contracts in this Case

lose

ACTION Brief description of cause: CHECK IF THIS IS A CLASS ACTION

lose

10. Defendant’s calls were placed to telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 11. Accordingly, Defendant never received Plaintiff’s “prior express consent” to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on her cellular telephone pursuant to 47 U.S.C. § 227(b)(1)(A). 12. In November 2015, Plaintiff requested that Defendant stop calling her, as she was going through bankruptcy proceedings. Defendant continued to call Plaintiff on multiple occasions after November 2015, and continued to leave messages on Plaintiff’s cellular phone. 6. Beginning in and around December 2014, Defendant contacted Plaintiff on her cellular telephone, ending in -1469, in an attempt to collect an alleged outstanding debt. 7. Defendant often left voicemail messages on Plaintiff’s cellular telephone if Plaintiff did not answer Defendant’s calls. In these messages, Defendant utilized an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 227(b)(1)(A). 8. Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to place its daily calls to Plaintiff seeking to collect the debt allegedly owed 9. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A). Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227 et seq. • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiff and the 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. Respectfully Submitted this 26th day of January, 2016.

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 a security system retailer that owns and operates www.protectamerica.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 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 on separate occasions using a screen-reader. 24. On multiple occasions, the last occurring in October of 2019, Plaintiff visited Defendant’s website, www.protectamerica.com, to make a purchase. 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 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 his 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 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. 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 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 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 himself 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 himself 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 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.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 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. 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. COMPLAINT AND DEMAND FOR JURY TRIAL JOSEPH GUGLIELMO, on behalf of himself and all others similarly situated, Plaintiffs, v. DECLARATORY RELIEF VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

33. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 34. Plaintiff Cesarini brings this claim individually and on behalf of the members of the proposed California Subclass against Defendants. 35. This cause of action is brought pursuant to California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ I750-I785 (the “CLRA”). 36. Plaintiff Cesarini and the other members of the California Subclass are “consumers,” as the term is defined by California Civil Code § 1761(d), because they bought the Products for personal, family, or household purposes. 43. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 44. Plaintiff Cesarini brings this claim individually and on behalf of the members of the proposed California Subclass against Defendants. 45. Defendants are subject to California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. The UCL provides, in pertinent part: “Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising ….” 50. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 51. Plaintiff Cesarini brings this claim individually and on behalf of the members of the proposed California Subclass against Defendants. 52. California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq., makes it “unlawful for any person to make or disseminate or cause to be made or disseminated before the public in this state, ... in any advertising device ... or in any other manner or means whatever, including over the Internet, any statement, concerning ... personal property or services, professional or otherwise, or performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” 56. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 57. Plaintiff brings this claim individually and on behalf of the proposed Class, California Subclass against Defendants. 58. Defendants, as the designer, manufacturer, marketer, distributor, and/or seller, expressly warranted that the Products are “natural.” 59. Defendants’ express warranties, and its affirmations of fact and promises made to Plaintiff and the Class regarding the Products, became part of the basis of the bargain between Defendants and Plaintiff and the Class, thereby creating an express warranty that the Products would conform to those affirmations of fact, representations, promises, and descriptions. 60. The Products do not conform to the express warranty because they contain ingredients that are unnatural and synthetic. 63. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 64. Plaintiff brings this claim individually and on behalf of the proposed Class, California Subclass against Defendants. 65. Plaintiff and class members conferred benefits on Defendants by purchasing the Products. 66. Defendants have been unjustly enriched in retaining the revenues derived from Plaintiff’ and class members’ purchases of the Products. Retention of those monies under these circumstances is unjust and inequitable because of Defendants’ misrepresentations about the Products, which caused injuries to Plaintiff and members of the classes because they would not have purchased the Products if the true facts had been known. 67. Because Defendants’ retention of the non-gratuitous benefits conferred on it by Plaintiff and Class members is unjust and inequitable, Defendants must pay restitution to Plaintiff and Class members for their unjust enrichment, as ordered by the Court. 68. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. Breach of Express Warranty Plaintiff against Defendants Fraud Plaintiff against Defendants Unjust Enrichment Plaintiff against Defendants Violation Of California’s Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750, et seq. (Injunctive Relief Only) Plaintiff against Defendants Violation Of California’s False Advertising Law (“FAL”), California Business & Professions Code §§ 17500, et seq. Plaintiff against Defendants Violation Of California’s Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200, et seq. Plaintiff against Defendants

lose

22. Under § 403(d) of the FDCA (21 U.S.C. § 343(d)), a food shall be deemed to be misbranded “[i]f its container is so made, formed, or filled as to be misleading.” 25. The possibility that some portion of the slack-fill in Defendant’s Product may be justified as functional based on the exemptions in §100.100(a) does not justify slack-fill that is in excess of that required to serve a legitimate purpose—protecting contents, accommodating the machines that enclose the contents, accommodating settling, etc. Such slack-fill serves no purpose other than to mislead consumers about the quantity of food they are actually purchasing. See Waldman v. New Chapter, Inc., 714 F. Supp. 2d 398, 405 (E.D.N.Y. 2010) (“Misleading consumers is not a valid reason to package a product with slack-fill. See 21 C.F.R. § 100.100(a)(1–6).”). 26. The food labeling laws and regulations of New York impose requirements that mirror federal law. 27. New York Agm. Law § 201 specifically provides that “[f]ood shall be deemed to be misbranded … If its container is so made, formed, colored or filled as to be misleading.” Moreover, Part 259.1 of Title 1 of the New York Codes, Rules and Regulations (1 NYCRR § 259.1), incorporates by reference the regulatory requirements for food labeling under the FDCA: “For the purpose of the enforcement of article 17 of the Agriculture and Markets Law, and except where in conflict with the statutes of this State or with rules and regulations promulgated by the commissioner, the commissioner hereby adopts the current regulations as they appear in title 21 of the Code of Federal Regulations (revised as of April 1, 2013) … in the area of food packaging and labeling as follows: … (2) Part 100 of title 21 of the Code of Federal Regulations [21 C.F.R. 100 et seq.], containing Federal definitions and standards for food packaging and labeling General at pages 5-10….” 1 NYCRR § 259.1(a)(2). 53. Plaintiff JOCELYN brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the following Class: All persons or entities in the United States who made retail purchases of the Products during the applicable limitations period, and/or such subclasses as the Court may deem appropriate (“the Nationwide Class”). In the alternative, Plaintiff JOCELYN seeks to represent: All persons who made retail purchases of the Products in New York during the applicable limitations period, and/or such subclasses as the Court may deem appropriate (“the New York Class”). 55. Class members are so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to Plaintiff at this time and can only be ascertained through the appropriate discovery, Plaintiff believes that there are thousands of members in the proposed Classes. Other members of the Classes may be identified from records maintained by Defendant and may be notified of the pendency of this action by mail, or by advertisement, using the form of notice similar to that customarily used in class actions such as this. 56. Plaintiff’s claims are typical of the claims Class members as they all are similarly affected by Defendant’s wrongful conduct. 57. Plaintiff will fairly and adequately protect the interests of the Class members in that Plaintiff has no interests antagonistic to them. Plaintiff has retained experienced and competent counsel. 58. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Since the damages sustained by individual Class members may be relatively small, the expense and burden of individual litigation make it impracticable for the Class members to individually seek redress for the wrongful conduct alleged herein. 60. The membership of the Classes is readily definable, and prosecution of this action as a class action will reduce the possibility of repetitious litigation. Plaintiff knows of no difficulty which will be encountered in the management of this litigation that would preclude its maintenance as a class action. 62. The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(2) are met, as Defendant has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive or equitable relief with respect to the Class as a whole. 63. The prerequisites to maintaining a class action for injunctive relief or equitable relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Classes predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 64. The prosecution of separate actions by individual Class members would create a risk of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. Additionally, individual actions may be dispositive of the interest of all Class members, although certain Class members are not parties to such actions. 65. Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiff seeks, inter alia, equitable remedies with respect to the Classes as a whole. As such, Defendant’s systematic policies and practices make declaratory relief with respect to the Classes as a whole appropriate. 66. Plaintiff JOCELYN realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 67. Plaintiff JOCELYN brings this claim individually and on behalf of the other members of the Class for an injunction for violations of New York’s Deceptive Acts or Practices Law, General Business Law (“NY GBL”) § 349. 68. NY GBL § 349 provides that “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.” 69. Under the New York Gen. Bus. Code § 349, it is not necessary to prove justifiable reliance. (“To the extent that the Appellate Division order imposed a reliance requirement on General Business Law [§] 349 . . . claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. App. Div. 2012) (internal citations omitted)). 70. The practices employed by Defendant, whereby Defendant advertised, promoted, marketed and sold its Product in packaging containing non-functional slack-fill are unfair, deceptive and misleading and are in violation of the NY GBL § 349. Moreover, New York State law broadly prohibits the misbranding of foods in language identical to that found in regulations promulgated pursuant to the FDCA § 403 (21 U.S.C. 343(d)). Under New York Agm. Law § 201, “[f]ood shall be deemed to be misbranded … If its container is so made, formed, colored or filled as to be misleading.” 71. The foregoing deceptive acts and practices were directed at consumers. 73. Absent an injunction, Plaintiff JOCELYN is at risk of continued injury because she can no longer rely on Defendant’s packaging, even if the nonfunctional slack-fill is corrected. Plaintiff JOCELYN might hesitate to purchase Defendant’s products even if it ceases its unlawful packaging practices and begins packaging its products without slack-fill. If the products are no longer sold with non-functional slack-fill, then Plaintiff JOCELYN could not take advantage of those products because she has been misled into believing that the products have non-functional slack-fill. Courts have agreed with this assessment: [S]ome courts have focused on the particular nature of the injury at issue to find standing. They have found at least two injuries sufficient to establish standing where the plaintiff is aware of the misrepresentation: absent an injunction, the plaintiff-consumer will 1) no longer be able to confidently rely on the defendant's representations (see Ries, 287 F.R.D. at 533), and 2) refrain from purchasing products in the future even if they in fact conform to her expectations (see Lilly v. Jamba Juice Company, No. 13-cv-02998-JST, 2015 U.S. Dist. LEXIS 34498, 2015 WL 1248027, at *3-5 (N.D. Cal. March 18, 2015). When a consumer discovers that a representation about a product is false, she doesn't know that another, later representation by the same manufacturer is also false. She just doesn't know whether or not it's true. A material representation injures the consumer not only when it is untrue, but also when it is unclear whether or not is true. Duran v. Hampton Creek, No. 3:15-cv-05497-LB, 2016 U.S. Dist. LEXIS 41650 (N.D. Cal. Mar. 28, 2016). 74. The Court should follow the lead of California Federal Courts and recognize that a plaintiff may be injured after he learns of a manufacturer’s deception, even though he is unlikely to fall victim to the exactly the same scheme again in exactly the same manner. To hold otherwise would immunize manufacturers and render injunctive relief impossible in consumer fraud class action lawsuits – if learning of a deception removed a Plaintiff’s standing to seek an injunction, then wrongdoers could violate the law with impunity, defeating the purpose of consumer protection statutes. 76. Plaintiff JOCELYN realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 77. Plaintiff JOCELYN brings this claim individually and on behalf of the other members of the Class for violations of NY GBL § 349. 78. Any person who has been injured by reason of any violation of NY GBL § 349 may bring an action in her own name to enjoin such unlawful acts or practices, an action to recover her actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing plaintiff. 79. By the acts and conduct alleged herein, Defendant committed unfair or deceptive acts and practices by misbranding its Product so that it appears to contain more in the packaging than is actually included. 81. The foregoing deceptive acts and practices were directed at consumers. 82. Plaintiff JOCELYN and the other Class members suffered a loss as a result of Defendant’s deceptive and unfair trade practices. Specifically, as a result of Defendant’s deceptive and unfair acts and practices, Plaintiff JOCELYN and the other Class members suffered monetary losses from the purchase of Product, i.e., receiving less than the capacity of the packaging due to non-functional slack-fill in the Product. In order for Plaintiff JOCELYN and Class members to be made whole, they must receive a refund of the purchase price of the Product equal to the percentage of non-functional slack-fill in it. 83. This claim is brought on behalf of Plaintiff JOCELYN and members of the Class against Defendant. 84. Plaintiff JOCELYN realleges and incorporates by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 85. Defendant has been and/or is engaged in the “conduct of … business, trade or commerce” within the meaning of N.Y. Gen. Bus. Law § 350. 87. Pursuant to the FDCA as implemented through 21 C.F.R. § 100.100, package size is an affirmative representation of quantity. Thus, the non-functional slack-fill in Defendant’s Product constituted false advertising as to the quantity of candy contained therein. Defendant caused this false advertising to be made and disseminated throughout New York and the United States. Defendant’s false advertising was known, or through the exercise of reasonable care should have been known, by Defendant to be deceptive and misleading to consumers. 88. Defendant’s affirmative misrepresentations were material and substantially uniform in content, presentation, and impact upon consumers at large. Consumers purchasing the Product were, and continue to be, exposed to Defendant’s material misrepresentations. 89. Defendant has violated N.Y. Gen. Bus. Law § 350 because its misrepresentations and/or omissions regarding the Product, as set forth above, were material and likely to deceive a reasonable consumer. 90. Plaintiff JOCELYN and members of the Class have suffered an injury, including the loss of money or property, as a result of Defendant’s false and misleading advertising. In purchasing the Product, Plaintiff JOCELYN and members of the Class relied on the misrepresentations regarding the quantity of the Product that was actually candy rather than non- functional slack-fill. Those representations were false and/or misleading because the Product contains substantial hidden non-functional slack-fill. Had Plaintiff and the Class known this, they would not have purchased the Product or been willing to pay as much for it. 92. Plaintiff realleges and incorporates herein by reference the allegations contained in all preceding paragraphs, and further alleges as follows: 93. Through its product packaging, Defendant intentionally made materially false and misleading representations regarding the quantity of candy that purchasers were actually receiving. 94. Plaintiff and Class members were induced by, and relied upon, Defendant’s false and misleading representations and did not know the truth about the Product at the time they purchased it. 95. Defendant knew of its false and misleading representations. Defendant nevertheless continued to promote and encourage customers to purchase the Product in a misleading and deceptive manner, intending that Plaintiff and the Class rely on its misrepresentations. 96. Had Plaintiff and the Class known the actual amount of candy they were receiving, they would not have purchased the Product. COMMON LAW FRAUD (brought on behalf of the Nationwide Class, in conjunction with the substantively similar common law of other states and the District of Columbia to the extent New York common law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the New York Class) DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349 (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT) (brought on behalf of the Nationwide Class, in conjunction with the substantively similar common law of other states and the District of Columbia to the extent New York common law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the New York Class) Identical Federal and State Law Prohibit Misbranded Foods with Non-Functional Slack-Fill VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §§ 350 AND 350-a(1) (FALSE ADVERTISING) (brought on behalf of the Nationwide Class, in conjunction with the substantively similar common law of other states and the District of Columbia to the extent New York common law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the New York Class)

win

VIOLATION OF THE FAIR CREDIT REPORTING ACT CLASS ALLEGATIONS 11. For a small fee, any person or entity can access all the information in the Fraud Alert database on any consumer at anytime using a website maintained by the Defendant. 12. Thus, consumers that have ever applied for a loan with a Fraud Alert member are included in this database without their knowledge or consent, including, without limitation, politicians, law enforcement officials, judges, clergymen, high ranking military officers and other high profile individuals. 13. Unlike Equifax, TranUnion and Experian, MERS does not have a policy in place to prevent the disclose of consumers reports of high profile individuals, indeed very few people outside the mortgage industry even know of the existence of the secret database thereby making it ripe for exploitation for nefarious and other illegal reasons such as identity theft. 14. MERS, as a matter of company policy, will never disclose the contents of the consumer’s file to the consumer or the source of the information. 16. In or around March 2010 MERS designed and distributed the flyer to participants in the mortgage industry attached hereto as Exhibit “A” that clearly shows it views itself as a consumer reporting agency covered by the FCRA. Q. Does the Fair Credit Reporting Act (FCRA) apply to the accuracy of the information referenced by MERS® FraudALERT? A. Yes, because information obtained from MERS® FraudALERT may be used by members to make loan and employment decisions. In addition, under the FCRA, MERSCORP, Inc. (MERS) will respond to requests to correct information used by MERS® FraudALERT. (Exhibit “A” p.2) 18. MERS has a secure portal (https://web1.zixmail.net/s/login?b=mersinc) 5 to allow a consumer to dispute information in the file electronically but will not disclose the information in the file to the consumer. 19. Plaintiff filed a class action complaint currently pending before this court styled Ronald Sciortino on behalf of himself and all others similarly situated v. Nationstar Mortgage, LLC., case no.: 1:12-CV-01563-AT-WEJ wherein inter alia Defendant Nationstar claims to be a debt collector for Fannie Mae. 20. On or about March 1, 2012 Plaintiff filed another Class action complaint currently pending before this court styled Ronald Sciortino on behalf of himself and all others similarly situated v. Barrett Daffin Frappie Levin & Brock, LLP, case no.: 1:12-CV-1322-AT-WEJ wherein inter alia Defendant claims it is a debt collector and that Nationstar is the creditor to whom the debt was owed, not Fannie Mae. 22. Defendant responded by on May 18, 2012 stating the Plaintiff should contact his servicer and did not release all the information in the Plaintiff’s file as requested or disclose the identity of each person (including each end- user identified under section 1681e (e)(1) of the Fair Credit Reporting Act) that procured a consumer report— (i) for employment purposes, during the 2-year period preceding the date on which the request was made; or (ii) for any other purpose, during the 1-year period preceding the date on which the request was made. 23. Plaintiff requested his consumer file from MERS on June 5, 2012 through the internet secure portal website listed above. See attached Exhibit “D” incorporated herein by reference. 25. Plaintiff repeats and realleges the allegations in the preceding paragraphs of this Complaint, and incorporate the same herein by this specific reference as though set forth herein in full. 27. Defendant failed to disclose, upon request of the Plaintiff, all information in the consumer’s file at the time of the request or the source of the information. 29. By reason of the conduct alleged herein Defendant willfully did not comply with 15 U.S.C. § 1681g(a) and is liable to the Plaintiff for actual damages of up to one thousand dollars ($1,000), punitive damages and the costs of the action together with reasonable attorney’s fees as determined by the Court pursuant to 15 U.S.C. § 1681N(a). 30. The named Plaintiff and others similarly situated to him, repeat and reallege the allegations in the preceding paragraphs of this Complaint, and incorporate the same herein by reference as though set forth herein in full. 32. Plaintiffs seek class action certification and are authorized to maintain this suit as a class action pursuant to the Federal Rules of Civil Procedure 23(b)(1); 23(b)(2) and 23(b)(3). 33. The persons included in each Class set out above are so numerous that joinder of all parties is impractical. 34. Upon information and belief there are more than one thousand (1,000) members of the proposed class. More precise information concerning the size and identification of class members will be obtained through discovery and set forth in Plaintiffs subsequent Motion for Class Certification. 36. The claims of class representative Ronald Sciortino are typical of the claims of the proposed class. 37. The questions of law and fact which are common among members of the class are whether Defendant violated the FCRA by not disclosing all information in the consumer file at the time of the request of the Plaintiff and putative class members and/or not disclose the identity each person (including each end-user identified under section 1681e (e)(1) of this title) that procured a consumer report— (i) for employment purposes, during the 2-year period preceding the date on which the request was made; or (ii) for any other purpose, during the 1-year period preceding the date on which the request was made. 38. The questions of law or fact common to the members of the class predominate over any questions affecting only individual members and a class action is superior to any other method of fair adjudication of the class presented. 40. The representative party and their counsel will take those actions necessary to protect the interests of the class members. 41. Plaintiff has retained counsel with experience in prosecuting complex litigation and consumer protection statutes. 42. The basis for class certification under Rule 23(b)(1)(A) is that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the Defendants. 43. The basis for class certification under Rule 23(b)(1)(B) is that adjudication with respect to individual members of the class would be, as a practical matter, dispositive of the interests of the other members not parties to the adjudications. 7. According to the Defendant, it maintains a consumer “file” 3 on more than sixty three million (63,000,000) “consumers” as that term is defined in the FCRA. (See Exhibit “A” p. 1 Seamless MERS Integration) 9. Unbeknownst to residential mortgage applicants, when a mortgage is applied for with a Fraud Alert member, regardless of whether or not it has been approved, the mortgage application information is uploaded to MERS to be included in its Fraud Alert database and a consumer file is created on that person or if ones exists the information is merged into the existing file.

lose

1. The amount of the debt; 13. Plaintiffs bring this claim on behalf of the following case, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 4 14. The Class consists of: a. all individuals with addresses in the State of New York; b. to whom Defendant Law Offices sent an initial collection letter attempting to collect a consumer debt; c. on behalf of Defendant Accelerated; d. that falsely stated that interest may be accruing on the debt when it was not currently accruing; e. which letter was sent on or after a date one (1) year prior to the filing of this action and on or before a date twenty-one (21) days after the filing of this action. 15. The identities of all class members are readily ascertainable from the records of Defendant and those companies and entities on whose behalf it attempts to collect debts and/or has purchased debts. 16. 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. 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 forms attached as Exhibits A, violate 15 U.S.C. §§ 1692e, 1692g. 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 5 handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor his attorneys have any interests, which might cause them not to vigorously pursue this action. 19. This action has been brought, and may properly be maintained, as a class action pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a well-defined community interest in the litigation: a. Numerosity: The Plaintiff is informed and believes, and on that basis alleges, that the Plaintiff Class defined above is so numerous that joinder of all members would be impractical. b. Common Questions Predominate: Common questions of law and fact exist as to all members of the Plaintiff Class and those questions predominance over any questions or issues involving only individual class members. The principal issue is whether the Defendant’s written communications to consumers, in the forms attached as Exhibit A violate 15 U.S.C. § 1692e, 1692g. c. Typicality: The Plaintiff’s claims are typical of the claims of the members of the Plaintiff Class. The Plaintiff and all members of the Plaintiff Class have claims arising out of the Defendants' common uniform course of conduct complained of herein. d. Adequacy: The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class insofar as Plaintiff has no interests that are adverse to the absent members of the Plaintiff Class. 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 his 6 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. 2. The name of the creditor to whom the debt is owed; 20. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member and in that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 21. Depending on the outcome of further investigation and discovery, Plaintiff may, at the time of class certification motion, seek to certify a class(es) only as to particular issues pursuant to Fed. R. Civ. P. 23(c)(4). 22. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 23. Some time prior to November 19, 2020, an obligation was allegedly incurred to WebBank. 24. The WebBank obligation arose out of transactions which were primarily for personal, family or household purposes. 7 25. The alleged WebBank obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5). 26. WebBank is a "creditor" as defined by 15 U.S.C. § 1692a(4). 27. WebBank purportedly sold the alleged debt to Defendant Accelerated, a debt collector, who contracted with the Defendant Law Offices to collect the alleged debt. 28. Defendant 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 – November 19, 2020 Collection Letter 29. On or about November 19, 2020, Defendant Law Offices sent the Plaintiff a collection letter (the “Letter”) regarding the alleged debt owed to WebBank. A true and correct copy of the Letter is attached hereto as Exhibit A. 3. A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt-collector; 30. When a debt collector solicits payment from a consumer, it must, within five days of an initial communication send the consumer a written notice containing: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (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 or a copy of the judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and 8 (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a). 31. The required disclosures set forth in 15 U.S.C. §1692g(a) are more commonly known as the “G Notice”. 32. The FDCPA further provides 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 shall cease collection . . . until the debt collector obtains verification of the debt . . . and a copy of such verification is mailed to the consumer by the debt collector.'' 15 U.S.C. § 1692g(b). 33. Although a collection letter may track the statutory language, ''the collector nevertheless violates the Act if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty.'' Russell v. EQUIFAX A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (''It is not enough for a debt collection agency to simply include the proper debt validation notice in a mailing to a consumer-- Congress intended that such notice be clearly conveyed.''). Put differently, a notice containing ''language that 'overshadows or contradicts' other language informing a consumer of her rights . . . violates the Act.'' Russell, 74 F.3d at 34. 34. The Letter provides a breakdown of the balance as follows: Charged Off Principal: $34007.26 Charged Off Interest: $1337.61 Charged Off Fees: $41.95 Post Charge Off Interest: $0.00 Balance Due: $35386.82 9 35. The letter further states: “As of the date of this letter, you owe the amount set forth above. The amount set forth above may be increased from day to day due to statutory interest and fees. If we do not accept the amount you send as payment in full satisfaction of debt, we will contact you before depositing your payment. For further information, please contact the undersigned or call 1-212-564-1900.” 36. The letter states that “Post Charge Off Interest” is $0.00. 37. The letter states that the amount set forth my increase from day to day due to statutory interest and fees. 38. Defendant is aware that during the collection of this debt, the balance will not vary at all and stating that it may increase is merely a deceptive collection tactic intended to intimidate and coerce the consumer into paying immediately. 39. The threat of a balance increase overshadows the ''g-notice'' language and coerces the consumer not to exert his rights under the Fair Debt Collection Practices Act. 4. A statement that the consumer notifies the debt collector in writing within thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and 40. In addition, the statement that statutory interest may be increasing daily is directly contradicted by the breakdown listed earlier in the letter that explicitly says that “Post Charge Off Interest” is $0.00. 41. Moreover, the statement is deceptive because statutory interest only accrues on a balance due to a judgment interest as opposed to Plaintiff’s debt which is not due to a judgment. 42. Stating that the account balance may increase due to statutory interest and fees when they are not increasing is materially misleading to Plaintiff and is a false statement that Defendant knowingly made. 10 43. Defendant’s false statement overshadowed Plaintiff’s §1692g right to dispute or validate the debt as he believed he must pay immediately to avoid accruing interest and fees (“adjustments”). 44. As a result of Defendant's deceptive, misleading and unfair debt collection practices, Plaintiff has been damaged. 45. 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. 46. 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. 47. 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. 48. Defendant violated § 1692e: a. As the Letter it is open to more than one reasonable interpretation, at least one of which is inaccurate. b. By making a false and misleading representation in violation of §1692e(10). 49. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct violated Section 1692e et seq. of the FDCPA, and Plaintiff is entitled to an award of actual damages, statutory damages, costs and attorneys’ fees. 5. A statement that, upon the consumer’s written request within the thirty- day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 12 50. 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. 51. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 52. Pursuant to 15 USC §1692g, a debt collector: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing – 53. The Defendant violated 15 U.S.C. §1692g, threating of a balance increase, which overshadows the ''g-notice'' language and coerces the consumer not to exert its rights under the VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq. 11

win

21. Defendant alleges Plaintiff owes a debt (“the alleged Debt”). 22. The alleged Debt is an alleged obligation of Plaintiff to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. 23. The alleged Debt does not arise from any business enterprise of Plaintiff. 24. The alleged Debt is a “debt” as defined by 15 U.S.C. § 1692a(5). 25. At an exact time known only to Defendant, the alleged Debt was assigned or otherwise transferred to Defendant for collection. 4 26. At the time the alleged Debt was assigned or otherwise transferred to Defendant for collection, the alleged Debt was in default. 27. In its efforts to collect the alleged Debt, Defendant contacted Plaintiff by letters including the letter dated December 13, 2019 (“the Letter”). (A true and accurate copy is annexed hereto as “Exhibit 1.”) 28. The Letter conveyed information regarding the alleged Debt. 29. The Letter is a “communication” as defined by 15 U.S.C. § 1692a(2). 30. The Letter was received and read by Plaintiff. 31. 15 U.S.C. § 1692e protects Plaintiff's concrete interests. Plaintiff has the interest and right to be free from deceptive and/or misleading communications from Defendant. As set forth herein, Defendant deprived Plaintiff of this right. 32. 15 U.S.C. § 1692e prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt. 33. 15 U.S.C. § 1692e(10) prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 34. 15 U.S.C. § 1692e(10) prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt. 35. A debt collection practice can be a “false, deceptive, or misleading” practice in violation of 15 U.S.C. § 1692e even if it does not fall within any of the subsections of 15 U.S.C. § 1692e. 36. A collection letter also violates 15 U.S.C. § 1692e if, it is reasonably susceptible to an inaccurate reading by the least sophisticated consumer. 37. The Letter contains a settlement offer. 38. While a settlement offer in and of itself is not improper, such offer runs afoul of the FDCPA if it impresses upon the least sophisticated consumer that if he or she does not accept the settlement, he or she will have no further opportunity to settle the debt for less than the full amount. 5 39. Upon being presented with such offer, the least sophisticated consumer could be materially misled into remitting payment or entering into a repayment plan she may not be able to afford, for fear of being subjected to additional collection efforts for the full amount of the debt when, in fact, settlement offers are frequently renewed if the consumer fails to accept the initial offer. 40. These concerns can be adequately addressed by the debt collector including with the offer the following language: “We are not obligated to renew this offer.” 41. The phrase “we are not obligated to renew this offer” adequately conveys to the least sophisticated consumer that there is a renewal possibility, but also that it is not assured. 42. The Letter does not state “we are not obligated to renew this offer,” nor does it include any kind of substantially similar language. 43. The least sophisticated consumer would likely be misled by the settlement offer. 44. The least sophisticated consumer would likely be misled in a material way by the settlement offer. 45. Defendant has violated 15 U.S.C. § 1692e by way of using a false, deceptive, or misleading representation or means in its attempt to collect Plaintiff’s alleged Debt. 46. For the foregoing reasons, Defendant violated 15 U.S.C. §§ 1692e and 1692e(10) and is liable to Plaintiff therefor. 47. Plaintiff brings this action individually and as a class action on behalf of all persons similarly situated in the State of New York. 48. Plaintiff seeks to certify a class of: All consumers to whom Defendant sent a collection letter substantially and materially similar to the Letter sent to Plaintiff, which letter was sent on or after a date one year prior to the filing of this action to the present. 49. This action seeks a finding that Defendant's conduct violates the FDCPA, and asks that the Court award damages as authorized by 15 U.S.C. § 1692k. 50. The Class consists of more than thirty-five persons. 51. Plaintiff's claims are typical of the claims of the Class. Common questions of law or fact raised by this action affect all members of the Class and predominate over any individual 6 issues. Common relief is therefore sought on behalf of all members of the Class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 52. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to the individual members of the Class, and a risk that any adjudications with respect to individual members of the Class would, as a practical matter, either be dispositive of the interests of other members of the Class not party to the adjudication, or substantially impair or impede their ability to protect their interests. Defendant has acted in a manner applicable to the Class as a whole such that declaratory relief is warranted. 53. Plaintiff will fairly and adequately protect and represent the interests of the Class. The management of the class is not extraordinarily difficult, and the factual and legal issues raised by this action will not require extended contact with the members of the Class, because Defendant's conduct was perpetrated on all members of the Class and will be established by common proof. Moreover, Plaintiff has retained counsel experienced in actions brought under consumer protection laws.

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. 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 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 the Website. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 26. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 27. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations, 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 the locations to purchase items, make reservations and to view the items. 28. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 29. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 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. 32. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in ther action. In relevant part, the ADA requires: In the case of violations of . . . their 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). 34. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendant’s physical locations and hours of operation, shop for and otherwise research related products and services, and make reservations available via the Website. 35. 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. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 39. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 40. 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 in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 43. 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. 44. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 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 physical locations 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 locations. The Website is a service that is integrated with these locations. 49. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 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). 52. 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. 53. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 54. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 56. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 57. 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). 58. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 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.” 61. 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. 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 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. Exec. Law § 297(4)(c) et seq. for each and every offense. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 71. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of ther 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 . . .” 72. 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 her 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.” 74. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 75. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 76. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 77. 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 ...” 78. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 80. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 81. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 82. 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.” 83. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishments. 84. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 86. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 87. 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. 88. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 90. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 91. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 92. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 93. 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. 94. Plaintiff, on behalf of herself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 96. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

101. Local Rule 23-1 provides that a party seeking to maintain a class must include in the complaint “a reference to each part of Fed. R. Civ. P. 23 that the party relies on in seeking to maintain the case as a class action.” Plaintiff complies with this rule in this Section VII. 102. Plaintiff sues on his own behalf and on behalf of the following two classes, including the following “Injunctive Relief Class” pursuant to Rule 23(a) and (b)(2): All individuals who, from November 4, 2011 to the present, have been a member of an NCAA Division I football team; and the following “Transfer Core Issues Class” pursuant to Rule 23(a), (b)(3), and (c)(4): All individuals who, from November 4, 2011 to the present, have sought to transfer from one NCAA Division I football school to another NCAA Division I football school, and pursuant to NCAA transfer rules, were considered to be, or would have been considered to be, athletically ineligible to participate in NCAA Division I football for any period of time. 103. Excluded from all proposed Classes are the employees of the NCAA and their member institutions, employees, class counsel and their employees, and the judicial officers and associated court staff assigned to this case. Excluded from the proposed “Core Issues Class” are individuals whose athletics-related grants-in-aid were reduced, cancelled or not renewed due to one of the reasons enumerated in Bylaw 15.3.4.2 of the NCAA Division I Manual. 104. Members in the Classes are collectively referred to as “class members” or “the Class” unless otherwise specified. 105. The persons in the Class are so numerous that individual joinder of all members is impracticable under the circumstances of this case. Although the precise number of such persons - 26 - is unknown, the exact size of the Class is easily ascertainable, as each class member can be identified by using Defendant’s records. Plaintiff is informed and believes that there are many thousands of Class members in satisfaction of Rule 23(a)(1). 106. Pursuant to Rule 23(a)(2) and (b)(3), there are common questions of law and fact specific to the Class that predominates over any questions affecting individual members, including: a. Whether the NCAA and its member institutions unlawfully contracted, combined and conspired to unreasonably restrain trade in violation of Section 1 of the Sherman Act by agreeing to limit the number of Division I football scholarships available to students; b. Whether the NCAA and its member institutions unlawfully contracted, combined and conspired to unreasonably restrain trade in violation of Section 1 of the Sherman Act by agreeing to restrict NCAA Division I football players’ ability to transfer to other NCAA Division I football schools without being deemed athletically ineligible for a period of time; c. The definition of the relevant market; d. Whether the NCAA has any pro-competitive justification for its conduct; e. Whether the pro-competitive effects of the conduct, if any, outweigh the clear injury to class members; f. Whether class members have suffered antitrust injury; and g. The nature and scope of injunctive relief necessary to restore a competitive market. - 27 - 107. Pursuant to Rule 23(a)(3), Plaintiff’s claims are typical of the Class claims, as they arise out of the same course of conduct and the same legal theories as the rest of the Class, and Plaintiff challenges the practices and course of conduct engaged in by Defendant with respect to the Class as a whole. 108. Plaintiff will fairly and adequately protect the interests of the Class in satisfaction of Rule 23(a)(4). He will vigorously pursue the claims and has no antagonistic conflicts. Plaintiff has retained counsel who are able and experienced class action litigators and are familiar with the NCAA. 109. Rule 23(b)(2) is satisfied, because Defendant has acted or refused to act on grounds that apply generally to the Class, and final injunctive relief or corresponding declaratory relief is appropriate respecting the Class as a whole. A class action is also appropriate because Defendant has acted and refuses to take steps that are, upon information and belief, generally applicable to thousands of individuals, thereby making injunctive relief appropriate with respect to the Class as a whole. 110. Pursuant to Rule 23(b)(3), questions of law or fact common to class members predominate over any questions affecting only individual members. Resolution of this action on a class-wide basis is superior to other available methods and is a fair and efficient adjudication of the controversy because in the context of this litigation no individual class member can justify the commitment of the large financial resources to vigorously prosecute a lawsuit against Defendant. Separate actions by individual class members would also create a risk of inconsistent or varying judgments, which could establish incompatible standards of conduct for Defendant and substantially impede or impair the ability of class members to pursue their claims. It is not anticipated that there would be difficulties in managing this case as a class action. - 28 - U.S.C. § 1) .........................................................................................................................29 PRAYER FOR RELIEF ................................................................................................................30 JURY TRIAL DEMANDED .........................................................................................................31 - 1 - Plaintiff, by and through his attorneys, based on his individual experiences, the investigation of counsel, and upon information and belief, alleges as follows: I. VIII. CAUSES OF ACTION ......................................................................................................28 FIRST CAUSE OF ACTION VIOLATION OF SECTION 1 OF THE SHERMAN ACT (15 VIOLATION OF SECTION 1 OF THE SHERMAN ACT (15 U.S.C. § 1) (Applicable to Plaintiff’s Claims Regarding the NCAA’s Cap on Athletic Scholarships) 111. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 112. The NCAA and NCAA member institutions by and through their officers, directors, employees, agents or other representatives have entered into an unlawful agreement combination and conspiracy in restraint of trade. Specifically, the NCAA and NCAA member institutions have unlawfully agreed to artificially fix or reduce the amount of Division I football scholarships to be awarded to class members in exchange for the student-athletes’ labor by agreeing among themselves to artificially limit the overall supply of Division I football scholarships. These unlawful agreements have unreasonably restrained price competition among NCAA member institutions for student-athletes’ labor. 113. Class members seeking to provide their athletic labor in exchange for in-kind benefits, including grants-in-aid, have been deprived of the benefits of free and open price competition. 114. Class members’ choice of which NCAA Division I member institution to attend has been artificially restricted by the NCAA’s restrictions on the number of Division I football scholarships. 115. Defendant and its member institutions have undertaken this conduct in the United States and its territories. - 29 - 116. Defendant’s business activities and operations involve and affect the interstate movement of students and the interstate flow of substantial funds (including, but not limited to, tuition, room and board, and mandatory fees). 117. As a direct result of the conduct of Defendant and its co-conspirators, Class members have been injured. Price competition among NCAA member institutions has been unreasonably restrained, and as a result Class members have been injured because they are paying or have paid substantially more for tuition than they would in a competitive market. 118. The conduct of the NCAA is continuing and will continue to impose antitrust injury on student-athletes unless injunctive relief is granted. 119. In addition, injunctive relief is necessary to remedy the effects of the NCAA’s past wrongful conduct. VIOLATION OF SECTION 1 OF THE SHERMAN ACT (15 U.S.C. § 1) (Applicable to Plaintiff’s Claims Regarding the NCAA’s Transfer Rules) 120. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 121. The NCAA and NCAA member institutions by and through their officers, directors, employees, agents or other representatives have entered into an unlawful agreement, combination and conspiracy in restraint of trade. Specifically, the NCAA and NCAA member institutions have unlawfully agreed to restrain the ability of NCAA Division I football players to transfer to other Division I football schools without loss of athletics eligibility. These unlawful agreements have unreasonably restrained competition among NCAA member institutions for student-athletes’ labor. - 30 - 122. Class members seeking to provide their athletic labor in exchange for in-kind benefits, including grants-in-aid, have been deprived of the benefits of free and open competition. 123. Class members’ choice of which NCAA Division I member institution to attend has been artificially restricted by the NCAA’s restrictions on their ability to transfer without loss of athletics eligibility. 124. Defendant and its member institutions have undertaken this conduct in the United States and its territories. 125. Defendant’s business activities and operations involve and affect the interstate movement of students and the interstate flow of substantial funds (including, but not limited to, tuition, room and board, and mandatory fees). 126. As a direct result of the conduct of Defendant and its co-conspirators, Class members have been injured. Competition among NCAA member institutions has been unreasonably restrained, and as a result Class members have been injured because their choices of schools to attend have been limited. 127. The conduct of the NCAA is continuing and will continue to impose antitrust injury on student-athletes unless injunctive relief is granted. 128. In addition, injunctive relief is necessary to remedy the effects of the NCAA’s past wrongful conduct.

lose

13. Plaintiff never provided permission to Defendant to call her wireless telephone number nor to contact her regarding any goods or services offered by Defendant. 14. Plaintiff received eight phone calls to her wireless phone from 718-355-9952 between June 9, 2014 and June 20, 2014. These calls were received by Plaintiff on June 9, 2014 6 at 1:25 p.m., June 9, 2014 at 3:28 p.m., June 10, 2014 at 9:38 a.m., June 10, 2014 at 11:43 a.m., June 10, 2014 at 1:45 p.m., June 19 at 1:56 p.m., June 20, 2014 at 4:08 p.m. and June 20, 2014 at 6:28 p.m. 15. Plaintiff answered the call received from 718-355-9952 on June 20, 2014 at 4:06 p.m. and said “hello” several times but there was no response. Plaintiff then waited for someone to answer but there was still no answer and so Plaintiff eventually ended the call. 16. Plaintiff also answered the call received from 718-355-9952 on June 20, 2014 at 6:28 p.m. Upon answering this call, Plaintiff said “hello” three times and there was no response. After saying “hello” three times someone finally came onto the call at the other end and asked for Plaintiff by name and said he was calling from Verde Energy and that Verde Energy could save Plaintiff money on her energy bill. 17. Plaintiff called the phone number 718-355-9952 which answers with a prerecorded message as follows: “Thank you for calling Verde Energy, we were trying to reach you for marketing purposes.” 18. Multiple calls were placed by or on behalf of Defendant to Plaintiff’s wireless phone. These calls were placed without Plaintiff’s authorization. These calls were for marketing purposes intended to sell goods or services offered by Defendant to Plaintiff. 19. These calls were also made using an automated telephone dialing system as indicated by the frequency of the calls, the prerecorded message used when calling back 718- 355-9952, and the delay in the time between Plaintiff answering the phone call and someone on the other end coming onto the line to speak with Plaintiff. This demonstrates that a predictive dialer was used and that these calls were automatically placed by a phone system to Plaintiff and that the phone system would only connect the call to a live representative after someone actually 7 answered the call – here, Plaintiff. Once the phone system determined that Plaintiff had actually answered the call, it then automatically routed the call to what it predicted would be the next available agent who would then speak with Plaintiff. 20. The call placed from 718-355-9952 on June 20, 2014 at 4:06 p.m. demonstrates Defendant used an automatic telephone dialing system since after Plaintiff answered this call and said “hello” several times there was no response on the other end. This demonstrates the call was placed by a predictive dialer which did not have any live agents to which to transfer the call and hence Plaintiff was essentially left on hold while the telephone system was waiting for a live agent to become available to take the call. This is also accounts for the delay that occurred on the call on June 20, 2104 at 6:28 but this time the telephone system’s predictive feature was able to correctly predict an agent would be available to speak with Plaintiff, albeit a while after Plaintiff answered the call rather than immediately. 21. The fact that nobody was available to speak with Plaintiff immediately upon her answering these calls also evidences that the calls were not dialed by a human being but rather dialed automatically by the phone system from a list of phone numbers that included Plaintiff’s wireless phone number. 22. The foregoing coupled with the functions typical of predictive dialers used by telemarketers such as Defendant indicate the phone system that called Plaintiff has, upon information and belief, the capacity to: generate numbers and dial them without human intervention; generate numbers from calling lists and dial them without human intervention; generate numbers randomly and dial them without human intervention; generate numbers sequentially and dial them without human intervention; store numbers and dial those numbers from a database of numbers; store numbers and dial those numbers at random; store numbers and 8 dial those numbers sequentially; produce numbers and dial those numbers from a database of numbers; produce numbers and dial those numbers at random; produce numbers and dial those numbers sequentially; produce telephone numbers to be called, using a sequential number generator and to dial such numbers; produce telephone numbers to be called, using a sequential number generator and to dial such numbers; store telephone numbers to be called, using a random number generator and to dial such numbers; and store telephone numbers to be called, using a random number generator and to dial such numbers. 23. The predictive dialer phone system that called Plaintiff eight times as alleged above is an automatic telephone dialing system. 24. Plaintiff has also reviewed numerous online forums containing posts complaining about Defendant’s harassing telemarketing practices and expressing frustrations nothing appears to deter Defendant’s illegal and harassing telemarketing practices. 25. Plaintiff brings this action as a Class Action pursuant to Rule 23 of the Federal Rules of Civil Procedure for all claims. 26. Plaintiff brings this class action on behalf of herself and all others persons within the United States who within the four year period prior to filing this Class Action Complaint (the “Class Period”) received a telemarketing call by or on behalf of Defendant or by their agents to any wireless phone using an automatic telephone dialing system. Excluded from the class definition are (i) Defendant or any of its employees or agents, or any of their family members, or (ii) any person from whom Defendant have in their records express written consent signed by such person permitting Defendant to call that person’s wireless phone to telemarket goods or services offered by Defendant using an automatic telephone dialing system. (The “Class”). 9 27. The members of the Class are so numerous that joinder of all Class members is impracticable. While the exact number of Class members is unknown to Plaintiff at this time, this information is easily ascertainable through discovery of Defendant’s records, and Plaintiff believes that there are likely hundreds, if not more, individuals in the Class. 28. Questions of law and fact common to the Class as a whole include, but are not limited to, the following: a. Whether calls were made to wireless phones using an automatic telephone dialing system by or on behalf of Defendant during the Class Period to sell goods or services offered by Defendant. b. Whether Defendant should be enjoined from making such calls. 29. Plaintiff’s claim is typical of the claims of the other members of the Class, because the Plaintiff and all members of the Class were called on their wireless phones by or on behalf of Defendant seeking to market to them goods or services offered by Defendant without their prior express written signed consent. 30. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class and has retained counsel competent and experienced in class action litigation. The interests of Plaintiff are coincident with and not antagonistic to the interests of the other members of the Class. 31. Class certification of Plaintiff’s claims is appropriate pursuant to Fed. R. Civ. P. 23(b)(1) because the prosecution of separate actions by individual Class members would create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for Defendant. In addition, Class certification of Plaintiff’s claims is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on 10 grounds generally applicable to the Class, making appropriate injunctive relief with respect to Plaintiff and the Class as a whole. The members of the Class are entitled to injunctive relief to remedy Defendant’s ongoing statutory violations. 32. Class certification of Plaintiff’s claims is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly adjudicating the controversy. Moreover, statutory damages for any one individual plaintiff are not sufficient to induce individual class members to control the prosecution of separate actions and management of these claims because a single class action is more desirable and creates fewer difficulties than that presented by individuals’ claims by each class member. 33. 47 U.S.C. § 227; 47 C.F.R. § 64.1200 34. Plaintiff hereby repeats and re-alleges the allegations contained in Paragraphs 1 through 32 as if fully set forth herein. 35. Calls were made by or on behalf of Defendant using an automatic telephone dialing system to Plaintiff and other Class member’s wireless phones marketing goods or services offered by Defendant. 36. Calls were made by or on behalf of Defendant where a live sales representative was not available to speak with the person answering the call and in which two seconds after the called person’s completed greeting the phone system did not provide a prerecorded identification and opt-out message that was limited to disclosing that the call was for “telemarketing purposes” 11 and did not state the name of the business, entity, or individual on whose behalf the call was placed, and a telephone number for such business, entity, or individual that permits the called person to make a do-not-call request during regular business hours for the duration of the telemarketing campaign, and also did not provide an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make a do-not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism. 37. Plaintiff and other Class members are entitled to an award of $500 for each violation of 47 U.S.C. § 227 and/or 47 C.F.R. § 64.1200 as well as injunctive relief prohibiting such conduct in the future. 38. Plaintiff hereby repeats and re-alleges the allegations contained in Paragraphs 1 through 36 as if fully set forth herein. 39. Calls were knowingly and/or willfully made by or on behalf of Defendant using an automatic telephone dialing system to Plaintiff and other Class member’s wireless phones marketing goods or services offered by Defendant. 40. Calls were knowingly and/or willfully made by or on behalf of Defendant where a live sales representative was not available to speak with the person answering the call and in which two seconds after the called person’s completed greeting the phone system did not provide a prerecorded identification and opt-out message that was limited to disclosing that the call was for “telemarketing purposes” and did not state the name of the business, entity, or individual on whose behalf the call was placed, and a telephone number for such business, entity, or individual 12 that permits the called person to make a do-not-call request during regular business hours for the duration of the telemarketing campaign, and also did not provide an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make a do- not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism. 41. Plaintiff and other Class members are entitled to an award of $1,500 for each violation of 47 U.S.C. § 227 or 47 C.F.R. § 64.1200 as well as injunctive relief prohibiting such conduct in the future. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227; 47 C.F.R. § 64.1200 REGARDING CALLS FROM DEFENDANT TO PLAINTIFF VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT

win

24. “ATDS Class” Definition. Plaintiff brings this civil class action on behalf of herself individually and on behalf of all other similarly situated persons as a class action pursuant to Federal Rule of Civil Procedure 23. The “Class” which Plaintiff seeks to represent is comprised of and defined as follows: All persons within the United States to whom, between January 28, 2015 and the present, one or more text message(s) promoting Defendant’s goods or services was delivered by Defendant or an affiliate, subsidiary, or agent of Defendant, and who did not provide Defendant prior express written consent to be sent such text message(s). 25. “DNC List Class” Definition. Additionally, Plaintiff brings this civil class action pursuant to Fed. R. Civ. P. 23 on behalf of herself individually and as a representative of the following class of persons (the “DNC List Class”) entitled to statutory damages under the federal TCPA: All persons in the United States who, between January 28, 2015 and the present, received more than one text message, in any 12-month period, promoting the sale of Defendant’s goods or services sent by Defendant or an affiliate, subsidiary, or agent of Defendant more than 30 days after registering their telephone number on the National Do- Not-Call Registry. 26. Defendant, its employees, and agents are excluded from the Classes. 40. Plaintiff incorporates by reference the foregoing paragraphs of this Class Action Complaint as if fully stated herein. 41. The foregoing acts and omissions constitute violations of the TCPA by Defendant, including but not limited to violations of 47 U.S.C. § 227(b)(1). 42. As a result of Defendant’s violations of the TCPA, Plaintiff and all ATDS Class members are entitled to, and do seek, injunctive relief prohibiting such conduct violating the TCPA in the future pursuant to 47 U.S.C. § 227(b)(3). 43. As a result of Defendant’s violations of the TCPA, Plaintiff and all ATDS Class members are also entitled to, and do seek, an award of $500.00 in statutory damages for each violation of the TCPA (or $1,500.00 for any such violations committed willfully or knowingly) pursuant to 47 U.S.C. § 227(b)(3). 44. Plaintiff and ATDS Class members also seek an award of attorneys’ fees and costs. 45. Plaintiff incorporates by reference the foregoing paragraphs of this Class Action Complaint as if fully stated herein. 46. Plaintiff and each member of the DNC List Class received, within any 12-month period, more than one text message that promoted the sale of Defendant’s goods or services at a time more than 30 days after Plaintiff and each DNC List Class member had registered their respective phone numbers with the national Do-Not-Call Registry. Each such text message constituted a telephone solicitation call within the meaning of the TCPA and its implementing regulations. Neither Plaintiff not any other member of the DNC List Class provided Defendant prior express written consent to receive such text messages. Violation of the TCPA, 47 U.S.C. § 227(b)(3) & 47 U.S.C. § 227(b)(1)(A) (On Behalf of Plaintiff and the ATDS Class Members Against Defendant) Violation of the TCPA, 47 U.S.C. § 227(c)(5) & 47 C.F.R. § 64.1200(c)(2) (On Behalf of Plaintiff and the DNC List Class Members Against Defendant)

win

10. Despite attempting to opt out receiving these pre-recorded unsolicsated telephone calls from Defendant on Plaintiff’s cellular telephone, the calls continued, unabatted. 11. Plaintiff has no knowledge of how Defendant obtained his cellular telephone number and did not give Defendant, express or implied permission to contact him with pre-recorded sales solicitations to his cellular telephone. 12. Plaintiff never gave prior express consent to receive the calls and had never spoken to Defendant prior to the first call received from Defendant. 13. Defendant initiated calls to Plaintiff’s cellular telephone utilizing an artificial or prerecorded voice as prohibited by 47 U.S.C. § 227(b)(1)(A). 14. Defendant’s calls to Plaintiff were made with an “automatic telephone dialing system” (“ATDS”) as defined by 47 U.S.C. § 227(a)(1). This ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator without human intervention. 15. The telephone number Defendant and/or its agents called was assigned to a cellular telephone service in violation of 47 U.S.C. § 227 (b)(1)(A)(iii). 17. These telephone calls made by Defendant and/or its agents violated 47 U.S.C. § 227(b)(1)(A)(iii). 18. Plaintiff brings this action on behalf of himself and on behalf of Class Members of the proposed Class pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) and/or (b)(2). 19. Plaintiff proposes to represent the following Class consisting of and defined as follows: All persons within the United States who have received an automated and/or prerecorded message placed to their cellular telephone soliciting Defendant’s credit card and/or credit products, within the four years prior to the filing of this Complaint. 20. 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. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 21. Plaintiff and members of the Class were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through its agents, illegally contacted Plaintiff and the Class members by making calls to their cellular telephones with a prerecorded or artificial voice for the purposes of soliciting Plaintiff and the Class members a credit card and/or credit prodcuts, thereby causing Plaintiff and the Class members to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff and the Class members. Plaintiff and the Class members were damaged thereby. 23. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the court. The Class can be identified through Defendant’ records or Defendant’ agents’ records. 24. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The questions of law and fact to the Class predominate over questions which may affect individual Class members, including the following: a. Whether, within the last four years, Defendant or its agent(s) placed any artificial or prerecorded voice messages to the Class (other than a message 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; b. Whether Plaintiff and the Class members were damaged thereby, and the extent of damages for such violation; and c. Whether Defendant and its agents should be enjoined from engaging in such conduct in the future. 25. As a person that received at least one alleged solicitation call containing an artificial or prerecorded voice message to their cell phones, Plaintiff is asserting claims that are typical of the 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. 27. Plaintiff has retained counsel experienced in handling class action claims and claims involving violations of the Telephone Consumer Protection Act. 28. 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 and Nevada law. The interest of Class members in individually controlling the prosecution of separate claims against Defendant is small because the maximum statutory damages in an individual action for violation of privacy are minimal. Management of these claims is likely to present significantly fewer difficulties than those presented in many class claims. 29. 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. 33. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 34. 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. 35. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq, Plaintiff, and each member if the class, is entitled to an award of $500 in statutory damages, for each and every violation pursuant to 47 U.S.C. § 227(b)(3)(B). 38. Plaintiff incorporates by reference the above paragraphs of this Complaint as though fully stated herein. 39. The foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 40. As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et seq, Plaintiff and each Class member is entitled to 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). 41. Plaintiff and each Class member is entitled to seek injunctive relief prohibiting such conduct in the future pursuant to 47 U.S.C. § 227(b)(3)(A). 42. Plaintiff is also entitled to an award of attorneys’ fees, costs and interest. 56. As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B); 58. An award of attorney fees and costs to counsel for Plaintiff; 59. Any other relief the Court may deem just and proper including interest. 60. As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member treble damages, as provided by statute, up to $1,500 for each and every violation pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C); 61. Injunctive relief prohibiting such conduct in the future pursuant to 47 U.S.C. § 227(b)(3)(A); 62. An award of attorney fees and costs to counsel for Plaintiff; 63. Any other relief the Court may deem just and proper including interest. 7. As early as Feburary 10, 2020, Plaintiff began receiving pre-recorded, artificial voice phone calls from Defendant on Plaintiff’s cellular telephone, soliciting Plaintiff to open a new credit card with Defendant. 8. Plaintiff continued to received a large number of calls in similar fashion, sometimes two to three times per day. All these calls were automated, prerecorded voicemessages that would begin with the recorded message, “Congratulatsion you have been approved for a Credit One credit card.” 9. In frustration, Plaintiff was forced listen these messages and opt out of receiving any more telephone calls from Defendant. FOR NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. FOR KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. 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.

lose

8. Beginning in or around October of 2015, Defendant Spark contacted Plaintiffs on their residential home telephone, (267) 761-9427, in an effort to sell or solicit its services. 9. Specifically, Defendant Spark, calling from (215) 621-8358, placed telephone calls to Plaintiffs’ home telephone utilizing a pre-recorded message to connect Plaintiffs with Defendant Spark’s representatives. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227 et seq.  As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiffs and the 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.

lose

10. TrainingWheel’s financial results are significantly driven by the number of consultants providing training and support services for TrainingWheel’s customers and the fees that TrainingWheel charges the customers for these services. 11. Between 2010 and 2018, Plaintiff Freeman worked as a consultant for TrainingWheel and was assigned to work at hospitals in Alabama, Michigan, Florida, Oklahoma, Georgia and Tennessee. 12. Between January 2013 and August 2018, Plaintiff Clarke worked as a consultant for TrainingWheel and was assigned to work at hospitals in Tennessee, Florida, Michigan, and Alabama. 14. TrainingWheel improperly, wrongfully and illegally classified Plaintiffs and Collective Action Members as independent contractors, when the economic reality of their position is that of an employee, and TrainingWheel retains the right of control, and, in fact, actually does control their work. Plaintiffs and Collective Action Members are Employees as a Matter of Economic Reality 15. Work performed by Plaintiffs and Collective Action Members is an integral part of TrainingWheel’s business. TrainingWheel is in the business of providing information technology educational services to the healthcare industry. Plaintiffs and Collective Action Members provide support and training to TrainingWheel’s clients in connection with the implementation of new electronic recordkeeping systems. 16. Plaintiffs’ and Collective Action Members’ duties do not involve managerial work. They follow the training provided to them by TrainingWheel and its clients in performing their work, which is basic training and support in using electronic recordkeeping systems. 17. Plaintiffs and Collective Action Members do not make any significant relative investments in relation to their work with TrainingWheel. TrainingWheel provides the training and equipment required to perform the functions of their work. 19. Plaintiffs’ and Collective Action Members’ work does not require special skills, judgment or initiative. TrainingWheel provides training to Plaintiffs and Collective Action Members, which they in turn use to provide training and support to TrainingWheel’s clients. 20. Plaintiffs and Collective Action Members are economically dependent on TrainingWheel. Plaintiffs and Collective Action Members are entirely dependent upon TrainingWheel for their business. 21. Plaintiffs and Collective Action Members are not customarily engaged in an independently established trade, occupation, profession or business. 22. Plaintiffs and Collective Action Members typically enter into successive projects for TrainingWheel. Each of the Plaintiffs has worked on multiple projects for TrainingWheel over the course of several years. 23. Plaintiffs and Collective Action Members have little or no authority to refuse or negotiate TrainingWheel’s rules and policies; they must comply or risk discipline and/or termination. 25. Plaintiffs and Collective Action Members often work approximately twelve (12) hours per day, and up to seven (7) days per week. 26. Plaintiffs and Collective Action Members have to request TrainingWheel’s approval for time off. TrainingWheel has the discretion to grant or deny such requests. Plaintiffs and Collective Action Members are not Exempt as “Computer Employees” under the FLSA 28. Plaintiffs’ and Collective Action Members’ primary duties consist of training and aiding healthcare staff with using new electronic recordkeeping software. This support is also known as “at the elbow”. Plaintiff’s and Collective Action Members’ primary duties do not include the higher skills of “application of systems analysis techniques and procedures” pursuant to 29 C.F.R. § 541.400(b)(1). Plaintiffs and Collective Action Members do not analyze, consult or determine hardware, software programs or any system functional specifications for TrainingWheel’s clients. See id. 29. Plaintiffs and Collective Action Members do not consult with TrainingWheel’s customers to determine or recommend hardware specifications. Plaintiffs and Collective Action Members do not design, develop, document, analyze, create, test or modify computer systems or programs as defined in 29 C.F.R. § 541.400(b)(2). 31. Plaintiffs and Collective Action Members are regularly required to work 12-hour shifts, up to 7 days a week, while performing work for TrainingWheel. 32. Although Plaintiffs and Collective Action Members are routinely required to work more than forty (40) hours per week, up until at least 2018, they did not receive one and one-half (1 ½) times their regular rate for hours worked in excess of forty (40) hours per week, as required by the FLSA. 33. Instead, Plaintiffs and Collective Action Members were paid a straight hourly rate for hours that they worked, regardless of whether they worked more than forty (40) hours in a week. TrainingWheel Willfully Violated the FLSA 35. Based upon the foregoing, TrainingWheel was cognizant that, or recklessly disregarded whether, its conduct violated the FLSA. 36. Plaintiffs bring Count I of this lawsuit pursuant to 29 U.S.C. § 216(b) as a collective action on behalf of the collective defined above. 37. Plaintiffs desire to pursue their FLSA claims on behalf of all individuals who opt- in to this action pursuant to 29 U.S.C. § 216(b). 39. Specifically, TrainingWheel misclassified Plaintiffs and FLSA Collective Members as independent contractors and paid them a set hourly rate. 40. The similarly situated employees are known to TrainingWheel, are readily identifiable, and can easily be located through TrainingWheel’s business and human resources records. 41. TrainingWheel employs many Collective Action Members throughout the United States. These similarly situated employees may be readily notified of this action through U.S. Mail and/or other means, and allowed to opt in to this action pursuant to 29 U.S.C. § 216(b), for the purpose of collectively adjudicating their claims for overtime compensation, liquidated damages (or, alternatively, interest) and attorneys’ fees and costs under the FLSA. 42. All previous paragraphs are incorporated as though fully set forth herein. 43. The FLSA defines “employer” broadly to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…” 29 U.S.C. § 203(d). 44. TrainingWheel is subject to the wage requirements of the FLSA because TrainingWheel is an employer under 29 U.S.C. § 203(d). 45. During all relevant times, TrainingWheel has been an “employer” engaged in interstate commerce and/or in the production of goods for commerce, within the meaning of the 9. As a leading healthcare information technology firm, TrainingWheel provides training and support to medical facilities in connection with the implementation of new electronic recordkeeping systems. TrainingWheel employs consultants, such as Plaintiffs, who perform such training and support services throughout the United States. Violation of the FLSA (On Behalf of Plaintiffs and the Collective Action Members)

win

10. In September 2014, Plaintiff purchased a medical device from Defendant that requires him to periodically purchase supplies for its continued use. 12. Defendant calls Plaintiff at least every three months and plays the same prerecorded message each time. If plaintiff does not answer his phone, or does not place an order with Defendant, Defendant calls every day with the same message. 13. One of the numbers from which Defendant called Plaintiff was identified as (651) 632-9800. 14. These calls made by Defendant were generated by an automatic dialer, as evidenced by the fact that when these calls went to Plaintiff’s voicemail, Defendant left a prerecorded voicemail message. Each of the phone messages was identical in content and voice. 16. The length of the call is just over two-and-a-half minutes. 22. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of a class (the “Class”) defined as follows: All persons in the United States and its territories who received one or more unauthorized automated or pre-recorded phone calls or voicemail messages from or on behalf of Fairview Health Services or any of its subsidiaries or affiliates. Plaintiff reserves the right to redefine the Class or subclass prior to class certification. 23. Numerosity: Members of the proposed Class are so numerous that their individual joinder is impracticable. The precise number of members is unknown to Plaintiff at this time. However, upon information and belief, it is at least several thousand individuals. The true number of proposed members is, however, known by Defendant, and thus, Class members may be notified of the pendency of this action by first class mail, electronic, and published notice using information in Defendant’s business and marketing records. 25. Typicality: Plaintiff’s claims are typical of the other members of the proposed Class because they received unauthorized phone calls and voicemail messages from Defendant using an automatic telephone dialing system. 27. Declaratory and Injunctive Relief: Defendant has acted or refused to act on grounds generally applicable to Plaintiff and the other proposed Class members, thereby making appropriate final injunctive relief and declaratory relief, as described below, with respect to the Class as a whole. 28. Predominance: This case should be certified as a class action because the common questions of law and fact concerning Defendant’s liability for making unauthorized phone calls and leaving unauthorized voicemail messages will predominate the litigation over any questions that may affect individual Class members.

lose

76. 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. 77. 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. 78. 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. 79. 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. 80. Plaintiff's claims are typical of the class members, as all are based upon the same facts and legal theories. -14- 81. 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. 82. 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 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 -15- 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. 83. 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 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. 84. 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. -16- 85. 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. 86. 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). 87. Plaintiff repeats, reiterates, and incorporates the allegations contained in paragraphs numbered one (1) through eighty six (86) herein with the same force and effect is if the same were set forth at length herein. 88. This cause of action is brought on behalf of Plaintiff and the members of a class. 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 the Plaintiff on or about October 21st, 2016; and (a) the collection letter was sent to a consumer seeking payment of a personal debt; and (b) the collection letter was not returned by the postal service as undelivered; and (c) the Plaintiff asserts that the letter contained violations of 15 U.S.C. §§ 1692g of the FDCPA as it failed to clearly, explicitly and unambiguously convey the amount of the debt. 89. Plaintiff repeats, reiterates, and incorporates the allegations contained in paragraphs numbered one (1) through eighty eight (88) herein with the same force and effect is if the same were set forth at length herein. 90. This cause of action is brought on behalf of Plaintiff and the members of a class. 91. 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 the Plaintiff on or about October 21st, 2016; and (a) the collection letter was sent to a consumer seeking payment of a personal debt; and (b) the collection letter was not returned by the postal service as undelivered; and (c) the Plaintiff asserts that the letter contained violations of 15 U.S.C. §§ 1692e of the FDCPA by using a false, deceptive and misleading representation in its attempt to collect a debt. 92. Plaintiff repeats, reiterates, and incorporates the allegations contained in paragraphs numbered one (1) through ninety one (91) herein with the same force and effect is if the same were set forth at length herein. 93. This cause of action is brought on behalf of Plaintiff and the members of a class. 94. 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 the Plaintiff on or about October 21st, 2016; and (a) the collection letter was sent to a consumer seeking payment of a personal debt; and (b) the collection letter was not returned by the postal service as undelivered; and (c) the Plaintiff asserts that the letter contained violations of 15 U.S.C. §§ 1692f and § 1692e by charging or attempting -18- to charge non-interest charges or fees. Violations of the Fair Debt Collection Practices Act 95. Defendant's actions as set forth above in the within complaint violates the FDCPA. 96. 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 February 3rd, 2017 /s/ Igor Litvak_____ Igor Litvak, Esq. Attorneys for the Plaintiff The Litvak Law Firm, PLLC 1701 Avenue P Brooklyn, New York 11229 Office: (718) 989-2908 Facsimile: (718) 989-2908 E-mail: Igor@LitvakLawNY.com Plaintiff requests trial by jury on all issues so triable. /s/ Igor Litvak_____ Igor Litvak, Esq. Violation of 15 U.S.C. § 1692f and § 1692e False or Misleading Representations Violation of 15 U.S.C. § 1692e False or Misleading Representations -17- Violation of 15 U.S.C. § 1692g Failure to Adequately Convey the Amount of the Debt

win

24. Defendant is an automotive retailer. Defendant is an online retailer of new and used cars, specializing in connecting sellers and buyers using algorithms and data analytics. Defendant owns, operates, manages, and controls the website, www.cargurus.com (its “Website”), which allows Defendant to sell vehicles on both a national and international scale. With few to no brick and mortar stores currently operating today, Defendant’s Website is an exclusive point of sale for Defendant’s business. 25. Defendant’s Website is a commercial marketplace. The Website offers features of a physical marketplace in that it allows all consumers to browse the vehicles listed for sale, provides details about the vehicles, notifies of significant low prices or special clearances, and completes purchases of vehicles, which Defendant will thereafter ensure the delivery of throughout the United States, including in New York State. 26. Defendant’s Website is integrated with its retail business operations, serving as its gateway. The Website offers items for online sale and general delivery to the public. The Website offers features which ought to allow users to learn about the items listed on Defendant’s site and services, browse for items, information, access navigation bar descriptions, prices, sales, coupons, and discount items, as well as to simply peruse the numerous items offered for sale. The features offered by www.cargurus.com include product descriptions, information about the company, review boards, and purchase portals. -9- 27. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff and other blind or visually-impaired users access to its Website, thereby denying the facilities and services that are offered and integrated with its retail operations. Due to its 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 retail operations and the numerous facilities, 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 has visited the Website on separate occasions using her NVDA screen-reader. 29. During Plaintiff’s visits to the Website, www.cargurus.com, the last occurring in February of 2021, Plaintiff encountered multiple access barriers which effectively denied her the full enjoyment of the goods and services of the Website. Plaintiff visited Defendant’s Website with an intent to browse and attempt to purchase a new Subaru Outback. 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 range of features and accommodations, which effectively barred Plaintiff from being able to make her desired purchase. 30. The issues started on the homepage of the site where Plaintiff immediately found that she was unable to figure out how to navigate to other pages because her reader could not read the page options to her. She could see that there was text onscreen and could make out what appeared to be site options, but none of these were readable to her screen-reader, even when she actually selected them as opposed to just hovering over them. 31. Even further in the site, Plaintiff quickly found that many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff -10- was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. 32. 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 she or she is expected to insert into the subject field. This was an issue on Defendant’s Website particularly with the filters used to narrow the vehicle search, such as the style- and price-selection filters. 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. 33. 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. 34. Plaintiff has made multiple attempts to complete a purchase on www.cargurus.com, most recently in February of 2021, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused www.cargurus.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. 35. 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 -11- 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. 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. 37. But for the Website’s access barriers, Plaintiff would have returned to and further utilized Defendant’s Website. 38. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 39. 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. 40. 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, -12- 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. 41. 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. 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). 43. 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: a. that Defendant retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so the goods and services on them may be equally accessed and enjoyed by individuals with vision related disabilities; b. that Defendant work with the Mutually Agreed Upon Consultant to ensure that all employees involved in website development and content development be given web accessibility training on a periodic basis, including onsite training to create accessible content at the design and development stages; -13- c. that Defendant work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; d. that Defendant work with the Mutually Agreed Upon Consultant to perform end- user accessibility/usability testing on a periodic basis with said testing to be performed by individuals with various disabilities to evaluate whether Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; e. that Defendant work with the Mutually Agreed Upon Consultant to create an accessibility policy that will be posted on its Website, along with an e-mail address and tollfree phone number to report accessibility-related problems; and f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two years after the Mutually Agreed Upon Consultant validates it is free of accessibility errors/violations to ensure it has adopted and implemented adequate accessibility policies. 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 amounts of money in developing and maintaining its Website and, through the site, has generated significant revenue. The invested amounts are far greater than the associated cost of making their Website equally accessible to visually-impaired consumers. -14- 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 herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 48. 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. 49. 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 and 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 NYSHRL and the NYCHRL. -15- 50. 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, NYSHRL, and the NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 51. 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. 52. 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. 53. 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. 54. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: -16- 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). 56. Defendant’s Website 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. 57. 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). 58. 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). 59. 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, -17- 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). 60. 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. 61. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 62. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 72 of this Complaint as though set forth at length herein. 63. 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.”. -18- 64. The Website www.cargurus.com is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 65. Defendant is subject to the New York Human Rights Law because it owns and operates www.cargurus.com. Defendant is a person within the meaning of N.Y. Exec. Law. § 292(1). 66. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its site, causing www.cargurus.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons the full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 67. Specifically, under N.Y. Exec. Law, “unlawful discriminatory practice” includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 68. 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.” 69. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been -19- 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. 70. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (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. 71. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 72. 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 www.cargurus.com under N.Y. Exec. Law § 296(2) et seq. and/or its implementing regulations. 73. 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. 74. The actions of Defendant were and are in violation of the NYSHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. -20- 75. 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. 76. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 77. 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. 78. 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. 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.” 80. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 81. 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). 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 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. -21- 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). 84. 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. 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 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 -22- in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 87. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her 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. 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 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. 92. 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. 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. -23- DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE NYCHRL

win

(On behalf of Nationwide Breach Class and Missouri Subclass) (On behalf of Nationwide Declaratory Judgment Class and Missouri Subclass) 27. The novel coronavirus – named “severe acute respiratory syndrome coronavirus 2” or “SARS-CoV2” – has spread widely and rapidly across the United States. The illness related to SARS-CoV-2 is “novel coronavirus disease 2019,” commonly abbreviated to “COVID-19.” Although the virus and related illness are distinct, for purposes of this Complaint, Plaintiffs refer to both interchangeably as “COVID-19.” 28. Over 1,100 Missourians and over 140,000 Americans have died of COVID-19 and there have been over 37,000 confirmed COVID-19 cases in Missouri and over 3.8 million confirmed cases in the United States, as of the date of this filing, according to the Coronavirus Resource Center at Johns Hopkins University. See also Centers for Disease Control and Prevention (“CDC”) data. 29. Plaintiffs’ insured property has been rendered unsuitable for its intended uses and has been subject to a variety of limitations, restrictions, and prohibitions, including by government Stay at Home Orders imposed by the States of Missouri and Kansas, Counties of Jackson, Boone, and Wyandotte, City of Kansas City, Missouri, City of Columbia, Missouri, and City of Kansas City, Kansas. 30. Orders restricting Plaintiffs’ operations are still in effect in Kansas City, Missouri, Kansas City, Kansas, Jackson County, Missouri, Boone County, Missouri, and Wyandotte County, Kansas as of the date of this filing. 67. Pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1), 23(b)(2), 23(b)(3) and/or 23(c)(4), Plaintiffs bring this action on behalf of themselves and all others similarly situated, and seeks to represent the following nationwide classes: a. Nationwide Declaratory Judgment Class. All business that are covered by one of the Defendant’s policies in effect during the COVID-19 pandemic. b. Nationwide Breach Class. All businesses that are covered by one of the Defendant’s policies in effect during the COVID-19 pandemic. c. Missouri Subclass. All businesses that purchased one of Defendant’s Policies in Missouri and are covered by one of the Defendant’s policies in effect during the COVID-19 pandemic. 68. Plaintiffs’ Classes satisfy the numerosity, commonality, typicality, adequacy, and superiority requirements of a class action under Rule 23, as set forth more fully herein. 70. Commonality. There are questions of fact and law common to the Classes that predominate over any questions affecting only individual members. The questions of law and fact common to the Class arising from Defendant’s actions include, without limitation, the following: a. Do the Policies cover losses resulting from the COVID-19 pandemic? b. Do the Policies cover losses resulting from state and local Stay At Home Orders requiring the suspension or reduction in business? c. Has Defendant wrongfully denied claims for business losses resulting from COVID-19 and/or the Stay at Home Orders? d. Do any of the following provisions in the Policies cover losses due to COVID- 19: (i) physical loss or damage to property; (ii) business income; (iii) civil authority; (v) ingress/egress; (vi) extra expense; and/or (vii) sue and labor? e. Has Defendant breached its Policies by refusing to cover COVID-19 related losses? f. Are Class members entitled to reasonable attorneys’ fees and expenses? 71. Predominance. The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency, economy, efficiency, fairness, and equity to other available methods for the fair and efficient adjudication of the claims asserted herein. Specifically, many thousands of businesses are impacted by Defendant’s denial of coverage for COVID-19 losses and their claims arise from a common factual predicate, which is the nationwide shutdown and suspension of activities due to the virus. 72. Typicality. Plaintiffs’ claims are typical of those of the Classes as Plaintiffs were subject to the same or similar policy provisions and the losses for all members relate to COVID- 19 and the related closure orders and the claims arise from the same legal theories. 74. Adequacy. Plaintiffs are adequate representatives of the Class and Missouri Subclass because they are members of the Class and their interests do not conflict with the interests of those they seek to represent. The interests of the Class members will be fairly and adequately protected by Plaintiffs and their counsel, who have extensive experience prosecuting complex class litigation. 75. Declaratory Relief and certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. On information and belief, Defendant has refused, or intends to refuse, coverage due to COVID-19 business interruption and other covered losses for all, or most, policyholders with covered Policies and final injunctive and/or declaratory relief mandating that Defendant cover the losses of Class members is appropriate respecting the class as a whole. 76. Issue Class and Modification of Class Definitions and Creation of Subclasses. In the alternative, Plaintiffs reserve the right to seek certification of one or more common issues pursuant to Rule 23(c)(4). In addition, Plaintiffs reserve the right to modify the definitions of the class and/or create subclasses either by amendment to the complaint or by motion for class certification, including but not limited to subclasses for policyholders under specific Policy provisions. 78. The Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, allows this Court to declare the rights and other legal relations of the parties to this dispute. 79. An actual controversy has arisen and now exists between Plaintiffs and the class, on the one hand, and Defendant, on the other hand, concerning the respective rights and duties of the parties under the Policies. Plaintiffs each requested coverage for COVID-19 related losses. Over the course of various communications with Plaintiffs, Defendant has either denied coverage or made clear that it will deny coverage. Defendant is in breach of its obligations by refusing to provide coverage under the Policies. Moreover, upon information and belief, Defendant has refused other, similar claims claiming that COVID-19 losses are not covered by the Policy. 80. Plaintiffs contend that Defendant has breached the Policies in the following respects: a. Plaintiffs and the class have suffered losses due to COVID-19 covered by the Policies. b. Defendant is obligated to pay Plaintiffs and the class for those losses. c. Defendant has failed to pay Plaintiffs and the class for those losses. 81. Plaintiffs therefore seek a declaration of the parties’ respective rights and duties under the Policies and request the Court declare the aforementioned conduct of Defendant unlawful and in material breach of the policies so that future controversies may be avoided. 82. The preceding paragraphs are incorporated by reference as if fully alleged herein. 84. The Policies are valid and enforceable contracts between the Defendant and Plaintiffs and class members. 85. Plaintiffs and the class substantially performed their obligations under the terms of the Policies including giving Defendant notice of their claims. Alternatively, Defendant has waived any terms or conditions of coverage and may not assert any term or condition in the Policy as a defense to liability. 86. Plaintiffs and the class have sustained losses covered by the Policies arising from the COVID-19 virus and associated state and local Stay at Home orders. 87. Over the course of various communications with Plaintiffs, Defendant has either denied coverage or made clear that it will deny coverage. Defendant is in breach of its obligations by refusing to provide coverage under the Policies. Moreover, upon information and belief, Defendant has refused or will refuse other, similar claims claiming that COVID-19 losses are not covered by the Policies. Defendant therefore unjustifiably refuses to pay for losses covered by the Policies, in breach of the Policies. 88. Defendant has refused to pay claims related to COVID-19 on a uniform and class- wide basis, in breach of the Policies. 89. Any conditions precedent to a claim for breach of contract under the Policies have occurred, been satisfied, or, in any event, should be excused or otherwise discarded on the basis of futility or other applicable law.

lose

(California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200) (Unjust Enrichment / Quasi-Contract / Restitution) 17. Plaintiffs hereby re-incorporate and re-allege paragraphs all the preceding paragraphs as if fully set forth herein. 18. LIVING ESSENTIALS’ actions constitute unlawful and unfair conduct within the meaning of California’s unfair competition law. 20. Plaintiffs hereby re-incorporate and re-allege paragraphs all the preceding paragraphs as if fully set forth herein. 21. LIVING ESSENTIALS has received a financial benefit from Plaintiffs that it is unjust for LIVING ESSENTIALS to retain. 7. ABC is a wholesale food distribution company operating in Los Angeles County. It has been in business since January 15, 2013. 8. ABC purchases large volumes of food, beverages, and consumer products that the average consumer would see on the shelves of local convenience stores and markets. Small, independent wholesalers or retailers in the southern California region shop at ABC’s warehouse and purchase goods for resale. 9. PITCO is a wholesale food distribution company that has been in business for thirty years, serving independent stores in northern California from Napa to the Fresno and Bakersfield area. Its customers are small, locally-owned businesses such as other wholesalers, convenience stores, gas stations, Hispanic grocery stores and bodegas. Such stores are often passed over by larger vendors and struggle to compete with large “big box” retailers. Plaintiffs’ Wholesale Businesses

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is a Resort and Casino that operates DEL LAGO Resort and Casino as well as the DEL LAGO website, offering features which should allow all consumers to access the goods and services which Defendant offers in connection with their physical locations. 22. Defendant operates DEL LAGO (its “Casino”) in New York, at 1133 NY-414, Waterloo, NY 13165. 23. Its Casinos constitute places of public accommodation. Defendant’s Casinos provide to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services including Casino locations and hours, access to its Player Login online portal, information pertaining to its hotel, spa and casino, including information on the various slot machines and gaming platforms it offers at its physical locations, and related goods and services. 25. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s Casinos. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Casinos and the numerous goods and services and benefits offered to the public through the Website. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 29. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 30. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Casinos on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 32. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 34. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. Because Defendant’s Website have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 47. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 49. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 51. Defendant’s Casinos are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Casinos. The Website is a service that is integrated with these locations. 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 56. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 57. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 58. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 60. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 62. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 65. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 66. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 68. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 70. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 71. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 72. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 75. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 77. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 78. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 79. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 81. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 82. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 83. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 84. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 87. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 89. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 91. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 93. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 94. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 95. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 98. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 99. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW

win

15. Pursuant to 29 U.S.C. §207, Plaintiffs seek to prosecute her FLSA claims as a 5 collective action on behalf of all persons who are or were formerly employed by Defendant at any time since June 26, 2015 (time tolled by failure to post notice) to the entry of judgment in this case (the “Collective Action Period”), who were non-exempt employees within the meaning of the FLSA and who were not paid minimum wages and/or overtime compensation at rates not less than one and one-half times the regular rate of pay for hours worked in excess of forty hours per workweek (the “Collective Action Members”). 16. Defendants failed to post a notice in a conspicuous location indicating that Plaintiffs and similar home health aid employees were entitled to minimum wages and to overtime and one and one half times their regular hourly rate. 17. This collective action class is so numerous that joinder of all members is impracticable. 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 the Defendant, upon information and belief, there are at least 40 members of the Class during the Collective Action Period, 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. 18. Plaintiffs will fairly and adequately protect the interests of the Collective Action Members and has retained counsel that is experienced and competent in the fields of employment law and class action litigation. Plaintiffs have no interests that are contrary to or in conflict with those members of this collective action. 19. 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 6 small, the expense and burden of individual litigation make 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 a collective action. 20. Questions of law and fact common to the members of the collective action predominate over questions that may affect only individual members because Defendant has acted on grounds generally applicable to all members. Among the common questions of law and fact common to Plaintiffs and other Collective Action Members are a. whether the Defendant employed the Collective Action members within the meaning of the FLSA; b. whether the Defendant failed to keep true and accurate time records for all hours worked by Plaintiffs and the Collective Action Members; c. what proof of hours worked is sufficient where the employer fails in its duty to maintain time records; d. whether Defendant failed to post or keep posted a notice explaining the minimum wages and overtime pay rights provided by the FLSA in any area where Plaintiffs are employed, in violation of C.F.R. § 516.4; e. whether Defendant failed to pay the Collective Action Members minimum wages and overtime compensation for hours worked in excess of forty hours per workweek, in violation of the FLSA and the regulations promulgated thereunder; f. whether Defendant’s violations of the FLSA are willful as that term is used within the context of the FLSA; 7 g. whether Defendant is liable for all damages claimed hereunder, including but not limited to compensatory, punitive and statutory damages, interest, costs and disbursements and attorneys’ fees; and h. whether Defendant should be enjoined from such violations of the FLSA in the future. 21. Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a collective action. 22. Plaintiffs sue on their own behalf and for their class claims on behalf of a class of persons under Rules 23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure. 23. Plaintiffs brings their New York State Law claims on behalf of all persons who were employed by Defendant at any time since June 26, 2015, to the entry of judgment in this case (the “Class Period”), who were not paid all their straight time wages, minimum wages (including those required by the NY Health Care Worker Wage Parity Act), spread of hour wages, and/or overtime wages and/or were not provided the notices required by the Wage Theft Prevention Act (the “Class” or “Class Members”). 24. The persons in the Class identified above are so numerous that joinder of all members is impracticable. 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 the Defendant, upon information and belief, there at least 40 members of Class during the Class Period. 25. The claims of Plaintiffs are typical of the claims of the Class, and a class action is 8 superior to other available methods for the fair and efficient adjudication of the controversy— particularly in the context of wage and hour litigation where individual plaintiffs lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate defendants. 26. The 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. 27. Plaintiffs are committed to pursuing her action and has retained competent counsel experienced in employment law and class action litigation. 28. Plaintiffs have the same interests in this matter as all other members of the class and Plaintiff’s claims are typical of the Class. 29. There are questions of law and fact common to the Class which predominate over any questions solely affecting the individual members of the Class, including but not limited to: a. whether the Defendant employed the members of the Class within the meaning of the New York Labor Law; b. whether the Defendant failed to keep true and accurate time records for all hours worked by Plaintiffs and members of the Class; c. what proof of hours worked is sufficient where employers fail in their duty to maintain time records; d. whether Defendant failed and/or refused to pay the members of the Class for all hours worked by them as well as premium pay for hours worked in excess of forty hours per 9 workweek as well as spread of hours pay for hours worked a spread of more than ten hours, within the meaning of the New York Labor Law; e. whether the Defendant is liable for all damages claimed hereunder, including but not limited to compensatory, interest, costs and disbursements and attorneys’ fees; f. whether the Defendant should be enjoined from such violations of the New York Labor Law in the future; and 30. GALYNA ZINKO (“GALYNA”) was a home health aide/maid employed by Paramount Home Care Agency Inc. (“Paramount”), and Roman Offengeym, Owner and CEO, and his mother Marina Offengeym (collectively “Defendants” or the “Company”), from about February 13, 2019 to September 25, 2020 (the “time period”). 31. During the time period GALYNA worked for one client who had dementia and eventually died of throat cancer. 32. Defendants are an employment agency that sent GALYNA to work as a home health aide/maid for numerous customers located in New York City. 33. During the time period, Roman Offengeym and Marina Offengeym each participated in the day-to-day operations of Paramount. 34. During the time period, Offengeym and Marina Offengeym each had authority over the management, supervision, and oversight of the Paramount’s affairs in general and exercised operational control over Paramount’s home health aide employees and other employees and his decisions directly affected the nature and condition of the home health care 10 employees’ employment. 35. During the time period, Offengeym and Marina Offengeym each had the power to hire and terminate me and the other home health aide employees of the Company (“home health aides”) and did hire and terminate health aide employees, (2) supervised and controlled me and the other home health aides’ schedules and conditions of employment, (3) determined the rate and method of payment of myself and the other home health aides, and (4) maintained employment records related to myself and the other home health aide employees. 36. During the time period, GALYNA never worked for Defendants outside of New York City. 37. During the time period, GALYNA maintained her own residence, and did not legally reside in the homes of Defendants’ clients or in the home of her employer, as her primary residence. 38. During the time period, GALYNA was not an “exempt companion” of the Defendants’ clients. 39. While employed by Defendants, GALYNA generally worked more than 40 hours per week and was not paid time and one half for my hours worked over 40 in a work week. 40. GALYNA worked 24-hour shifts for Defendants during my employment and regularly worked 2 24-hour shifts in a week. 41. Defendants had no policies in place to determine if a health aide received three one hour meal breaks during a 24-hour live in shift and did not have any policies to determine if any health aide received 5 hours of uninterrupted sleep and 8 hours of sleep during a 24-hour live in shift. 11 42. Even when Defendants had knowledge that a health aide was unable to get any sleep during the night or take any meal breaks, Defendants still illegally deducted 8 hours of sleep time and three hours of meal break time from the health aide’s hours worked. 43. Defendants had no policies in place to identify which health aides were not getting sleep or breaks during 24-hour live in shifts and to pay them for their lack of sleep or meal breaks. 44. Defendants had no policy to identify which aides were not provided a bed to sleep on during 24-hour live in shifts. 45. Even when Defendants knew an aide was not given a bed to sleep on during 24- hour live in shifts, Defendants did not pay the health aide for 8 hours of the aide’s 24 hour shift. 46. When GALYNA worked 24-hour shifts, GALYNA was required to stay overnight at the residences of Defendants’ clients, and needed to be ready and available to provide assistance to Defendants’ clients as needed. 47. When GALYNA worked 24-hour shifts, GALYNA was not permitted to leave the client unattended. 48. GALYNA was only paid for approximately 13 hours of er 24-hours shifts. GALYNA was not paid any hourly rate for the other 11 hours worked. 49. GALYNA was generally not permitted to leave the client’s residence during her shift. 50. Because Defendants’ clients were often elderly and/or suffering from dementia, GALYNA did not get an opportunity to sleep for eight hours or 5 hours without any interruption. 51. GALYNA did not get a one-hour break for each of three meals per day. 12 52. GALYNA was often forced to combine her meal times with the meal times of the Defendants’ clients because they needed feeding assistance or constant supervision. 53. GALYNA did not receive the “spread of hours” premium of one additional hour at the minimum wage rate for the days in which GALYNA worked a spread of more than ten hours. 54. GALYNA also did not receive minimum wages, including minimum wages under the Wage Parity Act, for all her hours worked and was not paid time and one half the minimum wage rate for her overtime hours and was not paid full time and one half her regular rate for her overtime hours. 55. Defendants never provided or offered to GALYNA any health insurance, free of charge, and never paid GALYNA for any vacation or holiday time off. 56. Medicaid paid Defendants for some or all of GALYNA’s services and the services of the other similar home health aide employees. 57. GALYNA’s co-workers performed the same and/or similar work to that of herself and were paid in a similar manner and subject to the same rules and policies (“similar health aides”). 58. The similar health aides did not “live in” the homes of Defendants’ clients as their primary residences. 59. The similar health aides generally worked more than 40 hours per week, but were not paid for every hour that they worked. 60. The similar health aides were only paid for approximately 13 hours of their 24- hours shifts, and were not paid any hourly rate for the other 11 hours worked. 13 61. The similar health aides were generally not permitted to leave the client’s residence during their shift. 62. When the similar health aides worked 24-hour shifts, they were required to stay overnight at the residences of Defendants’ clients, and were required to be ready and available to provide assistance to Defendants’ clients as needed. 63. At all relevant times, Defendants have maintained a practice and policy of paying similar health aides for only 13 hours of their 24-hour shifts in violation of New York Labor Law. 64. Defendants had no policies in place to determine if a health aide received three one hour meal breaks during a 24-hour live in shift and did not have any policies to determine if any health aide received 5 hours of uninterrupted sleep and 8 hours of sleep during a 24-hour live in shift. 65. When GALYNA told the supervisor that GALYNA was unable to get any sleep during the night or any meal breaks, Defendants still deducted 8 hours of sleep time and three hours of meal breaks from my hours worked. 66. Defendants had no policies in place to identify which health aides were not getting sleep or breaks during 24-hour live in shifts and to pay them for their lack of sleep or meal breaks. 67. At all relevant times, Defendants have maintained a practice and policy of assigning myself and similar health aides to work more than 40 hours per week without paying us one and one half times the basic minimum hourly rate for all hours worked in excess of forty per week, in violation of New York State Labor Law and the Wage Parity Act. 14 68. GALYNA and the similar health aides did not receive the “spread of hours” premium of one additional hour at the minimum wage rate for the days in which they worked a spread of more than ten hours. 69. Defendants’ actions as described herein were intentional and not made in good faith. 70. When GALYNA first started to work 24-hour shifts, GALYNA complained to her coordinator and to payroll, that GALYNA was not able to sleep during the night or get meal breaks but was not being paid for 8 hours of alleged sleep and 3 hours of meal breaks. They responded that the Company does not pay more than 13 hours for a 24-hour shift. 71. GALYNA was not able to get 5 hours of uninterrupted sleep or 8 hours of sleep during 24 hour live in shifts because GALYNA generally had to get up at least every four hours to attend to the client, which included among other services, to provide food to the client, to take the client to the bathroom, to get the client a glass of water, to calm the client when the client awoke in stress, to clean the client’s bed when the client urinated or defecated in the bed and/or to change the client’s pajamas. 72. The client lived in a room studio apartment, and therefore GALYNA slept in the same room as the client which made it impossible not to be woken repeatedly by the client when sleeping and impossible not to be interrupted by the client when eating. 73. GALYNA’s client had dimentia and never continuously slept for more than 4 hours at any time. 74. During the time period, GALYNA had to turn the client every 2 hours and therefore did not get 5 hours of uninterrupted sleep during her 24 hour shifts. GALYNA 15 reported this turning by a code by phone at the end of each shift. 75. During the 24 hour shifts, GALYNA was only given a couch to sleep on which did not have any fold out bed and was very uncomfortable and did not allow me to get any sleep. 76. During the time period, GALYNA was not paid full regular wages for all her hours worked and was not paid overtime wages for all of her hours worked over forty in a workweek (“overtime”), and was not paid an extra hour of pay for her hours worked over a spread of 10 hours per day. 77. During the time period, GALYNA often worked for 24 hours staying overnight at the client’s house, and on these days was only paid for 13 hours, despite the fact that her sleep was regularly interrupted generally at least 3-4 times by the client throughout the night which prevented her from getting 5 hours of uninterrupted sleep and/or 8 hours of sleep and despite the fact that GALYNA was not given any time off for meal breaks. 78. GALYNA also generally signed in and out using the client’s land line phone. 79. When GALYNA clocked out, GALYNA generally entered codes showing the types of work that GALYNA had performed. At times GALYNA filed handwritten time sheets. There were no codes to report not getting sleep or breaks during 24-hour shifts. 80. During the time period, GALYNA did not receive a meal break because GALYNA was on call or working during her break and regularly interrupted by the client while eating. 81. During the time period, GALYNA was not paid for all her hours worked and was not paid for her hours worked over 40 hours a week (“overtime hours”) at time and one half my 16 regular wages and at times was not paid for all my hours at the minimum wage rate. 82. During the time period, GALYNA was not specifically notified by Defendants of the regular pay day designated by Defendants, Defendants’ name, address and principle place of business and telephone number and my specific rate of pay as required by the New York Wage Theft Prevention Act. GALYNA has not been given any specific notice of this information to sign in Ukranian, her first language or in English or in any other language and has not signed any such notice. GALYNA ZINKO

win

14. Plaintiff, Bart Deardorff is a resident of the State of Illinois and a former employee of Defendants. 15. Plaintiff brings claims for relief for violation of the FLSA as a collective action pursuant to Section 16(b) of the FLSA (29 U.S.C. § 216(b)), on behalf of all employees of ATI who were, are, or will be employed by ATI during the period of three (3) years prior to the date of commencement of this action through the date of judgment in this action, who were not compensated at one-and-one-half times the regular rate of pay for all work performed in excess of forty (40) hours per work week. 5 16. FLSA violation claims are brought and maintained as an “opt-in” collective action pursuant to § 16(b) of FLSA, 29 U.S.C. § 216(b), for all FLSA claims asserted by the Plaintiff, since the FLSA claims of the Plaintiff are similar to the FLSA claims of all service employees employed by ATI. 17. Defendant is liable for improperly compensating Plaintiff and FLSA Collective under the FLSA, and as such notice should be sent to the FLSA Collective. There are numerous similarly situated current and former employees of ATI who have been denied proper payment of the overtime wages. These current, former and future employees would benefit from the issuance of a court supervised notice of the present lawsuit and the opportunity to join in the present lawsuit. The similarly situated employees are known to Defendant and are readily identifiable through Defendant’s records. 18. Plaintiff is employed by ATI as an employee of the Defendant who work beyond forty hours, but for which Defendants failed to pay overtime at the proper and correct rate of pay. 55. Plaintiff realleges and incorporate by reference all the paragraphs of this complaint, as if fully set forth herein. 56. Plaintiff was an employee of the Defendant pursuant to the IMWL. 57. Plaintiff was employed by ATI as a “Service Tech”. 58. It is and was at all relevant times, a policy of ATI to pay its employees at an overtime rate of pay which does not include the added compensation earned as 11 commissions and/or to not pay employees for certain hours of work such as “admin work” or some training and travel time. 59. It is a policy, procedure and job requirement of Defendant ATI its employees to pay its employees at an overtime rate of pay which does not include the added compensation earned as commissions or earned bonuses 60. The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated or sporadic, but widespread, repeated and part of a pattern and practice of conduct affecting most if not all of the Defendant’s employees. 61. As a result of the foregoing, Plaintiff has been damaged in an amount to be determined at trial. 62. Illinois law contains a three-year statute of limitations regardless of whether the violation was willful. 820 ILCS 105/12(a). 63. Plaintiff realleges and incorporate by reference all the preceding paragraphs, as if fully set forth herein. 64. Plaintiffs were employed by ATI. 65. It is and was at all relevant times, a policy of ATI to pay its employees at an overtime rate of pay which does not include the added compensation earned as commissions or earned bonuses and/or pay for all hours worked. 66. The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated or sporadic, but widespread, repeated and part of a pattern and practice of conduct affecting all Defendants’ employees. 12 67. Further that Defendant’s forced Plaintiff to work “off-the-clock”. 68. This cause of action arises out of employment contracts or agreements; written and/or oral. 69. The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated or sporadic, but widespread, repeated and part of a pattern and practice of conduct affecting all Defendants’ employees. 70. Upon information and belief, all class employees of the Defendant had the same policies imposed upon its employees. 71. Plaintiff was under the control and direction of the owner of the Defendant and/or his agents during the period of the Plaintiff employment under their contracts of service and in fact. 72. Plaintiff was not an independent contractor, rather were employee of the Defendant by oral agreement and/or written contract. 73. Plaintiff’s employment was in the usual course of business for which such service is performed. 74. Plaintiff does not possess a proprietary interest in the Defendant. 75. The Defendants are “employers” under the terms of the IWPCA section 2. 76. In accordance with IWPCA, an employer is also defined as: “any officer of a corporation or agents of an employer who knowingly permit such employer to violate the provisions of this Act shall be deemed to be the employers of the employees of the corporation”, the individual Defendants are named as Defendants pursuant to this clause. 13 77. Plaintiff realleges and incorporate by reference all the preceding paragraphs, as if fully set forth herein. 78. The Collective claims include all plead claims found in this complaint which fall within the coverage of FLSA. 79. The Collective claims include all employees which Defendant has failed to pay at an overtime rate of pay which does not include the added compensation earned as commissions or earned bonuses and/or failed to pay all overtime hours of work. 80. At all relevant times, Defendants ATI has been, and continues to be, an “employer” engaged in interstate commerce and/or in the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times, Defendants has employed, and continues to employ, “employee[s],” including the Plaintiffs, and each of the members of the FLSA Opt-Ins, that have been, and continue to be, engaged in interstate “commerce” within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times, Defendants has had gross operating revenues in excess of Five Hundred Thousand and no/100 Dollars ($500,000.00). 81. At all relevant times, Defendants has engaged, and continue to engage, in a willful policy, pattern, or practice of requiring their employees, including the Plaintiff and members of the prospective FLSA Class, to work in excess of forty (40) hours per week without compensating such employees to pay its employees at an 14 overtime rate of pay which does not include the added compensation earned as commissions or earned bonuses. 82. At all relevant times, the work performed by retail employees including the Plaintiffs and prospective FLSA Opt-Ins, employed at Defendant were, and continue to be, required or permitted by Defendants, for the benefit of Defendants, directly related to such employees’ principal employment with Defendants, and as an integral and indispensable part of such employees’ employment of Defendants. 83. As a result of the Defendant willful failure to record or compensate its employees – including Plaintiff and members of the prospective FLSA Class – employed by Defendant for all hours worked, Defendant has violated, and continues to violate, the maximum hours provision of the FLSA, 29 U.S.C. § 207(a)(1), and § 215(a). 84. As a result of the Defendant’s willful failure to record, report, credit, and/or compensate its employees employed by Defendant, including the Plaintiff and members of the prospective FLSA Class, Defendant has failed to make, keep and preserve records with respect to each of their employees sufficient to determine the wages, hours and other conditions and practices of employment in violation of the FLSA, including 29 U.S.C. §§211(c) and §§ 215(a). 85. The foregoing conduct, as alleged, violated the FLSA, 29 U.S.C. §§ 201 et seq. 86. Plaintiff, on behalf of himself and all FLSA Opt-Ins, seek damages in the amount of their respective unpaid compensation, plus liquidated damages, as provided by the FLSA, 29 U.S.C. § 216(b), and such other legal and equitable relief as the Court deems just and proper. 15 87. Plaintiff, on behalf of himself and all FLSA Opt-Ins, seek recovery of attorneys’ fees and costs of action to be paid by Defendant, as provided by the FLSA, 29 U.S.C. § 216(b). 88. Plaintiff has consented to be a party to this action, pursuant to 29 U.S.C. § 216(b). 89. At all times relevant to this action, Plaintiff and all FLSA Opt-Ins were employed by Defendant within the meaning of the FLSA. 90. At all times relevant to this action, Plaintiff and all FLSA Opt-Ins were engaged in commerce and/or the production of goods for commerce and/or Defendant were an enterprise engaged in commerce or in the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 91. Due to Defendant’s FLSA violations, Plaintiff and all FLSA Opt-Ins are entitled to recover from Defendant their unpaid compensation, an additional equal amount as liquidated damages, additional liquidated damages for unreasonably delayed payment of wages, reasonable attorneys’ fees, and costs of the action, pursuant to 29 U.S.C. § 216(b)§ 6 of the Fair Labor Standards Act, 29 U.S.C.A. § 206, 9 FCA title 29, § 206, provides that every employer shall pay to each of his employees who is engaged in interstate or foreign commerce or in the production of goods for such commerce, wages at specified hourly rates. A. ATI policies and procedures and Compensation Practices fail to pay proper overtime rate of pay Claims Against Defendant Under the Illinois Minimum Wage Law “IMWL” Claims Against Defendant Under Illinois Wage Payment and Collection Act “IWPCA” KENNETH J LOSACCO ) And ) Maria Losacco ) as individuals under FLSA ) and Illinois Wage Laws ) Defendants. ) On Behalf of Plaintiff and All Opt-In Employees Against Defendant ATI As a Collective Action (FLSA Claims, 29 U.S.C. § 201 et seq.)

win

12. Plaintiff 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 cashiers, cooks, delivery persons, food preparers, floor persons, among others) employed by Defendants at the Eateries on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 13. At all relevant times, Plaintiff and other FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants' decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal (i) to pay them their proper wages due to time shaving and (ii) to pay them their proper overtime wages. The claims of Plaintiff stated herein are essentially the same as those of other FLSA Collective Plaintiffs. 14. The claims for relief are properly brought under and maintained as an opt-in collective action pursuant to § 16(b) of the FLSA, 29 U.S.C. § 216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action, their names and addresses are readily available from the Defendants. Notice can be provided to FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 16. 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 position held, and rates of pay for each Class member may also be 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. 17. 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, the facts on which the calculation of that number are presently within the sole control of Defendants, there is no doubt that there are more than forty (40) members of the Class. 19. 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. 21. 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. 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. 23. In or around February 2019, Plaintiff FELIX SALMERON was hired by Defendants to work as a floor-man at Defendants’ Etc. Eatery, located at 20 E 46th Street, New York, NY 10016. Plaintiff was employed by Defendants until in or around August 2019. 24. At all relevant times, Plaintiff FELIX SALMERON was regularly scheduled to work Mondays to Tuesdays from 5:30am to 2:30pm and Wednesdays to Fridays from 5:30am to 3:00pm, for a total of forty-six and a half (46.5) hours per week. 26. At all relevant times, Defendants automatically deducted one (1) hour per day from Plaintiff FELIX SALMERON for a meal break. However, at least twice per week, Plaintiff FELIX SALMERON was required to work through his one-hour meal break even though Defendants automatically deducted the one (1) hour. Because he was regularly interrupted and forced to work through his meal break, Defendants failed to compensate Plaintiff for all hours worked due to time shaving. During weeks in which his work hours exceeded forty (40) per week, such time shaved hours were overtime hours. FLSA Collective Plaintiffs and Class members worked and continue to work similar hours and are similarly deducted an automatic one hour meal break per work day even though they were not permitted a free and clear meal break. At all relevant times, Defendants failed to compensate Plaintiff, FLSA Collective Plaintiffs, and Class members their full wages for all hours worked. 27. At all relevant times, Plaintiff FELIX SALMERON regularly worked hours in excess of forty (40) hours per week. However, Defendants only paid overtime premium for one (1) to two (2) hours of overtime hours worked, rather than properly paying overtime premium for all overtime hours worked. Defendants paid the remaining overtime hours on a straight-time basis in cash. Similarly, FLSA Collective Plaintiffs and Class members also worked similar hours that regularly exceeded forty (40) hours per week and were also only paid for one (1) to two (2) hours of overtime, with the remainder in straight-time cash. 29. Defendants failed to provide Plaintiff and the Class members with proper wage notices at hiring and annually thereafter. Plaintiff did not receive proper wage notices either upon being hired or annually since the date of hiring in violation of the NYLL. 30. Plaintiff and Class members received wage statements that were not in compliance with the NYLL. Plaintiff and Class members received fraudulent wage statements that failed to accurately reflect the number of hours worked and their proper compensation. Plaintiff and Class members were paid in part by check and in part by cash. 31. At all relevant times, Plaintiff, FLSA Collective Plaintiffs, and Class Members were required to work in excess of forty (40) hours each workweek. 32. Defendants knowingly and willfully operated their business with a policy of failing to pay Plaintiff, FLSA Collective Plaintiffs and Class members for all hours worked due to a policy of time shaving. 33. Defendants unlawfully failed to compensate Plaintiff, FLSA Collective Plaintiffs, and Class members their proper overtime at one and a half (1.5) the regular rate for all hours worked, resulting in unpaid overtime premium. 34. Defendants knowingly and willfully operated their business with a policy of claiming an invalid meal credit in violation of the NYLL. 36. Defendants knowingly and willfully operated their business with a policy of not providing employees a proper wage notice to Plaintiff and Class members at the beginning of employment and annually thereafter, in violation of the NYLL. 37. Plaintiff retained Lee Litigation Group, PLLC to represent Plaintiff, FLSA Collective Plaintiffs and Class members, in this litigation and have agreed to pay the firm a reasonable fee for its services. 38. Plaintiff realleges and reavers Paragraphs 1 through 37 of this class and collective action Complaint as if fully set forth herein. 39. 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 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). 40. At all relevant times, Defendants employed Plaintiff and FLSA Collective Plaintiffs within the meaning of the FLSA. 41. At all relevant times, each Corporate Defendant had gross annual revenues in excess of $500,000. 43. At all relevant times, Defendants failed to properly compensate Plaintiff and FLSA Collective Plaintiffs for all hours worked over forty (40) hours per week at the proper overtime wage rate. 44. Records, if any, concerning the number of hours worked by Plaintiff and FLSA Collective Plaintiffs and the actual compensation paid to Plaintiffs and FLSA Collective Plaintiffs should be in the possession and custody of the 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. 45. Defendants failed to properly disclose or apprise Plaintiff and FLSA Collective Plaintiffs of their rights under the FLSA. 46. 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. 47. 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 wages and unpaid overtime, plus an equal amount as liquidated damages. 48. 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). 50. At all relevant times, Plaintiff and Class members were employed by the Defendants within the meaning of the NYLL, §§ 2 and 651. 51. Defendants willfully violated Plaintiff’s and Class members’ rights by failing to pay them the proper wages in the lawful amount for all hours worked, including overtime hours in excess of forty (40), due to Defendants’ policy of time-shaving. 52. Defendants willfully violated Plaintiff’s and Class members’ rights by failing to pay them the proper overtime wage rates for all hour worked over forty (40) hours per week. 53. Defendants willfully violated Plaintiff’s and Class members’ rights by improperly claiming a meal credit. Defendants failed to provide Plaintiff and Class members with the requisite meal options, in violation of the NYLL. Defendants also claimed meal credit for meals that Plaintiff and Class members were unable to eat due to interrupted meal breaks. 54. Defendants knowingly and willfully operated their business with a policy of not providing all non-exempt employees with proper wage notices, at date of hiring and annually thereafter, as required under the NYLL. 55. Due to the Defendants’ NYLL violations, Plaintiff and Class members are entitled to recover from Defendants their compensation for unpaid wages due to time-shaving, unpaid overtime premiums, invalid meal credit deductions, reasonable attorneys’ fees, liquidated damages, statutory penalties and costs and disbursements of the action, pursuant to NYLL. VIOLATION OF THE NEW YORK LABOR LAW VIOLATION OF THE FAIR LABOR STANDARDS ACT

win

10. Plaintiff brings the First Count as a collective action pursuant to Section 216(b) of the FLSA, on behalf of himself and other similarly situated people (the “Collective” or the “technicians”), which shall include: All persons who work or worked for Defendant as technicians from January 2, 2017 through the date the Court orders notice to be sent in accordance with Section 216(b) of the FLSA (the “FLSA Class Period”). Excluded from the Collective are Defendant, and any corporations, partnerships or other entities affiliated with Defendant. 11. Defendant is liable under the FLSA for, inter alia, failing to properly compensate Plaintiff and the Collective for time worked in excess of forty (40) hours per week. There are likely fifty (50) or more similarly situated current and former employees of Defendant who have been underpaid in violation of the FLSA and who would benefit from the issuance of a court-supervised notice of the present lawsuit and the opportunity to join the present lawsuit. Those similarly situated employees are known to Defendant, are readily identifiable, and can be located through Defendant’s records that Defendant is required to create and maintain under applicable federal and state law. 13. Plaintiff brings the Second Count as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(3) on behalf of the following class of technicians (the “Class”): All persons who work or worked for Defendant as technicians in the State of New Jersey from January 2, 2014 through the date a judgment is entered in this action. Excluded from the Class are Defendant, and any corporations, partnerships or other entities affiliated with Defendant. 14. The members of the Class are so numerous that joinder of all members would be impracticable. Plaintiff estimates that there are at least fifty (50) members of the Class. 15. Questions of law and fact common to all the members of the Class that predominate over any questions affecting only individual members, include: a. Whether Defendant failed to pay Plaintiff and the Class at overtime rates during hours worked over forty (40) per workweek; and b. Whether Defendant’s failure to pay Plaintiff and the Class at overtime rates during hours worked over forty (40) per workweek violated the NJWHL. 16. The claims of Plaintiff are typical of the claims of the members of the Class. Plaintiff has no interests antagonistic to those of the Class, and Defendant has no defenses unique to Plaintiff. 19. Plaintiff was employed by Pop A Lock as a technician during the limitations period of both FLSA and the NJWHL. 20. The nature of Defendant’s business required Plaintiff to perform shift work for which he remained on-call at times and locations that precluded him from making effective use of the on-call time for his own purposes. 21. Accordingly, as a technician, Plaintiff was scheduled to, and did, work fifty (50) hours or more per week on a regular basis. 22. Plaintiff began his employment with Defendant in July 2019 and ended his employment with Defendant in August 2019. 23. During that time, he was routinely required to work more than forty (40) hours in a week. For example, during the week of July 29, 2019 to August 2, 2019, Plaintiff worked more than forty (40) hours but was not paid at one and one- half times his ordinary rate during hours worked in excess of forty (40). 24. Indeed, at all times, Plaintiff was not paid at one and one-half times his ordinary rate during hours worked over forty (40) in a workweek. 25. Upon information and belief, all of the other technicians are similarly required to work more than forty (40) hours per week. 27. Defendant was aware that the members of the Collective were engaged in work in excess of forty (40) hours per week and did not appropriately compensate for this overtime work. Defendant knew that this was a violation of applicable labor laws and the failure to so compensate was therefore willful. 28. Plaintiff incorporates and re-alleges all of the preceding paragraphs as if they were fully set forth herein. 29. During the FLSA Class Period, Plaintiff and others similarly situated were “employees” of Defendant within the meaning of the FLSA, 29 U.S.C. §203(e) and (g). 30. At all relevant times, Defendant has been an “employer” engaged in interstate “commerce” within the meaning of the FLSA, 29 U.S.C. §203. 31. At all relevant times, Defendant’s business has had annual gross revenues in excess of $500,000. 32. Plaintiff consents in writing to be a party to this action pursuant to 29 U.S.C. §216(b). Plaintiff’s written consent is attached hereto as Exhibit A and incorporated by reference. 34. During the FLSA Class Period, Defendant failed to pay Plaintiff and other technicians all wages due, including overtime wages of not less than one and one-half times the regular rate of pay during each hour worked in excess of forty (40) hours in a workweek, which they are entitled under the FLSA, 29 U.S.C. §207. 35. Defendant’s violation of the overtime requirements of the FLSA was part of its regular business practice and constituted a pattern, practice, and/or policy. 36. Defendant was aware that this pattern, practice, and/or policy was contrary to law, and was therefore a willful violation. 37. As a result of Defendant’s violations of the FLSA, Plaintiff and others similarly-situated have suffered damages by being denied overtime wages in accordance with the FLSA in amounts to be determined at trial, and are entitled to recovery of such amounts, liquidated damages in an amount equal to their unpaid wages, pre-judgment and post-judgment interest, reasonable attorneys’ fees, costs, and punitive damages pursuant to 29 U.S.C. §216(b). 39. Defendant has not made a good faith effort to comply with the FLSA with respect to the compensation of Plaintiff and others similarly situated. 40. Because Defendant’s violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to the FLSA, 29 U.S.C. §255(a). 41. Plaintiff and the technicians seek to enjoin Defendant from its continuing violations of 29 U.S.C. §207. 42. Plaintiff incorporates and re-alleges all of the preceding paragraphs as if they were fully set forth herein. 43. At all relevant times, Plaintiff and the Class were employed by Pop A Lock within the meaning of the NJWHL. 44. Pop A Lock willfully violated Plaintiff’s rights, and the rights of the members of the Class, by failing to pay them overtime compensation at rates not less than one and one-half times their regular rate of pay during each hour worked in excess of forty (40) hours in a work week. Fair Labor Standards Act, 29 U.S.C. §201, et seq.: Failure to Pay Overtime (Brought on Behalf of Plaintiff and the Collective) NJWHL, N.J.S.A. 34 § 11-56a4, Failure to Pay Overtime (Brought on Behalf of Plaintiff and the NJWHL Class)

win

19. Sales tax is a consumption tax on the purchase of goods or services assessed by some states and municipalities. 20. A retail transaction is only subject to sales tax in the taxing authority where the goods are delivered. 21. For example, when a buyer and seller reside in the same state, and the buyer takes possession of the purchased goods in that state, the sales tax laws of the buyer and seller’s state govern the transaction. 22. On the other hand, when the buyer and seller reside in different states, and the seller delivers the purchased goods from its state to the buyer’s state, the sales tax laws of the buyer’s state govern the transaction. 23. Defendants are aware of these tax collection and assessment procedures, laws and regulations and know how to assess retail sales tax on their clothing sales. 25. Defendants’ failure to calculate tax based on the buyer’s ship to address is problematic because many taxing authorities do not charge sales tax, or exempt clothing from sales tax, on purchases made or shipped to their tax jurisdiction. 26. As a result, if a consumer purchases Defendants’ clothing from Defendants who, upon information and belief, are within a jurisdiction that charges sales tax, but the purchase is delivered into a jurisdiction that does not charge sales tax, Defendants’ payment system overcharges the consumer in the guise of a sales tax that does not exist in the jurisdiction governing that transaction. 27. Upon information and belief, Defendants do not remit this overcharge to the taxing authority that governs that transaction. 28. For instance, on or about May 19, 2017, Plaintiff purchased at least 20 separate items of exempt clothing from Defendants’ website, with each item being priced at less than $110, which combined, totaled $283.40 before tax. A copy of the sales invoice for Order No. 68092432 is attached hereto as Exhibit A.3 29. Plaintiff ordered these items for delivery to her mailing address in New York City, a jurisdiction exempt from all retail sales tax on clothing items each priced at less than $110. Exhibit A. 31. New York City does not charge sales tax on the clothing Defendants sell and Plaintiff purchased. See NY CLS § 1115(a)(30); Exhibit A. 32. Despite the exemption, Defendants charged Plaintiff a nonexistent retail sales tax on these 21 clothing purchases. 33. For these purchases, Plaintiff paid a total of $306.30, of which Defendants overcharged her $22.90 in the guise of an ostensible “sales tax.” Exhibit A. 34. These funds are not an authorized tax and Plaintiff’s taxing authorities never authorized Defendants to collect or remit sales tax on these purchases. 35. This ostensible sales tax was never paid to the New York State Department of Taxation and Finance. 36. Instead, upon information and belief, Defendants retained the fraudulently obtained $22.90, or remitted it to taxing authorities outside of New York, which authorities have no jurisdiction to assess sales tax on purchases shipped to the exempt jurisdictions in New York and New York City. 37. Defendants’ sales tax assessment practices, in effect, are improperly and fraudulently adding a surcharge to purchases, and are disguising those surcharges as a “sales tax” that does not exist, and for which Defendants lack authority to collect or remit. 38. Plaintiff and the other members of the Class will continue to be injured by Defendants’ conduct as they intend to continue purchasing Defendants clothes. 40. Plaintiff brings this class action on behalf of herself and all other similarly situated Class members under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, and seeks to certify the following Class: All persons who were or will be assessed retail sales tax on clothing or footwear purchases from Defendants for items less than $110, and whose purchases were or will be delivered to New York State tax jurisdictions that do not authorize a collection of sales tax on the clothing Defendants sell. 41. Excluded from the Class are Defendants, as well as their past and present officers, employees, agents or affiliates, any judge who presides over this action, and any attorneys who enter their appearance in this action. 42. Numerosity. Members of the Class described above are so numerous that joinder of all members is impracticable. The Class is believed to be in the thousands, if not tens or hundreds of thousands. The disposition of the individual claims of the respective Class members will benefit the parties and the Court and will facilitate judicial economy. 43. Ascertainability. The Class members are ascertainable through records kept by Defendants. Plaintiff and Class members were required to input their personal and financial information into Defendants’ online store to purchase products from Defendants. Defendants record this information and the products the Class members purchased in internal databases. 45. Existence and Predominance of Common Questions of Law and Fact. This action involves common questions of law and fact, which predominate over any questions affecting individual Class members. These common questions include, but are not limited to, the following: a. Whether Defendants collected funds from Plaintiff and individual Class members under a nonexistent tax; b. Whether Defendants lack authority under the law to collect funds under a nonexistent tax; c. Whether Defendants’ illegal and unauthorized collections caused its unjust enrichment; d. Whether it would be unjust or inequitable to allow Defendants to retain the ill- gotten taxes; and e. Whether Defendants converted funds that lawfully belonged to Plaintiff and the Class members. 46. Adequacy of Representation. Plaintiff is an adequate representative of the Class because her interests do not conflict with the interests of the Class members. Plaintiff will fairly, adequately, and vigorously represent and protect their interests and Plaintiff has no interest antagonistic to the Class members. Plaintiff has retained counsel who are competent and experienced in class action litigation, and who possess specific expertise in consumer class actions. 48. Plaintiff reserves the right to expand, limit, modify or amend this Class definition, including the addition of one or more subclasses, in connection with her motion for class certification, or at any other time, based on, among other things, changing circumstances and new facts obtained during discovery. 49. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 50. Defendants’ retention of illegally collected retail sales taxes during the relevant time period constitutes unjust enrichment. 51. By paying the taxes ($22.90 in Plaintiff’s case), Plaintiff and the Class benefited Defendants at their expense and to their detriment. 52. By charging Plaintiff and individual Class members amounts for an ostensible sales tax on items for which no such tax exists, Defendants received funds to which they have no legal right. 54. It would be inequitable if Plaintiff and individual Class members were not reimbursed for the amounts Defendants wrongfully took from them. 55. Therefore, equity and good conscience require restitution of the unlawful taxes collected by Defendants to Plaintiff and the Class members. Count II Conversion 56. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 57. By its conduct, Defendants have converted and/or misappropriated funds belonging to Plaintiff and individual Class members. 58. Defendants had no authority to collect taxes pursuant to the tax jurisdictions in which Plaintiff and the Class members reside, and the tax jurisdictions in which Defendants’ online orders were processed had no authority to impose sales taxes on Plaintiff and Class members because the purchases of Plaintiff and the Class members were not made in, or shipped to, those tax jurisdictions. 59. As such, Defendants’ collection of sales tax converted the funds of Plaintiff and the members of the Class. 60. Defendants have, without proper authorization, assumed and exercised the right of ownership and control over funds from the illegal taxes remitted by Plaintiff and the members of the Class. 61. The illegal taxes charged were properly owned by Plaintiff and the Class members, not by Defendants. 63. The conversion of these funds is illegal, unjustified, and intentional, insofar as it is believed and therefore averred that Defendants had actual knowledge of the regulations of the taxing authorities in which Plaintiff and the individual Class members reside. 64. Alternatively, if the conversion was not deliberate, it is the result of Defendants’ recklessness and gross neglect. 65. This conversion of funds benefitted and continues to benefit Defendants, while acting to the severe pecuniary disadvantage of Plaintiff and Class members. 66. Plaintiff and the members of the Class are entitled to the immediate possession or repossession of the taxes charged to them and paid to Defendants. 67. Plaintiff and Class members have sustained damages, including monetary losses, as a direct and proximate result of Defendants’ wrongful conversion of the illegal taxes charged. 68. Based on Defendants’ wrongful conversion of the illegal taxes charged to Plaintiff and Class members, Defendants are liable for damages, including all amounts wrongfully converted, and costs permitted by law. 69. Defendants should be ordered to remit all illegally taken funds to Plaintiff and the Class. Count III Money Had And Received 70. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 71. Defendants received the illegal taxes paid by Plaintiff and the Class members. 72. Defendants benefitted from the receipt of the illegal taxes charged to Plaintiff and the Class members. Count I Unjust Enrichment

lose

(Against All Defendants for Violation of Section 14(e) of the Exchange Act and 17 C.F.R. § 244.100 Promulgated Thereunder) (Against the Individual Defendants for Violations of Section 20(a) of the Exchange Act) (Against all Defendants for Violations of Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9,17 C.F.R. § 240.14d-9) 24. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all persons and entities that own Kate Spade common stock (the “Class”). Excluded from the Class are defendants and their affiliates, immediate families, legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest. 25. Plaintiff’s claims are properly maintainable as a class action under Rule 23 of the Federal Rules of Civil Procedure. 27. Questions of law and fact are common to the Class and predominate over questions affecting any individual Class member, including, inter alia: (a) Whether defendants have violated Section 14(d)(4) of the Exchange Act and Rule 14d-9 promulgated thereunder; (b) Whether the Individual Defendants have violated Section 14(e) of the Exchange Act; (c) Whether the Individual Defendants have violated Section 20(a) of the Exchange Act; and (d) Whether Plaintiff and the other members of the Class would suffer irreparable injury were the Proposed Transaction consummated. 28. Plaintiff will fairly and adequately protect the interests of the Class, and has no interests contrary to or in conflict with those of the Class that Plaintiff seeks to represent. Plaintiff has retained competent counsel experienced in litigation of this nature. 29. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. 30. Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. 32. The Company’s Kate Spade New York brand offers fashion products for women and children and home products. The Kate Spade New York brand product line includes handbags, small leather goods, jewelry and apparel, along with a variety of licensed products including footwear, fragrances, swimwear and watches, among other items. The Company’s Jack Spade brand offers fashion products for men, including briefcases, travel bags, small leather goods, fashion accessories and apparel. 34. On April 18, 2017, Kate Spade reported its first quarter 2017 financial results. Though the Company’s net sales slightly declined to $271 million, compared to $274 million in the first quarter of 2016, defendant Leavitt and Carrara remained positive and pleased with the quarter’s results. Defendant Leavitt noted: Despite a challenging retail environment and the later Easter holiday, we achieved yet another quarter of double-digit eCommerce comparable sales growth, which helped offset softness in bricks and mortar stores. Against this backdrop, we delivered strong gross margin expansion while working to drive profitable growth across our categories and channels. Carrara added: We delivered over 140 basis points of gross margin expansion in the first quarter driven by operational efficiencies and our continued focus on quality of sale amidst a highly promotional environment. In addition, we continued to generate robust cash flow over the past twelve months and ended the quarter with $422 million in cash. We delivered these solid results despite the factors that negatively impacted our first quarter performance. The Process Leading Up to the Proposed Transaction 35. On February 1, 2016, defendant Leavitt and Carrara met with Coach’s CEO and President to discuss a potential business combination. 37. On March 22, 2016, the Board formally engaged Perella as the Company’s financial advisor in connection with an acquisition of Kate Spade. 38. On November 14, 2016, Caerus Investors, a Company stockholder, released a public letter to the Board recommending a sale of Kate Spade. 39. On June 6, 2016, Carrara met with Coach’s President to discuss the retail industry generally. 40. On November 14 and December 1, 2016, defendant Leavitt met with Coach’s CEO regarding a potential transaction. 41. On December 5, 2016, at the Board’s direction, Perella contacted fifteen prospective counterparties, including ten strategic entities and five financial sponsor entities. Three responded that they were interested in further discussions, including Coach, a strategic entity referred to in the Recommendation Statement as “Party A” and a financial sponsor referred to in the Recommendation Statement as “Party B. 42. On January 7, 2017, Kate Spade entered into a confidentiality agreement with Coach. 43. On January 17 and January 26, 2017, the Company executed confidentiality agreements with Party A and Party B, respectively. The Recommendation Statement fails to disclose whether these confidentiality agreements contain standstill provisions that operate to preclude either party from submitting a topping bid for the Company. 44. Party B subsequently informed Perella it would not be submitting a bid for the Company. 46. That same day, Party A submitted a preliminary indication of interest to acquire Kate Spade in an all cash transaction in the range of $20.00 – $22.00 per share. 47. Between February 16 and March 21, 2017, Company management participated in meetings with the management of each of Coach and Party A. 48. On February 27, 2017, Perella provided Coach and Party A with a bid instruction letter, indicating that the submission deadline for final round bids was March 27, 2017. 49. On March 8, 2017, Party A informed Perella it would not be submitting a bid for the Company. 50. On March 21, 2017, Coach informed Perella it would not be submitting a bid by the March 27, 2017 deadline and the Board agreed to extend the bid deadline date. 51. On April 29, 2017, Coach submitted a proposal to acquire the Company for $18.00 per share in cash. Coach included a mark-up of the draft merger agreement, which included a condition that certain key senior Kate Spade management execute retention agreements prior to signing the Merger Agreement. 52. At a May 1, 2017 Board meeting, the Board reviewed and discussed Coach’s offer, the Company’s preliminary projections for 2017 through 2019 (the “Projections”), Kate Spade’s first quarter results and the underlying trend in the Company’s business performance reflected in the first quarter results, including sensitivity analysis related thereto. Following discussion, the Board determined to reject Coach’s offer. 54. At a May 3, 2017 meeting, the Board again discussed the Projections, including the sensitivity analysis related to the Company’s first quarter results. The Board then authorized management and its advisors to proceed with negotiating a transaction. The Board also authorized certain members of the Company’s senior management team to initiate negotiation on their respective post-closing retention arrangements with Coach in accordance with the terms previously discussed with the Board, which they negotiated until the parties signed the Merger Agreement on May 7, 2017. The Recommendation Statement completely omits any of the employment related discussions and negotiations that occurred between Coach and the members of Kate Spade’s senior management team. 55. On May 7, 2017, Perella rendered its fairness opinion and the Company’s legal advisors reviewed the terms of the arrangements with certain of Kate Spade’s senior management team. The Board then approved and executed the Merger Agreement. The Proposed Transaction 57. Coach and Kate Spade insiders are the primary beneficiaries of the Proposed Transaction, not the Company’s public stockholders. The Board and the Company’s executive officers are conflicted because they will have secured unique benefits for themselves from the Proposed Transaction not available to Plaintiff and the public stockholders of Kate Spade. 58. Company insiders stand to reap a substantial financial windfall for securing the deal with Coach. Notably, Kate Spade entered into letter agreements (the “Deal Completion Bonus Letters”) with each of Carrara and Thomas Linko (“Linko”), the Company’s Senior Vice President and Chief Financial Officer (“CFO”), pursuant to which each executive will receive a special one-time cash deal completion bonus following each executive’s termination of employment with the Company in the amount of $750,000 and $500,000, respectively. 60. Moreover, pursuant to the Merger Agreement, each outstanding Company option, restricted stock unit award, performance share unit award and market share unit award will be converted into the right to receive cash payments. 61. Further, if they are terminated in connection with the Proposed Transaction, Kate Spade’s named executive officers are set to receive substantial cash payments in the form of golden parachute compensation. Defendants Leavitt and Lloyd each stand to receive over $24 million in severance payments. The Recommendation Statement Contains Material Misstatements or Omissions 62. The defendants filed a materially incomplete and misleading Recommendation Statement with the SEC and disseminated it to Kate Spade’s stockholders. The Recommendation Statement misrepresents or omits material information that is necessary for the Company’s stockholders to make an informed decision whether to tender their shares in connection with the Tender Offer. 63. Specifically, as set forth below, the Recommendation Statement fails to provide Company stockholders with material information or provides them with materially misleading information concerning: (i) Kate Spade’s financial projections, relied upon by Kate Spade’s financial advisor Perella; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Perella; (iii) Kate Spade insiders’ potential conflicts of interest; and (iv) the background process leading to the Proposed Transaction. Accordingly, Kate Spade stockholders are being asked to make a decision whether to tender their shares in connection with the Tender Offer without all material information at their disposal. Material Omissions Concerning Kate Spade’s Financial Projections 65. When a company discloses non-GAAP financial measures in a Recommendation Statement, the Company must also disclose all projections and information necessary to make the non-GAAP measures not misleading, and must provide a reconciliation (by schedule or other clearly understandable method), of the differences between the non-GAAP financial measure disclosed or released with the most comparable financial measure or measures calculated and presented in accordance with GAAP. 17 C.F.R. § 244.100. 67. In recent months, the SEC has repeatedly emphasized that disclosure of non- GAAP projections can be inherently misleading, and has therefore heightened its scrutiny of the use of such projections.2 Indeed, on May 17, 2016, the SEC’s Division of Corporation Finance released new and updated Compliance and Disclosure Interpretations (“C&DIs”) on the use of non-GAAP financial measures that demonstrate the SEC’s tightening policy.3 One of the new C&DIs regarding forward-looking information, such as financial projections, explicitly requires companies to provide any reconciling metrics that are available without unreasonable efforts. 68. In order to make the projections included on page 33 of the Recommendation Statement materially complete and not misleading, Defendants must provide a reconciliation table of the non-GAAP measures (EBITDA) to the most comparable GAAP measures. Indeed, the Company routinely provides such a reconciliation table in its quarterly financial results releases, and it can therefore undoubtedly provide such a reconciliation table for the projections included in the Recommendation Statement without unreasonable efforts. 69. At the very least, the Company must disclose the line item projections for the financial metrics that were used to calculated the non-GAAP measures. Such projections are necessary to make the non-GAAP projections included in the Recommendation Statement not 1 Mary Jo White, Keynote Address, International Corporate Governance Network Annual Conference: Focusing the Lens of Disclosure to Set the Path Forward on Board Diversity, Non- GAAP, and Sustainability (June 27, 2016), https://www.sec.gov/news/speech/chair-white-icgn- speech.html. 2 See, e.g., Nicolas Grabar and Sandra Flow, Non-GAAP Financial Measures: The SEC’s Evolving Views, Harvard Law School Forum on Corporate Governance and Financial Regulation (June 24, 2016), https://corpgov.law.harvard.edu/2016/06/24/non-gaap-financial-measures-the-secs- evolving-views/; Gretchen Morgenson, Fantasy Math Is Helping Companies Spin Losses Into Profits, 83. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 84. Section 14(e) of the Exchange Act provides that it is unlawful “for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading…” 15 U.S.C. §78n(e). 85. SEC Regulation G has two requirements: (1) a general disclosure requirement; and (2) a reconciliation requirement. The general disclosure requirement prohibits “mak[ing] public a non-GAAP financial measure that, taken together with the information accompanying that measure, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the presentation of the non-GAAP financial measure…not misleading.” 17 C.F.R. § 244.100(b). The reconciliation requirement requires an issuer that chooses to disclose a non- GAAP measure to provide a presentation of the “most directly comparable” GAAP measure, and a reconciliation “by schedule or other clearly understandable method” of the non-GAAP measure to the “most directly comparable” GAAP measure. 17 C.F.R. § 244.100(a). As set forth above, the Recommendation Statement omits information required by SEC Regulation G, 17 C.F.R. § 244.100 87. In so doing, Defendants made untrue statements of fact and/or omitted material facts necessary to make the statements made not misleading. Each of the Individual Defendants, by virtue of their roles as officers and/or directors, were aware of the omitted information but failed to disclose such information, in violation of Section 14(e). The Individual Defendants were therefore reckless, as they had reasonable grounds to believe material facts existed that were misstated or omitted from the Recommendation Statement, but nonetheless failed to obtain and disclose such information to shareholders although they could have done so without extraordinary effort. 88. The Individual Defendants were privy to and had knowledge of the projections for the Company and the details concerning Credit Suisse’s valuation analyses. The Individual Defendants were reckless in choosing to omit material information from the Recommendation Statement, despite the fact that such information could have been disclosed without unreasonable efforts. 89. The misrepresentations and omissions in the Recommendation Statement are material to Plaintiff and the Class, who will be deprived of their right to make an informed decision regarding whether to tender their shares if such misrepresentations and omissions are not corrected prior to the Expiration Date. Plaintiff and the Class have no adequate remedy at law. Only through the exercise of this Court’s equitable powers can Plaintiff and the Class be fully protected from the immediate and irreparable injury that Defendants’ actions threaten to inflict. 91. Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder require full and complete disclosure in connection with tender offers. Specifically, Section 14(d)(4) provides that: Any solicitation or recommendation to the holders of such a security to accept or reject a tender offer or request or invitation for tenders shall be made in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 92. SEC Rule 14d-9(d), which was adopted to implement Section 14(d)(4) of the Exchange Act, provides that: Information required in solicitation or recommendation. Any solicitation or recommendation to holders of a class of securities referred to in section 14(d)(1) of the Act with respect to a tender offer for such securities shall include the name of the person making such solicitation or recommendation and the information required by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101) or a fair and adequate summary thereof. 93. In accordance with Rule 14d-9, Item 8 of a Schedule 14D-9 requires a Company’s directors to: Furnish such additional information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not materially misleading. 94. The Recommendation Statement violates Section 14(d)(4) and Rule 14d-9 because it omits material facts, including those set forth above, which omissions render the Recommendation Statement false and/or misleading. 96. The misrepresentations and omissions in the Recommendation Statement are material to Plaintiff and the Class, who will be deprived of their right to make an informed decision regarding whether to tender their shares if such misrepresentations and omissions are not corrected prior to the Expiration Date. Plaintiff and the Class have no adequate remedy at law. Only through the exercise of this Court’s equitable powers can Plaintiff and the Class be fully protected from the immediate and irreparable injury that Defendants’ actions threaten to inflict. 97. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 98. The Individual Defendants acted as controlling persons of Kate Spade within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as officers and/or directors of Kate Spade, and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the incomplete and misleading statements contained in the Recommendation Statement, they 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 various statements that Plaintiff contends are materially incomplete and misleading. Company Background and Strong Financial Outlook

lose

29. Within the four years preceding the filing of this action, Adams Toyota and/or its agents utilized an ATDS to send text messages to the wireless telephone numbers of Plaintiff and the putative class members. 30. Specifically, the hardware and software used by Adams Toyota and/or its agents has the capacity to generate and store random numbers, or store lists of telephone numbers, and to dial those numbers, en masse, in an automated fashion without human intervention. 31. Plaintiff and the putative class never provided prior express consent, in writing or otherwise, for Adams Toyota to send autodialed, advertising, and/or telemarketing text messages to their cellular telephone numbers. 32. Adams Toyota (i) requires consumers or businesses to provide their telephone numbers as a condition of providing goods and services, (ii) does not advise consumers or businesses it intends to send autodialed, advertising, and/or telemarketing text messages to their cellular telephone number, (iii) does not obtain prior express consent, written or otherwise, to send autodialed, advertising, and/or telemarketing text messages to the consumer’s or business’s cellular telephone number. 33. When Adams Toyota obtains the cellular telephone number of a consumer or business, it adds it to a stored list of numbers to which Adams Toyota and/or its agents repeatedly send autodialed, advertising, and/or telemarketing text messages. 35. The equipment employed by Adams Toyota and/or its agents not only has the capacity to store or produce telephone numbers to be called using a random or sequential number generator (and to dial such numbers), but was programmed to sequentially or randomly access stored telephone numbers to automatically send text messages to those numbers. 36. The text messages sent by Adams Toyota to Plaintiff and the putative class were made for a commercial purpose in that they contain its brand name “Adams Toyota”, its logo, and/or a hyperlink to a website soliciting online reviews of Adams Toyota. 37. Adams Toyota’s text messages are advertisements and/or constitute telemarketing as defined by the TCPA. 38. Not only does Adams Toyota fail to obtain prior express consent before sending such text messages, Adams Toyota’s text messages do not provide a way of opting out of future text messages. 39. Adams Toyota is aware that the above-described text messages are being sent to consumers and businesses without their prior express consent, but Adams Toyota willfully continues to send them anyways. 41. At all times relevant hereto, Plaintiff Layden has paid a third-party provider for cellular telephone service and cellular data service on his personal cellular telephone, ending in “1734”. 42. Plaintiff Layden took his vehicle to Adams Toyota to be serviced. 44. On April 27, 2017, and then again on July 31, 2017, Adams Toyota and/or its agents caused text messages to be sent, automatically and without human intervention, to Plaintiff’s cell phone. The text messages contained its brand name “Adams Toyota”, its logo, and hyperlinks which, if followed, directed to a website soliciting online reviews of Adams Toyota. 45. The text messages sent by Adams Toyota to Plaintiff were made for a commercial purpose and are advertisements and/or constitute telemarketing as defined by the TCPA. 46. Adams Toyota did not provided Plaintiff with notice that it intended to send multiple autodialed, advertising, and/or telemarketing text messages to his cell phone; and Plaintiff never provided express consent in writing, or otherwise, for Adams Toyota to send such text messages to his cell phone. 47. Plaintiff restates and incorporates by reference all paragraphs of this Complaint, including all subparagraphs thereof. 48. As to Count I for violation of the TPCA (the “TCPA Class”), Plaintiff brings this action on behalf of himself and on behalf of a putative class defined as: All persons and entities within the United States to whom Adams Toyota (or a third party on Adams Toyota’s behalf) sent a text message to their cellular or wireless telephone, containing an image with Adam Toyota’s brand name or logo, and/or a hyperlink containing “rvw” or directing to a website soliciting reviews for Adams Toyota, within the four years predating the filing of this Complaint. 50. Numerosity – Fed. R. Civ. P. 23(a)(1). Plaintiff does not know how many members are in the putative class, but believes them to be in the thousands, or tens of thousands. On information and belief, the number of class members is so numerous that their individual joinder is impracticable. The precise number of putative class members and their phone numbers can be obtained from information and records in the possession and control of Adams Toyota or third parties acting on Adams Toyota’s behalf. 52. Typicality – Fed. R. Civ. P. 23(a)(3). Plaintiff’s claims are typical of the claims of the putative class members he seeks to represent. The factual and legal bases of Adams Toyota’s liability to Plaintiff are the same for all putative class members, i.e., Adams Toyota violated the TCPA by using an automatic telephone dialing system to send advertising and/or telemarketing text messages without obtaining prior express written consent in writing or otherwise. 54. Superiority – Fed. R. Civ. P. 23(b)(3). A class action is superior to all other available means for the fair and efficient adjudication of this controversy. The damages or other financial detriment suffered by individual class members is small compared with the burden and expense that would be entailed by individual litigation of their claims against Adams Toyota. It would thus be virtually impossible for class members, on an individual basis, to obtain effective redress for the wrongs done them. Furthermore, even if class members could afford such individualized litigation, the court system could not. Individualized litigation would create the danger of inconsistent or contradictory judgments arising from the same set of facts. Individualized litigation would also increase the delay and expense to all parties and the court system from the issues raised by this action. By contrast, the class action device provides the benefits of adjudication of these issues in a single proceeding, economies of scale, and comprehensive supervision by a single court, and presents no unusual management difficulties under the circumstances here. 55. Plaintiff restates and incorporates by reference all paragraphs of this Complaint, including all subparagraphs thereof. 56. Adams Toyota and/or its agents employed an ATDS to send non-emergency text messages, automatically and without human intervention, to the cellular or wireless telephones of Plaintiff and the members of TCPA Class. 57. Adams Toyota requested, and obtained, the cellular telephone numbers of Plaintiff and the TCPA Class members as a condition to providing its goods and services. 59. As a result of Adams Toyota’s conduct and pursuant to Section 227(b)(3) of the TCPA, Plaintiff and the TCPA Class were harmed and are entitled to a minimum of $500.00 in damages for each unlawful text message. 60. Plaintiff and the TCPA Class are also entitled to an injunction against future calls. 47 U.S.C. § 227(b)(3). 61. Adams Toyota’s text messages were willful and knowing, in that Adams Toyota knew it was obtaining and storing cellular telephone numbers and employing equipment that would send autodialed, advertising, and/or telemarketing text messages to such numbers; Adams Toyota intended that such equipment would in fact send automated text messages containing its brand name “Adams Toyota”, its logo, and/or a hyperlink to a website soliciting online reviews; and Adams Toyota knew that it had not obtained prior express consent in writing, or otherwise, from Plaintiff or any of the putative class member to send such text messages. 62. “Willful … means that the violator knew that he was doing the act in question. … A violator need not know that his action or inaction constitutes a violation; ignorance of the law is not a defense or mitigating circumstance.” In re Dynasty Mtg., L.L.C., 22 FCC Rcd. 9453, 9470 & fn. 86 (May 14, 2007) (citations omitted). 63. Accordingly, the Court should treble the amount of statutory damages available to Plaintiff and the TCPA Class and award $1,500 for each text message sent in violation of the VIOLATIONS OF THE TCPA, 47 U.S.C. § 227(b)(1)(A)(iii)

lose

13. Between in or about November 2018 and the present, Defendant transmitted or caused to be transmitted, by itself or through an intermediary or intermediaries, numerous SMS text message advertisements to the 5236 Number without Plaintiff’s prior express written consent, including without limitation the messages depicted in the following screenshots extracted from Plaintiff’s cellular device: 14. The source of the SMS text messages sent by Defendant to the 5236 Number was “26293,” which is an SMS “short-code” telephone number leased by Defendant or Defendant’s agent(s) or affiliate(s) and is used for operating Defendant’s text message marketing program. 16. Because Plaintiff is alerted by her cellular device, by auditory or visual means, whenever she receives an SMS text message sent to the 5236 Number, each unsolicited SMS text message that Defendant transmitted to the 5236 Number invaded Plaintiff’s privacy and intruded upon Plaintiff’s seclusion upon receipt. Plaintiff became distracted and aggravated as a result of receiving each of Defendant’s SMS text messages. 17. All telephone contact by Defendant or affiliates, subsidiaries, or agents of Defendant to Plaintiff at the 5236 Number occurred via an “automated telephone dialing system” as defined by 47 U.S.C. § 227(b)(1)(A). 18. Specifically, Defendant utilized an “automated telephone dialing system” to transmit all of its unsolicited text messages to the 5236 Number and to the numbers of the proposed class members because such messages were sent from Defendant’s SMS short-code telephone number used to message consumers en masse; because Defendant’s automated dialing equipment includes features substantially similar to a predictive dialer, inasmuch as it is capable of making numerous calls or texts simultaneously (all without human intervention); and because the hardware and software used by Defendant to send such messages have the capacity to store, produce, and dial random or sequential numbers, and to receive and store lists of telephone numbers and to then dial such numbers, en masse, in an automated fashion and without human intervention. And indeed, Defendant transmitted the text messages at issue in this case to Plaintiff and all other putative class members in an automated fashion and without human intervention, with hardware and software that received and stored lists of telephone numbers and which then dialed such numbers automatically. 20. The complained of text messages to the 5236 Number and to the numbers of the proposed class members constituted telephone solicitations as defined by 47 U.S.C. § 227(a)(4) and/or advertisements as defined by 47 C.F.R. 64.1200(f)(1). This is because Defendant sent the messages in order to advertise and market the commercial availability of its lending services to Plaintiff and the other unnamed class members for commercial profit. 21. Neither Plaintiff nor any of the proposed class members ever provided their “prior express written consent” or any other form of consent to allow Defendant or any affiliate, subsidiary, or agent of Defendant to transmit SMS text message advertisements to the 5236 Number or to any of the proposed class members’ cellular telephone numbers by means of an “automatic telephone dialing system,” within the meaning of 47 U.S.C. § 227(b)(1)(A). 22. Class Definition. Plaintiff brings this civil class action on behalf of herself individually and on behalf of all other similarly situated persons as a class action pursuant to Fed. R. Civ. P. 23. The “Class” which Plaintiff seeks to represent is comprised of and defined as follows: All persons within the United States who, between January 3, 2015 and the present, received one or more text message(s) promoting the commercial availability of goods or services from Quicken Loans Inc. and who did not provide Quicken Loans Inc. prior express written consent to receive such text message(s). 24. Plaintiff reserves the right to modify the definition of the Class (or add one or more subclasses) after further discovery. 25. Plaintiff and all Class members have been impacted and harmed by the acts of Defendant or its affiliates or subsidiaries. 26. This Class Action Complaint seeks injunctive relief and monetary damages. 27. This action may properly be brought and maintained as a class action pursuant to Fed. R. Civ. P. 23(a) and (b). This class action satisfies the numerosity, typicality, adequacy, commonality, predominance, and superiority requirements. 28. Upon application by Plaintiff’s counsel for certification of the Class, the Court may also be requested to utilize and certify subclasses in the interests of manageability, justice, or judicial economy. 29. Numerosity. The number of persons within the Class is substantial, believed to amount to hundreds of thousands of persons dispersed throughout the United States. It is, therefore, impractical to join each member of the Class as a named Plaintiff. Further, the size and relatively modest value of the claims of the individual members of the Class renders joinder impractical. Accordingly, utilization of the class action mechanism is the most economically feasible means of determining and adjudicating the merits of this litigation. 30. Typicality. Plaintiff received at least one SMS text message through the use of an automatic telephone dialing system, without providing her prior express written consent to Defendant within the meaning of the TCPA. Consequently, the claims of Plaintiff are typical of the claims of the members of the Class, and Plaintiff’s interest is consistent with and not antagonistic to those of the other Class members she seeks to represent. Plaintiff and all members of the Class have been impacted by, and face continuing harm arising out of, Defendant’s violations or misconduct as alleged herein. 32. Competency of Class Counsel. Plaintiff has retained and is represented by experienced, qualified, and competent counsel committed to prosecuting this action. Counsel are experienced in handling complex class action claims, in particular claims under the TCPA and other data privacy and consumer protection statutes. 33. Commonality and Predominance. There are well-defined common questions of fact and law that exist as to all members of the Class and predominate over any questions affecting only individual members of the Class. These common legal and factual questions, which do not vary from Class member to Class member and may be determined without reference to the individual circumstances of any class member, include (but are not limited to) the following: a) Whether Defendant transmitted advertising or telemarketing text messages to Plaintiff’s and Class members’ cellular telephones; b) Whether such text messages were sent using an “automatic telephone dialing system”; c) Whether Defendant can meet its burden to show Defendant obtained prior express written consent (as defined by 47 C.F.R. 64.1200(f)(8)) to send the text messages complained of, assuming such an affirmative defense is raised; d) Whether the complained of conduct was knowing or willful; e) Whether Defendant should be enjoined from engaging in such conduct in the future. 35. Additionally, the prosecution of separate actions by individual Class members may create a risk of multiple adjudications with respect to them that would, as a practical matter, be dispositive of the interests of other members of the Class who are not parties to such adjudications, thereby substantially impairing or impeding the ability of such nonparty Class members to protect their interests. The prosecution of individual actions by Class members could further establish inconsistent results and/or establish incompatible standards of conduct for Defendant.

lose

10. Defendant also called Plaintiff on June 10, 2015 at 12:25p.m. on her cellular telephone. 11. Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to place its daily calls to Plaintiff seeking to collect the debt allegedly owed 12. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A). 13. Defendant’s calls were placed to telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 14. Accordingly, Defendant never received Plaintiff’s “prior express consent” to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on her cellular telephone pursuant to 47 U.S.C. § 227(b)(1)(A). 8. Beginning in and around June of 2015, Defendant contacted Plaintiff on her cellular telephone ending in -0402 in an attempt to collect an alleged outstanding debt. 9. Defendant called Plaintiff from telephone number (800)761-6097 on June 9, 2015 at 9:29a.m., 1:00p.m., and 6:43p.m. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227 et seq. • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiff and the 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. Respectfully Submitted this 26th day of June, 2015.

win

13. Plaintiff 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 waiters, busboys, runners, servers, food preparers, cooks, line-cooks, bartenders and bar- backs) employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 15. The claims for relief are properly brought under and maintained as an opt-in collective action pursuant to §16(b) of the FLSA, 29 U.S.C. 216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action, their names and addresses are readily available from the Defendants. Notice can be provided to the FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 16. Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure (“F.R.C.P.”) Rule 23, on behalf of all current and former non-exempt employees (including but not limited to waiters, busboys, runners, servers, food preparers, cooks, line-cooks, bartenders and bar-backs) 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”). 17. 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 position 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 F.R.C.P. 23. 19. 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, which 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 (i) failing to pay overtime compensation at the rate of one and one-half times the straight time hourly rate for all hours worked in excess of forty (40) each workweek, (ii) failing to pay spread of hours premium for each shift in excess of ten (10) hours, (iii) failing to provide proper wage statements per requirements of the New York Labor Law, and (iv) failing to provide proper wage and hour notices, at date of hiring and annually, per requirements of 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 procedures. 20. 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. 22. 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. 24. On or about August 1, 2014, Plaintiff, MARCO ANGUISACA, was hired by Defendants to work as a cook at Defendants’ Italian Restaurant, “Scaramella’s,” located at 1 Southfield Avenue, Dobbs Ferry, NY, 10522. 25. Plaintiff worked for Defendants until on or about August 14, 2016. 27. Specifically, throughout his employment by Defendants, Plaintiff worked six (6) days per week: 10:00 a.m. – 10:00 p.m. for four (4) days per week and 10:00 a.m. – 11:00 p.m. for two (2) days per week, for a total of approximately seventy-four (74) hours per week. 28. Throughout his employment by Defendants, Plaintiff received his compensation on a fixed salary basis, at a rate of $800 per week. Plaintiff received such compensation partly in check form and partly in cash. Specifically, Plaintiff received $275.00 in check form, and the remainder of his weekly fixed salary ($525.00) in cash form. 29. There was never any agreement that the fixed salary that Plaintiff received covered those overtime hours that he worked in excess of forty (40) each workweek. Throughout Plaintiff’s employment by Defendants, Defendants willfully violated Plaintiff’s rights by paying him on a fixed salary basis, in violation of the New York Labor Law because Plaintiff was a non-exempt employee who Defendants were required to compensate on an hourly basis. 30. Similarly, the other FLSA Collective Plaintiffs and Class Members were compensated by Defendants on fixed salary bases, even though FLSA Collective Plaintiffs and Class Members never agreed with Defendants that the fixed salaries that they received were inclusive of overtime premium for all hours in excess of forty (40) that they worked in each workweek. 32. The wage statements provided by Defendants to Plaintiff were fradulent at all times. They did not state the number of hours that Plaintiff worked, Plaintiff’s hourly rate of pay, or the number of overtime hours that Plaintiff worked. Further, the wage statements provided to Plaintiff only stated that Plaintiff earned $275.00 per week, for which he received compensation in check form. The wage statements given to Plaintiff did not indicate, or reflect in any way the additional compensation of $525.00 per week that Plaintiff received in cash form from Defendants. 33. Similarly, Class Members received fraudulent wage statements that did not state the number of hours worked, the hourly rate of pay, the number of overtime hours worked, or the actual amount earned. 34. Plaintiff never received any wage and hour notices from the Scaramella’s restaurant. Similarly, Class members never received any wage and hour notices from Defendants restaruant . 35. Defendants knowingly and willfully operated their business with a policy of not paying Plaintiff and FLSA Collective Plaintiffs the FLSA overtime rate (of time and one-half) or the New York State overtime rate (of time and one-half). 36. 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 non-exempt employees. 37. Defendants knowingly and willfully operated their business with a policy of not providing a proper wage statement to Plaintiff and other non-exempt employees, in violation of the New York Labor Law. 39. Plaintiff retained Lee Litigation Group, PLLC to represent him and other employees similarly situated in this litigation and has agreed to pay the firm a reasonable fee for its services. 40. Plaintiff realleges and reavers Paragraphs 1 through 39 of this Complaint as if fully set forth herein. 41. At all relevant times, upon information and belief, Defendants were and continue to be employers 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). Further, Plaintiff is a covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207 (a). 42. At all relevant times, Defendants employed Plaintiff within the meaning of the FLSA. 43. Upon information and belief, at all relevant times, Defendant TIRRENIO, INC. had gross revenues in excess of $500,000. 44. 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 hours per workweek. 45. Defendants failed to pay Plaintiff and FLSA Collective Plaintiffs overtime compensation in the lawful amount for hours worked in excess of the maximum hours provided for in the FLSA. 47. Defendants knew of and/or showed a willful disregard for the provisions of the FLSA as evidenced by their failure to compensate Plaintiff and FLSA Collective Plaintiffs at the statutory rate of time and one-half for their hours worked in excess of forty (40) hours per week when Defendants knew or should have known such was due. 48. Defendants failed to properly disclose or apprise Plaintiff of their rights under the 52. Plaintiff realleges and reavers Paragraphs 1 through 51 of this Complaint as if fully set forth herein. 54. Defendants willfully violated Plaintiff’s rights by failing to pay Plaintiff 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 hours in a workweek. 55. Defendants willfully violated Plaintiff’s rights by failing to pay “spread of hours” premium to Plaintiff for each workday that exceeded ten (10) or more hours. 56. Defendants knowingly and willfully operated their business with a policy of not providing proper wage statements to Plaintiff and other non-exempt employees, in violation of the New York Labor Law. 57. Defendants knowingly and willfully operated their business with a policy of not providing proper wage notices to Plaintiff and other non-exempt employees at the beginning of employment and annually thereafter, in violation of the New York Labor Law. 58. Defendants willfully violated Plaintiff’s right by paying him on a salary basis, in violation of the New York Labor Law because Plaintiff is a non-exempt employee who must be paid on an hourly basis. 59. Due to the Defendants’ New York Labor Law violations, Plaintiff is entitled to recover from Defendants his unpaid overtime, unpaid “spread of hours” premium, statutory penalties, damages for unreasonably delayed payments, reasonable attorneys’ fees, and costs and disbursements of the action. VIOLATION OF THE FAIR LABOR STANDARDS ACT VIOLATION OF THE NEW YORK LABOR LAW

win

(Knowing and/or Willful Violations of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii)) 133. Plaintiffs re-allege and incorporate by reference the above paragraphs as though set forth fully herein. 134. The foregoing acts and omissions of Defendants constitute numerous and multiple knowing and/or willful, violations of the TCPA, including, but not limited to, each of the above- cited provisions of 47 U.S.C. § 227, by making calls, except for emergency purposes, to the cellular telephone numbers of Plaintiffs and members of Classes using an ATDS and/or an artificial or prerecorded voice. 135. As a result of Defendants’ knowing and/or willful violations of the TCPA, Plaintiffs and each member of the Classes 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). 136. Plaintiffs and all members of the Classes are also entitled to and do seek injunctive relief prohibiting such willful conduct that violates the TCPA by Defendants in the future, pursuant to 47 U.S.C. § 227(b)(3). (Violations of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii)) 129. Plaintiffs re-allege and incorporate by reference the above paragraphs as though set forth fully herein. 130. The foregoing act and omissions of Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf constitute numerous and multiple violations of the TCPA, including but not limited to each of the above-cited provisions of 47 U.S.C. § 227, by making calls, except for emergency purposes, to the cellular telephone numbers of Plaintiffs and members of the Classes using an ATDS and/or artificial or prerecorded voice. - 21 - 131. As a result of Defendants’ and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf’s violations of the TCPA, Plaintiffs and members of the Classes are entitled to an award of $500 in statutory damages for each and every call placed in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3). 132. Plaintiffs and all members of the Classes are also entitled to and do seek injunctive relief prohibiting such conduct that violates the TCPA by Defendants in the future, pursuant to 47 U.S.C. § 227(b)(3). 119. Plaintiffs bring this class action pursuant to Federal Rule of Civil Procedure 23(b)(3) individually and behalf of all others similarly situated. Plaintiffs seek to represent the below three (3) classes: U.S. Bank Class (Snyder is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which U.S. Bank was serving as trustee. Wilmington Class (Mansanarez is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which Wilmington was serving as trustee. Citibank Class (Mansanarez is the proposed class representative): All persons whose cellular telephones Ocwen called using its - 18 - Aspect dialer in relation to a loan for which Citibank was serving as trustee. Deutsche Class (Beecroft is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which Deutsche Bank was serving as trustee. The U.S. Bank Class, Wilmington Class, Citibank Class, and Deutsche Class are hereinafter collectively referred to as the “Classes.” Excluded from the Classes are Defendants and any entities in which Defendants or their subsidiaries or affiliates have a controlling interest, Defendants’ agents and employees, the judicial officer to whom this action is assigned and any member of the court staff and immediate family, and claims for personal injury, wrongful death, and emotional distress. 120. Numerosity. Plaintiffs do not know the exact number of members in the Classes, but, based on Defendants’ public statements regarding their business in the United States and investigation of their counsel, Plaintiffs reasonably believe that Class members for the proposed classes and subclasses number in the tens of thousands, if not more. 121. Commonality. There are questions of law and fact common to the members of the Classes that predominate over any questions affecting only individual members. These common questions of law and fact include, but are not limited to, the following: a. Whether Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf violated 47 U.S.C. § 227(b)(1)(A) by making any call, except for emergency purposes, to a cellular telephone number using an ATDS or an artificial or prerecorded voice; b. Whether Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf knowingly and/or willfully violated 47 U.S.C. § 227(b)(1)(A) by making any call, except for emergency purposes, to a cellular telephone number using an ATDS or artificial or prerecorded voice, such that treble damages are appropriate under 47 U.S.C. § 227(b)(3); - 19 - c. Whether Defendants are liable for autodialed or prerecorded voice debt collection calls made by Defendants’ affiliates, agents, and/or other persons or entities acting on Defendants’ behalf; and d. Whether Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf should be enjoined from violating the TCPA in the future. 122. Typicality. Plaintiffs’ claims are typical of the claims of the Classes. Plaintiffs’ claims, like the claims of Classes arise out of the same common course of conduct by Defendants and are based on the same legal and remedial theories. 123. Adequacy. Plaintiffs will fairly and adequately protect the interests of the Classes. Plaintiffs have retained competent and capable attorneys with significant experience in complex and class action litigation, including consumer class actions and TCPA class actions. Plaintiffs and their counsel are committed to prosecuting this action vigorously on behalf of the Classes and have the financial resources to do so. Neither Plaintiffs nor their counsel have interests that are contrary to or that conflict with those of the proposed Classes. 124. Predominance. Defendants have engaged in a common course of conduct toward Plaintiffs and members of the Classes. The common issues arising from this conduct that affect Plaintiffs and members of the Classes predominate over any individual issues. Adjudication of these common issues in a single action has important and desirable advantages of judicial economy. 125. Superiority. A class action is superior to all other available methods for the fair and efficient adjudication of the controversy for the following reasons: a. It is economically impractical for members of the Classes to prosecute individual actions; b. The Classes are readily definable; and c. Prosecution as a class action will eliminate the possibility of repetitious litigation. - 20 - 126. A class action will cause an orderly and expeditious administration of the claims of the Classes. Economies of time, effort, and expense will be fostered and uniformity of decisions will be ensured. 127. Class-wide relief is essential to compel Defendants to comply with the TCPA. The interest of Class members in individually controlling the prosecution of separate claims against Defendants is small because the statutory damages in an individual action for violation of the TCPA are small. Management of these claims is likely to present significantly fewer difficulties than are presented in many class claims because the calls at issue are all automated and the Class members, by definition, did not provide the prior express consent required under the statute to authorize calls to their cellular telephones. 128. Injunctive and Declaratory Relief Appropriate. Defendants have acted on grounds generally applicable to the Classes, thereby making final injunctive relief and corresponding declaratory relief with respect to the Classes appropriate on a class-wide basis. Moreover, on information and belief, Plaintiffs allege that the automated calls made by Defendants and/or their affiliates, agents, and/or other persons or entities acting on Defendants’ behalf that are complained of herein are substantially likely to continue in the future if an injunction is not entered. 18. Directly as well as through its subsidiaries, contractors, and agents, Ocwen employs hundreds of persons at various call centers throughout the country. These calling centers use automatic telephone dialing systems and computerized account information to track, record, and maintain the hundreds of thousands of debts collected by Ocwen. 19. A significant portion, if not a majority, of Ocwen’s business operations are dedicated to servicing consumer loans that are in default, foreclosure, have been charged off by the original lender, or are subject to discharge in bankruptcy. 20. Ocwen’s regular business practices include making repeated telephone calls, as well as sending notices, statements, bills, and other written correspondence to persons it believes responsible for paying past-due accounts. - 5 - 21. Part of Ocwen’s strategy for servicing consumer loans involves the use of an automatic telephone dialing system (“ATDS”) and/or automated or prerecorded messages. 22. Ocwen uses ATDS equipment and software that has the capacity to store or produce telephone numbers to be called and which includes autodialers and predictive dialers. 23. Ocwen makes calls using an ATDS and/or artificial or prerecorded voice to cellular telephones whose owners have not provided prior express consent to receive such calls. 24. Plaintiffs, and the other members of the Classes defined below, have each suffered a particularized and concrete injury-in-fact from Defendants’ calls. These calls temporarily seized and trespassed on the use of their cellular telephones, and were an annoyance and nuisance. The calls invaded the recipient’s privacy, and caused Plaintiffs and Class members to waste time and divert attention away from other activities to address them. See, e.g., Mims v. Arrow Fin. Servs., Inc., 132 S. Ct. 470 (2012) (discussing congressional findings of consumer “outrage” as to autodialed and prerecorded calls). These calls also depleted the called party’s cellular telephone battery, including not only as a result of the calls themselves, but in responding to them, as well—requiring an albeit small but real monetary expense in relation to the electricity needed to recharge for such depletion. B. Factual Allegations Regarding Plaintiff Snyder 25. Plaintiff Snyder is the account holder with AT&T Mobility for cellular service and has a telephone number assigned to that account ending in 7690 (the “7690 Number”). 26. In 2001, Plaintiff Snyder purchased a home in Las Vegas, Nevada, located on Lido Isle Court (the “Las Vegas Home”). In 2006, he refinanced his mortgage and took out two loans, the first with Countrywide Home Loans (“Countrywide”) and a second junior-position Home Equity Line of Credit (the “HELOC” loan) with Greenpoint Mortgage Funding (“Greenpoint”). Both loans were secured by deeds of trust. The HELOC had an approximate principal balance of $100,000. He made timely payments in full for several months, but due to a - 6 - significant and unexpected drop in his income could not afford to continue to make payments on either loan. 27. In April 2007, Plaintiff Snyder made his last payment on both loans and the senior creditor began the process of non-judicial foreclosure as permitted under Nevada law. 28. On or about January 18, 2008, the Las Vegas Home was sold at a trustee’s sale for $625,727.34, fully satisfying the first mortgage obligation of $585,504.56 and leaving at least forty thousand dollars (specifically $40,222.78) to pay towards the HELOC. The outstanding debt on the HELOC at the time of foreclosure was $99,968.08 inclusive of late fees and other charges. 29. Plaintiff Snyder received no communication from any creditor regarding the HELOC for more than eighteen months after the foreclosure. 30. In early August 2009, Plaintiff Snyder received a notice from a new servicer informing him that the right to collect payments on the HELOC had been transferred from Greenpoint to the new servicer and stating that the payoff balance on the debt was $126,049.08—far in excess of the principal amount at the time of foreclosure and reflecting no credit at all for funds received from the foreclosure sale. 31. By letter dated July 11, 2014, Ocwen notified Plaintiff Snyder that the servicing rights had been transferred to it. 32. Defendant U.S. Bank serves as the trustee for the HELOC loan serviced through Ocwen. 33. In mid-July of 2014, almost immediately after Ocwen acquired the servicing rights to the HELOC, Ocwen began calling Plaintiff Snyder on his cellular telephone (the 7690 Number). 34. Ocwen’s calls to Plaintiff Snyder at the 7690 Number were made using an Aspect dialer, which is an ATDS under the TCPA. - 7 - 35. Ocwen’s calls to Plaintiff Snyder at the 7690 Number were made on behalf of, and at the direction of, Defendant U.S. Bank. 36. At no time did Plaintiff Snyder list the 7690 Number on an application for credit with Countrywide or Greenpoint for the simple reason that he did not have the number when he applied for the mortgage loans. Plaintiff Snyder was assigned the 7690 Number in 2012, so it would have been impossible in 2006 to have listed that number on his original application for credit. 37. Plaintiff Snyder is informed and believes and, on that basis, alleges that Ocwen makes a regular business practice of using “skip tracing” methods such as pulling credit histories and searching publicly available databases to obtain contact information for persons it believes are obligated for consumer debts it services. 38. Plaintiff Snyder believes that Ocwen obtained the 7690 Number via skip tracing and included it in its automated telephone dialing system’s database. 39. At no time did Ocwen or any predecessor in interest have Plaintiff Snyder’s express consent to use an ATDS and/or artificial or prerecorded voice to call him at the 7690 Number. 40. Many of the calls Ocwen placed to Plaintiff Snyder at the 7690 Number were made using an artificial and/or prerecorded voice. 41. On at least one occasion, when Plaintiff Snyder answered the telephone, he heard a message stating that the call was intended to reach Keith Snyder about “an important business matter” and inviting him to press one of an enumerated list of digits to reach a particular department. 42. Plaintiff Snyder tried to connect with a live staffer but the call terminated. 43. When Plaintiff Snyder called back using the Caller ID as listed, (877) 746-2936 (the same number as listed on the written communications he received from Ocwen), he was - 8 - again confronted with a telephone voice message tree, which terminated his call before he could connect with a live staffer. 44. Plaintiff Snyder sent email messages to the address listed on the written communications disputing the debt and asking the calls to stop. 45. Ocwen made at least three more calls to Plaintiff Snyder at the 7690 Number using an identical automated and/or prerecorded message. 46. Plaintiff Snyder believes that Ocwen placed additional calls to the 7690 Number that were not preserved and seeks discovery to identify those additional calls. 47. Plaintiff Snyder never listed the 7690 Number in or on any documents during a transaction with Defendant U.S. Bank, Ocwen, or any creditor, nor did he subsequently give his express consent to receive calls at the 7690 Number. 48. At no time did Plaintiff Snyder consent to receiving calls using an ATDS and/or artificial or prerecorded voice. 49. Defendant U.S. Bank is responsible, either directly or indirectly, for making the above-described ATDS and/or artificial or prerecorded calls. 50. In calling Plaintiff Snyder, or in causing calls to be made to Plaintiff Snyder, on his cellular telephone line multiple times at various times per day using an ATDS and without his consent, Defendant U.S. Bank violated 47 U.S.C. § 227(b). 51. Ocwen and Defendant U.S. Bank intend to continue to make similar ATDS and/or artificial or prerecorded calls to persons on their cellular telephones throughout the entire United States. C. Factual Allegations Regarding Plaintiff Mansanarez 52. Plaintiff Mansanarez is the account holder with T-Mobile for cellular service and has a telephone number assigned to that account ending in 7110 (the “7110 Number”). 53. In approximately 1995, Plaintiff Mansanarez began renting a home in Federal Way, Washington, located on 7th Avenue Southwest (“Federal Way Home”). - 9 - 54. In approximately 2006, Plaintiff Mansanarez purchased the Federal Way Home. 55. In approximately January 2014, Ocwen notified Plaintiff Mansanarez that the servicing rights for the Federal Way Home had been transferred to it. 56. On information and belief, Defendant Citibank served as the trustee for the loan serviced through Ocwen, with Defendant Wilmington as its successor trustee. 57. In approximately January of 2014, almost immediately after Ocwen acquired the servicing rights to the Federal Way Home, Ocwen began calling Plaintiff Mansanarez on her cellular telephone (the 7110 Number). 58. Many of the calls Ocwen placed to Plaintiff Mansanarez at the 7110 Number were made using an ATDS and/or artificial or prerecorded voice. 59. On many occasions in 2014 and 2015, Plaintiff Mansanarez requested that Ocwen cease calling her on the 7110 Number. 60. Plaintiff Mansanarez received many calls on the 7110 Number more than 31 days after requesting that Ocwen cease calling her. 61. During one call, Plaintiff Mansanarez asked the Ocwen representative why the company continued to call her cellular telephone. 62. The Ocwen representative responded by explaining that her number had been placed in their automated calling system. 63. Plaintiff Mansanarez demanded that the Ocwen representative remove the 7110 Number from their automated calling system. 64. Ocwen, however, continued to place calls to Plaintiff Mansanarez at the 7110 Number using an ATDS and/or artificial or prerecorded voice. 65. Ocwen’s calls to Mansanarez were made using an Aspect dialer, which is an ATDS under the TCPA. 66. On information and belief, Ocwen’s calls to Mansanarez were made on behalf of, and at the direction of, Defendants Citibank and its successor, Wilmington. - 10 - 67. Consequently, Defendants Citibank and Wilmington are responsible, either directly or indirectly, for making the above-described ATDS and/or artificial or prerecorded calls. 68. In calling Plaintiff Mansanarez, or causing calls to be made to Plaintiff Mansanarez, on her cellular telephone line multiple times at various times per day using an ATDS and without her consent, Defendants Citibank and Wilmington violated 47 U.S.C. § 227(b). 69. On information and belief, Ocwen and Defendant Wilmington intend to continue to make similar ATDS and/or artificial or prerecorded calls to persons on their cellular telephones throughout the entire United States. D. Factual Allegations Regarding Plaintiff Beecroft 70. Plaintiff Beecroft has at all relevant times been the account holder with Boost Mobile for cellular service and has a telephone number assigned to that account ending in 5370 (the “5370 Number”). 71. On December 23, 2005, Plaintiff Beecroft and her husband executed a promissory note to Ameriquest Mortgage Company (“Ameriquest”). The note was secured by a mortgage encumbering Plaintiff Beecroft’s residence in New London, Minnesota (“New London Home”). 72. In 2008, as a result of financial difficulty, Plaintiff Beecroft stopped making her payments, and the loan went into default. 73. In March 2009, the loan was assigned to Defendant Deutsche Bank National Trust Company. 74. In March 2009, Deutsche Bank commenced a foreclosure by advertisement on Plaintiff Beecroft’s home, later advertising a sheriff’s sale in September 2009. 75. In May 2009, Plaintiff Beecroft filed for Chapter 7 bankruptcy protection. The loan Ameriquest assigned to Defendant Deutsche Bank was included in her bankruptcy petition. - 11 - The court ordered a discharge on August 18, 2009. On this date, Plaintiff was no longer personally obligated to pay back the loan. 76. Plaintiff Beecroft did not sign a reaffirmation agreement for the loan. 77. In October 2009, Plaintiff Beecroft and her husband filed a quiet title action against Deutsche Bank. After litigation and an appeal, Plaintiff Beecroft’s quite title action was dismissed. 78. On November 11, 2009, a Sheriff’s Certificate of Foreclosure Sale was filed with the Kandiyohi County Recorder. The document indicated that the property was sold at auction to Defendant Deutsche Bank and was signed by Dan Hartog, the Kandiyohi County Sheriff. 79. On information and belief, on or around April 1, 2013, Ocwen received Plaintiff Beecroft’s loan for servicing on behalf of Defendant Deutsche Bank, even though the loan had been discharged in bankruptcy and a foreclosure auction completed. 80. Immediately thereafter, Ocwen began attempting to collect the alleged balance due on the mortgage, despite Plaintiff Beecroft having no remaining legal obligation to pay the mortgage. 81. Ocwen’s collection efforts included letters, billing statements, and repeated robocalls to Plaintiff Beecroft’s cellular and home telephones. 82. On information and belief, on or around April 29, 2013, Ocwen obtained Plaintiff Beecroft’s cellular telephone number by accessing Plaintiff Beecroft’s Experian credit report. 83. Between October 1, 2013 and February 1, 2014, Ocwen made approximately 58 calls to Plaintiff Beecroft’s cellular telephone using an ATDS in an attempt to collect the alleged balance due on the loan from Plaintiff Beecroft. 84. The calls violated the TCPA and were an invasion of Plaintiff Beecroft’s privacy. 85. For example, Ocwen used an ATDS to call Plaintiff Beecroft’s cellular telephone number at approximately 8:26 a.m. on October 18, 2013, 8:27 a.m. on October 18, 2013, 8:04 a.m. on October 20, 2013, 8:38 a.m. on October 21, 2013, 7:19 p.m. on October 21, 2013, 8:34 - 12 - a.m. on October 22, 2013, 8:31 a.m. on October 23, 2013, 8:23 a.m. on October 24, 2013, 8:30 a.m. on October 25, 2013, 8:20 a.m. on October 26, 2013, 11:02 a.m. on October 27, 2013, 8:13 a.m. on October 28, 2013, 8:07 a.m. on October 29, 2013, 8:16 a.m. on October 30, 2013, 8:21 a.m. on November 1, 2013, 8:04 a.m. on November 2, 2013, 8:10 a.m. on November 3, 2013, 9:19 a.m. on November 5, 2013, 9:02 a.m. on November 6, 2013, 8:44 a.m. on November 7, 2013, 8:58 a.m. on November 8, 2013, 8:30 a.m. on November 11, 2013, 8:22 a.m. on November 12, 2013, 11:09 a.m. on November 13, 2013, 6:29 p.m. on November 15, 2013, 8:10 a.m. on November 16, 2013, 11:27 a.m. on November 17, 2013, 12:37 p.m. on November 18, 2013, 8:30 a.m. on November 19, 2013, 11:12 a.m. on November 20, 2013, 11:27 a.m. on November 21, 2013, 11:08 a.m. on November 22, 2013, 8:01 a.m. on November 23, 2013, 12:26 p.m. on November 25, 2013, 11:07 a.m. on November 26, 2013, 10:25 a.m. on November 27, 2013, 11:05 a.m. on November 29, 2013, 1:14 p.m. on December 1, 2013, 11:49 a.m. on December 2, 2013, 11:07 a.m. on December 3, 2013, 8:04 a.m. on December 6, 2013, 8:04 a.m. on December 7, 2013, 3:05 p.m. on December 8, 2013, 12:30 p.m. on December 9, 2013, 1:07 p.m. on December 11, 2013, 1:11 p.m. on December 16, 2013, 12:22 p.m. on December 17, 2013, 12:52 p.m. on December 24, 2013, 9:43 a.m. on December 26, 2013, 10:07 a.m. on December 28, 2013, 11:00 a.m. on December 29, 2013, 11:21 a.m. on January 5, 2014, 10:47 a.m. on January 7, 2014, 11:12 a.m. on January 10, 2014, 9:39 a.m. on January 11, 2014, 9:10 a.m. on January 12, 2014, 1:25 .m. on January 13, 2014, and 9:50 a.m. on January 16, 2014. 86. All of the calls Ocwen made to Plaintiff Beecroft’s cellular telephone described in the foregoing paragraph used the caller ID “800-746-2936.” 87. Plaintiff Beecroft answered approximately two calls from Ocwen. 88. After Plaintiff Beecroft answered the calls, there was a significant delay before an operator would come onto the line and ask for Plaintiff. 89. This delay indicated to Plaintiff Beecroft that Ocwen used an automated dialer to make the calls. - 13 - 90. Plaintiff Beecroft told Ocwen’s employees to stop calling her on two occasions. 91. On information and belief, some or all of the calls to Plaintiff Beecroft’s cellular telephone, including, but not limited to, the calls listed above, were made using: (a) a Premier Global Dialer; (b) an IAT Predictive Dialer; (c) a Davox Dialer; (d) an Aspect Dialer; or (e) a similar dialing system that has the requisite capacity pursuant to the TCPA. 92. Ocwen’s calls to Beecroft were made on behalf of, and at the direction of, Defendant Deutsche Bank. 93. Defendant Deutsche Bank is responsible, either directly or indirectly, for making the above-described ATDS and/or artificial or prerecorded calls. 94. In calling Plaintiff Beecroft, or causing calls to be made to Plaintiff Beecroft, on her cellular telephone line multiple times at various times per day using an ATDS and without her consent, Defendant Deutsche Bank violated 47 U.S.C. § 227(b). 95. Ocwen and Defendant Deutsche Bank intend to continue to make similar ATDS and/or artificial or prerecorded calls to persons on their cellular telephones throughout the entire United States. 96. Defendants knew about the TCPA, but caused the calls alleged herein to be made in spite of such knowledge. E. Factual Allegations Regarding Defendants 97. The TCPA imposes liability upon any person who makes unlawful phone calls using an autodialer or a prerecorded message. The FCC—which Congress vested with the authority to promulgate rules and regulations implementing the TCPA, see 47 U.S.C. § 227(b)(2) —has declared through rulemaking and adjudicative orders that liability for a TCPA violation may be imputed to a party that did not itself place the unlawful calls if the party that placed the calls did so as an agent of that party. 98. To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed or prerecorded message calls, the creditor is responsible under - 14 - the TCPA for demonstrating that the consumer provided prior express consent to be called. FCC Declaratory Ruling, 23 F.C.C. Rcd. 559 (¶ 10). 99. Hence, a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any resulting violation of the TCPA. Calls placed by a third-party collector on behalf of that creditor are treated as if the creditor itself placed the call. Id. 100. Alternatively, an entity may be held vicariously liable for violations of the TCPA “under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.” In re Joint Petition filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6528 ¶ 28 (2013). 101. Here, Defendants U.S. Bank, Wilmington, Citibank, and Deutsche Bank expressly authorized Ocwen to act as their agent for servicing the respective loans in the trust pools, and specified in detail how Ocwen was to carry out that authority in writing, starting with the Pooling and Servicing Agreement (“PSA”) for each trust. 102. Ameriquest Mortgage Company was originally the Master Servicer for the 2006-R1 Trust associated with Plaintiff Beecroft’s loan as to the New London Home, but Ocwen succeeded to that role on March 10, 2013 when it acquired the servicing rights. According to the applicable PSA, Ocwen succeeds to the duties of the Master Servicer under the PSA “without the execution or filing of any paper or any further act on the part of any of the parties hereto” so long as Ocwen is qualified to service mortgage loans on behalf of Fannie Mae or Freddie Mac. Ameriquest 2006-R1 PSA, § 6.02. 103. Defendant Deutsche Bank serves as trustee for the Ameriquest Mortgage Securities Inc. asset-backed, pass-through certificates Series 2006-R1. 104. On information and belief, Greenpoint Mortgage Funding, Inc. was the original Master Servicer for the Greenpoint Mortgage Funding Trust 2005-HE2, which holds Plaintiff Snyder’s promissory note, but Ocwen succeeded to that role on July 1, 2014. - 15 - 105. Defendant U.S. Bank serves as trustee for the Series 2005-HE2 Certificates, including as to Plaintiff Snyder’s HELOC loan. 106. On information and belief, Wells Fargo Bank, N.A. was the original servicer for the Bear Stearns ALT-A Trust mortgage pass-through certificates, Series 2006-4, which holds Plaintiff Mansanarez’ promissory note, but Ocwen succeeded to that role on July 1, 2014. 107. Defendants Citibank and Wilmington served as trustees for the Series 2006 Certificates during the relevant time period including, on information and belief, as to Plaintiff Mansanarez’ loan. 108. The trustee of each Defendant has broad authority over the Master Servicer. For example, the PSA for the trust which owns Plaintiff Beecroft’s promissory note specifies that the trustee has the right to access records and demand financial statements from the Master Servicer, as well as any sub-servicer hired by the Master Servicer. Ameriquest 2006-R1 PSA § 6.05. 109. Ocwen, as the Master Servicer under each PSA, is responsible for making payments to the trust and making detailed, regular reports. For example, the PSA for the trust which owns Plaintiff Beecroft’s promissory note specifies that the Master Servicer must make a “remittance report” on each distribution date breaking down the advances made, the aggregate amount of nonrecoverable advances, a statement of the collection account, the aggregate amount of deposits in the collection account, and other information relating to the performance of the loans in the trust. Ameriquest 2006-R1 PSA § 4.03(a). The PSA for the trust which owns Plaintiff Mansanarez’ promissory note has similar duties for the Master Servicer, specifying (among other things) that the Master Servicer must make monthly reports that reconcile the actual payments made with the anticipated payments. BSALTA 2006-4 PSA § 3.01. 110. Each Defendant has required Ocwen as the Master Servicer for the respective loan pool to make an annual compliance statement and have responsible officers sign that document. 111. Each Defendant expressly delegated to Ocwen the responsibility to collect money owed under the promissory notes that it owns and holds. Sometimes this delegation is set out in - 16 - the PSA, for example in Ameriquest 2006-R1 PSA, § 3.02 (“The Master Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Mortgage Loans.”). And sometimes the delegation is described in ancillary documents provided under federal regulations when the sponsor of the deal made a securities offering. “As part of its servicing duties, the master servicer will be required to, and to cause each of the [sub-]servicers to, make reasonable efforts to collect all payments called for under the terms and provisions of the mortgage loans that it services.” BSALTA 2006-4 Prospectus, at 23 (Form 424B5, filed July 18, 2006 with Securities and Exchange Commission). 112. Ocwen is also expressly given authority by each PSA to foreclose on a property securing a loan in the event of default by the borrower, passing the proceeds along to the trust. See, e.g., BSALTA 2006-4 PSA § 3.05. But when it does foreclose, each PSA requires that title to the property be held in the name of the trust, not in Ocwen’s own name—further evidence that each Defendant exercises control over its agents activities and the authority delegated is far from plenary. See, e.g., Ameriquest 2006-R1 PSA, § 3.13(a) (“The deed or certificate of sale of any REO Property shall be taken in the name of the Trustee, or its nominee, in trust for the benefit of the Certificateholders.”). 113. At least one PSA expressly states that the mortgage loan files and funds collected by the Master Servicer “shall be and remain the sole and exclusive property of the Trustee” even though held by the Master Servicer. BSALTA 2006-4 PSA § 3.08(b); Ameriquest 2006-R1 PSA § 3.17(b) (“the Master Servicer shall retain such Mortgage File in trust for the benefit of the Certificateholders”). 114. Not only is Ocwen the express, formal agent for each Defendant, but each Defendant also ratified Ocwen’s actions by accepting the benefit of Ocwen’s collection activities. Ratification occurs when an agent acts for a principal’s benefit and the principal does not repudiate the agent’s actions. Sphere Drake Ins. Ltd. v. Am. Gen. Life Ins. Co., 376 F.3d 664, 677 (7th Cir. 2004). - 17 - 115. In addition to the PSAs, the course of dealings between Ocwen and Defendants shows that Defendants knowingly accepted the benefits of the challenged calls. 116. For example, but not by limitation, at no time did any trustee or authorized agent of any Defendant refuse to accept the funds obtained by Ocwen as a result of its collection efforts. In fact, the Defendants actively and knowingly accepted the benefits of Ocwen’s calls, in spite of their knowledge that the calls were illegal. Such acceptance of benefits continued even after this lawsuit was filed. 117. At no time did any trustee or authorized agent of any Defendant terminate or modify Ocwen’s servicing authority due to Ocwen’s collection methods or procedures, even though Ocwen had been sued more than one hundred times for violating state and federal consumer protection laws relating to collection methods and procedures in the years prior to the filing of this action. 118. Indeed, so accepting has each Defendant been of Ocwen’s performance that even when Ocwen was the subject of multiple enforcement actions by state regulators in New York and California, no Defendant sought to terminate Ocwen’s master servicing authority. A. Factual Allegations Regarding Ocwen

win

11. Plaintiff Tiffanie Branch applied for a position as Liability Claims Representative at the Fredericksburg office of Defendant GEICO during the late summer of 2016. On August 26, 2016, she accepted GEICO’s offer to join the company as a Liability Claims Representative at an initial salary of $22.33 an hour. 12. The job offer was contingent on a background check. 13. Prior to the job offer, in the course of the application process Plaintiff had disclosed to GEICO that she had never been convicted of a felony, but that she had a misdemeanor conviction in her past. 14. GEICO ordered a background check on Plaintiff from General Information Services (GIS) on September 2, 2016. 16. If the report is marked with a green flag, the applicant is generally eligible to be placed for employment immediately. 17. If the report is marked with a yellow or red flag, that indicates that GIS has graded the applicant with a derogatory background report. 18. GIS completed Plaintiff’s background report and sent it electronically to GEICO on September 21, 2016. 19. The GIS report was inaccurate. GIS reported to GEICO that Plaintiff had been convicted of a felony, which was not true. 20. GIS graded Plaintiff’s report as a “Fail” with a red flag. 21. After viewing the report, a GEICO representative named Latoria Parker contacted Plaintiff by telephone on September 21, 2016 to tell her that the job offer was rescinded due to the existence of a felony conviction from the City of Richmond that appeared on the background report. 22. Neither Ms. Parker nor anyone else at GEICO provided Plaintiff with a copy of the background report prior to rescinding her job offer. 24. Plaintiff was deeply shocked and upset at the revocation of the job offer. Because she had not seen a copy of the background report she did her best to follow up on the telephone conversation by sending Ms. Parker an email later that day providing the details why the GIS report of a felony conviction was a serious mistake. She explained that she had originally been charged with a felony but the charge had been reduced and she pled guilty to a misdemeanor. 25. Plaintiff further explained that the Virginia General District Court Online Case Information System, which can be easily accessed by computer, showed that the charge from the City of Richmond had been reduced to a misdemeanor in the final case disposition. Plaintiff included that documentation with her email to Ms. Parker. 26. Nevertheless, GEICO did not reinstate the job offer to Plaintiff. 27. Subsequently, Plaintiff received a letter dated September 22, 2016 from GIS stating that GEICO “has or will be completing their review of your application within the next few days, and may take action based on the enclosed report.” 28. However, in reality, GEICO had already taken adverse action against Plaintiff on September 21, 2016, when its representative telephoned Plaintiff to revoke the job offer, based on the GIS criminal background report that GEICO had received that same day. 29. In fact, the GIS report states that the grading “Decision Time” occurred on “9/21/ 2016 [at] 12:39:07 PM.” 31. GEICO has created and implemented national, uniform hiring and staffing policies, procedures, and practices under which it and its subsidiaries operate. Those policies, procedures, and practices cover the use of “background checks” or “consumer reports” to screen potential employees. 32. GEICO routinely uses consumer reports to screen prospective employees, with GIS grading applicants based on criteria GEICO supplies to GIS. As a matter of practice, GEICO regularly fails to provide copies of consumer reports to job applicants against whom it takes an adverse action based in whole or part on consumer reports, before taking that adverse action. 33. As a matter of practice, GEICO regularly fails to provide copies of the FTC or CFPB notice of rights to job applicants against whom it takes an adverse action based in whole or part on a consumer report, before taking that adverse action. 34. As a matter of course, GEICO uses the same business process for obtaining and using consumer reports, and for the “adjudication” of employment applications as it did with Plaintiff and members of the Class described below. In authorizing GIS to mail pre- and final adverse action letters automatically, GEICO deprives consumers of any reasonable time period by which to dispute or discuss any inaccurate or derogatory information in their background reports. 36. Defendant’s conduct and omissions were willful. Because the FCRA was enacted in 1970, Defendant has had years to become compliant but has failed to do so. 37. GEICO, a nationwide employer, was aware of obligations under the FCRA as they relate to employment because it hired GIS not only to perform its background checks but also to (attempt to) provide GEICO’s adverse-action notices to job applicants. GEICO therefore knew of the requirements imposed upon it by the FCRA, and failed to craft a system that would ensure compliance with those requirements. V. 38. Pursuant to Federal Rule of Civil Procedure 23 and 15 U.S.C. § 1681b, Plaintiff brings this action for herself and on behalf of a class (the “Class”), defined as: All natural persons residing in the United States (including all territories and other political subdivisions of the United States) (a) who submitted an employment application or other request for placement to GEICO; (b) who were the subject of a consumer report which was used by GEICO or GIS to make an employment decision from December 30, 2014 to the present; (c) whose consumer report contained either a “red flag” or a “yellow flag”; and (d) as to whom GEICO either rejected or delayed employment. 39. Specifically excluded from this Class are: (a) all federal court judges who preside over this case and their spouses; (b) all persons who elect to exclude themselves from the Class; (c) all persons who have previously executed and delivered to GEICO releases of all their claims for all of their Class claims; and (d) GEICO’s employees, officers, directors, agents, and representatives and their family members. 41. Commonality. Common questions of law and fact exist as to all members of the Class. Without limitation, the total focus of the litigation will be GEICO’s uniform conduct and procedures; whether rejecting an applicant for employment when a background report contains a red or yellow flag is an “adverse action’ subject to the FCRA notice requirements; whether GEICO provided the required notices; when it did so; and, whether GEICO acted willfully in its failure to design and implement procedures to assure compliant delivery and/or timing of these notices. The appropriate amount of uniform statutory and/or punitive damages under 15 U.S.C. § 1681n is a common question for members of the Class. 42. Typicality. Plaintiff’s claims are typical of the other Class members’ claims. As described above, Defendant GEICO uses common practices and automated systems in committing the conduct that Plaintiff alleges damaged her and the Class. Plaintiff seeks only statutory and punitive damages for her classwide claims and, in addition, Plaintiff is entitled to relief under the same causes of action as the other members of the Class. GEICO uniformly breached the FCRA by engaging in the conduct described above, and these violations had the same effect on each member of the Class. 44. Questions of law and fact common to the Class predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication of the controversy. The statutory and punitive damages sought by each member are such that individual prosecution would prove burdensome and expensive given the complex and extensive litigation necessitated by GEICO’s conduct. It would be virtually impossible for the members of the Class to, individually, effectively redress the classwide wrongs done to them, particularly in light of the fact that the claims are in part based on the failure of GEICO to give Class members the proper notice. Even if the members of the Class themselves could afford such individual litigation, it would be an unnecessary burden on the courts. 45. Furthermore, individualized litigation presents a potential for inconsistent or contradictory judgments and increases the delay and expense to all parties and to the court system presented by the complex legal and factual issues raised by GEICO’s conduct. By contrast, the class action device will result in substantial benefits to the litigants and the Court by allowing the Court to resolve numerous individual claims based upon a single set of proof in just one case. VI. 46. Plaintiff incorporates by reference those paragraphs set out above as though fully set forth herein. 48. Likewise, GEICO’s failure to provide members of the Class the mandated FTC/CFPB Summary of FCRA Rights, prior to taking such action, violated 15 U.S.C. § 1681b(b)(3)(A)(ii). 49. GEICO’s creation of a system in which GIS mails pre- and final adverse action letters robs consumers of a reasonable opportunity to dispute inaccurate information in their background reports, further violating section 1681b(b)(3). 50. The conduct, action, and inaction of GEICO were willful, rendering it liable for statutory and punitive damages in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n. 51. Plaintiff and other members of the Class are entitled to recover costs and attorneys’ fees as well as appropriate equitable relief from GEICO in an amount to be determined by the Court, pursuant to 15 U.S.C. § 1681n. A. Plaintiff’s Acceptance of Offer of Employment With GEICO COUNT ONE: VIOLATIONS OF 15 U.S.C. § 1681b(b)(3)(A)

lose

21. Defendant is a sports merchandise company that owns and operates the website, www.rocketsshop.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. 38. Upon information and belief, because ROCKET BALL, LTD.’s Website has never been accessible and because ROCKET BALL, LTD. does not have, and has never had, an adequate 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: a. that ROCKET BALL, LTD. retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so the goods and services on them may be equally accessed and enjoyed by individuals with vision related disabilities; b. that ROCKET BALL, LTD. work with the Mutually Agreed Upon Consultant to ensure that all employees involved in website development and content development be given web accessibility training on a periodic basis, including onsite training to create accessible content at the design and development stages; c. that ROCKET BALL, LTD. work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; d. that ROCKET BALL, LTD. work with the Mutually Agreed Upon Consultant to perform end-user accessibility/usability testing on a periodic basis with said testing to be performed by individuals with various disabilities to evaluate whether its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; e. that ROCKET BALL, LTD. work with the Mutually Agreed Upon Consultant to create an accessibility policy that will be posted on its Website, along with an e-mail address and tollfree phone number to report accessibility-related problems; and f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two years after the Mutually Agreed Upon Consultant validates it is free of accessibility errors/violations to ensure it has adopted and implemented adequate accessibility policies. 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. 46. 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. 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. 51. 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). 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). 61. 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). 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. 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 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

23. The members of the Class are so numerous that joinder of all members is impracticable. Throughout the Class Period, AgFeed common stock was actively traded on the NASDAQ. While the exact number of Class members is unknown to Plaintiffs at this time and can only be ascertained through appropriate discovery, Plaintiffs believe that there are hundreds or thousands of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by AgFeed or its transfer agent and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions. 24. Plaintiffs' claims are typical of the claims of the members of the Class as all members of the Class are similarly affected by Defendants' wrongful conduct in violation of federal law that is complained of herein. 25. Plaintiffs will fairly and adequately protect the interests of the members of the Class and have retained counsel competent and experienced in class and securities litigation. 27. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it impossible for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action. 62. Plaintiffs repeat and reallege each allegation contained above as if fully set forth herein. This claim is asserted against all Defendants. 63. During the Class Period, Defendants disseminated or approved the false statements specified above, which they knew or deliberately 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 §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 Plaintiffs and others similarly situated in connection with their purchases of AgFeed common stock during the Class Period. 66. Plaintiffs repeat and reallege each allegation contained above as if fully set forth herein. This claim is asserted against the Individual Defendants. 67. The Individual Defendants acted as controlling persons of AgFeed within the meaning of §20(a) of the Exchange Act. By reason of their positions with the Company, the Individual Defendants had the power and authority to cause AgFeed to engage in the wrongful conduct complained of herein. By reason of such conduct, these defendants are liable pursuant to §20(a) of the Exchange Act. For Violation of §10(b) of the Exchange Act and Rule 10b-5 Against All Defendants For Violation of §20(a) of the Exchange Act Against the Individual Defendants

lose

34. EOS placed EOS Lip Balm products, including Blackberry Nectar, Coconut Milk, Strawberry Sorbet, Blueberry Acai, Pomegranate Raspberry, Summer Fruit, Sweet Mint, Honeysuckle Honeydew, Lemon Drop, and Medicated Tangerine, into the stream of commerce. 35. EOS has promoted the use of its Visibly Soft Lip Balm and lip balm products to consumers as having unique beauty and health benefits. 36. EOS promotes EOS Lip Balms as being enriched with natural conditioning oils, moisturizing shea butter and antioxidant Vitamins C & E which nourish for immediately softer, more beautiful lips. 37. EOS promotes that its product is “healthy” “organic” and “gluten free.” 38. EOS pursued an aggressive marketing campaign, utilizing product placement as well as celebrity endorsements in magazines, Twitter, Pinterest, and Instagram. EOS markets heavily through its website “evolutionofsmooth.com.” 39. EOS advertises its products on its website and permits users to purchase products on the website. The website promotes the products in the following ways: a. NEW! Get noticed with visibly softer lips. Nourish your lips with the delicious flavor of blackberry nectar. b. Treat your lips to an all-natural lip balm that’s bursting with moisture and the refreshing flavors of strawberry, blueberry and peach. c. Delight your lips with the irresistible flavor of fresh honeydew and with moisture that keeps your lips feeling soft and smooth all day long. 43. While boasting celebrity endorsements and magazine advertisements, and while making lofty representations regarding the health and curative effects of their lip balm products, EOS provides no warnings on its product, packaging, labeling, or anywhere on the website regarding health problems which are caused by the mix and use of ingredients used in its products, and the lack of instruction regarding the appropriate amount of use of the product. 45. Plaintiff, and putative class representative, Nicole Emily Caggiano, used “Vanilla Mint” and “Sweet Mint” EOS lip balm, which was purchased at a CVS retail store in or around Holtsville, New York in January 2015, and progressively developed substantial health problems in January 2015, and thereafter, including but not limited to swelling, dryness, cracking and blisters on and around her lips. Below is a picture of the front / back packaging of the EOS lip balm “Sweet Mint” like the one purchased by Ms. Caggiano. 47. Alarmingly, nowhere on the EOS website, packaging, and labeling are there any warnings about potential dangers and health problems caused by EOS Lip Balm. This is despite the fact that EOS has received massive amounts of complaints from consumers related to adverse health effects caused by the use of EOS lip balm and the fact that EOS has established a medical team related to adverse health effects caused by its product. 48. The scope of individuals who have likely been harmed by EOS Lip Balm appears to massive in scope, ranging in thousands to potential hundreds of thousands. Below is a small sample of other pictures of individuals suffering the same or similar reactions to Ms. Caggiano: 52. EOS provides no warning regarding the potential dangerous side-effects of the ingredients used in the product, or the cumulative effect of combining these very diverse ingredients into a singular delivery lip balm module. 53. Indeed, not only does EOS fail to provide any warnings regarding the product, EOS provides no disclaimers at all about any aspect of the product, nor does it provide instruction or any information about recommended use. Instead, EOS encourages through its advertisements, the constant and consistent application of the product, causing foreseeable and actual harmful health consequences to consumers. 54. The only “direction” provided by EOS on its packaging is: 58. Plaintiff brings this class action on behalf of herself and all others similarly situated as Class Members pursuant to Rule 23 of the Federal Rules of Civil Procedure. 60. Plaintiff seeks to represent a “New York Subclass” defined as follows: All New York residents who purchased EOS Lip Balm excluding EOS, EOS’s officers, directors, and employees, EOS’s subsidiaries, those who purchased the products for the purpose of resale, the Judge to whom this case is assigned and the immediate family of the Judge to whom this case is assigned. 61. Plaintiff is a member of the Class she seeks to represent. Plaintiff is a United States resident who purchased EOS Lip Balm. 62. Plaintiff is a member of the Sub-Class she seeks to represent. Plaintiff is a New York resident who purchased EOS Lip Balm. 63. The definition of the Class is narrowly tailored so as to include only identifiable Class Members who can be identified through EOS’ wholesale sale information. The Class has no time limit because, as discussed below, the statute of limitations has been tolled by the EOS’ fraudulent concealment of the true nature of the product purchased by Class Members. 67. The factual bases of EOS’ misconduct are common to the Class Members and represent a common thread of deceptive advertising and breach of warranty resulting in injury to all Class Members. Plaintiff is asserting the same rights, making the same claims, and seeking the same relief for themselves and all other Class Members. The central question of whether EOS’s representations are accurate and truthful is common to all Class Members and predominates over all other questions, legal and factual in this litigation. 68. Adequate Representation: Plaintiff is an adequate representative of the proposed Class because she is a Class Member and does not have interests that conflict with those of the other Class members she seeks to represent. Plaintiff is represented by experienced and able counsel, who has litigated numerous class-action lawsuits, and Plaintiff’s Counsel intends to prosecute this action vigorously for the benefit of the proposed Class. Plaintiff and her Counsel will fairly and adequately protect the interests of the Class Members. 70. A class action for injunctive and equitable relief pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure is also appropriate. EOS acted or refused to act on grounds generally applicable to the Class thereby making appropriate final injunctive and equitable relief with respect to the Class as a whole. EOS’ actions are generally applicable to the Class as a whole, and Plaintiff, on behalf of the Class, seeks damages and injunctive relief described herein. Moreover, EOS’ systemic policy and practices make declaratory relief with respect to the Class as a whole appropriate. 79. Plaintiff, individually, and on behalf of all others similarly situated, adopts and incorporates by reference all allegations contained in the foregoing paragraphs as though fully set forth herein. 80. Plaintiff asserts this cause of action on behalf of herself and the Putative Class Members. 82. EOS misrepresented and omitted material information regarding EOS Lip Balm by failing to disclose known risks. 83. EOS’ misrepresentations and concealment of material facts constitute unconscionable commercial practices, deception, fraud, false pretenses, misrepresentation, and/or the knowing concealment, suppression, or omission of materials facts with the intent that others rely on such concealment, suppression, or omission in connection with the sale and advertisement of EOS Lip Balm, in violation of New York General Business Law (“GBL”) §§ 349 and 350. 84. New York has enacted statutes to protect consumers from deceptive, fraudulent, and unconscionable trade and business practices. EOS violated these statutes by knowingly and falsely representing that EOS Lip Balm was fit to be used for the purpose for which it was intended, when EOS knew it was defective and dangerous, and by other acts alleged herein. 85. EOS engaged in the deceptive acts and practices alleged herein in order to sell EOS Lip Balm to the public, including Plaintiff. 86. EOS’ practices, acts, policies, and course of conduct, including its omissions, as described above, were intended to induce, and did induce, Plaintiff and the Putative Class Members to purchase EOS Lip Balm. 87. EOS sold EOS Lip Balm knowingly concealing that it contained the defects alleged. 90. The aforementioned conduct is and was deceptive and false and constitutes an unconscionable, unfair, and deceptive act or practice in that EOS has, by the use of knowing, intentional material omissions, concealed the true defective nature of EOS Lip Balm. 91. In making these misrepresentations of fact and/or material omissions to prospective consumers while knowing such representations to be false, EOS has misrepresented and/or knowingly and intentionally concealed material facts and breached its duty not to do so. 92. Members of the public were deceived by EOS’ failure to disclose and could not discover the defect themselves before suffering their injuries. 93. As a direct and proximate result of these unconscionable, unfair, and deceptive acts or practices, Plaintiff and the Putative Class Members have been damaged as alleged herein, and are entitled to recover actual damages to the extent permitted by law, including class action rules, in an amount to be proven at trial. 94. Plaintiff and the Putative Class Members seek restitution of the substantial sums of money they expended as a result of the defects in EOS Lip Balm, which EOS knew about prior to the sale of EOS Lip Balm. Plaintiff is informed and believes that the amount of said restitution is greater than the Class Action Fairness Act minimum of five million dollars ($5,000,000) but will seek relief to amend this complaint at the time of trial, when the precise amount has been ascertained. 96. Plaintiff, individually, and on behalf of all others similarly situated, adopts and incorporates by reference all allegations contained in the foregoing paragraphs as though fully set forth herein. 97. EOS expressly warranted that EOSs’ EOS Lip Balm was safe and well accepted by users. 98. EOS Lip Balm does not conform to these express representations because EOS Lip Balm is not safe and is associated with numerous side effects not accurately warned about by EOS. As a direct and proximate result of the breach of said warranties, Plaintiff and the Putative Class Members suffered, and/or will continue to suffer, and/or are at an increased risk to suffer, severe and permanent personal injuries, harm, and/or economic loss. BREACH OF EXPRESS WARRANTY (On Behalf of the National Class or, alternatively, the Putative New York Subclass) UNFAIR AND DECEPTIVE TRADE PRACTICES IN VIOLATION OF NEW YORK GENERAL BUSINESS LAW SECTION 349 and 350 et seq. (On Behalf of the Putative New York Subclass)

win

EMPLOYEES AT THE OVERTIME PREMIUM RATE During times relevant to this action, Tipped Employees worked in excess of 40 hours per week. Defendants failed, however, to pay Tipped Employees for all hours worked, including those in excess of 40 per week. Defendants failed to compensate Tipped Employees for hours in excess of 40 per week at a rate of not less than one and one-half times their regular rate. In fact, Defendants elected not to record hours during which Tipped Employees worked at Joe’s and, moreover, chose to pay Tipped Employees no wages at all for certain hours that were unequivocally compensable under the FLSA. Defendants’ violations of the FLSA’s overtime provision, 29 U.S.C. § 207, were willful. Defendants violated the FLSA with reckless disregard for their obligations under 29 U.S.C. § 207. Pursuant to 29 U.S.C. § 216(b), Defendants are liable to Tipped Employees for all unpaid overtime wages, liquidated damages, and attorney’s fees and costs.

win

(Failure to pay overtime) (Federal) (on Behalf of the FLSA Class & New York Class) 8 (Failure to provide wage notices) (NY STATE) (On behalf of the FLSA Class & New York Class) (Failure to pay wages) NY Lab. Law §191 (On behalf of the FLSA Class & New York Class) 9 (Failure to pay overtime) (NY STATE) (On behalf of the FLSA Class & New York Class) 15. Corporate Defendant is an “employer” under the FLSA. 16. Corporate Defendant is an “employer” under the NYLL. 17. Corporate Defendant is a is a New York State Licensed Home Health Care Services Agency (LHHCSA) providing personal care and skilled services throughout the five boroughs of NYC including the following Counties: Nassau, Suffolk, Westchester, Putnam, & Rockland. 1 18. Corporate Defendant continues to employ employees who are similarly situated to Plaintiff. 19. Upon information and belief, Corporate Defendant is owned, in whole or in part, by Karl. 1 http://avalanchecare.com 3 20. Upon information and belief, Corporate Defendant is owned, in whole or in part, by Guy. 21. During any period of time whatsoever between the 2011 calendar year through the 2017 calendar year, Corporate Defendant had the ability to perform one or more of the following actions: (1) hire certain employees of Corporate Defendant, (2) terminate the employment of certain employees of Corporate Defendant, (3) set the wage rates of certain employees of Corporate Defendant, (4) maintain payroll records for certain employees of Corporate Defendant, or (5) institute work rules for certain employees of Corporate Defendant. 22. During any period of time whatsoever between the 2011 calendar year through the 2017 calendar year, Defendant Karl had the ability to perform one or more of the following actions: (1) hire certain employees of Corporate Defendant, (2) terminate the employment of certain employees of Corporate Defendant, (3) set the wage rates of certain employees of Corporate Defendant, (4) maintain payroll records for certain employees of Corporate Defendant, or (5) institute work rules for certain employees of Corporate Defendant. 23. During any period of time whatsoever between the 2011 calendar year through the 2017 calendar year, Defendant Guy had the ability to perform one or more of the following actions: (1) hire certain employees of Corporate Defendant, (2) terminate the employment of certain employees of Corporate Defendant, (3) set the wage rates of certain employees of Corporate Defendant, (4) maintain payroll records for certain employees of Corporate Defendant, or (5) institute work rules for certain employees of Corporate Defendant. 24. During any period of time whatsoever between the 2011 calendar year through the 2017 calendar year, Defendant Jorge had the ability to perform one or more of the following actions: (1) hire certain employees of Corporate Defendant, (2) terminate the employment of certain employees of Corporate Defendant, (3) set the wage rates of certain employees of Corporate Defendant, (4) maintain payroll records for certain employees of Corporate Defendant, or (5) institute work rules for certain employees of Corporate Defendant. 25. Corporate Defendant is involved in an industry affecting commerce within the meaning of the FLSA. 26. Corporate Defendant’s annual revenues exceed $500,000 for the year 2017. 27. Corporate Defendant’s annual revenues exceed $500,000 for the year 2016. 28. Corporate Defendant’s annual revenues exceed $500,000 for the year 2015. 29. Corporate Defendant employs at least two employees who regularly engage in interstate commerce. 30. On information and belief, Corporate Defendant employs an individual that regularly and customarily uses the interstate telecommunications network to process credit card transactions with firms outside the state of New York. 31. On information and belief, Corporate Defendant purchases goods from locations manufactured outside the State of New York and utilizes such products within the State of New York. 32. The business activities of the Corporate Defendant are related and performed through unified operation or common control for a common business purpose and constitutes an 4 enterprise within the meaning of the FLSA. 33. The Corporate Defendant engages in a combination of different activities in the course of its business operation, including but not limited to: (1) Data entry, (2) advertising, (3) bookkeeping, (4) managing employees, (5) marketing and selling, and (6) providing home health care services to customers. (the “Related Activities”). 34. The Corporate Defendant has an organizational structure whereby there is an individual, or group of individuals, who control the Related Activities. 35. Corporate Defendant failed to keep accurate and sufficient payroll and time records, as required by law. 36. Corporate Defendant did not use a punch card time keeping system between September 1, 2011 and September 1, 2017 to record Plaintiff’s work hours. 37. Corporate Defendant did not use a handwritten time keeping system between September 1, 2011 and September 1, 2017 to record Plaintiff’s work hours. 38. Corporate Defendant did not maintain sufficient payroll and time records to determine the weekly pay and hours worked by the Plaintiff and FLSA Class. Class Definition 39. Plaintiff brings each Cause of Action of this lawsuit under the FLSA 29 U.S.C §216(b), as a collective action on behalf of the following class of potential opt-in litigants: All current and former home health care employees employed by Avalanche Care, Inc. (“Corporate Defendant”) who performed work in New York in any workweek in the past three years (“FLSA Class”). 40. Plaintiff reserves the right to redefine the FLSA Class prior to class certification and thereafter, as necessary. 41. Plaintiff brings each Cause of Action of this lawsuit under the Fed. R. Civ. P. 23, as a class action on behalf of the following class litigants: All current and former home health care employees employed by Avalanche Care, Inc. (“Corporate Defendant”) who performed work in New York in any workweek in the past six years (the “New York Class”). 42. Plaintiff reserves the right to redefine the FLSA Class prior to class certification and thereafter, as necessary. 82. Plaintiff repeats, re-alleges and reincorporates all allegations as though fully set forth herein. 83. The overtime wage provisions set forth in the FLSA, 29 U.S.C. §§ 201 et seq., and the supporting federal regulations, apply to Defendants and protect the Plaintiff, FLSA Class and New York Class. 84. Defendants failed to pay Plaintiff, FLSA Class and New York Class overtime wages to which they are entitled under the FLSA and the supporting Federal Regulations. 85. Because of Defendants’ unlawful acts, Plaintiff, FLSA Class and New York Class have been deprived of overtime compensation in amounts to be determined at trial, and are entitled to recovery of such amounts, liquidated damages, prejudgment interest, attorneys' fees, costs, and other compensation pursuant to the FLSA. 86. Defendants’ unlawful conduct, as described in this Complaint, has been willful and intentional. Defendants were aware or should have been aware that the practices described in this Complaint are unlawful. Defendants have not made a good faith effort to comply with the FLSA with respect to the compensation of Plaintiff, the FLSA Class and the New York Class. 87. Because Defendants’ violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255. 88. Plaintiff repeats, re-alleges and reincorporates all allegations as though fully set forth herein. 89. The overtime wage provisions of Article 19 of the NYLL and its supporting regulations apply to Defendants and protect the Plaintiff, FLSA Class and New York Class. 90. Defendants failed to pay Plaintiff, FLSA Class and New York Class overtime wages to which they are entitled under the NYLL and the supporting New York State Department of Labor Regulations. 91. By Defendants’ knowing or intentional failure to pay Plaintiff, FLSA Class and New York Class overtime wages for hours worked over 40 hours per workweek, they have willfully violated NYLL Art. 19, §§ 650 et seq., and the supporting New York State Department of Labor Regulations. 92. Due to Defendants’ violations of the NYLL, Plaintiff, the FLSA Class and the New York Class are entitled to recover unpaid overtime wages, liquidated damages, reasonable attorneys' fees and costs of the action, and pre-judgment and post-judgment interest from the Defendants. 93. Plaintiff repeats, re-alleges and reincorporates all allegations as though fully set forth herein. 94. Under NYLL §191, an employer is required to pay an employee within one week of the services performed by the employee. 95. Defendants failed to pay Plaintiff, FLSA Class and New York Class their wages as required by NYLL §191 by not paying wages within the statutory time-period. 96. On information and belief, Defendants engaged in an ongoing practice of failing to remit to Plaintiff, the FLSA Class and the New York Class all tips that were earned. 97. Because of Defendants’ unlawful withholding of wages, Plaintiff, the FLSA Class and the New York Class suffered harm. 98. Plaintiff repeats, re-alleges and reincorporates all allegations as though fully set forth herein. 99. Pursuant to the Wage Theft Prevention Act, New York Labor Law, §195, Defendants willfully failed to furnish Plaintiff, FLSA Class and New York Class with a required notice containing the following information: i. the rates or rates of pay and basis thereof, ii. 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; iii. the regular pay designated by the employer in accordance with NYLL §191; iv. the name of the employer; v. Any “doing business as” names used by the employer; vi. The physical address of the employer’s main office or principal place of business, and a mailing address, if different; vii. The telephone number of the employer 100. Defendants willfully failed to furnish Plaintiff, FLSA Class and New York Class with an accurate statement of wages as required by NYLL §195(3), containing the dates of work covered by that payment of wages; name of the employee; name of the employer; address and phone number of employer; rate or rates of pay and basis thereof; whether paid by hour, shift, day, week, salary, piece, commission, or other; gross wages; hour rate or rates of pay, and overtime rates of pay; the number of hours worked, including over time hours; deductions, allowances, and net wages. 101. Due to Defendants’ violation of NYLL §195(1), Plaintiff, FLSA Class and New York 10 Class are entitled to recover from Defendants liquidated damages of $50 per each workday that the violation occurred, up to a maximum of $5,000, reasonable attorney fees, and costs and disbursements of this action, pursuant to NYLL § 198(1-b). 102. Defendants failed to provide Plaintiff, FLSA Class and New York Class with a with each payment of wages that set forth Plaintiff, the FLSA Class and New York Class’ hours worked, rates of pay, gross wages, credits claimed (for tips, meals and lodging) if any, deductions and net wages. 103. Due to Defendants’ violation of NYLL §195(3), Plaintiff, the FLSA Class and the New York Class are entitled to recover from Defendants liquidated damages of $250 per each workday that the violation occurred, up to a maximum of $5,000, reasonable attorney fees, and costs and disbursements of this action, pursuant to NYLL § 198(1-d).

lose

11. At all times relevant, plaintiff IRestore was a corporation within the State of Florida. IRestore is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153(39). 12. Plaintiff created a Yelp Business profile in or around 2013. 14. Plaintiff has never provided express written consent for Yelp, or any entity on whose behalf Yelp is operating, to contact it with telemarketing offers on its cellular telephone using automatic telephone dialing systems or pre-recorded or automated voice messages. 15. In addition to placing telephone calls to the cellular telephone number listed on Plaintiff’s business profile, Yelp made numerous telemarketing phone calls to a secondary cellular phone line owned by Plaintiff which Plaintiff never provided to Yelp. 16. Upon information and belief, Yelp uses call information capture technology to obtain additional contact information, including cellular telephone numbers, of customers and potential sales leads. 17. Plaintiff has made several requests that Yelp cease placing telemarketing calls to Plaintiff’s cellular telephone number(s). Yelp has ignored Plaintiff’s requests to cease telemarketing phone calls to Plaintiff’s cellular telephone(s). 18. When Plaintiff answered Yelp’s telemarketing calls, Plaintiff was greeted by an automated pre-recorded voice message advising Plaintiff to hold while the call was connected to a Yelp sales representative. 19. The fact that a pre-recorded message requested that Plaintiff hold while the call was transferred to a representative indicates that the calls were made using an automatic telephone dialing system because no person manually dialed the phone as evidenced by the fact that there was no one on the line when the call was answered. 21. Several of the complaints received by the FTC complain about Yelp placing telemarketing phone calls to cellular telephone numbers. For example, certain complaints stated: “Jenny from yelp called continuously at both my phone numbers (XXX) XXX-7669 and cell phone (XXX) XXX-7417. I asked her to stop calling but she does again after a few weeks.” (phone numbers redacted) and “This person, (ERIC) sent me an e-mail last week. I responded with directions to not contact me again. Today, Eric called me on my do not call cell phone. Please get them to abide by DO NOT CALL.” 22. The Federal Communications Commission has received numerous complaints regarding Yelp’s practices, including complains about unsolicited telemarketing calls. Exemplar complaints are attached as Exhibit A. 23. Yelp uses a computer platform designed by Salesforce.com to assist their sales department in placing and processing telemarketing calls. This platform is connected to a database that Yelp maintains of customer and potential customer information. 24. Yelp utilizes their database of customer and potential customer information to create predictive lists of phone numbers to be called in an effort to maximize the contact rate and efficiency of Yelp’s sales representatives. 25. Upon information and belief, the above referenced computer platform is, or is part of, a system that has the capability to automatically dial telephone numbers that are stored in Yelp’s databases without human intervention. 26. The telephone numbers that Defendant, or its agents, placed the telemarketing phone calls to were assigned to cellular telephone services for which Plaintiff incurred a charge for incoming calls pursuant to 47 U.S.C. § 227(b)(1). 27. Plaintiff incorporates the above factual allegations herein. 28. Yelp made unsolicited telephone calls to the wireless telephone number of plaintiff and the other members of the class with prerecorded voices and or using equipment that had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 29. These phone calls were made without the prior express written consent of Plaintiff or the class. 30. Yelp has therefore violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), which makes it unlawful for any person within the United States . . . 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 . . .” As a result of defendant’s illegal conduct, the members of the class suffered actual damages and, under section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500.00 in damages for each such violation of the TCPA. 31. Plaintiff and class members are also entitled to and do seek injunctive relief prohibiting defendant’s violation of the TCPA in the future. 33. Plaintiff represents and is a member of the Class and Sub-Class. Excluded from the Class are Defendant and any entities in which Defendant has a controlling interest, Defendants’ agents and 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. 34. Plaintiff does not know the exact number of members in the Class, but based upon the size and national scope of Yelp as well as the nature and persistency of the Telemarketing campaign to plaintiff and the fact that Yelp uses call information capture technology to obtain cellular telephone numbers, plaintiff reasonably believes that class members number at minimum in the hundreds if not thousands. 35. Plaintiff and all members of the class have been harmed by the acts of defendant. 36. This Class Action Complaint seeks money damages and injunctive relief. 37. The joinder of all class members is impracticable due to the size and relatively modest value of each individual claim. The disposition of the claims in a class action will provide substantial benefit the parties and the Court in avoiding a multiplicity of identical suits. The class can be identified easily through records maintained by Yelp. 39. As a person who received numerous and repeated telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice, without their prior express written consent within the meaning of the TCPA, Plaintiff asserts claims that are typical of the members of the class. Plaintiff will fairly and adequately represent and protect the interests of the class, and has no interests which are antagonistic to any member of the class. 40. Plaintiff has retained counsel experienced in handling class action claims involving violations of federal and state consumer protection statutes such as the TCPA. 41. A class action is the superior method for the fair and efficient adjudication of this controversy. Class wide relief is essential to compel defendant to comply with the TCPA. The interest of class members in individually controlling the prosecution of separate claims against Defendant is small because the statutory damages in an individual action for violation of the TCPA are small. Management of these claims is likely to present significantly fewer difficulties than are presented in many class claims because the calls at issue are all automated and the class members, by definition, did not provide the prior express consent required under the statute to authorize calls to their cellular telephones.

lose