IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

Case No. 

ANUEL ST. CLAIR, individually and on behalf of all 

others similarly situated, 

 Plaintiff, 

vs. 

USHEALTH ADVISORS, LLC, a Texas Limited 

Liability Company, 

 Defendant. 

______________________________________/

CLASS ACTION 

 

 JURY TRIAL DEMANDED

AMENDED CLASS ACTION COMPLAINT 

1. Plaintiff Anuel St. Clair (“Plaintiff”) brings this action against USHealth Advisors, 

LLC, (“Defendant”) to secure redress for violations of the Telephone Consumer Protection Act 

(“TCPA”), 47 U.S.C. § 227. 

NATURE OF THE ACTION

2. This is a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. 

§ 227 et seq., (“TCPA”), arising from Defendant’s knowing and willfully violations. 

3. To gain an advantage over its competitors and increase its revenue, Defendant engages 

in unsolicited telemarketing, with no regard for consumers’ privacy rights. 

4. This case arises from Defendant’s transmission of prerecorded messages to the cellular 

telephones of Plaintiff and others, promoting Defendant’s services and goods. 

5. Defendant is an insurance brokerage. To promote its services, Defendant engages 

in unsolicited marketing, harming thousands of consumers in the process 

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6. Defendant was, and is, aware that its unsolicited prerecorded calls were, and are, 

unauthorized as it fails to obtain prior express written consent before placing those calls to 

consumers. Ultimately, consumers are forced to bear the costs of receiving these unsolicited 

prerecorded calls. 

7. By placing the unsolicited prerecorded calls at issue in this Complaint, Defendant 

caused Plaintiff and the other members of the Class actual harm and cognizable legal injury. This 

includes the aggravation, nuisance, and invasions of privacy that result from the sending and 

receipt of such prerecorded calls, a loss of value realized for the monies consumers paid to their 

carriers for the receipt of such prerecorded calls, and a loss of the use and enjoyment of their 

phones, including wear and tear to the related data, memory, software, hardware, and battery 

components, among other harms. 

8. Through this action, Plaintiff seeks injunctive relief to halt Defendant’s illegal conduct 

which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life 

of thousands of individuals. Plaintiff also seeks statutory damages on behalf of herself and members of 

the class, and any other available legal or equitable remedies. 

JURISDICTION AND VENUE 

9. Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges violations of a federal 

statute. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff alleges a national class, 

which will result in at least one class member belonging to a different state than that of Defendant. 

Plaintiff seeks up to $1,500.00 (one-thousand-five-hundred dollars) in damages for each call in violation 

of the TCPA, which, when aggregated among a proposed class numbering in the tens of thousands, or 

more, exceeds the $5,000,000.00 (five-million dollars) threshold for federal court jurisdiction under the 

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Class Action Fairness Act (“CAFA”). Therefore, both the elements of diversity jurisdiction and CAFA 

jurisdiction are present. 

10. Venue is proper in the United States District Court for the Southern District of Florida 

pursuant to 28 U.S.C. § 1391(b) and (c) because Defendant is deemed to reside in any judicial district 

in which it is subject to the court’s personal jurisdiction, and because Defendant provides and markets 

its services within this district thereby establishing sufficient contacts to subject it to personal 

jurisdiction. Further, Defendant’s tortious conduct against Plaintiff occurred within the State of Florida 

and, on information and belief, Defendant has sent the same calls complained of by Plaintiff to other 

individuals within this judicial district, such that some of Defendant’s acts in making such calls have 

occurred within this district, subjecting Defendant to jurisdiction in the State of Florida. 

PARTIES 

11. Plaintiff is a natural person who, at all times relevant to this action, was a resident of 

Broward County, Florida. 

12. Defendant is a Texas limited liability company whose principal office is located at 300 

Burnett Street, Suite 200, Fort Worth, Texas 76102. Defendant directs, markets, and provides its 

business activities throughout the State of Florida. 

THE TCPA 

13. The TCPA prohibits: (1) any person from calling a cellular telephone number; (2) using 

an automatic telephone dialing system or an artificial or prerecorded voice; (3) without the recipient’s 

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

14. The TCPA defines an “automatic telephone dialing system” (“ATDS”) as 

“equipment that has the capacity - (A) to store or produce telephone numbers to be called, using a 

random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). 

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15. The TCPA exists to prevent communications like the ones described within this 

Complaint. “Voluminous consumer complaints about abuses of telephone technology—for example, 

computerized calls dispatched to private homes—prompted Congress to pass the TCPA.” Mims v. 

Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012). 

16. In an action under the TCPA, a plaintiff must only show that the defendant “called a 

number assigned to a cellular telephone service using an automatic dialing system or prerecorded 

voice.” Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012), aff'd, 755 

F.3d 1265 (11th Cir. 2014). 

17. The Federal Communications Commission (“FCC”) is empowered to issue rules and 

regulations implementing the TCPA. According to the FCC’s findings, calls in violation of the TCPA 

are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater 

nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and 

inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether 

they pay in advance or after the minutes are used. Rules and Regulations Implementing the Telephone 

Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 

(2003). 

18. In 2012, the FCC issued an order tightening the restrictions for automated telemarketing 

calls, requiring “prior express written consent” for such calls to wireless numbers. See In the Matter of 

Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830, 1838 ¶ 20 

(Feb. 15, 2012) (emphasis supplied). 

19. To obtain express written consent for telemarketing calls, a defendant must establish 

that it secured the plaintiff’s signature in a form that gives the plaintiff a “‘clear and conspicuous 

disclosure’ of the consequences of providing the requested consent....and having received this 

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information, agrees unambiguously to receive such calls at a telephone number the [plaintiff] 

designates.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 

1830, 1837 ¶ 18, 1838 ¶ 20, 1844 ¶ 33, 1857 ¶ 66, 1858 ¶ 71 (F.C.C. Feb. 15, 2012). 

20. The TCPA regulations promulgated by the FCC define “telemarketing” as “the 

initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or 

investment in, property, goods, or services.” 47 C.F.R. § 64.1200(f)(12). In determining whether a 

communication constitutes telemarketing, a court must evaluate the ultimate purpose of the 

communication. See Golan v. Veritas Entm't, LLC, 788 F.3d 814, 820 (8th Cir. 2015). 

21. “Neither the TCPA nor its implementing regulations ‘require an explicit mention of a 

good, product, or service’ where the implication of an improper purpose is ‘clear from the context.’” 

Id. (citing Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)). 

22. “‘Telemarketing’ occurs when the context of a call indicates that it was initiated and 

transmitted to a person for the purpose of promoting property, goods, or services.” Golan, 788 F.3d at 

820 (citing 47 C.F.R. § 64.1200(a)(2)(iii); 47 C.F.R. § 64.1200(f)(12); In re Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd at 14098 ¶ 141, 2003 

WL 21517853, at *49). 

23. The FCC has explained that calls motivated in part by the intent to sell property, goods, 

or services are considered telemarketing under the TCPA. See In re Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶¶ 139-142 (2003). 

This is true whether call recipients are encouraged to purchase, rent, or invest in property, goods, or 

services during the call or in the future. Id. 

24. In other words, offers “that are part of an overall marketing campaign to sell 

property, goods, or services constitute” telemarketing under the TCPA. See In re Rules and 

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Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶ 136 

(2003). 

25. If a call is not deemed telemarketing, a defendant must nevertheless demonstrate that it 

obtained the plaintiff’s prior express consent. See In the Matter of Rules and Regulaions Implementing 

the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7991-92 (2015) (requiring express consent 

“for non-telemarketing and non-advertising calls”). 

26. As recently held by the United States Court of Appeals for the Ninth Circuit: 

“Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb 

the solitude of their recipients. A plaintiff alleging a violation under the TCPA ‘need not allege any 

additional harm beyond the one Congress has identified.’” Van Patten v. Vertical Fitness Grp., No. 

14-55980, 2017 U.S. App. LEXIS 1591, at *12 (9th Cir. May 4, 2016) (quoting Spokeo, Inc. v. 

Robins, 136 S. Ct. 1540, 1549 (2016) (emphasis original)). 

FACTS 

27. Anuel St. Clair is the registered account owner and regular user of the telephone 

number ending in 4656 (the “4656 Number”). 

28. Over the past year, Plaintiff received numerous unsolicited, prerecorded phone calls 

on her cellular telephone number from, or on behalf, of Defendant. 

29. The calls used a pre-recorded voice and stated that Defendant was calling to offer 

Plaintiff health insurance coverage. A transcript of one such call received by Plaintiff on April 1, 

2020 from telephone number 716-268-8751 is below: 

“...[I]f you would like to receive a competitive quote for health 

insurance coverage from USHealth Advisory and gain access to a 

nationwide PPO network, press three and one of their licensed 

agents will return your call in 24 to 48 hours. Again, press 3 to get 

on the list to receive a call back from a USHealth Advisor licensed 

agent. To opt-out you can press seven now or call 844-989-1707...” 

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30. The prerecorded calls at issue originated from telephone numbers 716-268-8751, 

224-219-9796, 651-412-1332, and 240-860-0176, all numbers which upon information and belief 

are owned and/or operated by or on behalf of Defendant. 

31. The prerecorded calls at issue were transmitted to Plaintiff’s cellular telephone, and 

within the time frame relevant to this action. 

32. Defendant’s prerecorded calls constitute telemarketing because they encourage the 

future purchase or investment in property, goods, and/or services, i.e., selling Plaintiff insurance 

coverage. 

33. Defendant sent or caused to be sent the subject prerecorded calls within this judicial 

district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon 

information and belief, Defendant caused other prerecorded calls to be sent to individuals residing 

within this judicial district. 

34. At no point in time did Plaintiff provide Defendant with her express consent to be 

contacted with a prerecorded call. 

35. Plaintiff is the subscriber and sole user of the 4656 Number and is financially 

responsible for phone service to the 4656 Number. 

36. Plaintiff has been registered with the national do-not-call registry since December 

14, 2019. 

37. Defendant’s unsolicited prerecorded calls caused Plaintiff actual harm, including 

invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. 

Defendant’s prerecorded call also inconvenienced Plaintiff and caused disruption to her work-day 

as she received the prerecorded messages while at work. See Patriotic Veterans, Inc. v. Zoeller,

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No. 16- 2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of the phone 

owner's time and mental energy, both of which are precious.”). 

38. By placing the prerecorded calls as alleged herein, Defendant has caused consumers 

actual harm in the form of annoyance, nuisance, and invasion of privacy. In addition, the 

prerecorded call disturbed Plaintiff’s use and enjoyment of her phone, in addition to the wear and 

tear on the phone’s hardware (including the phone’s battery) and the consumption of memory on 

Plaintiff’s phone. 

39. Defendant’s voice message took up memory on Plaintiff’s cellular phone. The 

cumulative effect of unsolicited voice messages like Defendant’s poses a real risk of ultimately 

rendering the phone unusable for voice messaging purposes as a result of the phone’s memory 

being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text (finding that 

text message solicitations similar to the voice message sent by Defendant present a “triple threat” of 

identity theft, unwanted cell phone charges, and slower cell phone performance). 

40. Defendant’s voice message also can slow cell phone performance by taking up space 

on the recipient phone’s memory. See https://www.consumer.ftc.gov/articles/0350-text-messagespam#text (finding that spam text messages, much like spam voice messages, can slow cell phone 

performance by taking up phone memory space). 

CLASS ALLEGATIONS 

PROPOSED CLASS 

41. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of 

herself and all others similarly situated. 

42. Plaintiff brings this case on behalf of a Class defined as follows: 

No Consent Class: All persons within the United States who, within the 

four years prior to the filing of this Complaint, were sent a prerecorded 

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message, from Defendant or anyone on Defendant’s behalf, to said 

person’s cellular telephone number, without emergency purpose and 

without the recipient’s prior express written consent. 

Do Not Call Registry Class: All persons in the United States who from four 

years prior to the filing of this action (1) were sent a prerecorded message 

by or on behalf of Defendant; (2) more than one time within any 12-month 

period; (3) where the person’s telephone number had been listed on the 

National Do Not Call Registry for at least thirty days; (4) for the purpose 

of selling Defendant’s products and services; and (5) for whom Defendant 

claims (a) it did not obtain prior express written consent, or (b) it obtained 

prior express written consent in the same manner as Defendant claims it 

supposedly obtained prior express written consent to call the Plaintiff. 

43. 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. 

 NUMEROSITY 

44. Upon information and belief, Defendant has placed automated and/or prerecorded calls 

to cellular telephone numbers belonging to thousands of consumers throughout the United States 

without their prior express consent. The members of the Class, therefore, are believed to be so numerous 

that joinder of all members is impracticable. 

45. The exact number and identities of the Class members are unknown at this time and can 

only be ascertained through discovery. Identification of the Class members is a matter capable of 

ministerial determination from Defendant’s call records. 

COMMON QUESTIONS OF LAW AND FACT 

46. There are numerous questions of law and fact common to the Class which predominate 

over any questions affecting only individual members of the Class. Among the questions of law and 

fact common to the Class are: 

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(1) Whether Defendant made non-emergency prerecorded telemarketing calls to 

Plaintiff’s and Class members’ cellular telephones; 

(2) Whether Defendant can meet its burden of showing that it obtained prior express 

written consent to make such calls; 

(3) Whether Defendant’s conduct was knowing and willful; 

(4) Whether Defendant is liable for damages, and the amount of such damages; and 

(5) Whether Defendant should be enjoined from such conduct in the future. 

47. The common questions in this case are capable of having common answers. If Plaintiff’s 

claim that Defendant routinely transmits automated or prerecorded calls to telephone numbers assigned 

to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims 

capable of being efficiently adjudicated and administered in this case. 

TYPICALITY 

48. Plaintiff’s claims are typical of the claims of the Class members, as they are all based 

on the same factual and legal theories. 

ADEQUACY 

49. Plaintiff is a representative who will fully and adequately assert and protect the interests 

of the Class, and has retained competent counsel. Accordingly, Plaintiff is an adequate representative 

and will fairly and adequately protect the interests of the Class. 

50. In addition, Plaintiff has retained counsel with substantial experience in prosecuting 

complex litigation and class actions, including those involving violations of the TCPA. Plaintiff 

and her counsel are committed to vigorously prosecuting this action on behalf of the other 

respective members of the Class and have the financial resources to do so. Neither Plaintiff nor 

her counsel have any interests adverse to those of the other members of the Class. 

 PROCEEDING VIA CLASS ACTION IS SUPERIOR AND ADVISABLE 

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51. A class action is superior to all other available methods for the fair and efficient 

adjudication of this lawsuit, because individual litigation of the claims of all members of the Class is 

economically unfeasible and procedurally impracticable. While the aggregate damages sustained by the 

Class are in the millions of dollars, the individual damages incurred by each member of the Class 

resulting from Defendant’s wrongful conduct are too small to warrant the expense of individual 

lawsuits. The likelihood of individual Class members prosecuting their own separate claims is remote, 

and, even if every member of the Class could afford individual litigation, the court system would be 

unduly burdened by individual litigation of such cases. 

52. 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. For example, 

one court might enjoin Defendant from performing the challenged acts, whereas another may not. 

Additionally, individual actions may be dispositive of the interests of the Class, although certain class 

members are not parties to such actions. 

COUNT I 

Violations of the TCPA, 47 U.S.C. § 227(b) 

(On Behalf of Plaintiff and the Class) 

53. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth 

herein. 

54. It is a violation of the TCPA to make “any call (other than a call made for 

emergency purposes or made with the prior express consent of the called party) using any 

automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone 

number assigned to a ... cellular telephone service ....” 47 U.S.C. § 227(b)(1)(A)(iii). 

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55. Defendant – or third parties directed by Defendant – transmitted calls using an 

artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the 

putative class. 

56. These calls were made without regard to whether Defendant had first obtained 

express permission from the called party to make such calls. In fact, Defendant did not have prior 

express consent to call the cell phones of Plaintiff and the other members of the putative Class 

when its calls were made. 

57. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an 

artificial or prerecorded voice to make non-emergency telephone calls to the cell phones of 

Plaintiff and the other members of the putative Class without their prior express consent. 

58. Defendant knew that it did not have prior express consent to make these calls, and 

knew or should have known that it was using an artificial or prerecorded voice. The violations 

were therefore willful or knowing. 

59. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, 

Plaintiff and the other members of the putative Class were harmed and are each entitled to a 

minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an 

injunction against future calls. Id. 

60. Because Defendant knew or should have known that Plaintiff and the other 

members of the putative Class had not given prior express consent to receive its prerecorded calls 

to their cellular telephones the Court should treble the amount of statutory damages available to 

Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 

COUNT II

Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)

(On Behalf of Plaintiffs and the Class)

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61. Plaintiff re-allege and incorporates paragraphs 1-52 as if fully set forth herein. 

62. At all times relevant, Defendant knew or should have known that its conduct as 

alleged herein violated the TCPA. 

63. Defendant knew that it did not have prior express consent to transmit artificial or 

prerecorded voice calls, and knew or should have known that its conduct was a violation of the 

TCPA. 

64. Because Defendant knew or should have known that Plaintiffs and Class Members 

had not given prior express consent to receive its prerecorded calls, the Court should treble the 

amount of statutory damages available to Plaintiffs and the other members of the putative Class 

pursuant to § 227(b)(3) of the TCPA. 

65. As a result of Defendant’s violations, Plaintiffs and the Class Members are entitled 

to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 

§ 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 

COUNT III 

Violation of the TCPA, 47 U.S.C. § 227 

(On Behalf of Plaintiff and the Do Not Call Registry Class) 

66. Plaintiff repeats and realleges the paragraphs 1 through 52 of this Complaint and 

incorporates them by reference herein. 

67. 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.” 

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68. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person 

or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”1

69. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call 

for telemarketing purposes to a residential telephone subscriber unless such person or entity has 

instituted procedures for maintaining a list of persons who request not to receive telemarketing calls 

made by or on behalf of that person or entity.” 

70. 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). 

71. Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated, 

telephone solicitations to telephone subscribers such as Plaintiff and the Do Not Call Registry Class 

members who registered their respective telephone numbers on the National Do Not Call Registry, a 

listing of persons who do not wish to receive telephone solicitations that is maintained by the federal 

government. 

72. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry 

Class received more than one telephone call in a 12-month period made by or on behalf of Defendant 

in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged 

herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 

1 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG 

Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003) Available at 

https://apps.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf 

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U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. 

§ 64.1200. 

73. To the extent Defendant’s misconduct is determined to be willful and knowing, the 

Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by 

the members of the Do Not Call Registry Class. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Anuel St. Clair on behalf of herself and the other members of 

the Class, pray for the following relief: 

a. A declaration that Defendant’s practices described herein violate the Telephone 

Consumer Protection Act, 47 U.S.C. § 227; 

b. An injunction prohibiting Defendant from using an artificial or prerecorded voice to 

contact telephone numbers assigned to cellular telephones without the prior express permission of 

the called party; 

c. An award of actual and statutory damages; and 

d. Such further and other relief the Court deems reasonable and just. 

JURY DEMAND 

 Plaintiff and Class Members hereby demand a trial by jury. 

Dated: June 18, 2020 

SHAMIS & GENTILE, P.A. 

/s/Andrew J. Shamis 

Andrew J. Shamis, Esq. 

Florida Bar No. 101754 

ashamis@shamisgentile.com 

14 NE 1st Avenue, Suite 705 

Miami, Florida 33132 

Telephone: 305-479-2299 

Counsel for Plaintiff and the Class

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