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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

PENNY RUMSEY, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

BIRCH COMMUNICATIONS, INC.

d/b/a LIGHTYEAR WIRELESS, a 

Georgia corporation, 

Defendant.

Case No.: 2:14-cv-12700

CLASS ACTION COMPLAINT 

DEMAND FOR JURY TRIAL

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Penny Rumsey (“Rumsey”) brings this Class Action Complaint and 

Demand for Jury Trial (“Complaint”) against Defendant Birch Communications, 

Inc. d/b/a Lightyear Wireless (“Birch Communications”) to stop its practice of 

making unsolicited telephone calls, specifically automated robocalls, to the 

telephones of consumers nationwide, and to obtain redress for all persons injured 

by its conduct. Plaintiff, for her Complaint, alleges as follows upon personal 

knowledge as to herself and her own acts and experiences, and, as to all other 

matters, upon information and belief, including investigation conducted by her

attorneys.

NATURE OF THE ACTION

1. Defendant owns and operates a well-known telecommunications 

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company that offers a variety of communication-based products and services, 

including wireless telephone plans—which are sold under the brand name

“Lightyear Wireless.”

2. In an effort to sell its wireless telephone plans, Defendant uses a 

marketing structure—commonly referred to as “Multi-Level Marketing” or 

“MLM”—whereby members of its sales force are compensated for selling its 

services and also for recruiting other individuals to sell its services (“Lightyear 

Representatives” or “Representatives”). 

3. Unfortunately, in an attempt to sell Defendant’s services and also 

recruit new Representatives, Defendant made, or had its Representatives (acting as 

its agents) make on its behalf and with its knowledge, unsolicited telemarketing 

calls to consumers that feature a prerecorded or artificial voice, commonly known 

as a “robocall.” 

4. Defendant and/or its agents failed to obtain prior express consent from 

consumers to make such robocalls, and therefore, have violated the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).

5. The TCPA was enacted to protect consumers from unsolicited and 

repeated telephone calls exactly like those alleged in this case. Defendant made 

these calls despite the fact that neither Plaintiff, nor the other members of the 

putative Class, ever provided Defendant with their prior express consent to be 

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called. By making the phone calls at issue in this Complaint, Defendant caused 

Plaintiff and the other members of the Class actual harm, including the aggravation 

and nuisance that necessarily accompanies the receipt of unsolicited phone calls 

and the monies paid to their telephone carriers for the receipt of such calls.

6. In response to Defendant’s unlawful conduct, Plaintiff filed the instant 

lawsuit seeking an injunction requiring Defendant to cease all unsolicited calling 

activities, as well as an award of statutory damages to the members of the Class as 

provided under the TCPA, together with costs and reasonable attorneys’ fees.

PARTIES

7. Plaintiff Penny Rumsey is a natural person and citizen of the State of 

Michigan.

8. Defendant Birch Communications, Inc. is a corporation existing under 

the laws of the State of Georgia with its principal place of business located at 3060 

Peachtree Street, Atlanta, Georgia 30305. Defendant Birch Communications is 

registered to conduct business with the Michigan Secretary of State as entity 

number 638036. Defendant Birch Communications conducts business throughout 

this District, the State of Michigan, and the United States. 

JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction under 28 U.S.C. § 1331, as 

the action arises under the TCPA, which is a federal statute. This Court has 

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personal jurisdiction over Defendant because it is registered to conduct business in 

this District, it conducts significant amounts of business transactions within this 

District, and because the wrongful conduct giving rise to this case occurred in, was 

districted to, and/or emanated from this District.

10. Venue is proper in this District under 28 U.S.C. § 1391(b) because 

Defendant is registered to conduct business in this District, it conducts significant 

amounts of business transactions within this District, and because the wrongful 

conduct giving rise to this case occurred in, was districted to, and/or emanated 

from this District. Venue is additionally proper because Plaintiff resides in this 

District.

COMMON FACTUAL ALLEGATIONS

11. Defendant Birch Communications owns and operates a 

telecommunications company that sells, among other things, wireless telephone 

plans (under the brand name “Lightyear Wireless”1). In an attempt to increase its 

sales, Defendant uses a multi-level marketing structure, whereby members of its 

sales force are compensated for selling its services and also for recruiting other 

individuals to sell its services. (See Figure 1, on the following page, showing one 

 1 In May 2013, Birch Communications purchased all of Lightyear Network 

Solutions, Inc.’s assets. In so doing, Birch Communications assumed control of the 

Lightyear MLM operation and has continued to support and make payments to the 

Lightyear Representatives. In the wake of the purchase, Birch Communications 

dissolved or deactivated the actual Lightyear corporate entities, but retained the 

Lightyear Wireless name for its own use.

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of Defendant’s MLM-based marketing materials contained on its website.)

(Figure 1.)

12. Birch Communications incentivizes its existing Representatives to sell 

its services and recruit new Representatives by offering them (1) free cellular 

telephone service, and (2) monetary compensation each time one of the 

Representatives that they recruited, recruits a new Representative. 

13. Lightyear Representatives are paid directly by Defendant to carry out 

its sales, and in that capacity, act as its employees. Alternatively, Lightyear 

Representatives are direct agents of Birch Communications who are acting with 

actual and apparent authority in their capacity as Defendant’s agents by (1)

soliciting new Representatives, (2) selling Defendant’s products and services, (3) 

using Defendant’s brand name, and (4) indicating that they are employed by 

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Defendant. Additionally, Defendant is aware of its Representatives’ conduct, 

directly assists them in that conduct, and thereby ratifies their conduct through its 

approval of their actions. 

14. In fact, Lightyear Representatives are prominently featured on 

Defendant’s Lightyear Wireless website. (See Figure 2, showing a screenshot of an 

advertisement contained on Defendant’s website promoting one of its

Representatives who is known for making unsolicited telephone calls.

2

) 

(Figure 2.)

15. Birch Communications also plays a very active role in the training, 

support and promotion of its Representatives. This includes Birch Communication 

employees communicating directly with Representatives, holding online and 

 2 See http://800notes.com/Phone.aspx/1-206-203-4163 (complaints regarding 

the Lightyear Representative pictured in Figure 2 above, Eric Bechtold, leaving 

robocall recordings “to get you to one of his websites for lightyear wireless 

service” and “[t]hey keep calling me - 4 times between 11 am and 1 pm. I called 

this number back. It is a recording about making money with a cell phone.”)

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telephonic meetings, providing promotional materials, and in general providing 

guidance in how best to promote the Lightyear Wireless MLM operation. In 

addition, Birch Communications provides and/or facilities the provision of

consumer leads directly to the Lightyear Representatives in order to facilitate new 

Representative acquisition. (See Figure 3, showing a screenshot of the My 

Lightyear Leads resources webpage.) 

(Figure 3.)

16. Unfortunately, Defendant Birch Communications, through its 

Lightyear Representatives, has turned to a tried and true, albeit unlawful, method 

of reaching new customers: unsolicited telemarketing. Defendant even provides a 

“Lightyear Leads” training manual that describes how to telemarket new 

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prospects.3

17. Specifically, outbound telemarketing calls are placed to thousands of 

consumers nationwide that feature a pre-recorded message, commonly known as a 

“robocall,” that solicits the call recipient to become a Lightyear Wireless 

Representative. 

18. These calls contain advertisements describing the purported

opportunity to make thousands of dollars per month through an “automated 

marketing system with unlimited ways to guarantee the fastest maximum success 

for your efforts.” The robocalls either provide the Lightyear Wireless pitch directly 

on the call, or provide a number to call to receive more information. The pitch, 

regardless of the delivery method, is compromised of pre-recorded messages

making, for example, statement substantially similar to the following:

• “Welcome, everyone, to our introduction call for Lightyear Wireless, 

the fastest growing company in the wireless industry . . . Our parent 

company is Birch Communications, an eighteen year-old federally 

licensed and regulated telecom. They have an A+ rating with the 

Better Business Bureau. They have been honored by The Inc 5000 as 

one of the fastest-growing privately held U.S. companies for seven 

years now. Our division, Lightyear Wireless, was created about five 

years ago. We have the security and backbone of a solid, time-tested 

company behind us.”;

• “The Lightyear business model is based on, very simply, helping 

people save money using a product they can’t live without. We have 

 3 Lightyear Wireless, Lightyear Leads Training Manual, available at 

http://www.myvtmg.com/MyLightyearLead_TrainingManual.pdf (last accessed 

June 22, 2014).

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no products to buy or stock, we have no auto-ship of overpriced 

products that you didn’t need before you got on this call, and there is 

no billings or collections. And, no one does what Lightyear does! We 

help people eliminate their wireless bills so they get free service. 

Simply refer three people on service, which, of course, we’re going to 

help you do, and never pay another wireless bill ever again.”;

• “Because of our long-standing connections, we often get as many as 

500,000 leads each week, and we’ve invested hundreds of thousands 

of dollars developing a fully-automated marketing and lead generation 

platform – basically, a simple “done-for-you” system for lead 

generation, using the power of e-mail, voice and texting.”;

• “We have a Manager level, which is $75. The next level up is Senior 

Manager, which is $325; or, you can start at the top, which is where 

we make the most money, as a Regional Manager, for $525. But, 

whichever level you start at, once you refer three that are on service, 

you’re going to eliminate your cell phone bill forever, which, of 

course, is going to save you a whole bunch of money.”;

• “And, if you get started before the end of this month, Lightyear will 

actually bonus back to you your entire startup cost. Let me say that 

again: Get started before the end of the month, and Lightyear will 

bonus back your entire startup cost. No telecom company has ever 

done this before – it’s incredible!”; and,

• “It’s an income you can literally bank on every single month, month 

after month, just by referring three people to Lightyear. Not only does 

that eliminate your cell phone bill forever, but you’re also going to put 

up to $650 in profit in your pocket immediately. And, this month, 

Lightyear is offering a very special bonus that will cover your startup 

costs. I’ll be covering more on that in just a moment.”

19. These calls are made at the direction of, or with the knowledge of, 

Birch Communications, and for the express purpose of selling cellular telephone 

service and recruiting new Representatives. 

20. In making the calls at issue in this Complaint, Defendant and/or its 

agents utilized an automatic telephone dialing system (“ATDS”). Specifically, the 

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hardware and software used by to make the calls at issue had the capacity to 

generate and store random numbers, or receive and store lists of telephone 

numbers, and to dial those numbers, en masse, in an automated fashion without 

human intervention. 

21. Neither Plaintiff nor the other members of the proposed Class ever 

provided their cellular telephone numbers to Defendant for the purpose of 

receiving telemarketing calls. Further, neither Plaintiff Rumsey, nor the other 

members of the putative Class, ever consented to receive these robocalls (or any 

other calls) at the telephone numbers called by Defendant and/or its agents.

FACTS SPECIFIC TO PLAINTIFF RUMSEY

22. On April 24, 2014, Plaintiff Rumsey received a telephone call on her 

cellular telephone from (618) 355-1197.

4 When Plaintiff answered, she heard a 

pre-recorded robocall message from a Lightyear Representative offering an 

opportunity to gain access to a MLM scheme related to cellular telephone service. 

 4 Plaintiff’s experience is corroborated by numerous other consumer 

complaints online. See 800notes.com/Phone.aspx/1-618-355-1197 (“Do Not Know 

Who This Is! Trying To Sell Me MLM!”; “wants me to call him back so he can tell 

me how to eliminate my cell phone bills ‘for ever’” “It's a money making 

opportunity. In other words, a telemarketing call. I wish these folks would pay 

attention to the DNC list”; “Received 3 consecutive calls, on my cell, from this 

number.”) See also callercomplaints.com/SearchResult.aspx?Phone=618-355-1197 

(“I have been receiving multiple solicitation voice mail messages from this number 

daily! Make it stop!”; “Pause on the phone and then a message about listening to a 

way to make more money”; “telemarketer--and I am on the do not call registry--so 

why does he keep calling??”)

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The recording indicated that she should call (618) 355-7460 to listen to a second 

recording for more information. In order to understand who was calling her, 

Plaintiff called (618) 355-7460, which resulted in the playing of a recording 

substantially similar to that described in paragraph 18 above.

23. Plaintiff did not provide her cellular telephone number to Defendant 

or any of its agents, and as such, did not provide any form of consent to be called 

by Defendant or its agents. 

24. As a result of Defendant’s intrusive call, which adversely affected 

Plaintiff’s right to privacy, Plaintiff suffered harm in the form of monies paid to 

her wireless carrier.

25. Defendant was and is aware that the above-described telephone calls

were being made either by it directly, or made on its behalf, and that the telephone

calls were being made to consumers who had not consented to receive them.

CLASS ALLEGATIONS

26. Class Definition: Plaintiff brings this action pursuant to Federal Rule 

of Civil Procedure 23(b)(2) and Rule 23(b)(3) on behalf of herself and a Class of 

similarly situated individuals defined as follows:

All persons in the United States who (1) received a telephone 

call; (2) promoting an opportunity related to “Lightyear 

Wireless;” (3) that featured an artificial or pre-recorded voice; 

and (4) for which the caller had no record of prior express 

consent to make such call to the telephone number that received 

it.

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The following people are excluded from the Class: (1) any Judge or 

Magistrate presiding over this action and members of their families; (2) Defendant, 

Defendant’s subsidiaries, parents, successors, predecessors, and any entity in 

which the Defendant or its parents have a controlling interest and its current or 

former employees, officers and directors; (3) persons who properly execute and 

file a timely request for exclusion from the Class; (4) the legal representatives, 

successors, or assigns of any such excluded persons; (5) Plaintiff’s counsel and 

Defendant’s counsel.

27. Numerosity: The exact number of Class members is unknown and not 

available to Plaintiff at this time, but it is clear that individual joinder is 

impracticable. On information and belief, Defendant has made telephone calls to 

thousands of consumers who fall into the definition of the Class. Members of the 

Class can be identified through Defendant’s records.

28. Commonality and Predominance: There are many questions of law 

and fact common to the claims of Plaintiff and the Class, and those questions 

predominate over any questions that may affect individual members of the Class. 

Common questions for the Class include, but are not necessarily limited to the 

following:

(a) whether Defendant’s conduct violated the TCPA;

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(b) whether Defendant and/or its agents made calls featuring an 

artificial or pre-recorded voice;

(c) whether Defendant and/or its agents systematically made phone 

calls to persons who did not previously provide Defendant 

and/or its agents with their prior express consent to receive such 

phone calls; and

(d) whether Class members are entitled to treble damages based on 

the willfulness of Defendant’s conduct.

29. Typicality: Plaintiff’s claims are typical of the claims of other 

members of the Class, in that Plaintiff and the members of the Class sustained 

damages arising out of Defendant’s uniform wrongful conduct and unsolicited 

telephone calls.

30. Adequate Representation: Plaintiff will fairly and adequately 

represent and protect the interests of the Class, and has retained counsel competent 

and experienced in complex class actions. Plaintiff has no interest antagonistic to 

those of the Class, and Defendant has no defenses unique to Plaintiff.

31. Policies Generally Applicable to the Class: This class action is 

appropriate for certification because Defendant has acted or refused to act on 

grounds generally applicable to the Class as a whole, thereby requiring the Court’s 

imposition of uniform relief to ensure compatible standards of conduct toward the 

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Class members, and making final injunctive relief appropriate with respect to the 

Class as a whole. Defendant’s practices challenged herein apply to and affect the 

Class members uniformly, and Plaintiffs’ challenge of those practices hinges on 

Defendant’s conduct with respect to the Class as a whole, not on facts or law 

applicable only to Plaintiff.

32. 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 because joinder of all parties is 

impracticable. The damages suffered by the individual members of the Class will 

likely be relatively small, especially given the burden and expense of individual 

prosecution of the complex litigation necessitated by Defendant’s actions. Thus, it 

would be virtually impossible for the individual members of the Class to obtain 

effective relief from Defendant’s misconduct. Even if members of the Class 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.

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FIRST CAUSE OF ACTION

Violation of 47 U.S.C. § 227

(On behalf of Plaintiff and the Class)

33. Plaintiff incorporates the foregoing allegations as if fully set forth 

herein.

34. Defendant and/or its agents made unsolicited and unwanted

telemarketing calls to the telephone numbers belonging to Plaintiff and the other 

members of the Class without their prior express consent. 

35. Defendant and/or its agents made unsolicited telemarketing calls to 

the telephone numbers belonging to Plaintiff and the other members of the Class

using a prerecorded or artificial voice, more commonly known as a “robocall.”

36. By making, or having made on its behalf, unsolicited robocalls 

utilizing an artificial or prerecorded voice to Plaintiff’s and the Class’s telephones 

without prior express consent, Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii)

and 47 U.S.C. § 227(b)(1)(B). As a result of Defendant’s unlawful conduct, 

Plaintiff and the other members of the Class suffered actual damages in the form of 

monies paid to receive unsolicited calls and, under Section 227(b)(3)(B), are each 

entitled to, inter alia, a minimum of $500 in statutory damages for each violation 

of the TCPA.

37. Should the Court determine that Defendant’s misconduct was willful 

and knowing, the Court may, pursuant to section 227(b)(3)(C), treble the amount 

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of statutory damages recoverable by Plaintiff and the other members of the Class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Penny Rumsey, individually and on behalf of the 

Class, prays for the following relief:

1. An order certifying the Class as defined above, appointing Plaintiff 

Penny Rumsey as the Class Representative, and appointing her counsel as Class 

Counsel;

2. An award of actual and statutory damages;

3. An injunction requiring Defendant to cease all unsolicited calling 

activities, and otherwise protecting the interests of the Class;

4. An award of reasonable attorneys’ fees and costs; and

5. Such other and further relief that the Court deems reasonable and just.

JURY DEMAND

Plaintiff requests a trial by jury of all claims that can be so tried.

Respectfully submitted,

PENNY RUMSEY, individually and on 

behalf of all others similarly situated,

Dated: July 9, 2014 By: /s/ Ari J. Scharg

 One of Plaintiff’s Attorneys

Ari J. Scharg

ascharg@edelson.com

John Ochoa* 

jochoa@edelson.com

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Mark Eisen*

meisen@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Henry M. Scharg – P28804

hmsattyatlaw@aol.com

LAW OFFICE OF HENRY M. SCHARG

718 Ford Building

Detroit, Michigan 48226

Tel: 248.596.1111

Fax: 248.671.0335

Stefan Coleman*

law@stefancoleman.com

LAW OFFICES OF STEFAN COLEMAN, LLC

201 South Biscayne Boulevard, 28th Floor

Miami, Florida 33131

Tel: 877.333.9427

Fax: 888.498.8946

*Admission to be sought.

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