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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Uber, Inc., a New York corporation, 

individually and as representative of all 

others similarly situated, 

Plaintiff,

v.

Nationwide Mutual Insurance Company, 

an Ohio corporation, dba Nationwide; 

Defendant.

Case No. 

Class Action Complaint for Violations of 

the Telephone Consumer Protection Act, 

47 U.S.C. § 227, and FCC Regulations,

and for Declaratory Relief; Demand for 

Jury Trial; Exhibit 

[Fed. R. Civ. P. 3, 8, 23; 28 U.S.C. § 

1331]

Plaintiff Uber, Inc. (“Uber”), brings this action on behalf of itself and all other 

similarly situated parties, and avers:

Introduction

1. More than two decades ago the Telephone Consumer Protection Act of 

1991, 47 U.S.C. § 227, was enacted into law. The law responded to countless complaints 

by American consumers and businesses about the cost, disruption, and nuisance imposed 

by junk faxes. The law prohibited advertisers from transmitting facsimile advertisements

without first obtaining express invitation or permission of the recipient. In 2005, because 

consumers and businesses continued to be besieged with junk faxes, Congress 

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strengthened the law by amending it through the Junk Fax Prevention Act of 2005.1 As 

amended, the law requires advertisers to include in their faxed advertisements a clear and 

conspicuous notice that discloses to recipients their right to stop future faxes and explains 

how to exercise that right. 

2. Plaintiff Uber, Inc., brings this class action to recover damages for and 

enjoin junk faxing by Defendant in direct violation of the TCPA and the regulations 

promulgated by the Federal Communications Commission. Within four years preceding 

the filing of this Complaint, Defendant has sent unsolicited junk faxes to Plaintiff

including, but not limited to, the facsimile transmission of an advertisement to Uber’s 

telephone facsimile number in May 2017, a true and correct copy of which is attached 

hereto as Exhibit 1. 

3. Subject Matter Jurisdiction and Standing. This Court has subject matter 

jurisdiction over this matter under federal-question jurisdiction, 28 U.S.C. § 1331. See 

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376 (2012). Plaintiff has standing to seek 

relief in this Court because 47 U.S.C. § 227(b)(3) authorizes commencement of a private 

action to obtain damages for Defendant’s violations of the TCPA and/or FCC regulations, 

to obtain injunctive relief, or for both such actions. Uber sustained concrete and actual 

injury as a result of Defendant’s actions and omissions because Defendant’s junk faxes, 

 

1 Unless otherwise noted, all statutory references are to this statute in effect since 

2005.

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among other things, wrongfully occupied Uber’s facsimile telephone lines; caused Uber’s

fax lines to be unavailable for legitimate business use; wasted time required to manage 

and dispose of Defendant’s junk faxes; consumed and wasted Uber’s electricity, paper,

and toner; invaded Uber’s privacy rights; failed to disclose to Uber its legal right and 

ability to stop future junk faxes, as required by the Opt-Out Notice Requirements (as 

defined below); and violated Uber’s interests in seclusion. Uber did not give Defendant

prior express invitation or permission to send fax advertisements, including, but not 

limited to Exhibit 1 to this Complaint. 

4. Venue. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1), (b)(2), 

(c) and (d) because Defendant is subject to personal jurisdiction in Ohio (and this district 

if it were a state) at the time this action is commenced, and some of the events or 

omissions complained of occurred in this district. Venue is also proper in this Court 

under Local Rule 82.1.

5. Personal Jurisdiction. This Court has personal jurisdiction over 

Defendant because it is domiciled in Ohio because Defendant is incorporated Ohio and 

has its principal place of business in Columbus, Ohio.

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The Parties

6. Individual Plaintiff/Class Representative. Plaintiff Uber, Inc., is, and at 

all times relevant hereto was, a corporation duly organized and existing under the laws of 

the state of New York, with its principal place of business in New York, New York. 

Uber is, and at all times relevant hereto was, the subscriber of the facsimile telephone 

number (212-643-1205) to which Defendant sent junk faxes, including, but not limited to, 

the fax attached as Exhibit 1 to this Complaint.

7. Defendant Nationwide Mutual Insurance Company. Defendant 

Nationwide Mutual Insurance Company, dba Nationwide, is a corporation organized and 

existing under the laws of the state of Ohio, and having its principal place of business in 

Columbus, Ohio. At all relevant times, Defendant has been a “person” within the 

meaning of 47 U.S.C. §§ 153(39) and 227(b)(1).

The TCPA’s Prohibition Against Junk Faxing

8. By the early 1990s advertisers had exploited facsimile telephone 

technology to blanket the country with junk fax advertisements. This practice imposed 

tremendous disruption, annoyance, and cost on businesses and consumers. Among other 

things, junk faxes tie up recipients’ telephone lines and facsimile machines, 

misappropriate and convert recipients’ fax paper and toner, and require recipients to sort 

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through faxes to separate legitimate fax communications from junk advertisements and to 

discard the latter.

9. Congress responded to the problem by passing the TCPA in 1991. The law 

was enacted to eradicate junk faxes and stanch “the explosive growth in unsolicited 

facsimile advertising, or ‘junk fax.’” H.R. Rep. No. 102-317 (1991). It sought to 

accomplish this objective by prohibiting advertisers from transmitting facsimile 

advertisements without first obtaining prior express invitation or permission from the 

recipient.

10. The original law did not achieve its objectives, however. In the decade 

following the TCPA’s enactment, American consumers and businesses continued to be 

“besieged” by junk faxes because senders refused to honor requests by recipients to stop.2 

Congress responded by strengthening the law through the JFPA. This 2005 amendment 

for the first time required advertisers to disclose to recipients their right and ability to 

stop future junk faxes (hereinafter collectively the “Opt-Out Notice Requirements”).3 To 

comply with these requirements, an advertiser must include a clear and conspicuous 

notice at the top or bottom of the first page of the advertisement, separate from the 

advertising copy and any other disclosures, that informs recipients of their right to stop 

 

2

FCC, Report and Order on Reconsideration of Rules and Regulations 

Implementing the TCPA of 1991, 29 Comm. Reg. 830 ¶ 186 (2003). 

3

See 47 U.S.C. § 227(b)(1)(C)(iii), (b)(2)(D), (b)(2)(E), (d)(2); 47 C.F.R. § 

64.1200(a)(4)(iii)-(vii).

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future junk faxes and of the legal requirements for an effective opt-out request. The 

notice must be distinguishable from the advertising copy by use of bolding, italics, and 

different font.

Defendant’s Illegal Junk Fax Program

11. Uber is informed and believes, and upon such information and belief avers,

that Defendant is a large insurance and financial services company, focusing on domestic 

property and casualty insurance, life insurance, and asset management. Defendant and its 

property and casualty affiliated companies are principally engaged in underwriting 

personal automobile, homeowners and commercial insurance products. 

12. Uber is informed and believes, and upon such information and belief avers, 

that Defendant is the registrant of the world mark “Nationwide.” The Nationwide

website, www.mylosscontrolservices.com, to which recipients of Defendants’ junk faxes

are directed to visit (see Exhibit 1), states “Nationwide, the Nationwide N and Eagle, and 

other marks displayed on this page are service marks of Nationwide Mutual Insurance 

Company, unless otherwise disclosed.” That is consistent with the following statement 

set forth on Exhibit 1: “Nationwide, the Nationwide N and Eagle, and Nationwide is on 

your side are service marks of Nationwide Mutual Insurance Company.” Uber is 

informed and believes, and upon such information and belief avers, that Defendant is the 

registrant of the website mylosscontrolservices.com 

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13. Within the four years preceding the commencement of this action, 

including, without limitation, in or around May 2017, and continuing to the present, 

Defendant has adopted and implemented an illegal junk fax advertising program to 

promote the sale of its property, goods and services. All faxes that are the subject of this 

lawsuit were designed as, intended as, and constituted advertisements under the TCPA 

within their four corners and as part of the overall, promotion, and sale of Defendant’s

property, goods, and services, including without limitation, its insurance services. These 

illegal junk faxes include, but are not limited to, Exhibit 1 to this Complaint, which, 

among other things, alerts fax recipients to “policyholder discounts” to “[s]ee how much 

you can save on many loss control-related products and services,” and invites recipients

to “[a]sk about [Nationwide’s] services or request information on a specific topic or 

industry,” including by visiting Defendant’s website set forth on the fax –

mylosscontrolservices.com, including specifically mylosscontrolservices.com/overview 

and mylosscontrolservices.com/registernow (collectively, the “Nationwide Website”). 

Recipients of Defendants’ junk faxes are also invited to “[v]isit our [web]site and start 

exploring,” including by going to mylosscontrolservices.com/registernow and “[s]et up 

your account with your business information.” 

14. The Nationwide Website, mylosscontrolservices.com, has links for 

“Services” and “About,” among other things. The “Services” portion of that website 

states in part “Read about core consultative services provided by the Nationwide Loss 

Control Services team . . .” The “About” portion of that website states “Nationwide is an 

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easy choice for selecting commercial insurance for your business. Learn how our strong 

financial rankings, customized policies and superior claims service can provide you the 

best value for your money.” 

15. Clicking on the “About” link on Defendant’s Website leads to an “About 

Us” webpage (www.mylosscontrolservices.com/home/about), which states “[l]earn about 

Nationwide’s suite of commercial solutions to help business owners protect what’s most 

important.” That webpage further states that Defendant can “tailor a program of 

coverage and services to fit the needs of your business,” including because “[a]t 

Nationwide, we make selecting commercial insurance easy. We are the #8 property and 

casualty insurer in the United States and offer flexible, effective and fairly priced 

coverage options for you.” The “About Us” webpage has links to “Learn more about 

Nationwide’s small business insurance” and “Learn more about industry coverage for 

mid-size businesses.” Clicking on the link “Learn more about Nationwide’s small 

business insurance” directs fax recipients to a webpage on the www.nationwide.com 

website entitled “small business insurance solutions”, where prospective customers can

“select [their] industry”, such as “professional services”, which leads to another webpage 

where the prospective customer can “request a quote online” or by calling 1-888-490-

1549 or “find an agent” regarding “business office space insurance.” This webpage 

contains information about many of Defendant’s small business insurance products and 

services, including for example, commercial auto insurance, errors and omissions 

insurance, employee practices liability insurance, and valuable papers and records 

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insurance. As such, the faxes that are the subject of this lawsuit were designed as, 

intended as, and constituted advertisements under the TCPA within their four corners and 

because they advertised the commercial availability or quality of Defendant’s property, 

goods or services through the Nationwide Website set forth on the faxes where a vast 

trove of information about Defendant’s products and services is promoted and made 

available.

16. Uber is informed and believes, and upon such information and belief avers, 

that Defendant transmitted its junk faxes without obtaining recipients’ prior express 

invitation or permission, in direct violation of the TCPA and FCC regulations. Uber did 

not give Defendant prior express invitation or permission to send facsimile 

advertisements, including, but not limited to, Exhibit 1 to this Complaint. 

17. In the course of its illegal fax advertising campaign, Defendant failed to 

comply with the Opt-Out Notice Requirements and separately violated the TCPA and 

FCC regulations. As a further result of these violations, Defendant is precluded from 

asserting either of the two defenses available under the TCPA: (i) “prior express 

invitation or permission” (“PEP”) that may have been given by a recipient (§ 227(a)(5)); 

and (ii) a three-prong defense based on transmissions to a recipient with whom Defendant 

may have had an “established business relationship” (“EBR”), § 227(b)(1)(C)(i)-(iii)).

18. Defendant’s violations of the TCPA and/or FCC regulations were “willful” 

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and/or “knowing” as used in § 227(b)(3) because, among other things: (i) Defendant fully 

intended its acts; the company’s transmission of fax advertisements was no mistake or 

accident; and/or (ii) Defendant made no effort to comply with the Opt-Out Notice 

Requirements in sending the junk faxes that are the subject of the lawsuit.

19. Uber is informed and believes, and upon such information and belief avers, 

that Defendant is directly and/or vicariously liable for the violations of the TCPA and 

FCC regulations alleged herein because, inter alia, it (a) was a sender of the fax 

advertisements that are the subject of this lawsuit because the advertisements were sent 

on its behalf and/or its property, goods or services were promoted in them; (b) approved, 

authorized and/or participated in the formulation, preparation and sending of the fax 

advertisements; (c) received and retained the benefits of the fax advertisements in the 

form of revenue, name/brand recognition and promotion; and (d) had actual notice of the 

unlawful activity constituting the violations herein and failed to take steps to prevent the 

same.

20. Private Right of Action. Under section (b)(3) of the TCPA, Uber has a 

private right of action to bring this action on behalf of itself and on behalf of the Plaintiff 

Class to redress Defendant’s violations of the Act and the FCC regulations. 

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Class Action Averments

21. Statutory Reference. This action is properly maintainable as a class action 

because (a) all prerequisites of rule 23(a) are satisfied; (b) prosecution of separate actions 

by one or more individual members of the class would create a risk of inconsistent or 

varying adjudications with respect to individual members of the class and would establish 

incompatible standards of conduct for Defendant, in the manner contemplated by rule 

23(b)(1)(A); (c) Defendant has acted on grounds that apply generally to the class, so that 

final injunctive relief is appropriate respecting the class as a whole, as contemplated by 

rule 23(b)(2); and (d) 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 other available methods for the fair and efficient adjudication of the 

controversy, as contemplated by rule 23(b)(3).

22. Class Definition. The Plaintiff Class consists of: All persons and entities 

that were subscribers of facsimile telephone numbers to which material that advertised 

the commercial availability or quality of any property, goods, or services of Defendant

was sent via facsimile transmission to ten or more telephone numbers on or after July 2, 

2014, including, without limitation the fax attached as Exhibit 1 to this Complaint.4 

 

4

Excluded from the Plaintiff Class are officers, directors, and employees of 

Defendant or any affiliated company; legal representatives, attorneys, heirs, successors or assigns 

of Defendant, Defendant’s officers and directors, or of any affiliated company; parent and 

subsidiary companies of Defendant; any entity in which any of the foregoing persons have or 

(footnote continued)

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Uber reserves the right to amend the class definition after completion of class 

certification discovery.

23. Numerosity. Uber is informed and believes, and upon such information 

and belief avers, that the Plaintiff Class numbers in the thousands, and is therefore 

sufficiently numerous that the joinder of all members is impracticable due to the class’s 

size and due to the relatively small potential monetary recovery for each Plaintiff Class 

member, in comparison to the time and costs associated with litigation on an individual 

basis. 

24. Typicality. Uber’s claims are typical of those held by the Plaintiff Class 

because they share the same essential characteristics. Among other things, they were sent 

the same type of unsolicited junk fax communications; they have the same claims under 

the TCPA and FCC regulations; and they are entitled to the same statutory damages and 

injunctive relief. In sum, Uber’s claims arise from the same course of conduct that gives 

rise to the claims of the Plaintiff Class, and Uber’s claims are based on the same legal 

theories.

 

have had a controlling interest; any members of the immediate families or the foregoing persons; 

any federal, state and/or local governments, governmental agencies, including the Federal 

Communications Commission; subsidiaries of Nationwide Mutual Insurance Company and other 

companies within the corporate network of Nationwide Mutual Insurance Company; and 

attorneys of record in this action and employees of Plaintiff’s law firms, and their immediate 

family members. 

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25. Adequacy of Representation. The Plaintiff Class will be well represented 

by Plaintiff and its counsel. Uber appreciates the responsibilities of a class representative 

and understands the nature and significance of the claims made in this case. Uber and the 

Plaintiff Class have the same legal claims based on the same statutes and/or regulations 

and they have suffered the same injury, and are entitled to the same relief. Uber can 

fairly and adequately represent and protect the interests of the Plaintiff Class because 

there is no conflict between their interests. Plaintiff’s attorneys have the necessary 

resources, experience and ability to prosecute this case on a class action basis. Plaintiff’s

attorneys have extensive experience representing consumers and other clients in complex 

business disputes, have significant experience as class counsel in federal and state courts, 

and have significant experience prosecuting class actions for TCPA violations. 

26. Common Questions of Law and Fact Are Predominant. Questions of 

law and fact common to the class predominate over questions affecting only individual 

class members:

A. Common Questions of Fact. This case presents numerous 

questions of fact that are common to all class members’ claims. The case arises out of a 

common nucleus of fact and standardized conduct by Defendant because, among other 

things: (1) the same type of faxes; (2) were transmitted by the same sender, in the same 

manner; (3) in violation of the same statute(s) and FCC regulations in the same manner; 

and (4) entitling class members to receive the same statutory damages and injunctive 

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relief.

B. Common Questions of Law. The case presents numerous common 

questions of law, including, but not limited to:

(1) whether the faxes that are the subject of this lawsuit are 

advertisements within the ambit of the TCPA and the FCC regulations;

(2) whether Defendant sent unsolicited facsimile advertisements in 

violation of 47 U.S.C. § 227(b)(1)(C); 

(3) whether Defendant complied with the Opt-Out Notice Requirements 

of the TCPA and the FCC’s regulations, and the legal consequences of the failure to

comply with those requirements;

(4) what constitutes a willful or knowing violation of the TCPA within 

the meaning of 47 U.S.C. § 227(b)(3); 

(5) whether Defendant committed willful and/or knowing violations of 

the TCPA and/or the FCC’s regulations;

(6) whether damages should be increased on account of Defendant’s

willful and/or knowing violations and, if so, by what amount; and

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(7) whether the injunctive relief sought in paragraph 31, below, should 

issue.

27. Injunctive Relief Is Appropriate. Defendant has acted on grounds that 

apply generally to the Plaintiff Class, making injunctive relief appropriate with respect to 

the Plaintiff Class as a whole.

28. Superiority of Class Adjudication. This action should be maintained as a 

class action because a class action is superior to other available methods for the fair and 

efficient adjudication of the controversy because, among other things, (a) common 

questions of law and fact, including those identified in paragraph 26, above, predominate 

over questions affecting only individual members; (b) prosecuting separate actions by 

individual class members would create a risk of inconsistent or varying adjudications that 

would establish incompatible standards of conduct for Defendant; (c) proof of Plaintiff’s

claims will also prove the claims of the proposed class without the need for separate and 

individualized proceedings, and the statutory damages provided by the TCPA are the 

same for all members of the Plaintiff Class, such that damages can be calculated with 

mathematical certainty; (d) the practical economics of litigation and the potential 

recovery from individual litigation make it uneconomical for class members to prosecute 

individual claims; (e) class adjudication will conserve judicial resources and will avoid 

the possibility of inconsistent rulings in the event individual cases are brought; (f) no 

litigation other than this case has been commenced against Defendant; (g) class litigation 

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would serve to educate members about their legal right to stop unwanted facsimile

advertising, a particularly important interest in light of Defendant’s failure to make 

disclosures required by the TCPA; (h) as a practical matter, due to the practical 

economics of litigation, the vast majority of Plaintiff Class members are not likely to 

bring claims and obtain relief absent class certification; and (i) equity dictates that all 

persons who stand to benefit from the relief sought herein should be subject to this action 

and, hence, subject to an order spreading the cost of litigation among class members in 

relationship to the benefits received.

Count I: Defendant’s Violations of 47 U.S.C. § 227 and FCC Regulations

29. Incorporation. Plaintiff and the Plaintiff Class reassert the averments set 

forth in paragraphs 1 through 28, above.

30. Defendant’s Violations of the Prohibition of Unsolicited Facsimile 

Advertising. Within four years preceding the commencement of this action, including, 

without limitation, in or around May 2017, and continuing to the present, Defendant, 

within the United States, violated the TCPA and FCC regulations promulgated under the 

act by reason of, among other things, transmitting unsolicited advertisements from

telephone facsimile machines, computers, or other devices to telephone facsimile 

machines using facsimile telephone numbers of Uber and other members of the Plaintiff 

Class within the United States.

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31. Injunctive Relief. Subsection (b)(3)(A) of the TCPA authorizes Plaintiff

to bring an action to enjoin a violation of the act and/or FCC regulations. Plaintiff

requests that preliminary and permanent injunctions issue to: (1) prohibit Defendant, its

employees, agents, representatives, contractors, affiliates, and all persons and entities 

acting in concert with it, from committing further violations of the act and FCC 

regulations, and thereby, among other things, prohibiting Defendant, its employees, 

agents, representatives, contractors, affiliates, and all persons and entities acting in 

concert with it, from sending to any person or entity any further unsolicited fax 

advertisements or fail to comply with the Opt-Out Notice Requirements; (2) require 

Defendant to deliver to Plaintiff all records of facsimile advertisements that are the 

subject of this lawsuit, including all content sent via facsimile, fax lists used, and records 

of transmission; (3) require Defendant to adopt ongoing educational, training and 

monitoring programs to ensure compliance with the TCPA and FCC regulations, and 

limiting facsimile advertising activity to personnel who have undergone such training; 

(4) require Defendant to provide written notice to all persons and entities to whom they 

sent, via facsimile transmission, advertisements in violation the Act and/or FCC 

regulations, warning such persons and entities that the facsimile transmission of 

unsolicited advertisements is in violation of the TCPA and FCC regulations and that they 

should not be led or encouraged in any way by Defendant’s violations of the Act and/or 

FCC regulations to send advertisements of their own that violate the Act and/or FCC 

regulations; and (5) require Defendant to conspicuously place on the homepage of its

website(s) the warnings contained in subparagraph 4 of this paragraph.

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32. Damages. Subsection (b)(3)(B) of the act provides for the recovery of 

damages in the minimum amount of $500 for each violation by Defendant of the TCPA 

and/or FCC regulations alleged in this count. In addition, Plaintiff is informed and 

believes, and upon such information and belief avers, that Defendant committed its

violations willfully and/or knowingly and that the amount of statutory damages should be 

increased up to three times, as also authorized by subsection (b)(3) of the act.

Prayer for Relief

WHEREFORE, Uber and the Plaintiff Class pray for judgment against Defendant

as follows:

1. In accordance with (b)(3)(B) of the TCPA, awarding statutory damages in 

the amount of $500 for each violation of the TCPA and/or the FCC regulations in an 

amount not less than $5 million, and trebling of such statutory damages;

2. Entering the preliminary and permanent injunctions requested in paragraph 

31 of this Complaint; 

3. Certifying the Plaintiff Class defined in paragraph 22 of this Complaint; 

4. Appointing Uber as representative for the Plaintiff Class and awarding it an 

incentive award for its efforts as class representative; 

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5. Appointing Uber’s counsel as counsel for the Plaintiff Class; 

6. Ordering payment of Uber’s costs of litigation, including, without 

limitation, costs of suit and attorneys’ fees, spread among the members of the Plaintiff 

Class in relation to the benefits received by the Plaintiff Class; 

7. Ordering Defendant to provide notice to members of the Plaintiff Class 

proposed in paragraph 22, above, at its own expense, of the pendency of this action and 

all other notices ordered by the Court;

8. Awarding prejudgment interest; and 

9. Awarding such other and further relief as the Court shall deem just and 

proper.

Jury Demand

Plaintiff demands trial by jury on all issues triable by jury.

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DATED: July 2, 2018 Respectfully submitted,

UBER, INC., a New York corporation,

individually and as representative

of all others similarly situated

/s/ Robert E. DeRose II

Robert E. DeRose II (OH Bar No. 0055214)

Trial Attorney

BARKAN MEIZLISH HANDELMAN

GOODIN DEROSE WENTZ, LLP

250 East Broad Street, 10th Floor

Columbus, OH 43215

Telephone: (614) 221-4221

Facsimile: (614) 744-2300

bderose@barkanmeizlish.com

 -andC. Darryl Cordero (CA Bar No. 126689)*

Damon Rubin (CA Bar No. 186504)*

PAYNE & FEARS LLP

400 Continental Blvd., Suite 600

El Segundo, CA 90245

Telephone: (310) 689-1750

Facsimile: (310) 689-1755

cdc@paynefears.com

dr@paynefears.com

 -andFrank F. Owen (FL Bar No. 702188)*

FRANK OWEN & ASSOCIATES PA

1091 Ibis Avenue

Miami Springs, FL 33166

Telephone: (954) 964-8000

FFO@CastlePalms.com

* Pro hac vice motion forthcoming

4849-8128-8550.3

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