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SCHUBERT JONCKHEER 

&

KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

ROBERT C. SCHUBERT S.B.N. 62684

WILLEM F. JONCKHEER S.B.N. 178748

SCHUBERT JONCKHEER & KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, California 94111

Telephone: (415) 788-4220

Facsimile: (415) 788-0161

rschubert@schubertlawfirm.com

wjonckheer@schubertlawfirm.com

Local Counsel for Plaintiff

BRIAN J. WANCA

ANDERSON & WANCA

3701 Algonquin Road, Ste 760

Rolling Meadows, IL 60008

Telephone: (847)368-1500

Facsimile: (847)368-1501

bwanca@andersonwanca.com

Counsel for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN C. ETTER, individually and as the 

representative of a class of similarly-situated 

persons,

Plaintiff,

v.

ALLSTATE INSURANCE COMPANY, 

ALLSTATE INDEMNITY COMPANY, 

ALLSTATE PROPERTY AND 

CASUALTY INSURANCE COMPANY, 

ALLSTATE NORTHBROOK 

INDEMNITY COMPANY, ALLSTATE 

INSURANCE COMPANY OF 

CALIFORNIA, LOUIS ODAISE and JOHN 

DOES 1-5,

 Defendants.

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Civil Action No.:

 

CLASS ACTION

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 1 of 16
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SCHUBERT JONCKHEER 

&

KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

CLASS ACTION COMPLAINT

Plaintiff JOHN C. ETTER (“Plaintiff”) brings this action on behalf of himself and all others 

similarly situated, through his attorneys, and except as to those allegations pertaining to Plaintiff or 

his attorneys, which are based upon personal knowledge, alleges the following upon information and 

belief against Defendants ALLSTATE INSURANCE COMPANY, ALLSTATE INDEMNITY 

COMPANY, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, 

ALLSTATE NORTHBROOK INDEMNITY COMPANY, ALLSTATE INSURANCE 

COMPANY OF CALIFORNIA, LOUIS ODIASE and JOHN DOES 1-5 (“Defendants”).

PRELIMINARY STATEMENT

1. This case challenges Defendants’ practice of sending unsolicited facsimiles.

2. The federal Telephone Consumer Protection Act of 1991, as amended by the Junk 

Fax Prevention Act of 2005, 47 USC § 227 (“JFPA” or the “Act”), and the regulations promulgated 

under the Act, prohibit a person or entity from faxing or having an agent fax advertisements without 

the recipient’s prior express invitation or permission. The JFPA provides a private right of action 

and provides statutory damages of $500 per violation. Upon information and belief, Defendants have 

sent facsimile transmissions of unsolicited advertisements to Plaintiff and the Class in violation of 

the JFPA, including, but not limited to, the facsimile transmission of unsolicited advertisement on 

October 11, 2016 (“the Fax”), a true and correct copy of which is attached as Exhibit A and made a 

part hereof. The Fax promotes the services and goods of Defendants. Plaintiff is informed and 

believes that Defendants have sent, and continue to send, unsolicited advertisements via facsimile 

transmission in violation of the JFPA, including those advertisements sent to Plaintiff.

3. Unsolicited facsimiles damage their recipients. A junk fax recipient loses the use of 

its fax machine, paper, and ink toner. An unsolicited fax wastes the recipient’s valuable time that 

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 2 of 16
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SCHUBERT JONCKHEER 

&

KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

would have been spent on something else. A junk fax interrupts the recipient’s privacy. Unsolicited 

faxes prevent fax machines from receiving authorized faxes, prevent their use for authorized 

outgoing faxes, cause undue wear and tear on the recipients’ fax machines, and require additional 

labor to attempt to discern the source and purpose of the unsolicited message. 

4. On behalf of himself and all others similarly situated, Plaintiff brings this case as a 

class action asserting claims against Defendants under the JFPA. Plaintiff seeks to certify a class 

including faxes sent to Plaintiff and other advertisements sent without prior proper opt-out language 

or without prior express invitation or permission, whether sent to Plaintiff or not.

5. This action is based upon a common nucleus of operative fact because the facsimile 

transmissions at issue were and are being done in the same or similar manner. This action is based 

on the same legal theory, namely liability under the JFPA. This action seeks relief expressly 

authorized by the JFPA: (a) injunctive relief enjoining Defendants, their employees, agents, 

representatives, contractors, affiliates, and all persons and entities acting in concert with them, from 

sending unsolicited advertisements in violation of the JFPA; and (b) an award of statutory damages 

in the minimum amount of $500 for each violation of the JFPA, and to have such damages trebled, 

as provided by § 227(b)(3) of the Act. 

JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 47 U.S.C. § 

227.

7. Venue is proper in this District because Defendants committed a statutory tort within 

this District and a significant portion of the events took place within this District.

PARTIES

8. Plaintiff JOHN C. ETTER is a sole proprietor who does business as Reliable

Plumbing & Heating Services with its principal place of business located in Monterey, California.

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 3 of 16
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SCHUBERT JONCKHEER 

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KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

9. On information and belief, Defendants ALLSTATE INSURANCE COMPANY, 

ALLSTATE INDEMNITY COMPANY, ALLSTATE PROPERTY AND CASUALTY 

INSURANCE COMPANY and ALLSTATE NORTHBROOK INDEMNITY COMPANY are

Illinois corporations registered to do business in California.

10. On information and belief, Defendant ALLSTATE INSURANCE COMPANY OF 

CALIFORNIA is a corporation registered to do business in Caifornia.

11. On information and belief, Defendant LOUIS ODIASE is a California resident who

owns and operates an Allstate insurance agency in Richmond, California. 

12. John Does 1-5 will be identified through discovery, but are not presently known.

FACTS

13. On or about October 11, 2016, Defendants transmitted by telephone facsimile 

machine an unsolicited facsimile to Plaintiff. A copy is attached hereto as Exhibit A.

14. On information and belief, Defendants receive some or all of the revenues from the 

sale of the products, goods and services advertised on Exhibit A, and Defendants profit and benefit 

from the sale of the products, goods and services advertised on Exhibit A.

15. Plaintiff had not given prior express invitation or permission to Defendants to send 

the facsimile. 

16. On information and belief, Defendants sent the same and similar unsolicited 

facsimiles without the required opt-out language to Plaintiff and more than forty 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 and without having an established business 

relationship as defined by the TCPA and its regulations.

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 4 of 16
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KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

17. 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. 

18. Defendants’ facsimiles did not display a proper opt-out notice as required by 47 

C.F.R. 64.1200.

CLASS ACTION ALLEGATIONS

19. In accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this 

class action pursuant to the JFPA, on behalf of the following class of persons:

All persons who (1) on or after four years prior to the filing of this 

action, (2) were sent telephone facsimile messages of material 

advertising the commercial availability or quality of any property, 

goods, or services by or on behalf of Defendants, (3) from whom 

Defendants did not obtain “prior express invitation or permission” to 

send those faxes, and (4) with whom Defendants did not have an 

established business relationship, and/or (5) did not display a proper 

opt-out notice. 

Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. 

Plaintiff reserves the right to amend the class definition upon completion of class certification 

discovery.

20. Class Size (F. R. Civ. P. 23(a)(1)): Plaintiff is informed and believes, and upon such 

information and belief alleges, 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 alleges, that the number of class members is at least forty.

21. 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;

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KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

b) Whether the Defendants’ fax advertised the commercial availability or quality

of property, goods, or services;

c) The manner and method the Defendants used to compile or obtain the list of 

fax numbers to which they sent Exhibit A, other unsolicited faxed advertisements or other 

advertisements without the required opt-out language;

d) Whether the Defendants faxed advertisements without first obtaining the 

recipient's prior invitation or permission;

e) Whether the Defendants sent the faxed advertisements knowingly;

f) Whether the Defendants violated the provisions of 47 U.S.C. § 227 and the 

regulations promulgated thereunder;

g) Whether the faxes 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;

h) Whether the Defendants should be enjoined from faxing advertisements in the 

future;

i) Whether the Plaintiff and the other members of the class are entitled to 

statutory damages; and

j) Whether the Court should award treble damages.

22. Typicality (F. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of 

all class members. The Plaintiff received faxes sent by or on behalf of the Defendants advertising 

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 the same or in a similar manner with respect to the Plaintiff and 

all the class members. 

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 6 of 16
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SCHUBERT JONCKHEER 

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KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

23. 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. He is interested in this matter, has 

no conflicts and has retained experienced class counsel to represent the class.

24. 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 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.

25. Common Conduct (F. R. Civ. P. 23 (b) (2)): Class certification is also appropriate 

because the Defendants have acted 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.

26. 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 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 

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 7 of 16
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SCHUBERT JONCKHEER 

&

KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

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:

(i) The Defendants identified persons or entities to receive the fax transmissions 

and it is believed that the Defendants’ 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. 

COUNT I

Claim for Relief for Violation of the JFPA, 47 U.S.C. § 227 et seq.

27. Plaintiff and the Plaintiff Class reassert and incorporate herein by reference the 

allegations set forth in paragraphs 1-26 above.

28. 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).

29. The JFPA defines "unsolicited advertisement" as "any material advertising the 

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KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

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).

30. Opt-Out Notice Requirements. The JFPA strengthened the prohibitions against the 

sending of unsolicited advertisements by requiring, in §(b)(1)(C)(iii) of the Act, that senders of faxed 

advertisements place a clear and conspicuous notice on the first page of the transmission that 

contains the following among other things (hereinafter collectively the “Opt-Out Notice 

Requirements”):

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 optout gives impetus for recipients to make such a request, if desired;

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”;

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; 

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 

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Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

of 2005, 21 F.C.C.R. 3787, 2006 WL 901720, which rules and regulations took effect on August 1, 

2006). The requirements of (3) above are contained in § (b)(2)(E) of the Act and incorporated into 

the Opt-Out Notice Requirements via § (b)(2)(D)(ii). Compliance with the Opt-Out Notice 

Requirements is neither difficult nor costly. The Opt-Out Notice Requirements are important 

consumer protections bestowed by Congress upon the owners of fax machines giving them the right, 

and means, to stop unwanted faxed advertisements. 

31. 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);

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 permission or invitation” to 

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Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

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.

32. The Fax. Defendant sent the advertisement on or about October 11, 2016, via 

facsimile transmission from telephone facsimile machines, computers, or other devices to the 

telephone facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constituted 

an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in 

connection with the Fax. The Fax was transmitted to persons or entities without their prior express 

invitation or permission and/or Defendants are precluded from asserting any prior express invitation 

or permission because of the failure to comply with the Opt-Out Notice Requirements. By virtue 

thereof, Defendants violated the JFPA and the regulations promulgated thereunder by sending the 

Fax via facsimile transmission to Plaintiff and members of the Class. Plaintiff seeks to certify a 

class which includes this Fax and all others sent during the four years prior to the filing of this case 

through the present.

33. Defendant’s Other Violations. Plaintiff is informed and believes, and upon such 

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 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 because of the 

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San Francisco, CA 94111

(415) 788-4220

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 are 

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.

34. 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.

35. 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.

36. 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 an advertisement; (d) 

the Fax 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.

37. The Defendants’ actions caused damages to the Plaintiff and the other class members. 

Receiving the Defendants’ junk fax caused the recipients to lose paper and toner consumed in the 

printing of the Defendants’ fax. Moreover, the Defendants’ fax used the Plaintiff's fax machine. The 

Defendants’ fax cost the Plaintiff time, as the Plaintiff and its employees wasted their time receiving, 

reviewing and routing the Defendants’ unauthorized fax. That time otherwise would have been spent 

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Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

on the Plaintiff's business activities. The Defendants’ fax unlawfully interrupted the Plaintiff's and 

other class members' privacy interests in being left alone. 

WHEREFORE, Plaintiff, JOHN C. ETTER, individually and on behalf of all others similarly 

situated, demands judgment in his favor and against Defendants, ALLSTATE INSURANCE 

COMPANY, ALLSTATE INDEMNITY COMPANY, ALLSTATE PROPERTY AND 

CASUALTY INSURANCE COMPANY, ALLSTATE NORTHBROOK INDEMNITY 

COMPANY, ALLSTATE INSURANCE COMPANY OF CALIFORNIA, LOUIS ODIASE and 

JOHN DOES 1-5, 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, and that the Court award treble 

damages if the violations are deemed “willful or knowing”; 

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.

January 13, 2017 By: Willem F. Jonckheer

ROBERT C. SCHUBERT

WILLEM F. JONCKHEER

SCHUBERT JONCKHEER & KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

Telephone: 415-788-4220

Fax: 415-788-0161

rschubert@schubertlawfirm.com

wjonckheer@schubertlawfirm.com

Local Counsel for Plaintiff

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Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

(415) 788-4220

BRIAN J. WANCA (pro hac vice to be submitted)

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: 847-368-1500 / Fax: 847-368-1501

bwanca@andersonwanca.com

Counsel for Plaintiff

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 14 of 16
EXHIBIT A

Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 15 of 16
Case 3:17-cv-00184-LB Document 1 Filed 01/13/17 Page 16 of 16