CLASS ACTION COMPLAINT

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THOMAS W. FALVEY, SBN 65744 

thomaswfalvey@gmail.com

MICHAEL H. BOYAMIAN, SBN 256107

mike.falveylaw@gmail.com

ARMAND R. KIZIRIAN, SBN 293992 

armand.falveylaw@gmail.com

LAW OFFICES OF THOMAS W. FALVEY

550 North Brand Boulevard, Suite 1500 

Glendale, California 91203 

Telephone: (818) 547-5200 

Facsimile: (818) 500-9307

ANDRE. JARDINI, SBN 71335

aej@kpclegal.com

K.L. MYLES, SBN 243272 

klm@kpclegal.com

KNAPP, PETERSEN & CLARKE

550 North Brand Boulevard, Suite 1500

Glendale, California 91203-1922

Telephone: (818) 547-5000

Facsimile: (818) 547-5329

STEPHEN M. RINKA, SBN 219626

stephen.rinka@gmail.com

THE RINKA LAW FIRM

433 N. Camden Dr., Suite 600

Beverly Hills, CA 90210

Telephone: (310) 556-9653

Facsimile: (310) 579-8768

Attorneys for Plaintiff HUNG V. VU, D.D.S., 

A PROFESSIONAL DENTAL CORP., on behalf 

of itself and all persons and entities similarly situated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HUNG V. VU, D.D.S., A 

PROFESSIONAL DENTAL CORP., 

d/b/a Vu Orthodontics, on behalf 

of itself and all persons and entities 

similarly situated

Plaintiff,

vs.

I CARE CREDIT, LLC, d/b/a iCare 

Financial; and DOES 1 – 10, 

inclusive;

Defendants. 

Case No.: 

CLASS ACTION

COMPLAINT FOR:

1. VIOLATIONS OF THE 

TELEPHONE CONSUMER 

PROTECTION ACT, 47 

U.S.C. § 227; 

2. CONVERSION;

3. INJUNCTIVE RELIEF.

DEMAND FOR JURY TRIAL 

[Fed. R. Civ. P. 8, 10, 23, 38] 

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INTRODUCTION

1. In 1991, Congress enacted the Telephone Consumer Protection Act 

(“TCPA”), 47 U.S.C. §227, to regulate the explosive growth of the telemarketing 

industry. In so doing, Congress recognized that “unrestricted telemarketing....

can be an intrusive invasion of privacy...” 47 U.S.C. §227, Congressional 

Statement of Finding #5. Specifically, in enacting the TCPA, Congress outlawed

telemarketing via unsolicited facsimile (“Junk Fax”). See 47 U.S.C. §227. 

2. In 2005, because consumers and businesses continued to be besieged

with junk faxes, Congress strengthened the law by passing the Junk Fax 

Prevention Act of 2005. As amended, the law requires senders to include in their 

faxed advertisements a clear and conspicuous notice that advises recipients of 

their right to stop future junk faxes and how to exercise that right.

3. Plaintiff Hung V. Vu, D.D.S., A Professional Dental Corp. d/b/a Vu 

Orthodontics (“Plaintiff” or “Vu Orthodontics”), on behalf of itself and all 

persons and entities similarly situated, files this complaint against the Defendant 

I Care Credit, LLC d/b/a iCare Financial (“iCare” or “Defendants”), for its 

violation of federal telemarketing law.

THE PARTIES

4. Plaintiff Vu Orthodontics, is a California company with its principal 

place of business at 16027 Brookhurst St., Suite K, Fountain Valley, California 

92708.

5. I Care Credit, LLC d/b/a iCare Financial (“iCare” or “Defendants”)

is a corporation duly organized under the laws of Georgia with a principal place 

of business at 975 Cobb Place Blvd., NW, Kennesaw, Georgia.

JURISDICTION AND VENUE

6. The District Court has federal question subject matter jurisdiction 

pursuant to 28 U.S.C. §1331. See Mims v. Arrow Financial Services, Inc., 565 

U.S. 368 (2012). 

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7. The Court has personal jurisdiction over Defendants because they 

regularly conduct business within the state of California and because Defendants 

intentionally sent facsimile transmissions that are subject of this lawsuit to 

recipients within the state of California.

8. Venue in this Judicial District is proper under 28 U.S.C. §1391(b),

and assignment to the San Francisco or Oakland Division is proper pursuant to 

Local Rule 3-2(d), because a substantial number of the members of the class 

alleged herein received facsimile transmissions from Defendants, that did not 

comply with the requirements of the TCPA, within this District and within the 

Division and Courthouse in which this action has been commenced.

THE LEGAL BASIS OF THE CLASS CLAIMS

9. This class action arises from the violation by iCare of federal law 

prohibiting privacy violations via invasive telemarketing practices.

10. The claims of the Plaintiff, and the class of persons it seeks to 

represent, arise pursuant to the provisions of the TCPA, a federal statute enacted 

to prohibit unreasonable invasions of privacy via certain telemarketing practices.

11. The TCPA was also enacted to protect the property rights of the 

recipients of unsolicited facsimile advertisements.

12. The TCPA prohibits the use of a facsimile machine to send 

unsolicited advertisements for goods and services. See 47 U.S.C. §227(b)(1)(C).

13. Faxes sent via a computer are also subject to this prohibition. See 47 

CFR 64.1200(a)(3) (no person or entity may [u]se a telephone facsimile 

machine, computer, or other device to send an unsolicited advertisement to a 

telephone facsimile machine . . . “)

14. The TCPA requires that even facsimile advertisements being sent to 

consumers who consented to receipt, or with whom the advertiser had an 

established business relationship, must include language on the facsimile which 

clearly informs the recipient that they may request that future facsimiles cease, 

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and that failure to remove the consumer’s facsimile from the telemarketer’s 

database within thirty days is itself a violation of the TCPA. These requisites are 

referred to as “Compliant Opt Out Notice.” 47 U.S.C. §227(b)(2)(D) provides:

(D) shall provide that a notice contained in an unsolicited advertisement 

complies with the requirements under this subparagraph only if—

(i) the notice is clear and conspicuous and on the first page of the 

unsolicited advertisement;

(ii) the notice states that the recipient may make a request to the 

sender of the unsolicited advertisement not to send any future 

unsolicited advertisements to a telephone facsimile machine or 

machines and that failure to comply, within the shortest reasonable 

time, as determined by the Commission, with such a request meeting 

the requirements under subparagraph (E) is unlawful;

(iii) the notice sets forth the requirements for a request under 

subparagraph (E);

(iv) the notice includes—

(I) a domestic contact telephone and facsimile machine 

number for the recipient to transmit such a request to the 

sender; and

(II) a cost-free mechanism for a recipient to transmit a request 

pursuant to such notice to the sender of the unsolicited 

advertisement; the Commission shall by rule require the 

sender to provide such a mechanism and may, in the 

discretion of the Commission and subject to such conditions 

as the Commission may prescribe, exempt certain classes of 

small business senders, but only if the Commission 

determines that the costs to such class are unduly burdensome 

given the revenues generated by such small businesses;

(v) the telephone and facsimile machine numbers and the cost-free 

mechanism set forth pursuant to clause (iv) permit an individual or 

business to make such a request at any time on any day of the week; 

and

(vi) the notice complies with the requirements of subsection (d) of 

this section;

The Federal Communications Commission (“FCC”) has implemented the 

Opt Out Requirements at 47 CFR § 64.1200, requiring the following for an Opt 

Out Notice to be complaint with federal telemarketing law:

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(iii) The advertisement contains a notice that informs the 

recipient of the ability and means to avoid future 

unsolicited advertisements. A notice contained in an 

advertisement complies with the requirements under this 

paragraph only if—(A) The notice is clear and 

conspicuous and on the first page of the advertisement; 

(B) The notice states that the recipient may make a 

request to the sender of the advertisement not to send 

any future advertisements to a telephone facsimile 

machine or machines and that failure to comply, 

within 30 days, with such a request meeting the 

requirements under paragraph (a)(3)(v) of this section 

is unlawful; (C) The notice sets forth the requirements 

for an opt-out request under paragraph (a)(3)(v) of this 

section; (D) The notice includes—(1) A domestic contact 

telephone number and facsimile machine number for the 

recipient to transmit such a request to the sender; and (2) 

If neither the required telephone number nor facsimile 

machine number is a toll-free number, a separate cost-free

mechanism including a Web site address or e-mail 

address, for a recipient to transmit a request pursuant to 

such notice to the sender of the advertisement. A local 

telephone number also shall constitute a cost-free 

mechanism so long as recipients are local and will not 

incur any long distance or other separate charges for calls

made to such number; and (E) The telephone and 

facsimile numbers and cost-free mechanism identified in 

the notice must permit an individual or business to make 

an opt-out request 24 hours a day, 7 days a week.

47 CFR § 64.1200(a)(3)(iii).

15. If a fax advertiser does not include Compliant Opt Out Notice, that 

advertiser is precluded from raising an “Established Business Relationship” 

(“EBR”) defense in any litigation arising from that fax advertising. 47 CFR § 

64.1200(a)(3)(i-iii).

16. In fact, failing to provide a Compliant Opt Out Notice on a facsimile 

advertisement is a separate and distinct violation of the TCPA as well as the FCC 

promulgating regulations. The TCPA statute provides for a private right of 

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action “based on a violation of ... the regulations prescribed” under the TCPA. 

See 47 U.S.C. § 227(b)(3)(A). See also Mims v. Arrow Financial Services, LLC, 

132 S.Ct. 740, 746 (2012) (TCPA “authorizes a private right of action for a 

violation of the FCC's implementing regulations.”).

17. The TCPA, 47 U.S.C. §227(b)(3), provides a private right of action, 

as follows:

A person or entity may, if otherwise permitted by the laws 

or rules of court of a State, bring in an appropriate court of 

that State, (A) an action based on a violation of this 

subsection or the regulations prescribed under this 

subsection to enjoin such violation, (B) an action to recover 

for actual monetary loss from such a violation, or to 

receiver $500 in damages for each violation, whichever is 

greater, or (C) both such actions.

18. Plaintiff brings this action individually and as the representative of 

all members of a class, nationwide, pursuant to Rule 23 of the Federal Rules of 

Civil Procedure.

FACTUAL ALLEGATIONS AS TO THE REPRESENTATIVE 

PLAINTIFF

19. On January 7, 2016, and on January 12, 2016, iCare and/or its agents 

transmitted unsolicited facsimile advertisements to Plaintiff and to thousands of 

other consumers in California and elsewhere throughout the United States. 

Copies of the advertising content sent to Plaintiff are attached as Exhibit 1.

20. Plaintiff did not give express or implied prior invitation or 

permission for the transmission of the advertisements sent to Plaintiff via 

facsimile by iCare.

21. Plaintiff did not give its prior express consent for the transmission of 

the advertisements sent to Plaintiff via facsimile by iCare. Plaintiff also did not 

have a preexisting “Established Business Relationship” with iCare within the 

meaning of 47 CFR § 64.1200(a)(3)(i-iii). 

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22. The facsimiles did not contain a Compliant Opt Out Notice, in that 

the facsimile advertisements do not contain a clear and conspicuous notice 

informing the recipient that it may make a request to the sender of the 

advertisement not to send any future advertisements to a telephone facsimile 

machine or machines and that failure to comply within 30 days is unlawful. In 

other words, iCare failed to advise Plaintiff and other similarly situated recipients 

that it will comply with the opt-out request within 30 days. 

CLASS ALLEGATIONS

23. Plaintiff brings this action pursuant to Rule 23 of the Federal Rules 

of Civil Procedure on behalf of a class of all other persons or entities similarly 

situated throughout the United States.

24. Within the past four years, iCare and/or its agents has engaged in 

widespread advertising via unsolicited facsimile transmission in violation of the 

TCPA.

25. The nature of the facsimile advertising done by iCare was mass 

marketing, designed to solicit new customers.

26. The widespread nature of the fax marketing campaigns at issue is 

evidenced by the fact that iCare is a Georgia based company and is sending fax 

advertisements to California companies, such as Plaintiff Vu Orthodontics, and 

Plaintiff is aware that Defendant iCare has sent fax advertisements to companies 

in other states as well.

27. Defendant iCare’s direct involvement in the fax campaign is 

indicated by the notice on the advertisements, “Fast Facts About iCare Financial”

and www.iCareFinancialCorp.com is a domain name registered to iCare.

28. Defendant iCare profited by and received the benefits of marketing 

its products of the fax advertisements in the form of revenue, and name/brand 

recognition and promotion. 

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29. As the entity whose goods are being advertised and that benefits 

from the fax ads, iCare is liable for the fax advertising. The TCPA makes it 

unlawful to “send, to a telephone facsimile machine, an unsolicited 

advertisement.” 47 U.S.C. § 227(b)(1)(C).

30. The Federal Communications Commission has promulgated 47 

C.F.R. §64.1200(a)(3), which defines a “sender” as, “[T]he person or entity on 

whose behalf a facsimile unsolicited advertisement is sent or whose goods or 

services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. 

§ 64.1200(f)(8).

31. Prior to codification, this principle had been established by an 

official FCC interpretation of the TCPA entitled, In the Matter of Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 

F.C.C.R. 12391, 12407 (Aug. 7, 1995), which stated, “[T]he entity or entities on 

whose behalf facsimiles are transmitted are ultimately liable for compliance with 

the rule banning unsolicited facsimile advertisements.”

32. Defendant iCare and/or its agents carelessly and recklessly failed to 

obtain prior express invitation or permission from Plaintiff and class members,

and failed to take all steps necessary to ensure that its facsimile marketing 

campaign was compliant with telemarketing law.

33. To the extent facsimile advertisements were transmitted by iCare to

consumers who had given consent, or had an established business relationship 

with iCare, the facsimile advertisements are still in violation of the TCPA as they 

did not contain the Compliant Opt Out Notice required by law, making 

individual issues of consent legally irrelevant.

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34. Class Definition: The class of persons represented by Plaintiff is 

composed of:

“All persons and/or entities within the United States to whom iCare sent, or 

caused to be sent, facsimile advertisements promoting iCare and its 

products and services, at any time within four years prior to the filing of the 

instant Complaint.”

35. The class as defined above is identifiable by phone records, fax 

transmittal records, and fax number databases, used by iCare and/or its agents, in 

transmitting its unsolicited facsimile advertisements.

36. The potential class members number in the thousands and constitute 

a class so numerous that joinder of all class members is impracticable. Plaintiff is 

a member of the class. 

37. There are questions of law and fact common to Plaintiff and to the 

proposed class, including but not limited to the following:

a. Whether iCare violated the TCPA and FCC promulgating 

regulations by engaging in illegal fax advertising;

b. Whether the facsimiles sent by iCare to class members 

constitute unsolicited advertisements;

c. Whether the facsimile advertisements at issue contained a 

compliant Opt Out Notice; and

d. Whether the Plaintiff and the members of the class are entitled 

to statutory damages as a result of iCare’s actions.

38. Plaintiff’s claims are typical of the claims of the class.

39. Plaintiff is an adequate representative of the class because its 

interests do not conflict with the interests of the class, it will fairly and 

adequately protect the interests of the class, and it is represented by counsel 

skilled and experienced in class actions, particularly in the prosecution of class 

actions enforcing the TCPA. Proposed class counsel have the necessary 

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

Co-lead counsel have considerable experience representing clients in complex 

business disputes and have significant experience as class counsel in federal and 

state courts. 

40. The actions of iCare are generally applicable to the class as a whole 

and to Plaintiff.

41. Common questions of law and fact predominate over questions 

affecting only individual members of the class and a class action is the superior 

method for fair and efficient adjudication of the controversy. The only 

individual question concerns identification of class members, which will be 

ascertainable from records maintained by iCare and/or its agents.

42. The likelihood that individual members of the class will prosecute 

separate actions is remote due to the time and expense necessary to conduct such 

litigation.

43. Plaintiff is not aware of any litigation concerning this controversy 

already commenced by others who meet the criteria for class membership 

described above.

44. Plaintiff is capable of and is willing to represent the other members 

of the class.

CAUSES OF ACTION

COUNT I: VIOLATION OF THE TCPA

45. Plaintiff incorporates the allegations from all previous paragraphs as 

if fully set forth herein.

46. Defendant iCare, and/or its agents, negligently or willfully caused 

unsolicited facsimile advertisements to be sent to Plaintiff and to the facsimile 

machines of other members of the class, in violation of the TCPA and the FCC’s 

promulgating regulations.

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47. By causing unsolicited facsimile advertisements to be sent to the 

class, iCare violated the privacy rights of class members.

48. By causing unsolicited facsimile advertisements to be sent to the 

class, iCare caused class members to sustain property damage and cost in the 

form of paper, toner, and/or ink.

49. By causing unsolicited facsimile advertisements to be sent to the 

class, iCare interfered with the class members use of their property as class 

members facsimile machines were encumbered by the transmission of iCare’s 

unsolicited facsimile advertisements.

50. By causing unsolicited facsimile advertisements to be sent to the 

class, iCare caused the facsimile machines of class members to be encumbered 

by the transmission of unsolicited facsimiles.

51. Defendant iCare failed to provide the requisite notice on its 

advertisements of a recipient’s right to cease receiving such advertisements and a 

cost free mechanism to make such request.

52. Failure to provide opt out notice on a facsimile advertisement is a 

separate and distinct violation of the TCPA as well as the FCC promulgating 

regulations. The TCPA statute provides for a private right of action “based on a 

violation of ... the regulations prescribed” under the TCPA. See 47 U.S.C. § 

227(b)(3)(A). See also Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740, 

746 (2012) (TCPA “authorizes a private right of action for a violation of the 

FCC's implementing regulations.”).

53. The TCPA provides for statutory damages in the amount of a 

minimum of $500 for each separate violation of the TCPA. In addition, Plaintiff 

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

Defendants committed their 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)(B) of the TCPA. 

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COUNT II: CONVERSION

54. Plaintiff incorporates the allegations from all previous paragraphs as 

if fully set forth herein.

55. Plaintiff brings the Second Cause of Action on behalf of itself and a 

class of similarly situated persons and against iCare.

56. By sending unsolicited faxes to Plaintiff and the other Class 

members, iCare improperly and unlawfully converted their fax machines, phone 

lines, computers, bandwidth, electricity, paper, toner, and/or ink to iCare’s own 

use. Defendant iCare also converted Plaintiff’s employees’ time to its own use.

57. Immediately prior to the sending of the unsolicited faxes, Plaintiff 

and the other Class members owned an unqualified and immediate right to 

possession of their fax machines, phone lines, computers, bandwidth, electricity, 

paper, toner, ink, and/or employee time.

58. By sending the unsolicited faxes, iCare permanently misappropriated 

the Class members’ fax machines, phone lines, computers, bandwidth, 

electricity, paper, toner, ink, and/or employee time to their own use. Such 

misappropriation was wrongful and without authorization.

59. Defendant iCare knew or should have known that its 

misappropriation of Plaintiff’s and Class members’ fax machines, phone lines, 

computers, bandwidth, electricity, paper, toner, ink, and/or employee time was 

wrongful and without authorization.

60. Plaintiff and the other Class members were deprived of the use of 

their fax machines, phone lines, computers, bandwidth, electricity, paper, toner, 

ink, and/or employee time, which could no longer be used for any other purpose. 

Plaintiff and each Class member thereby suffered damages as a result of their 

receipt of unsolicited fax advertisements from iCare.

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61. Each of iCare’s unsolicited faxes effectively stole Plaintiff’s 

employees’ time because persons employed by Plaintiff were involved in 

receiving, routing, and reviewing iCare’s illegal faxes. Defendant iCare knew or 

should have known employees’ time is valuable to Plaintiff.

COUNT III: INJUNCTIVE RELIEF

62. Plaintiff incorporates the allegations from all previous paragraphs as 

if fully set forth herein.

63. The TCPA expressly authorizes injunctive relief to prevent future 

violations of the Act.

64. The Plaintiff, acting on behalf of the Class, respectfully petitions the 

Court to order iCare to immediately cease engaging in unsolicited facsimile 

advertising in violation of the TCPA.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff on behalf of itself and the other members of the 

class, prays for the following relief:

1. For injunctive relief in accordance with subsection (b)(3)(A) of the

TCPA, prohibiting Defendants, their employees, agents, representatives, 

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

from committing further violations of the act and, thereby, prohibiting 

Defendants, their employees, agents, representatives, contractors, affiliates, and 

all persons and entities acting in concert with them, from sending any further 

unsolicited faxed advertisements to any person or entity;

2. That this Court certify the claims of the named Plaintiff and all other 

persons similarly situated as class action claims as provided by Rule 23 of the 

Federal Rules of Civil Procedure. That the Court adjudge and decree that the 

present case may be properly maintained as a class action, appoint Plaintiff as the 

representative of the class, and appoint Plaintiff’ counsel as counsel for the class;

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3. In accordance with subsection (b)(3)(B) of the TCPA, that the named 

Plaintiff and the other members of the class action so certified be awarded $500 

for each negligent violation of the TCPA by iCare or $1,500 for each willful 

violation of the TCPA, in a total amount not less than $5,000,000.00, exclusive 

of interest and costs, or according to proof.

4. That the Court enter an appropriate order enjoining iCare, its agents, 

or anyone acting on its behalf, from altering, erasing, changing, deleting, 

destroying or otherwise disposing of any records, including computer disks or 

computer programs, in its possession or control which can be used to identify all 

persons, corporations, or other entities to whom Defendants have transmitted 

unsolicited facsimile advertisements; 

5. For prejudgment interest; 

6. For costs of suit herein; 

7. For reasonable attorneys’ fees; 

8. For punitive damages; and 

9. That the named Plaintiff and the members of the class be granted 

such other and further relief as is just and equitable under the circumstances.

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Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 14 of 19
Byl 

THOMAS W. FALVEY 

Attorneys for Plaintiff 

HUNG V. VU, D.D.S., A 

PROFESSIONAL DENTAL CORP. 

PRESERVATION OF EVIDENCE DEMAND 

Defendant iCare or its agents have custody and control of the business 

records and other information necessary to identify the members of the class 

including names and telephone facsimile numbers. Unless immediate injunctive 

relief is ordered, it is feared that iCare, or its agents, will alter, erase, delete, 

destroy or otherwise dispose of the records in their possession which are 

necessary to identify each recipient of the unsolicited facsimile advertisements 

being sent by iCare. For this reason, the Plaintiff demands that iCare, its agents, 

or anyone acting on its behalf, refrain from altering, deleting or destroying any 

documents or records which could be used to identify the members of the class. 

Dated: February/6, 2016 LAW OFFICES OF THOMAS W. FALVEY 

KNAPP PETERSEN & CLARKE 

THE RINKA LAW FIRM 

LAW OFFICES OF THOMAS W. FALVEY 

KNAPP PETERSEN & CLARKE 

THE RINKA LAW FIRM 

By: 

THOMAS W. FALVEY 

Attorneys for Plaintiff 

HUNG V. VU, D.D.S., A 

PROFESSIONAL DENTAL CORP. 

DEMAND FOR JURY TRIAL 

PLAINTIFF HUNG V. VU, D.D.S., A PROFESSIONAL DENTAL 

CORP., and the Proposed Class hereby demand a trial by jury on all issues so 

triable. 

Dated: February/6, 2016 

- 15 - 

CLASS ACTION COMPLAINT 

Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 15 of 19
- 16 -

CLASS ACTION COMPLAINT

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ATTESTATION

I hereby attest that the concurrence in the filing of this document has been 

obtained from Thomas W. Falvey of the Law Offices of Thomas W. Falvey, 

Attorneys for Plaintiff.

Dated: February 16, 2017 LAW OFFICES OF THOMAS W. FALVEY

By: /s/ Armand R. Kizirian

Armand R. Kizirian

Attorneys for Plaintiff HUNG V. VU, 

D.D.S., A PROFESSIONAL DENTAL 

CORP.

Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 16 of 19
Exhibit “1”

Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 17 of 19
Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 18 of 19
Case 3:17-cv-00790-MEJ Document 1 Filed 02/16/17 Page 19 of 19