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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

STACY CHILDRESS, individually and on

behalf of all others similarly situated, Plaintif , v. EMPIRE TODAY, LLC, a Delaware limited

liability company, Defendant.

Case No. CLASS ACTION COMPLAINT

DEMAND FOR JURY TRIAL

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Stacy Childress (“Childress” or “Plaintiff Childress”) brings this Class Action

Complaint and Demand for Jury Trial (“Complaint”) against Defendant Empire Today, LLC

(“Empire Today” or “Defendant”) to stop their practice of making unsolicited calls using an

artificial or pre-recorded voice to the cellular telephone numbers of consumers, and obtain

redress for all persons injured by its conduct. Plaintiff, for his Complaint, alleges as follows upon

personal knowledge as to himself and his own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by his attorneys. PARTIES

1. Plaintiff Childress resides in Decatur, Illinois. 2. Defendant Empire Today is a Delaware limited liability company with its

principal place of business located in Northlake, Illinois. Defendant Empire Today conducts

business throughout this District, the State of Illinois, and the United States.

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JURISDICTION AND VENUE

3. This Court has federal question subject matter jurisdiction over this action under

28 U.S.C. § 1331, as the action arises under the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”). 4. This Court has personal jurisdiction over Defendant and venue is proper in this

District under 28 U.S.C. § 1391(b) because Defendant resides in this District, and because the

wrongful conduct giving rise to this case was directed to Plaintiff in this District. TCPA BACKGROUND

5. The TCPA makes it unlawful “to make any call (other than a call made for

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

automatic telephone dialing system or an artificial or pre-recorded voice...to any telephone

number assigned to a...cellular telephone service.” See 47 U.S.C. §227 (b)(1)(A)(iii). 6. According to findings by the Federal Communication Commission (“FCC”), the

agency Congress vested with authority to issue regulations implementing the TCPA, such calls

are prohibited because, as Congress found, automated or pre-recorded telephone calls are a

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

and inconvenient. 7. While “prior express consent” is required for all automated and pre-recorded calls, in 2013, the FCC required “prior express written consent” for all such telemarketing calls to

wireless numbers and residential lines. Specifically, it ordered that:

[A] consumer’s written consent to receive telemarketing robocalls must be signed and be

sufficient to show that the consumer: (1) received “clear and conspicuous disclosure” of

the consequences of providing the requested consent, i.e. that the consumer will receive

future calls that deliver pre-recorded messages by or on behalf of a specific seller; and (2)

having received this information, agrees unambiguously to receive such calls at a

telephone number the consumer designates.[] In addition, the written agreement must be

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obtained “without requiring, directly or indirectly, that the agreement must be executed as

a condition of purchasing any good or service.[]”

In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27

F.C.C. Rcd. 1830, 1844 (2012) (footnotes omitted). 8. “Telemarketing” is defined as “the initiation of a telephone call or message for the

purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R §64.1200(f)(12). 9. When Congress enacted the TCPA in 1991, it found that telemarketers called

more than 18 million Americans every day. 105 Stat. 2394 at § 2(3). 10. By 2003, due to more powerful autodialing technology, telemarketers were

calling 104 million Americans every day. In re Rules and Regulations Implementing the TCPA of

1991, 18 FCC Rcd. 14014, ¶¶ 2, 8 (2003). 11. The problems Congress identified when it enacted the TCPA have only grown

exponentially in recent years. 12. Industry data shows that the number of robocalls made each month increased

from 831 million in September 2015 to 4.7 billion in December 2018—a 466% increase in three

years. 13. The FCC also has received an increasing number of complaints about unwanted

calls, with 150,000 complaints in 2016, 185,000 complaints in 2017, and 232,000 complaints in

2018. FCC, Consumer Complaint Data Center, www.fcc.gov/consumer-help-center-data. 14. “Robocalls and telemarketing calls are currently the number one source of

consumer complaints at the FCC.” Tom Wheeler, Cutting of Robocalls (July 22, 2016), statement of FCC chairman.1

1 https://www.fcc.gov/news-events/blog/2016/07/22/cutting-robocalls

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15. “The FTC receives more complains about unwanted calls than all other

complaints combined.” Staff of the Federal Trade Commission’s Bureau of Consumer Protection, In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of Proposed Rulemaking, CG Docket No. 02-278, at 2 (2016).2

16. According to a respected robocall watch site, robocalls have increased by a

whopping 494% in a four year span: from 8.9 billion in the last three quarters of 2015 to 43

billion in the same nine months of 2019. See YouMail Robocall Index, Historical Robocalls by

Time, available at https://robocallindex.com/history/time/ (accessed Mar. 5, 2020). 17. Of the 58.5 billion robocalls made in 2019, YouMail reports that over half of

these calls—56%—were scam calls, spoofed calls, or telemarketing calls. Id. 18. Encouraging people to hold telemarketers accountable on behalf on their fellow

Americans, the TCPA provides a private cause of action to persons who receive such calls. 47

U.S.C. § 227(b)(3).INTRODUCTION TO DEFENDANT EMPIRE TODAY

19. Empire Today is a company that provides carpeting, flooring, blinds, shades, and

other products to consumers and businesses.3

20. Part of Defendant’s marketing plan includes placing calls en masse to consumers

in order to solicit sales of its flooring and window products. 21. These calls are placed using dialing software with the capacity to store and dial

through lists of telephone numbers en masse without human intervention to place calls to

consumers using a pre-recorded voice message without first obtaining prior express written

consent as required. 2 https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-bureau-consumer-protectionfederal-communications-commission-rules-regulations/160616robocallscomment.pdf

3 https://www.empiretoday.com/

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COMMON FACTUAL ALLEGATIONS

Defendant Places Solicitation Calls to Consumers Using an Artificial or Pre-recorded Voice

22. As explained by the Federal Communications Commission (“FCC”) in its 2012

order, the TCPA requires “prior express written consent for all autodialed or pre-recorded

[solicitation] calls to wireless numbers and residential lines.” In the Matter of Rules and

Regulations Implementing the Telephone Consumer Protection Act of 1991, CG No. 02-278, FCC 12-21, 27 FCC Rcd. 1830 ¶ 2 (Feb. 15, 2012). 23. Defendant solicits businesses and consumers through telemarketing using an

artificial or pre-recorded voice. 24. Defendant is required by the TCPA to obtain prior express written consent before

calling individuals using an artificial or pre-recorded voice on their cellular telephone numbers. 25. Yet in violation of this requirement, Defendant Empire Today failed to obtain any

prior express consent to make artificial or pre-recorded voice solicitation calls to Plaintiff’s and

other consumers’ cellular telephone numbers. 26. There are numerous complaints about unsolicited and autodialed telemarketing

calls that consumers have received from Empire Today. This is a small sample of those

complaints: “Empire Today (Telemarketer)”

4  “Robo dialer”

5

4 https://us.shouldianswer.net/phone-number/7038289264

5 https://checkwhocalled.com/phone-number/1-703-828-9264

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FACTS SPECIFIC TO THE PRE-RECORDED SOLICITATION PHONE CALL

PLAINTIFF STACY CHILDRESS RECEIVED ON HIS CELL PHONE

27. On March 12, 2020, Plaintiff Childress received a pre-recorded solicitation call

from Defendant Empire Today from (217) 413-4362 to his cell phone. When Childress answered

this call, he heard a pre-recorded message identifying Empire Today and offering a flooring and

carpeting promotion. 28. Plaintiff Childress does not have a relationship with Defendant, or any of its

affiliated companies, and has never requested that Defendant place calls to him. Simply put, Defendant did not possess Plaintiff’s prior express written consent to place any telephone calls to

him on his cellular telephone using an artificial or pre-recorded voice. 29. By making unauthorized telephone calls as alleged herein, Defendant has caused

consumers actual harm in the form of annoyance, nuisance, and invasion of privacy. In addition, the call disturbed Plaintiff’s use and enjoyment of his phone, in addition to the wear and tear on

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

Plaintiff’s phone. 30. In order to redress these injuries, Plaintiff, on behalf of himself and the class of

similarly situated individuals, brings suit under the Telephone Consumer Protection Act, 47

U.S.C. § 227, et seq., which prohibits artificial or pre-recorded voice calls to cellular phone

numbers. CLASS ALLEGATIONS

31. Plaintiff bring this action pursuant to Federal Rules of Civil Procedure 23(b)(2)

and 23(b)(3) on behalf of himself and all others similarly situated and seeks certification of the

following Class:

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Pre-recorded No Consent Class: All persons in the United States who from four

years prior to the filing of this action through class certification (1) Defendant (or

agents acting on behalf of Defendant) called (2) for the substantially the same

purpose Defendant called Plaintiff (3) using a pre-recorded voice, and (4) for

whom Defendant claims it obtained prior express consent in the same manner as

Defendant claims it supposedly obtained prior express consent to call using a prerecorded voice Plaintiff or for whom Defendant does not claim to have prior

express consent. 32. The following individuals are excluded from the Class: (1) any Judge or

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

subsidiaries, parents, successors, predecessors, and any entity in which Defendant or their

parents have a controlling interest and their current or former employees, officers and directors;

(3) Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for exclusion

from the class; (5) the legal representatives, successors or assigns of any such excluded persons;

and (6) persons whose claims against Defendant have been fully and finally adjudicated and/or

released. Plaintiff anticipate the need to amend the class definition following appropriate

discovery. 33. Numerosity: The exact size of the Class is unknown and not available to Plaintiff

at this time, but it is clear that individual joinder is impracticable. On information and belief, Defendant placed artificial or pre-recorded voice calls to thousands of consumers who fall into

the definition of the Class. Members of the Class can be easily identified through Defendant’s

records.34. 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:

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(a) whether Defendant used a pre-recorded voice when placing calls to Plaintiff

and the members of the Class;

(b) whether Defendant placed a pre-recorded voice call to Plaintiff and members

of the Class without first obtaining consent to make the calls;

(c) whether Defendant’s conduct constitutes a violation of the TCPA; and

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

willfulness of Defendant’s conduct. 35. Adequate Representation: Plaintiff will fairly and adequately represent and

protect the interests of the Class, and has retained counsel competent and experienced in class

actions. Plaintiff has no interests antagonistic to those of the Class, and Defendant has no

defenses unique to Plaintiff. Plaintiff and his counsel are committed to vigorously prosecuting

this action on behalf of the members of the Class, and have the financial resources to do so. Neither Plaintiff nor his counsel have any interest adverse to the Class. 36. Appropriateness: This class action is also 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 members of the Class and making final class-wide injunctive relief

appropriate. Defendant’s business practices apply to and affect the members of the Class

uniformly, and Plaintiff’s 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 the Plaintiff. Additionally, the damages suffered by individual members of the Class will likely be small relative to the

burden and expense of individual prosecution of the complex litigation necessitated by

Defendant’s actions. Thus, it would be virtually impossible for the members of the Class to

obtain effective relief from Defendant’s misconduct on an individual basis. A class action

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provides the benefits of single adjudication, economies of scale, and comprehensive supervision

by a single court. FIRST CAUSE OF ACTION

Telephone Consumer Protection Act

(Violation of 47 U.S.C. § 227)

(On Behalf of Plaintiff and the Class)

37. Plaintiff repeats and realleges paragraphs 1 through 36 of this Complaint and

incorporates them by reference. 38. Defendant and/or its agents made unwanted solicitation telephone calls to Plaintiff

and the other members of the Class using a pre-recorded voice. 39. These pre-recorded voice calls were made en masse without the consent of the

Plaintiff and the other members of the Class. 40. Defendant has, therefore, violated 47 U.S.C. § 227(b)(1). As a result of

Defendant’s conduct, Plaintiff and the other members of the Class are each entitled to a

minimum of $500 in damages for each violation, and up to $1,500 in damages for each violation

in the event that the Court determines that Defendant’s conduct was willful and knowing. PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for the

following relief:

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

representative of the Class, and appointing his counsel as Class Counsel;

42. An award of actual and/or statutory damages and costs;

43. An order declaring that Defendant’s actions, as set out above, violate the TCPA;

44. An injunction requiring Defendant to cease all unsolicited artificial or prerecorded voice calling activities, and otherwise protecting the interests of the Class; and

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45. Such other and further relief that the Court deems reasonable and just. JURY TRIAL DEMAND

Plaintiff request a trial by jury. Respectfully submitted, STACY CHILDRESS, individually and on behalf

of a class of similarly situated individuals

Dated: May 4, 2020 /s/ Juneitha Shambee

Juneitha Shambee, Esq. Shambee Law Office, Ltd. 701Main St., Ste. 201A

Evanston, IL 60202

(773) 741-3602

juneitha@shambeelaw.com

ARDC: 6308145

Stefan Coleman (FL Bar No. 30188)

Law@StefanColeman.com

Law Offices of Stefan Coleman, P.A. 201 S. Biscayne Blvd, 28

th Floor

Miami, FL 33131

Telephone: (877) 333-9427

Fax: (888) 498-8946

Avi R. Kaufman (FL Bar No. 84382)

kaufman@kaufmanpa.com

KAUFMAN P.A. 400 NW 26

th Street

Miami, FL 33127

Telephone: (305) 469-5881

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