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r-e4EYcBD5gMZwcz41zP | UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Chaya R. Denciger, individually and on behalf of all others
similarly situated,
Civil Action No: 1:19-cv-4581
____________
Plaintiff,
JURY DEMAND
-v.-
First Credit Incorporated,
and John Does 1-25.
Defendant(s)
CLASS ACTION COMPLAINT
Plaintiff Chaya R. Denciger (hereinafter, “Plaintiff”), a New York resident, brings this Class
Action Complaint by and through her attorneys, against Defendant First Credit Incorporated
(hereinafter “Defendant”), individually and on behalf of a class of all others similarly situated,
pursuant to Rule 23 of the Federal Rules of Civil Procedure, based upon information and belief of
Plaintiff’s counsel, except for allegations specifically pertaining to Plaintiff, which are based upon
Plaintiff's personal knowledge.
INTRODUCTION/PRELIMINARY STATEMENT
1.
Congress enacted the Fair Debt Collection Practices Act (hereinafter “FDCPA”) in
1977 in response to the "abundant evidence of the use of abusive, deceptive, and unfair debt
collection practices by many debt collectors." 15 U.S.C. §1692(a). At that time, Congress was
concerned that "abusive debt collection practices contribute to the number of personal
bankruptcies, to material instability, to the loss of jobs, and to invasions of individual privacy."
Id. Congress concluded that "existing laws…[we]re inadequate to protect consumers," and that
"'the effective collection of debts" does not require "misrepresentation or other abusive debt
collection practices." 15 U.S.C. §§ 1692(b) & (c).
2.
Congress explained that the purpose of the Act was not only to eliminate abusive
debt collection practices, but also to "insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively disadvantaged." Id. § 1692(e). After
determining that the existing consumer protection laws ·were inadequate Id § l692(b), Congress
gave consumers a private cause of action against debt collectors who fail to comply with the
Act. Id. § 1692k.
JURISDICTION AND VENUE
3.
The Court has jurisdiction over this class action pursuant to 28 U.S.C. §1331 and
15 U.S.C. § 1692 et. seq. The Court has pendent jurisdiction over any State law claims in this
action pursuant to 28 U.S.C. § 1367(a).
4.
Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) as this is
where the Plaintiff resides as well as where a substantial part of the events or omissions giving
rise to the claim occurred.
NATURE OF THE ACTION
5.
Plaintiff brings this class action on behalf of a class of New York consumers under
§ 1692 et seq. of Title 15 of the United States Code, commonly referred to as “the FDCPA”, and
6.
Plaintiff is seeking damages and declaratory relief.
PARTIES
7.
Plaintiff is a resident of the State of New York, County of Kings, residing at 1336
58th St. Apt. #1 Brooklyn, New York 11219-4564.
8.
Defendant is a "debt collector" as the phrase is defined in 15 U.S.C. § 1692(a)(6) and
used in the FDCPA with an address at for service in New York. c/o CT Corporation, 28 Liberty
St., New York, NY, 10005.
9.
Upon information and belief, Defendant is a company that uses the mail, telephone,
and facsimile and regularly engages in business the principal purpose of which is to attempt to
collect debts alleged to be due another.
10.
John Does l-25, are fictitious names of individuals and businesses alleged for the
purpose of substituting names of Defendants whose identities will be disclosed in discovery and
should be made parties to this action.
CLASS ALLEGATIONS
11.
Plaintiff brings this claim on behalf of the following case, pursuant to Fed. R. Civ.
P. 23(a) and 23(b)(3).
12.
The Class consists of:
a. all individuals with addresses in the State of New York;
b. to whom Defendant sent a collection letter attempting to collect a consumer debt;
c. that imposed an additional fee for credit card payments;
d. which letter was sent on or after a date one (1) year prior to the filing of this
action and on or before a date twenty-one (2l) days after the filing of this action.
13.
The identities of all class members are readily ascertainable from the records of
Defendants and those companies and entities on whose behalf they attempt to collect and/or
have purchased debts.
14.
Excluded from the Plaintiff Class are the Defendants and all officers, members,
partners, managers, directors and employees of the Defendants and their respective immediate
families, and legal counsel for all parties to this action, and all members of their immediate
families.
15.
There are questions of law and fact common to the Plaintiff Class, which common
issues predominate over any issues involving only individual class members. The principal issue
is whether the Defendants' written communications to consumers, in the forms attached as
Exhibit A, violate 15 U.S.C. §§ l692e and 1692f.
16.
The Plaintiff’s claims are typical of the class members, as all are based upon the same
facts and legal theories. The Plaintiff will fairly and adequately protect the interests of the
Plaintiff Class defined in this complaint. The Plaintiff has retained counsel with experience in
handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff
nor her attorneys have any interests, which might cause them not to vigorously pursue this
action.
17.
This action has been brought, and may properly be maintained, as a class action
pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a
well-defined community interest in the litigation:
a. Numerosity: The Plaintiff is informed and believe, and on that basis allege, that
the Plaintiff Class defined above are so numerous that joinder of all members
would be impractical.
b. Common Questions Predominate: Common questions of law and fact exist as
to all members of the Plaintiff Class and those questions predominance over any
questions or issues involving only individual class members. The principal issue
is whether the Defendants' written communications to consumers, in the forms
attached as Exhibit A violate 15 § l692e and §1692f.
c. Typicality: The Plaintiff’s claims are typical of the claims of the class members.
The Plaintiff and all members of the Plaintiff Class have claims arising out of the
Defendants' common uniform course of conduct complained of herein.
d. Adequacy: The Plaintiff will fairly and adequately protect the interests of the
class members insofar as Plaintiff has no interests that are adverse to the absent
class members. The Plaintiff is committed to vigorously litigating this matter.
Plaintiff has also retained counsel experienced in handling consumer lawsuits,
complex legal issues, and class actions. Neither the Plaintiff nor her counsel have
any interests which might cause them not to vigorously pursue the instant class
action lawsuit.
e. Superiority: A class action is superior to the other available means for the fair
and efficient adjudication of this controversy because individual joinder of all
members would be impracticable. Class action treatment will permit a large
number of similarly situated persons to prosecute their common claims in a single
forum efficiently and without unnecessary duplication of effort and expense that
individual actions would engender.
18.
Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure
is also appropriate in that the questions of law and fact common to members of the Plaintiff
Class predominate over any questions affecting an individual member, and a class action is
superior to other available methods for the fair and efficient adjudication of the controversy.
19.
Depending on the outcome of further investigation and discovery, Plaintiff may, at
the time of class certification motion, seek to certify a class(es) only as to particular issues
pursuant to Fed. R. Civ. P. 23(c)(4).
FACTUAL ALLEGATIONS
20.
Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs
numbered above herein with the same force and effect as if the same were set forth at length
herein.
21.
Some time prior to December 18, 2018, an obligation was allegedly incurred to
“Cleveland Clinic Main Campus/Family Heath.” (“Clinic”)
22.
The obligation arose out of a transaction involving medical services allegedly
provided to Plaintiff by the Clinic and which was incurred primarily for personal, family or
household purposes.
23.
The alleged Clinic obligation is a "debt" as defined by 15 U.S.C.§ 1692a(5).
24.
Clinic is a "creditor" as defined by 15 U.S.C.§ 1692a(4).
25.
Clinic contracted with the Defendant to collect the alleged debt.
26.
Defendant collects and attempts to collect debts incurred or alleged to have been
incurred for personal, family or household purposes on behalf of creditors using the United
States Postal Services, telephone and internet.
Violation I – December 18, 2018 Collection Letter
27.
On or about December 18, 2018, Defendant sent the Plaintiff a collection letter (the
“Letter”) regarding the alleged debt owed to the Clinic. See December 18, 2018 Collection
Letter – Attached hereto as Exhibit A.
28.
The collection letter indicated that Defendant charges a $3.50 fee for payment via
credit card.
29.
Plaintiff did not agree to such a collection charge.
30.
The addition of this collection fee by Defendant was not authorized by the agreement
creating the debt.
31.
The addition of this collection fee also runs afoul of New York State Law. N.Y. Gen.
Bus. Law § 601(2) specifically prohibits this type of action insomuch as the law states that “No
principal creditor, as defined by this article, or his agent shall…Knowingly collect, attempt to
collect, or assert a right to any collection fee, attorney’s fee, court cost or expense unless such
changes are justly due and legally chargeable against the debtor.
32.
Defendant misled and deceived Plaintiff into the belief that she falsely owed an
additional $3.50 if she elected to pay by credit card, when this charge is a violation of the
FDCPA.
33.
Plaintiff incurred an informational injury as Defendant provided her with false
information as to the amount she actually owed on the alleged debt.
34.
As a result of Defendant’s deceptive misleading and false debt collection practices,
Plaintiff has been damaged.
COUNT I
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. §1692e(2)(A)
35.
Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs
above herein with the same force and effect as if the same were set forth at length herein.
36.
Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff
violated various provisions of the FDCPA, including but not limited to 15 U.S.C. §1692e(2)(A).
37.
Pursuant to 15 U.S.C. §1692e(2)(A), a debt collector may not mischaracterize the
character, amount or status of a debt in connection with the collection of any debt.
38.
Defendant violated said section by:
a. Falsely charging a processing fee which altered the amount of the debt violation
of §1692e(2)(A).
39.
By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's
conduct violated Section 1692e(2)(A) of the FDCPA, in the form of actual damages, statutory
damages, costs and attorneys’ fees.
COUNT II
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. §1692e(10)
40.
Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs
above herein with the same force and effect as if the same were set forth at length herein.
41.
Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff
violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e.
42.
Pursuant to 15 U.S.C. §1692e, a debt collector may not use any false, deceptive, or
misleading representations or means in connection with the collection of any debt.
43.
Defendant violated said section by:
b. Making a false and misleading representation in violation of §1692e(10).
44.
By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's
conduct violated Section 1692e(10) of the FDCPA, in the form of actual damages, statutory
damages, costs and attorneys’ fees.
COUNT III
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C.
§1692f (1).
45.
Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs
above herein with the same force and effect as if the same were set forth at length herein.
46.
Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff
violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692f.
47.
Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or
unconscionable means in connection with the collection of any debt.
48.
Defendant violated this section by
a.
unfairly advising Plaintiff that she owed Defendant more money than the
amount of her debt; and
b.
attempting to collect an amount not expressly authorized by the underlying
agreement creating the debt or permitted by law in violation of § 1692f(1).
49.
By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's
conduct violated Section 1692f(1) of the FDCPA, in the form of actual damages, statutory
damages, costs and attorneys’ fees.
DEMAND FOR TRIAL BY JURY
50.
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby requests
a trial by jury on all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Chaya R. Denciger, individually and on behalf of all others
similarly situated, demands judgment from Defendant FirstCredit Incorporated as follows:
1.
Declaring that this action is properly maintainable as a Class Action and certifying
Plaintiff as Class representative, and David P. Force, Esq. as Class Counsel;
2.
Awarding Plaintiff and the Class statutory damages;
3.
Awarding Plaintiff and the Class actual damages;
4.
Awarding Plaintiff costs of this Action, including reasonable attorneys’ fees and
expenses;
5.
Awarding pre-judgment interest and post-judgment interest; and
6.
Awarding Plaintiff and the Class such other and further relief as this Court may deem
just and proper.
Dated: Hackensack, New Jersey
Respectfully Submitted,
August 8, 2019
/s/ David Force
Stein Saks, PLLC
By: David Force
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500 ext. 107
Fax: (201)-282-6501
dforce@steinsakslegal.com
| consumer fraud |
i9H5DocBD5gMZwcztj0y | IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GEORGE JONES, on behalf
)
of himself and all others similarly situated
)
)
Plaintiff
)
)
Case No.:
v.
)
)
AD ASTRA RECOVERY SERVICES,
)
INC.
)
)
Defendant.
)
INTRODUCTION
1.
GEORGE JONES (“Plaintiff”) brings this Class Action Complaint for damages,
injunctive relief, and any other available legal or equitable remedies, resulting from the illegal
actions of AD ASTRA RECOVERY SERVICES, INC. (“Defendant” or “Ad Astra”), in
negligently and/or willfully contacting Plaintiff on Plaintiff’s cellular telephone, in violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby invading
Plaintiff’s privacy. Plaintiff alleges as follows upon personal knowledge as to themselves and
their own acts and experiences, and, as to all other matters, upon information and belief,
including investigation conducted by his attorneys.
2.
The TCPA was designed to prevent calls and text messages like the ones
described herein, and to protect the privacy of citizens like Plaintiff. “Voluminous consumer
complaints about abuses of telephone technology – for example, computerized calls dispatched
to private homes – prompted Congress to pass the TCPA.” Mims v. Arrow Fin. Servs., LLC, 132
S. Ct. 740, 744 (2012).
3.
In enacting the TCPA, Congress intended to give consumers a choice as to how
corporate similar entities may contact them, and made specific findings that “[t]echnologies that
1
unlikely to be enforced, or place an inordinate burden on the consumer. TCPA, Pub.L. No.
102–243, § 11. In support of this, Congress found that
[b]anning such automated or prerecorded telephone calls to the
home, except when the receiving party consents to receiving the
call or when such calls are necessary in an emergency situation
affecting the health and safety of the consumer, is the only
effective means of protecting telephone consumers from this
nuisance and privacy invasion.
Id. at § 12; see also Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL
3292838, at* 4 (N.D.Ill. Aug. 10, 2012) (citing Congressional findings on TCPA’s purpose).
4.
Congress also specifically found that “the evidence presented to the Congress
indicates that automated or prerecorded calls are a nuisance and an invasion of privacy,
regardless of the type of call….” Id. at §§ 12-13. See also, Mims, 132 S. Ct. at 744.
5.
As Judge Easterbrook of the Seventh Circuit recently explained in a TCPA case
regarding calls similar to this one:
The Telephone Consumer Protection Act … is well known for its
provisions limiting junk-fax transmissions. A less-litigated part of the Act
curtails the use of automated dialers and prerecorded messages to cell
phones, whose subscribers often are billed by the minute as soon as the call
is answered—and routing a call to voicemail counts as answering the call.
An automated call to a landline phone can be an annoyance; an automated
call to a cell phone adds expense to annoyance.
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012).
JURISDICTION AND VENUE
6.
This Court has federal question jurisdiction because this case arises out of
violations of federal law. 47 U.S.C. §227(b); Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740
(2012).
7.
Venue is proper in the United States District Court for the District of Kansas
pursuant to 18 U.S.C. § 1391(b) and 1441(a) because Defendant is subject to personal
jurisdiction in the County of Sedgwick, State of Kansas, as not only does Defendant regularly
2
Sedgwick within the State of Kansas.
PARTIES
8.
Plaintiff is, and at all times mentioned herein was, a citizen and resident of the
State of Kansas. Plaintiff is, and at all times mentioned herein was a “person” as defined by 47
U.S.C. § 153 (39).
9.
Plaintiff is informed and believes, and thereon alleges, that Defendant is, and at
all times mentioned herein was, a corporation whose corporate headquarters is in Wichita,
Kansas. Defendant, is and at all times mentioned herein was, a corporation and is a “person,” as
defined by 47 U.S.C. § 153 (39). Plaintiff alleges that at all times relevant herein Defendant
conducted business in the State of Kansas and in the County of Sedgwick, and within this
judicial district.
FACTUAL ALLEGATIONS
10.
At all times relevant, Plaintiff was a citizen of the State of Kansas. Plaintiff is,
and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153 (39).
11.
Defendant is, and at all times mentioned herein was, a Corporation and a
“person,” as defined by 47 U.S.C. § 153 (39).
12.
At all times relevant Defendant conducted business in the State of Kansas and in
the County of Sedgwick, within this judicial district.
13.
Beginning on or around July 17, 2014, Defendant began to utilize Plaintiff’s
cellular telephone number, ending in 6177, to place automated calls to Plaintiff pertaining to an
alleged debt owed by another person named “Shay” or “Shea”.
14.
Plaintiff did not provide Defendant with his cellular telephone at any time.
15.
During this time, an agent of Defendant placed numerous calls to Plaintiff even
though Plaintiff told Defendant that he was not that person (“Shay”/ “Shea”) and requested that
3
16.
Plaintiff also works as a truck driver, whereby he is prohibited from talking on the
phone during work, and likewise related this to the agent of Defendant. The calls did not stop.
17.
Plaintiff noticed that, before Defendant’s representative answered, there were
several seconds of pauses before being connected to the agent(s) of Ad Astra.
18.
The calls Defendant placed to Plaintiff’s cellular telephones were placed via an
“automatic telephone dialing system,” (“ATDS”) as defined by 47 U.S.C. § 227 (a)(1) as
prohibited by 47 U.S.C. § 227 (b)(1)(A).
19.
This ATDS has the capacity to store or produce telephone numbers to be dialed,
using a random or sequential number generator.
20.
The telephone numbers that Defendant, or its agents, called was assigned to
cellular telephone services for which Plaintiff incurs a charge for incoming calls pursuant to 47
U.S.C. § 227 (b)(1).
21.
These telephone calls constituted calls that were not for emergency purposes as
defined by 47 U.S.C. § 227 (b)(1)(A)(i).
22.
Plaintiff has never provided any personal information, including his cellular
telephone number, to Defendant for any purpose. As such, neither Defendant nor its agents were
provided with prior express consent to place calls via its ATDS to Plaintiff’s cellular telephone,
pursuant to 47 U.S.C. § 227 (b)(1)(A).
23.
These telephone calls by Defendant, or its agents, violated 47 U.S.C. § 227(b)(1).
CLASS ACTION ALLEGATIONS
24.
Plaintiff brings this action on behalf of himself and on behalf of and all others
similarly situated (“the Class”).
25.
Plaintiff represents, and is a member of, the Class, consisting of:
All persons within the United States who received any telephone call/s from Defendant or
4
its agent/s and/or employee/s to said person’s cellular telephone made through the use of
any automatic telephone dialing system within the four years prior to the filling of the
Complaint.
26.
Defendant and its employees or agents are excluded from the Class. Plaintiff does
not know the number of members in the Class, but believes the Class members number in the
thousands, if not more. Thus, this matter should be certified as a Class action to assist in the
expeditious litigation of this matter.
27.
Plaintiff and members of the Class were harmed by the acts of Defendant in at
least the following ways: Defendant, either directly or through its agents, illegally contacted
Plaintiff and the Class members via their cellular telephones, thereby causing Plaintiff and the
Class members to incur certain cellular telephone charges or reduce cellular telephone time for
which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff
and the Class members. Plaintiff and the Class members were damaged thereby.
28.
This suit seeks only damages and injunctive relief for recovery of economic injury
on behalf of the Class, and it expressly is not intended to request any recovery for personal injury
and claims related thereto. Plaintiff reserves the right to expand the Class definition to seek
recovery on behalf of additional persons as warranted as facts are learned in further investigation
and discovery.
29.
The joinder of the Class members is impractical and the disposition of their
claims in the Class action will provide substantial benefits both to the parties and to the court.
The Class can be identified through Defendant’s records or Defendant’s agents’ records.
30.
There is a well-defined community of interest in the questions of law and fact
involved affecting the parties to be represented. The questions of law and fact to the Class
predominate over questions which may affect individual Class members, including the
following:
a.
Whether, within the four years prior to the filing of this Complaint, Defendant or
5
with the prior express consent of the called party) to a Class member using any automatic dialing
system to any telephone number assigned to a cellular phone service;
b.
Whether Plaintiff and the Class members were damaged thereby, and the extent of
damages for such violation; and
c.
Whether Defendant and its agents should be enjoined from engaging in such
conduct in the future.
31.
As a person that received numerous calls from Defendant via an automated
telephone dialing system, Plaintiff is asserting claims that are typical of the Class. Plaintiff will
fairly and adequately represent and protect the interests of the Class in that Plaintiff has no
interests antagonistic to any member of the Class.
32.
Plaintiff and the members of the Class have all suffered irreparable harm as a
result of the Defendant’s unlawful and wrongful conduct. Absent a class action, the Class will
continue to face the potential for irreparable harm. In addition, these violations of law will be
allowed to proceed without remedy and Defendant will likely continue such illegal conduct.
Because of the size of the individual Class member’s claims, few, if any, Class members could
afford to seek legal redress for the wrongs complained of herein.
33.
Plaintiff has retained counsel experienced in handling class action claims and
claims involving violations of the Telephone Consumer Protection Act.
34.
A class action is a superior method for the fair and efficient adjudication of this
controversy. Class-wide damages are essential to induce Defendant to comply with federal and
Kansas law. The interest of Class members in individually controlling the prosecution of
separate claims against Defendant is small because the maximum statutory damages in an
individual action for violation of privacy are minimal. Management of these claims is likely to
present significantly fewer difficulties than those presented in many class claims.
6
appropriate final injunctive relief and corresponding declaratory relief with respect to the Class
as a whole.
FIRST CAUSE OF ACTION
NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER
PROTECTION ACT 47 U.S.C. § 227 ET SEQ.
36.
Plaintiff incorporates by reference all of the above paragraphs of this Complaint
as though fully stated herein.
37.
The foregoing acts and omissions of Defendant constitute numerous and multiple
negligent violations of the TCPA, including, but not limited to, each and every one of the above-
cited provisions of 47 U.S.C. § 227 et seq.
38.
As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq, Plaintiff
and The Class are entitled to an award of $500.00 in statutory damages, for each and every
violation, pursuant to 47 U.S.C. § 227(b)(3)(B).
39.
Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting
such conduct in the future.
SECOND CAUSE OF ACTION
KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE
CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ.
40.
Plaintiff incorporates by reference all of the above paragraphs of this Complaint
as though fully stated herein.
41.
The foregoing acts and omissions of Defendant constitute numerous and multiple
knowing and/or willful violations of the TCPA, including, but not limited, to each and every one
of the above-cited provisions of 47 U.S.C. § 227 et seq.
42.
As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et
seq, Plaintiffs and The Class are entitled to an award of $1,500.00 in statutory damages, for each
7
43.
Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting
such conduct in the future.
PRAYER FOR RELIEF
Wherefore, Plaintiff respectfully requests the Court grant Plaintiff and The Class
members the following relief against Defendant:
FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATIONS OF THE
TCPA, 47 U.S.C. § 227 ET SEQ.
44.
As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff
seeks for himself and each Class member $500.00 in statutory damages, for each and every
violation, pursuant to 47 U.S.C. § 227(b)(3)(B).
45.
Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct
in the future.
46.
Any other relief the Court may deem just and proper.
SECOND CAUSE OF ACTION FOR KNOWING AND/OR WILLFUL
VIOLATIONS OF THE TCPA, 47 U.S.C. § 227 ET SEQ.
47.
As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. §
227(b)(1), Plaintiff seeks for himself and each Class member $1,500.00 in statutory damages, for
each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(C).
48.
Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct
in the future.
49.
Any other relief the Court may deem just and proper.
DESIGNATION OF PLACE OF TRIAL
50.
Plaintiff designates Wichita, Kansas as the place of trial.
8
DEMAND FOR JURY TRIAL
COMES NOW the Plaintiff and demands a jury trial on all issues so triable pursuant to
Federal Rule of Civil Procedure 38(b).
Respectfully submitted,
/s/ Bryce B. Bell
Bryce B. Bell
KS # 20866
Bell Law, LLC
2029 Wyandotte, Ste. 100
Kansas City, Missouri 64108
Telephone: 816-221-2555
Facsimile: 816-221-2508
Bryce@BellLawKC.com
Nicholas J. Bontrager
(To be admitted Pro Hac Vice)
Martin & Bontrager, APC
324 S. Beverly Dr. #725
Beverly Hills, CA 90212
Phone: (877) 206-4741
Fax: (866)633-0228
nbontrager@attorneysforconsumers.com
Derek H. DePetrillo
(To be admitted Pro Hac Vice)
Consumer Rights Law Firm, PLLC
133 Main Street, 2nd Floor
North Andover, MA 01845
Main: (978) 212-3300
Fax: (978) 409-1846
Email:attorneyderekd@consumerlawfirmce
nter.com
ATTORNEYS FOR PLAINTIFF
9
| privacy |
SMn3DYcBD5gMZwcz-hwH | IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
________________________________________
MARK FITZHENRY, individually and on
behalf of a class of all persons and
entities similarly situated,
Plaintiff
Case No.
CLASS ACTION COMPLAINT
GUARDIAN PROTECTION SERVICES,
INC., and SECURITY FORCE, INC.
Defendants.
CLASS ACTION COMPLAINT
1.
Plaintiff Mark Fitzhenry (“Plaintiff”), brings this action under the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, a federal statute
enacted in response to widespread public outrage about the proliferation of
intrusive, nuisance telemarketing practices. See Mims v. Arrow Fin. Servs.,
LLC, 132 S. Ct. 740, 745 (2012).
2.
“Month after month, unwanted robocalls and texts, both
telemarketing and informational, top the list of consumer complaints received
by” the Federal Communications Commission.1
3.
The TCPA is designed to protect consumer privacy by prohibiting
unsolicited, autodialed calls, unless the caller has the “prior express written
consent” of the called party.
1 Omnibus TCPA Order, GC Docket 02-278, FCC 15-72, 2015 WL 4387780, ¶1 (July 10, 2015).
4.
Plaintiff alleges that Defendant Security Force, Inc. (“Security
Force”) commissioned an automated telephone call using equipment prohibited
by the TCPA to send a robocall that promoted its services without the Plaintiff’s
prior express written consent.
5.
Security Force commissioned the pre-recorded call in its role as an
authorized dealer for Guardian Protection Services, Inc. (“Guardian”).
6.
Because the call to the Plaintiff was transmitted using technology
capable of generating thousands of similar calls per day, Plaintiff brings this
action on behalf of a proposed nationwide class of other persons who were sent
the same illegal telemarketing call.
7.
A class action is the best means of obtaining redress for the
Defendant’s illegal telemarketing, and is consistent both with the private right
of action afforded by the TCPA and the fairness and efficiency goals of Rule 23
of the Federal Rules of Civil Procedure.
PARTIES
8.
Plaintiff Mark Fitzhenry is a resident of the state of South Carolina.
9.
Defendant Guardian Protection Services, Inc. is a Pennsylvania
corporation that has its principal place of business in this District.
10.
Defendant Security Force, Inc. is a North Carolina corporation.
JURISDICTION & VENUE
11.
This Court has subject matter jurisdiction pursuant to the Class
Action Fairness Act of 2005 (“hereinafter referred to as CAFA”) codified as 28
U.S.C. 1332(d)(2). The matter in controversy exceeds $5,000,000.00, in the
aggregate, exclusive of interest and costs, as each member of the proposed
Class of at least tens of thousands is entitled to up to $1,500.00 in statutory
damages for each call that has violated the TCPA. Further, Plaintiff alleges a
national class, which will likely result in at least one Class member from a
different state.
12.
The Court has subject-matter jurisdiction under 28 U.S.C. § 1331
because the Plaintiff’s claims arise under federal law. Mims v. Arrow Financial
Services, LLC, 132 S. Ct. 740 (2012).
13.
Venue is proper under 28 U.S.C. § 1391(b)(2) because a
substantial part of the events or omissions giving rise to the claim occurred in
this District, as the contract between Guardian and Security Force was entered
into in this District. Furthermore, Defendants are deemed to reside in any
judicial district in which they are subject to personal jurisdiction at the time
the action is commenced, and because Defendants’ contacts with this District
are sufficient to subject them to personal jurisdiction. See 28 U.S.C. § 1391.
TCPA BACKGROUND
14.
In 1991, Congress enacted the TCPA to regulate the explosive
growth of the telemarketing industry. In so doing, Congress recognized that
“[u]nrestricted telemarketing . . . can be an intrusive invasion of privacy.”
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2(5) (1991)
(codified at 47 U.S.C. § 227).
15.
Unlike many federal statutes, Congress embedded the reasons for
the TCPA into the statute itself with explicit Congressional Findings. 105 Stat.
2394, §§ 10, 12, 14 (notes following 47 U.S.C. § 227).
16.
Mims explicitly cited these Congressional Findings in noting that
“‘automated or prerecorded telephone calls’ . . . were rightly regarded by
recipients as ‘an invasion of privacy.’” Id. (citing 105 Stat. 2394). Accordingly,
Congress found that:
Banning such automated or prerecorded telephone calls to the
home, except when the receiving party consents to receiving the
call or when such calls are necessary in an emergency situation
affecting the health and safety of the consumer, is the only
effective means of protecting telephone consumers from this
nuisance and privacy invasion.
Id. at § 14 (emphasis added).
17.
According to findings by the FCC, the agency Congress vested with
authority to issue regulations implementing the TCPA, such calls are
prohibited because, as Congress found, automated or prerecorded telephone
calls are a greater nuisance and invasion of privacy than live solicitation calls,
and such calls can be costly and inconvenient.
18.
The FCC also recognized that wireless customers are charged for
incoming calls whether they pay in advance or after the minutes are used.2
19.
Indeed, as the United States Supreme Court recently held in a
different context, “Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many
2 In re Rules and Regulations Implementing the TCPA, CG Docket No. 02-278, Report and Order, 18
FCC Rcd 14014, 14115 (¶ 165) (2003).
Americans ‘the privacies of life.’” Riley v. California, __ U.S. __, 134 S.Ct. 2473,
2494-95, 189 L.Ed.2d 430 (2014).
20.
As such, the TCPA’s most stringent restrictions pertain to
computer-generated telemarketing calls placed to cell phones.
21.
The TCPA categorically bans entities from initiating telephone calls
using an automated telephone dialing system (or “autodialer”) to any telephone
number assigned to a cellular telephone service. See 47 C.F.R. §
64.1200(a)(1)(iii); see also 47 U.S.C. § 227(b)(1).
22.
On January 4, 2008, the FCC released a Declaratory Ruling
wherein it confirmed that autodialed and prerecorded message calls to a
wireless number are permitted only if the calls are made with the “prior express
consent” of the called party.3
FACTUAL ALLEGATIONS
23.
Plaintiff is, and at all times mentioned herein was, a “person” as
defined by 47 U.S.C. § 153(39).
24.
The Plaintiff acquired the cellular telephone number, (843) 637-
XXXX that got the pre-recorded message calls in October 2015.
25.
The Plaintiff has used the cellular telephone number for both
personal reasons, as well as to attempt to collect rent in arrears from tenants
in the properties he owns.
26.
As discussed in more detail below, the Defendants use
telemarketing to promote the goods and services of Guardian.
3 In re Rules and Regulations Implementing the TCPA, CG Docket No. 02-278, Declaratory Ruling, 23
FCC Rcd 559, 564-65 (¶ 10) (2008) (“2008 FCC Declaratory Ruling”).
27.
The Defendants telemarketing efforts include the use of automated
dialing equipment to send text messages.
28.
On August 12, 2016, the Plaintiff received a call on his cellular
telephone.
29.
The Caller ID for the number that called the Plaintiff was (720)
634-7479.
30.
When the Plaintiff answered the call there was a distinctive click
and pause, then a pre-recorded message that advertised a home security
system.
31.
These facts, as well as the geographic distance between the
Plaintiff and the Defendant, as well as the fact that this call was part of a
nationwide telemarketing campaign demonstrate that the call was made using
an automatic telephone dialing system (“ATDS” or “autodialer”) as that term is
defined in 47 U.S.C. § 227(a)(1).
32.
When Mr. Fitzhenry was able to connect with a live individual, they
attempted to sell him a home alarm system that would have been monitored by
Guardian.
33.
Mr. Fitzhenry was harmed by the pre-recorded calls because they
were unwelcome intrusions on his privacy and because they occupied his
telephone line from legitimate communications.
34.
Defendants did not have the Plaintiff’s prior express written
consent to make this call, and the Plaintiff has never done any business with
the Defendants.
GUARDIAN’S AUTHORIZED DEALER PROGRAM
AND LIABILITY FOR THE AUTOMATED ROBOCALLS
35.
Under the TCPA, a seller of a product or service may be vicariously
liable for a third-party marketer’s violations of Section 227(b), even if the seller
did not physically dial the illegal call, and even if the seller did not directly
control the marketer who did. In re Joint Pet. filed by Dish Network, LLC, FCC
13-54 ¶ 37, 2013 WL 193449 (May 9, 2013) (“FCC Ruling”).
36.
A seller is liable under Section 227(b) when it has authorized a
telemarketer to market its goods or services. Id. ¶ 47.
37.
Additionally, a seller may be vicariously liable for a Section 227(b)
violation under principles of apparent authority and ratification. Factors
relevant to a finding of vicarious liability include:
a.
Whether “the seller allows the outside sales entity access
to information and systems that normally would be within
the seller’s exclusive control, including . . . access to
detailed information regarding the nature and pricing of
the seller’s products and services or to the seller’s
customer information;
b.
Whether the outside sales entity can “enter consumer
information into the seller’s sales or customer systems;
c.
Whether the outside sales entity has “the authority to use
the seller’s trade name, trademark and service mark;
d.
Whether “the seller approved, wrote or reviewed the
outside entity’s telemarketing scripts”; and
e.
“Whether the seller knew (or reasonably should have
known) that the telemarketer was violating the TCPA
on the seller’s behalf and the seller failed to take
effective steps within its power to force the
telemarketer to cease that conduct.”
Id. ¶ 46.
38.
The May 2013 FCC Ruling further held that, even in the absence of
evidence of a formal contractual relationship between the seller and the
telemarketer, a seller is liable for telemarketing calls if the telemarketer “has
apparent (if not actual) authority” to make the calls. 28 F.C.C.R. at 6586 (¶
39.
The May 2013 FCC Ruling further clarifies the circumstances
under which a telemarketer has apparent authority:
[A]pparent authority may be supported by evidence that the
seller allows the outside sales entity access to information and
systems that normally would be within the seller’s exclusive
control, including: access to detailed information regarding the
nature and pricing of the seller’s products and services or to the
seller’s customer information. The ability by the outside sales
entity to enter consumer information into the seller’s sales or
customer systems, as well as the authority to use the seller’s
trade name, trademark and service mark may also be relevant. It
may also be persuasive that the seller approved, wrote or reviewed
the outside entity’s telemarketing scripts.
Id. at ¶ 46.
40.
Finally, the May 2013 FCC Ruling states that called parties may
obtain “evidence of these kinds of relationships . . . through discovery, if they
are not independently privy to such information. “ Id. at 6592-93 (¶ 46).
Moreover, evidence of circumstances pointing to apparent authority on behalf
of the telemarketer “should be sufficient to place upon the seller the burden of
demonstrating that a reasonable consumer would not sensibly assume that the
telemarketer was acting as the seller's authorized agent.” Id. at 6593 (¶ 46).
41.
The FCC had previously explained that its “rules generally
establish that the party on whose behalf a solicitation is made bears ultimate
responsibility for any violations.” See In re Rules & Regulations Implementing
the TCPA, CC Docket No. 92-90, Memorandum Opinion and Order, 10 FCC Rcd
12391, 12397 (¶ 13) (1995).
42.
Security Force commissioned the autodialed and prerecorded
message calls described herein “on behalf of” Guardian within the meaning of
the FCC’s Declaratory Rulings.
43.
Guardian was legally responsible for ensuring that Security Force
complied with the TCPA, even if Guardian did not themselves make the calls.
44.
Guardian self-proclaims to be the nation’s largest privately-held
security company, and that it provides security and monitoring services to
more than a quarter-million residential and commercial customers.
45.
Guardian markets and distributes products via a distribution
network of authorized dealers.
46.
Guardian compensates each authorized dealer through a structure
of commission payments based upon the amount of product and services sold.
47.
Guardian allows its authorized dealers to market Guardian’s
products and services, to display the Guardian logo and to market using the
Guardian trade name.
48.
In fact, as Guardian advertises on its website, authorized dealers
are a “partner” of Guardian. See http://www.guardianprotection.com/become-
a-dealer/dealer-program-details.aspx (Last Visited August 18, 2016).
49.
Guardian also offers to “finance your business” for its authorized
dealers. Id.
50.
Guardian authorized dealers promotes these systems through a
variety of marketing methods, including telemarketing.
51.
Guardian provides its authorized dealers with sales techniques and
training, which were implemented in the telemarketing calls that are the subject
of this complaint.
52.
Guardian sells its security alarm systems through these authorized
dealers and allows its dealers to hold themselves out to public as authorized
Guardian dealers.
53.
Guardian gives their authorized dealers substantial power to affect
their legal relations with third parties, including with consumers generally.
54.
One of Guardian’s authorized dealers is Security Force, Inc., the
same entity that commissioned the pre-recorded telemarketing call to the
Plaintiff.
55.
By hiring Security Force as an authorized dealers to generate
customers through telemarketing Guardian “manifest[ed] assent to another
person . . . that the agent shall act on the principal’s behalf and subject to the
principal’s control” as described in the Restatement (Third) of Agency.
Similarly, by accepting these contacts, Security Force “manifest[ed] assent or
otherwise consent[ed] . . . to act” on behalf of Guardian, as described in the
Restatement (Third) of Agency. As such, Security Force is an agent of
Guardian.
56.
Guardian cloaked their authorized dealers in apparent authority
specifically as to legal relations between their authorized dealers and the
public, and to hire third parties such as Security Force to perform
telemarketing, sufficient to support vicarious liability pursuant to the TCPA.
57.
Guardian knew (or reasonably should have known) that Security
Force was violating the TCPA on its behalf, and failed to take effective steps
within their power to force them to cease that conduct.
58.
Guardian is also liable for the autodialed and prerecorded message
calls because it installed security services and knowingly and actively accepted
business that originated through the illegal telemarketing calls.
59.
Security Force transferred customer information directly to
Guardian. Thus, Security Force has the “ability . . . to enter consumer
information into the seller’s sales or customer systems,” as discussed in the
May 2013 FCC Ruling. As such, Security Force is an apparent agent of
Guardian.
60.
Security Force was also granted access to the “Dealer Automated
Real Time” (DART) program, a password-protected program through which they
received updates on accounts and distributed customer information to
Guardian.
Class Action Statement Pursuant to LCvR 23
61.
As authorized by Rule 23 of the Federal Rules of Civil Procedure
and LCvR 23 of the Local Rules for the Western District of Pennsylvania,
Plaintiff brings this action on behalf of all other persons or entities similarly
situated throughout the United States.
62.
The class of persons Plaintiff proposes to represent include:
All persons within the United States whom Defendants, directly or
through any third parties, initiated a telephone call with the same
or similar dialing system as was used to call plaintiff to a number
registered as a cellular telephone line within four years before this
Complaint was filed through the date of class certification.
63.
Excluded from the classes are the Defendants, any entities in
which the Defendants have a controlling interest, the Defendants’ agents and
employees, any Judge to whom this action is assigned, and any member of the
Judge’s staff and immediate family.
64.
The proposed class members are identifiable through phone
records and phone number databases.
65.
The potential class members number in the thousands, at least.
Individual joinder of these persons is impracticable.
66.
Plaintiff is a member of the class.
67.
There are questions of law and fact common to Plaintiff and to the
proposed class, including but not limited to the following:
a.
Whether the Defendants’ used an automatic telephone dialing
system to make the calls at issue;
b.
Whether the Defendants’ placed telemarketing calls without
obtaining the recipients’ valid prior express written consent;
c.
Whether the Defendants’ violations of the TCPA were
negligent, willful, or knowing; and
d.
Whether the Plaintiff and the class members are entitled to
statutory damages as a result of the Defendants’ actions.
68.
Plaintiff’s claims are based on the same facts and legal theories as
the claims of all class members, and therefore are typical of the claims of class
members, as the Plaintiff and class members all received telephone calls
through the same or similar dialing system on a cellular telephone line.
69.
Plaintiff is an adequate representative of the class because his
interests do not conflict with the interests of the class, he will fairly and
adequately protect the interests of the class, and he is represented by counsel
skilled and experienced in class actions, including TCPA class actions. In fact,
the Plaintiff has foregone a simpler path to recovery by filing this matter as a
putative class action, as opposed to an individual claim.
70.
The actions of the Defendant are generally applicable to the class
as a whole and to Plaintiff.
71.
Common questions of law and fact predominate over questions
affecting only individual class members, 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 Defendant and/or its agents.
72.
The
likelihood
that
individual
class
members
will
prosecute
separate actions is remote due to the time and expense necessary to prosecute
an individual case, and given the small recoveries available through individual
actions.
73.
Plaintiff is not aware of any litigation concerning this controversy
already commenced by others who meet the criteria for class membership
described above.
CAUSES OF ACTION
FIRST COUNT
STATUTORY VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION
ACT
47 U.S.C. § 227 ET SEQ.
74.
Plaintiff incorporates by reference the foregoing paragraphs of this
Complaint as if fully set forth herein.
75.
The foregoing acts and omissions of the Defendants constitute
numerous and multiple violations of the TCPA, including but not limited to
each of the above cited provisions of 47 U.S.C. § 227 et seq.
76.
As a result of the Defendants’ violations of 47 U.S.C. § 227 et seq.,
Plaintiff and Class members are entitled to an award of $500 in statutory
damages for each and every call in violation of the statute, pursuant to 47
U.S.C. § 227(b)(3)(B).
77.
Plaintiff and Class members are also entitled to and do seek
injunctive relief prohibiting the Defendants’ violation of the TCPA in the future.
SECOND COUNT
KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE
CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.
78.
Plaintiff incorporates by reference all other paragraphs of this
Complaint as if fully stated herein.
79.
The foregoing acts and omissions of the Defendants constitute
numerous and multiple knowing and/or willful violations of the TCPA,
including but not limited to each of the above-cited provisions of 47 U.S.C. §
227 et seq.
80.
As a result of the Defendants’ knowing and/or willful violations of
47 U.S.C. § 227 et seq., Plaintiff and each member of the Class is entitled to
treble damages of up to $1,500 for each and every call in violation of the
statute, pursuant to 47 U.S.C. § 227(b)(3).
81.
Plaintiff and all Class members are also entitled to and do seek
injunctive relief prohibiting such conduct violating the TCPA by the Defendants
in the future.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court grant
Plaintiff and all Class members the following relief against the Defendants:
A.
Injunctive relief prohibiting such violations of the TCPA by the
Defendants in the future;
B.
As a result of the Defendants’ willful and/or knowing violations of
47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member treble
damages, as provided by statute, of up to $1,500 for each and every call that
violated the TCPA;
C.
As a result of Defendants’ statutory violations of 47 U.S.C.
§ 227(b)(1), Plaintiff seek for himself and each Class member $500 in statutory
damages for each and every call that violated the TCPA;
D.
An award of attorneys’ fees and costs to counsel for Plaintiff and
the Class;
E.
An order certifying this action to be a proper class action pursuant
to Federal Rule of Civil Procedure 23, establishing an appropriate Classes the
Court deems appropriate, finding that Plaintiff is a proper representative of the
Class, and appointing the lawyers and law firms representing Plaintiff as
counsel for the Class;
F.
Such other relief as the Court deems just and proper.
Dated: August 18, 2016
By:
/s/ Clayton S. Morrow
Clayton S. Morrow
Email: csm@consumerlaw365.com
Morrow & Artim, PC
304 Ross Street, 7th Floor
Pittsburgh, PA 15219
Telephone: (412) 209-0656
Edward A. Broderick
Email: ted@broderick-law.com
Anthony Paronich
Email: anthony@broderick-law.com
BRODERICK LAW, P.C.
99 High St., Suite 304
Boston, Massachusetts 02110
Telephone: (617) 738-7080
Subject to Pro Hac Vice
Matthew P. McCue
Email: mmccue@massattorneys.net
THE LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, Suite 3
Natick, Massachusetts 01760
Telephone: (508) 655-1415
Subject to Pro Hac Vice
| privacy |
GMIWDYcBD5gMZwczDQBb | Case No. _______________
CLASS ACTION COMPLAINT FOR
VIOLATIONS OF THE FEDERAL
RACKETEER INFLUENCED AND
CORRUPT ORGANIZATIONS ACT,
THE OHIO CORRUPT ACTIVITY
ACT, AND CIVIL CONSPIRACY
JURY TRIAL DEMANDED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRIAN HUDOCK and CAMEO
COUNTERTOPS, INC., individually
and on behalf of other persons
similarly situated
Plaintiff,
v.
FIRSTENERGY CORP.,
FIRSTENERGY SERVICE
COMPANY, CHARLES E. JONES,
JAMES F. PEARSON, STEVEN E.
STRAH, K. JON TAYLOR, AND
DOES 1-10,
Defendants.
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INTRODUCTION AND SUMMARY OF ALLEGATIONS
Plaintiffs, Brian Hudock and Cameo Countertops, Inc., individually and on behalf
of a proposed Class of all other persons similarly situated, hereby file their Class Action
Complaint (hereinafter the “Complaint”) against Defendants, FirstEnergy Corp.
(“FirstEnergy”), a public utility holding company; FirstEnergy Service Company
(“FirstEnergy Service”), a subsidiary of FirstEnergy which provides legal, financial, and
other corporate support services to FirstEnergy; and Charles E. Jones, James F.
Pearson, Steven E. Strah, and K. Jon Taylor (collectively the “Individual Defendants”),
who are the hands-on managers of and oversee FirstEnergy’s operations, business
practices, and finances. As alleged in this Complaint, during the Class Period,
FirstEnergy, FirstEnergy Services, and the Individual Defendants knowingly and
intentionally acted in concert and conspired with Larry Householder, Jeffrey Longstreth,
Neil Clark, Matthew Borges, Juan Cespedes, and Generation Now (collectively the
members of the “Householder Enterprise”), and other persons and entities known and
unknown, being persons employed by and associated with an “enterprise,” which
engaged in, and the activities of which affected interstate commerce, and did knowingly
and intentionally act in concert and conspire with each other and others known and
unknown to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1962(c) and (d), and the equivalent provisions of the Ohio Corrupt Activity
Act, Ohio Rev. Code § 2923.31 et seq., that is, to conduct and participate directly and
indirectly, in the conduct of the affairs of the enterprise through a “pattern of
racketeering activity,” as that term is defined in 18 U.S.C. §§ 1961(1) and (5), and a
“pattern of corrupt activity,” as that term is defined in Ohio Rev. Code §§ 2923.31(E)
and (I), consisting of multiple wrongful acts under 18 U.S.C. §§ 1343 and 1346 (relating
to honest services wire fraud); 18 U.S.C. § 1951 (relating to interference with
commerce, robbery, or extortion); 18 U.S.C. § 1952 (relating to racketeering, including
multiple acts of bribery under Ohio Rev. Code § 3517.22(a)(2)); 18 U.S.C. § 1956
(relating to the laundering of monetary instruments); 18 U.S.C. § 1957 (relating to
engaging in monetary transactions in property derived from specified unlawful activity);
and multiple acts involving bribery, that are chargeable under Ohio Rev. Code §
2921.02. It was part of the conspiracy that Defendants, FirstEnergy and FirstEnergy
Service, and the Individual Defendants agreed that a conspirator would commit at least
two acts of racketeering activity in the conduct of the affairs of the enterprise, all in
violation of 18 U.S.C. § 1962(c) and (d) and Ohio Rev. Code § 2923.32(A)(1). In
support of their claims for relief, as alleged in this Complaint, Plaintiffs further state as
follows:
THE PARTIES
1.
Plaintiff Brian Hudock (“Hudock”), is a legal resident of the State of Ohio
and resides in Lucas County, who has been injured by the Defendants by his payment
of monthly surcharges, as set forth in Ohio House of Representatives Bill 6 (“HB 6”),
which provided massive customer/ratepayer subsidies for FirstEnergy’s Davis-Besse
and Perry Nuclear Power Plants. Hudock owns the home with his wife in whose name
service is placed. Hudock pays the electric bill and, therefore, is the party who has
been injured.
2.
Plaintiff Cameo Countertops, Inc. (“Cameo”) is a for profit, active
corporation incorporated in the State of Ohio and whose principal place of business and
headquarters is in Lucas County, Ohio. Cameo has been injured by the Defendants by
Cameo’s payment of monthly surcharges, as set forth in HB 6.
3.
Defendant FirstEnergy is a public utility holding company which directs
and controls various subsidiary entities organized under the laws of the State of Ohio
with its principal place of business located in Akron, Ohio. FirstEnergy is involved in the
generation, transmission, and distribution of electricity. This Defendant’s agent for
service of process is CT Corporation System, 4400 Easton Commons Way, Suite 125,
Columbus, Ohio 43219.
4.
Defendant FirstEnergy Service, is organized under the laws of the State of
Ohio with its principal place of business located in Akron, Ohio. FirstEnergy Service
provides legal, financial, and other corporate support services to affiliated companies,
including First Energy. It is under the control of FirstEnergy’s management. It does not
have its own Chief Executive Officer or Board of Directors. This Defendant’s agent for
service of process is CT Corporation System, 4400 Easton Commons Way, Suite 125,
Columbus, Ohio 43219.
5.
At all relevant times, the Individual Defendants ran FirstEnergy as hands-
on managers, overseeing FirstEnergy’s operations, business practices, and finances.
During the Class Period, Defendant Charles E. Jones served as Chief Executive Officer
(“CEO”) and as a Director of FirstEnergy. Defendant James F. Pearson served as Chief
Financial Officer (“CFO”) of First Energy until March 2018, at which time he transitioned
to Vice President of Finance until his retirement in April 2019. Defendant Steven E.
Strah is President of FirstEnergy. He previously served as CFO from March 2018 until
he transitioned to his current position in May 2020. Defendant K. Jon Taylor took over
as CFO from Defendant Strah. Prior to assuming this position, he was the company’s
Controller and Chief Accounting Officer until March 2018, after which he became
President of FirstEnergy’s Ohio Operations and, in 2019, its Vide President of Utilities
Operations. At all times relevant to this case, the Individual Defendants had intimate
knowledge about the core aspects of FirstEnergy’s financial and business operations,
including the company’s nuclear operations and the wrongful activities alleged in the
related criminal proceedings that are pending in this District.
JURISDICTION AND VENUE
6.
This Court has jurisdiction over Plaintiffs’ federal law claims pursuant to 28
U.S.C. § 1331, and 18 U.S.C. §§ 1961-68. Declaratory relief is available pursuant to 28
U.S.C. §§ 2201 and 2202. Venue is proper in this Court because this is a District in
which a substantial part of the events giving rise to the claim occurred. 28 U.S.C. §
1391(b)(2). Venue is further proper because this is a District in which the Defendants’
agent, CT Corporation System, 4400 Easton Commons Way, Suite 125, Columbus,
Ohio 43219, is found or transacts affairs, as provided in 18 U.S.C. §1965(a).
GENERAL STATEMENT OF THE LAW
7.
Section 1962(c) and (d) of RICO provide as follows:
(c)
It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities which
affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity . . .
(d)
It shall be unlawful for any person to conspire to violate any
of the provisions of subsection . . . . (c) of this section.
The equivalent provisions of the Ohio Corrupt Activity Act may be found in Ohio Rev.
Code §2923.32(A)(1). Section 1961 of RICO, in turn, defines the terms “enterprise” and
“pattern of racketeering activity,” as used in Section 1962, as follows:
(4)
“enterprise” includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity;
(5)
“pattern of racketeering activity” requires at least two acts of
racketeering activity, one of which occurred after the effective date
of this chapter and the last of which occurred within ten years
(excluding any term of imprisonment) after the commission of a
prior act of racketeering activity.
The equivalent provisions of the Ohio Corrupt Activity Act may be found in Ohio
Rev. Code § 2923.31(C) and (E). Section 1961(1) of RICO defines “racketeering
activity”, in relevant part, as follows:
(A) [A]ny act or threat involving . . . bribery[,] . . . which is
chargeable under State law and punishable by imprisonment for
more than one year; (B) any act which is indictable under . . .
title 18, United States Code: . . . section 1343 (relating to wire
fraud) . . . section 1951 (relating to interference with commerce,
robbery, or extortion), section 1952 (relating to racketeering) . . .
section
1956
(relating
to
the
laundering
of
monetary
instruments), section 1957 (relating to engaging in monetary
transactions in property derived from specified unlawful activity)
. . . .
The equivalent provisions of the Ohio Corrupt Activity Act may be found in Ohio
Rev. Code § 2923.31(I).
8.
On or about July 21, 2020, a Complaint was filed by the United States of
America against the members of the “Householder Enterprise” – namely, Larry
Householder, Jeffrey Longstreth, Neil Clark, Matthew Borges, Juan Cespedes, and
Generation Now I in this District, Case No. 1:20-MJ-00526 (the “Criminal Complaint”),
alleging that they violated 18 U.S.C. §1962(d) by conspiring to participate, directly or
indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering
activity. The Criminal Complaint was supported by an 81-page Affidavit in Support of a
Criminal Complaint (the “Affidavit”) executed by an agent of the Federal Bureau of
Investigation. Based upon information and belief, Plaintiffs allege that Defendant,
FirstEnergy, is “Company A Corp.” identified in the Affidavit and that Defendant
FirstEnergy Service is “Company A Service Co.” identified in the Affidavit. On July 30,
2020, the members of the Householder Enterprise who were identified in the Criminal
Complaint and the Affidavit were charged in a federal Indictment for violations of RICO.
(Note: The members of the Householder Enterprise are not named as Defendants in
this Complaint; however, consistent with the provisions of Rule 15 of the Federal Rules
of Civil Procedure, Plaintiffs reserve the right, after appropriate and sufficient fact
discovery has been conducted, to seek leave of Court to name additional Defendants in
this case.)
FACTUAL ALLEGATIONS
9.
Plaintiffs incorporate by reference the factual allegations set forth in the
Affidavit.
10.
From March 2017 to March 2020, the Householder Enterprise, as
described and defined in the Affidavit and in this Complaint, received approximately $60
million from FirstEnergy and/or FirstEnergy Service paid through Generation Now and
controlled by Householder and the members of the Householder Enterprise. In
exchange for these illicit and unlawful payments, the Householder Enterprise helped
pass HB 6, described by a Householder Enterprise member as a billion-dollar “bailout”
that saved from closure two failing nuclear power plants in Ohio affiliated with
FirstEnergy. The members of the Householder Enterprise then worked to corruptly
ensure that HB 6 went into effect by defeating a ballot initiative. To achieve these ends,
and to conceal the scheme, the Householder Enterprise passed money received from
FirstEnergy and/or FirstEnergy Service through multiple entities that it controlled. The
Householder Enterprise then used these bribe payments to further the goals of the
Enterprise, which include (a) obtaining, preserving, and expanding Householder’s
political power in the State of Ohio through the receipt and use of secret payments; (b)
enriching and benefitting the Householder Enterprise, its members, and associates; and
(c) promoting, concealing, and protecting purposes (a) and (b) from public exposure and
possible criminal prosecution.
BACKGROUND FACTS
11.
In 2016, FirstEnergy’s nuclear generation future looked grim. In its
November 2016 Annual Report to Shareholders, FirstEnergy and its affiliates reported a
weak energy market, poor forecast demands, and hundreds of millions of dollars in
losses, particularly from its nuclear energy affiliate. Given this backdrop, FirstEnergy
announced future options for its energy generation portfolio as follows: “legislative and
regulatory solutions for generation assets”; asset sales and plant deactivations;
restructuring debt; and/or seeking protection under U.S. bankruptcy laws for its affiliates
involved in nuclear generation.
12.
Consistent with this forecast, FirstEnergy actively sought a “legislative
solution” for its two affiliated nuclear power plants in Ohio. For example, during
FirstEnergy’s fourth-quarter 2016 earnings conference call, its President and CEO
stated:
In Ohio, we have had meaningful dialogue with our fellow utilities
and with legislators on solutions that can help ensure Ohio’s future
energy security. Our top priority is the preservation of our two
nuclear plants in the state and legislation for a zero emission
nuclear program is expected to be introduced soon. The ZEN
program is intended to give state lawmakers greater control and
flexibility to preserve valuable nuclear generation. We believe this
legislation would preserve not only zero emission assets but jobs,
economic growth, fuel diversity, price stability, and reliability and
grid security for the region.
We are advocating for Ohio’s support for its two nuclear plants,
even though the likely outcome is that FirstEnergy won’t be the
long-term owner of these assets. We are optimistic, given these
discussions we have had so far and we will keep you posted as this
process unfolds.
13.
However, attempts to obtain a legislative solution had failed to pass,
including the ZEN (Zero-Emissions Nuclear Resource Program) energy proposals
outlined in House Bill 178, Senate Bill 128, and House Bill 381 in 2017.
14.
While FirstEnergy was in search of a solution to its nuclear energy
problem, Householder was re-entering politics, winning back his State House seat in
Perry County, Ohio, with the goal of winning back the Speakership of the House in
January 2019. Following his January 2017 trip on FirstEnergy’s private jet, in March
2017, Householder began receiving quarterly $250,000 payments from FirstEnergy
and/or FirstEnergy Service into a bank account in the name of a Section 501(c)(4) entity
secretly controlled by Householder called Generation Now. During 2017 and 2018, the
Householder Enterprise received into Generation Now, and the entities it controlled,
over $2.9 million from FirstEnergy and/or FirstEnergy Service. Members of the
Householder Enterprise used these payments for their own personal benefit and to gain
support for Householder’s political bid to become Speaker of the House. During the
Spring and Fall of 2018, the Householder Enterprise spent millions of dollars of
FirstEnergy’s money to support House candidates involved in primary and general
elections whom the Householder Enterprise believed both would vote for Householder
as Speaker and, ultimately, would follow his lead as Speaker and vote for bailout
legislation for FirstEnergy.
15.
Householder-backed candidates that benefitted from FirstEnergy’s money
received by Generation Now (described throughout this Complaint and the Affidavit as
“FirstEnergy-to-Generation Now” payments) helped elect Householder as the Speaker
of the House in January 2019. Householder fulfilled his end of the corrupt bargain
shortly thereafter. Just three months into his term as Speaker, HB 6 was introduced to
save from closure FirstEnergy’s two failing nuclear power plants. Specifically, HB 6
subsidized nuclear energy operations in Ohio through a monthly charge on all Ohio
residents’ energy bills. Neil Clark described the legislation as a “bailout” for
FirstEnergy’s nuclear assets, worth at least $1.3 billion to FirstEnergy.
16.
After the introduction of the bailout legislation, FirstEneergy, which was
under the management and control of the Individual Defendants, began increasing its
payments into Generation Now for the benefit of the Householder Enterprise. On April
30, 2019, roughly two weeks after introduction of the legislation, the Individual
Defendants caused FirstEnergy to wire transfer $1.5 million to Generation Now. During
the month of May 2019, while the controversial legislation was pending before Ohio
lawmakers, the Individual Defendants caused FirstEnergy to wire transfer four additional
payments totaling $8 million. The Householder Enterprise used some of that money for
mailers and media advertisements to pressure members to support the legislation; the
Householder Enterprise members also used FirstEnergy’s money for their personal
benefit, as described in this Complaint and in the Affidavit. In the same month that the
Householder Enterprise received $8 million from Defendants, Householder and other
Householder Enterprise members pressured House members to vote for HB 6, and
instructed at least one representative to destroy text messages sent by Householder
after Householder’s attempt to gain support for HB 6 from that representative.
17.
On May 29, 2019, HB 6 passed the House, and after Householder
Enterprise members exerted pressure on the Senate, the legislation was passed and
was signed into law by Governor DeWine. That process took just two months; however,
the law would not go into effect until October 22, 2019. Shortly after the Governor
signed the legislation, a campaign began, to organize a statewide ballot-initiative
referendum (the “Ballot Campaign”) to overturn the legislation. This effort required
Ballot Campaign organizers to collect the signatures of registered voters in order to put
the referendum of HB 6 on the 2020 ballot.
18.
In response, the Individual Defendants caused accounts controlled by
FirstEnergy to wire transfer over $38 million into Generation Now to defeat the ballot
initiative so that HB 6 would go into effect. The members of the Householder Enterprise
funneled the money to various accounts and entities that they controlled in order to
purchase media advertisements and mailers against the ballot initiative, to conflict out
signature-collection firms, and to pay off and bribe signature collectors who were
seeking signatures to support the referendum. The members and associates of the
Householder Enterprise also used FirstEnergy’s money to enrich themselves and
further their own personal interests.
19.
The Individual Defendants caused FirstEnergy and/or FirstEnergy Service
to transfer to the Householder Enterprise a total of $60,886,835.86 in secret payments
over the approximately three-year period in exchange for the billion-dollar-bailout. The
Individual Defendants and the members of the Householder Enterprise concealed the
payments by using a Section 501(c)(4) “charitable” organization to receive the bribe
money, and then transferring the payments internally to a web of related entities and
accounts. The millions paid into the entity are akin to bags of cash; unlike campaign
contributions or political action committee (“PAC”) contributions, they were not
regulated, not reported, not subject to public scrutiny, and the members of the
Householder Enterprise freely spent the bribe payments to further their political interests
and to enrich themselves. As Neil Clark stated in a 2019 recorded conversation that
was reproduced in the Affidavit, “Generation Now is the Speaker’s (c)(4),” and
FirstEnergy’s “deep pockets,” and the money that was wire transferred to the
Householder Enterprise through Generation Now was “unlimited.” Matthew Borges
similarly described FirstEnergy’s illicit payments to the Enterprise as “Monopoly money.”
20.
The members of the Householder Enterprise used some of FirstEnergy’s
money to help enact the bailout legislation. Additionally, the Householder Enterprise
used millions of dollars of FirstEnergy’s bribe money to further Householder’s political
ambitions by funding his political campaign, and the campaigns of members and
candidates who would eventually support Householder’s election for Speaker.
FirstEnergy’s illicit payments funded the operating costs of the Householder Enterprise
and paid for Householder’s political and campaign staff. Larry Householder, Jeffrey
Longstreth, Neil Clark, Matthew Borges, Juan Cespedes, and/or Generation Now also
paid themselves personally millions of dollars in bribe payments, funneled through
Generation Now and other entities controlled by the Householder Enterprise. This
includes allowing for the payment of at least $500,000 in what appears to be personal
benefits to Householder that was passed through Longstreth-controlled bank accounts.
In addition, the members of the Householder Enterprise had over $8 million of
FirstEnergy’s money in their controlled bank accounts at the end of 2019, which
represents further profit to the members of the Householder Enterprise.
THE HOUSEHOLDER ENTERPRISE
21.
Until he was removed from that position by a unanimous vote on July 30,
2020, Larry Householder was the current Speaker of the Ohio House of
Representatives at all times relevant. He previously served as a House member
representing Ohio’s 72nd District from 1997 to 2004, including as Speaker of the House
from 2001 to 2004. Householder resigned from office after reports of alleged corrupt
activity surfaced in the media and were publically referred to the FBI; however, he was
not charged at that time. Householder won his House seat back in the Fall of 2016. He
was elected Speaker again in January 2019, after what the Ohio media described as a
bitter leadership battle that lasted nearly a year.
22.
Householder’s path to the Speakership was unusual. Householder and
another representative, both of whom are Republicans, were candidates to be Speaker
of the House for the 133rd General Assembly. After the then-Speaker’s resignation in
May 2018, a protracted conflict began to select a Speaker for the remainder of the 132nd
General Assembly. Ultimately, the other representatives became Speaker pending the
upcoming 2018 election, after the unprecedented conflict that was resolved using a
House rule that could only be employed after ten failed attempts to select a Speaker.
Despite the other representatives’ selection in mid-2018 to serve as House Speaker for
the remainder of the 132nd General Assembly, Householder aggressively sought
support for his candidacy for Speaker. He did so in a number of ways, including by
providing financial support, paid for in large part by FirstEnergy, to certain candidates
running for House seats in the Spring 2018 primary and the November 2018 general
election. In the end, his strategy was successful as he won the Speakership despite
another representative serving in that role prior to the 2018 election.
23.
The Householder Enterprise had several purposes, one of which was to
increase Larry Householder’s political power through corrupt means. In his role, Larry
Householder solicited and accepted payments from FirstEnergy into his Section
501(c)(4) account; he used the bribe payments to further his political interests, enrich
himself and other members and associates of the Householder Enterprise, and to assist
in passing and preserving the bailout legislation; and, in return for the benefits received,
he coordinated passage of HB 6 and attempted to influence legislators to support the
bailout, among other things.
24.
Larry Householder benefitted personally from the activities of the
Householder Enterprise. For example, while funded by FirstEnergy-to-Generation-Now
bribe money, at least $300,000 passed through and funded bank accounts controlled by
Jeff Longstreth, which the Householder Enterprise used to pay legal fees and settle a
lawsuit against Larry Householder. Over $100,000 of the FirstEnergy-to-Generation-
Now bribe money was passed through bank accounts controlled by Jeff Longstreth and
used to pay costs associated with Larry Householder’s Florida home. In addition, at
least $97,000 of the FirstEnergy-to-Generation-Now bribe money was used to pay
expenses for Larry Householder’s 2018 political campaign.
25.
Jeff Longstreth is Larry Householder’s longtime campaign and political
strategist. Neil Clark identified Jeff Longstreth as Larry Householder’s “political guy,” his
“implementer,” and one of his “closest advisors,” who was instrumental to the
Householder Enterprise’s efforts to pass HB 6.
26.
Although Jeff Longstreth is not employed by the State of Ohio, he has
been Larry Householder’s chief political strategist. He ran Larry Householder’s political
campaign, and he and his staff managed the 2018 campaigns for the Householder
Enterprise-backed candidates (at times internally referred to by members of the
Householder Enterprise as “Team Householder” candidates). Larry Householder and
Jeff Longstreth shared office space that was rented from their Political Advertising
Agency. In addition, Jeff Longstreth led the messaging efforts both in the campaign to
pass HB 6 and to defeat the referendum, and was a point of contact for FirstEnergy and
the Individual Defendants.
27.
Jeff Longstreth also played a critical role with respect to the the
Householder Enterprise’s finances. He was a signatory on both of the Generation Now
bank accounts and the person who transferred money out of the accounts to other
entities to further the Householder Enterprise. Jeff Longstreth also controlled entities
that receive FirstEnergy-through-Generation Now payments to further the Householder
Enterprise. Among these entities, Jeff Longstreth owns and operates JPL & Associates.
Throughout the relevant period, Jeff Longstreth transferred over $10.5 million of
FirstEnergy’s bribe payments directly from Generation Now’s primary bank account to
JPL & Associates’ primary bank account. In addition, Jeff Longstreth received indirectly
another $4.4 million, which was transferred from the Generation Now account through
another entity and then into bank accounts that he controlled. Jeff Longstreth then used
FirstEnergy’s
payments funneled
through
Generation
Now
to further
Larry
Householder’s and FirstEnergy’s interests and to pay personal benefits to members and
associates of the Householder Enterprise. Jeff Longstreth benefitted personally through
the conspiracy’s actions, receiving over $5 million in FirstEnergy-to-Generation-Now
money during the relevant period, including at least $1 million, which he transferred to
his brokerage account in January 2020.
28.
Neil Clark owns and operates Grant Street Consultants, an Ohio-based
lobbying firm that focuses on legislative, regulatory, and procurement lobbying at the
Ohio Statehouse. Prior to becoming a lobbyist, Neil Clark served as a budget director
for the Ohio Senate Republic Caucus. During the relevant period, Neil Clark worked as
a lobbyist for various political interest groups.
29.
Along with Jeff Longstreth, Neil Clark is, in his own words, one of Larry
Householder’s “closest advisors.” According to Neil Clark’s admissions, made during
recorded conversations in 2019, he served as Larry Householder’s “proxy” in the
Householder Enterprise’s efforts to further the enactment of HB 6 an ensure HB 6 went
into effect in October 2019 by defeating the subsequent ballot-initiative challenge. Neil
Clark also communicated directly with House members to further the Householder
Enterprise. In 2019, Neil Clark described himself in recorded communications as Larry
Householder’s “hit man” who will do the “dirty shit.” Clark stated that “when
[Householder’s] busy, I get complete say. When we’re working on stuff, if he says, ‘I’m
busy,’ everyone knows. Neil has the final say, not Jeff. Jeff is his implementer.”
Matthew Borges confirmed Neil Clark’s role, and similarly described Neil Clark as Larry
Householder’s “proxy” relating to FirstEnergy matters. Neil Clark benefitted personally
from FirstEnergy’s payments to the Householder Enterprise, receiving at least $290,000
in FirstEnergy-to-Generation-Now money.
30.
Matthew Borges is a registered lobbyist for a subsidiary of FirstEnergy.
He was a key middleman and was at the center of the effort to thwart the referendum to
stop HB 6 from taking effect through a ballot-initiative drive. On August 5, 2019, shortly
after the Ballot Campaign was announced, Matthew Borges incorporated 17 Consulting
Group. Two days later, Matthew Borges opened a bank account for 17 Consulting
Group, and that same day Generation Now wired $400,000 into the account. Over the
next few months, Generation Now wired a total of $1.62 million into the account.
31.
Approximately one month after Generation Now began wire transferring
money into Matthew Borges’ 17 Consulting Group’s account, he paid $15,000 in
exchange for inside information about the Ballot Campaign, which Matthew Borges
would use to help defeat the Ballot Campaign. Bank account records show that the
$15,000 paid came from the 17 Consulting Group account, which was funded by
Generation Now wire transfers. Matthew Borges also paid Juan Cespedes $600,000 of
Generation Now money from his account. With the money wire transferred from
Generation Now, Matthew Borges also paid a private investigator during this period,
which, as described below, is consistent with the Householder Enterprise’s strategy of
investigating the signature collectors that worked for the Ballot Campaign.
32.
Matthew Borges had contact with Larry Householder in January 2019 and
April 2019 – key time-periods, as described below, involving official action by Larry
Householder. Matthew Borges benefitted directly from the $1.62 million from
Generation Now wire transfers. Specifically, he paid himself over $350,000 from
FirstEnergy-to-Generation-Now proceeds.
33.
Juan Cespedes served as a key middleman, participating in strategy
meetings and communicating with Householder Enterprise members and associates
regarding strategic decisions. Juan Cespedes is a multi-client lobbyist, whose services
were retained by a subsidiary of FirstEnergy. He was central to this company’s efforts
to get the bailout legislation passed in Ohio. As explained in this Complaint and in the
Affidavit, a contract between this company and Juan Cespedes’ lobbying company, the
Oxley Group, shows this company hired Juan Cespedes to pursue the bailout legislation
starting in the Spring of 2018. Consistent with this, records show that Juan Cespedes
was the “lead consultant” relating to attempts to pursue legislation would save
FirstEnergy’s failing nuclear power plants. In internal documents, Juan Cespedes
tracked “Householder camp” candidates who later received FirstEnergy-to-Generation-
Now money, and he advised that if Larry Householder became the Speaker, the nuclear
energy bailout “will likely be led from his Chamber.”
34.
Juan Cespedes received approximately $600,000 from the Householder
Enterprise and $227,000 from FirstEnergy in 2019. He also was in regular contact with
both the Individual Defendants and Householder Enterprise members during the
relevant period. As set forth below, Juan Cespedes and Jeff Longstreth communicated
regularly through text messages discussing the coordination of millions of dollars in
FirstEnergy’s payments to the Householder Enterprise, attaining public officials’ support
for the bailout, sending media and mailers supporting the bailout legislation, and hiring
signature firms to defeat the ballot campaign, among other things. Juan Cespedes
coordinated the timely payment of $15 million from FirstEnergy to Generation Now.
35.
Generation Now, Inc. received approximately $60 million from FirstEnergy
and/or FirstEnergy Service during the relevant period. As set forth more fully below,
Generation Now registered with the Internal Revenue Service (“IRS”) as a Section
501(c)(4), which is an IRS designation for a tax-exempt social welfare organization.
Pursuant to federal law, the names and addresses of contributors to Section 501(c)(4)
organizations are not made available for public inspection. The members of the
Householder Enterprise concealed the bribery scheme by funneling the money through
Generation Now, which hid the payments and the scheme from public scrutiny.
Generation Now’s accounts had a combined balance of approximately $1.67 million as
of January 1, 2020, money that is a direct benefit to the Householder Enterprise. As
described in this Complaint and in the Affidavit, after making wire transfers to Coalition
in early 2020, the Generation Now accounts were replenished by a $2 million wire from
Energy Pass-Through (a non-profit Section 501(c)(4) organization that was incorporated
in Ohio on February 28, 2017, two days after Generation Now was incorporated in
Delaware) in March 2020, bringing the combined balance of the accounts to
approximately $2.9 million, again, money that is a direct benefit to the Householder
Enterprise.
RELATED ENTITIES CONTROLLED BY THE HOUSEHOLDER ENTERPRISE
36.
The Householder Enterprise used and relied on a number of
different entities to further the conspiracy alleged in this Complaint. The following
entities were controlled by, worked directly with, or funneled payments for the
benefit of the Householder Enterprise:
a.
JPL & Associates LLC is controlled by Longstreth. Longstreth is
the signor on five different bank accounts that have received money directly from
Generation Now, including two JPL business accounts, one personal account, and two
accounts named “Constant Content.” Numerous internal money transfers to Generation
Now money were made among Longstreth-controlled accounts. In total, JPL’s main
business account received over $10.5 million in FirstEnergy-to-Generation-Now wire
transfers during the relevant period, which Longstreth then transferred internally to his
other accounts. Longstreth also received indirectly $4.4 million, which had been
funneled from Generation Now, through another entity (the “Front Company” discussed
below) and into Longstreth’s Constant Content accounts. Analysis of the accounts by
the FBI shows that the money was used to pay benefits directly to Householder
Enterprise members and to further the Householder Enterprise’s interests by paying
campaign staff for preferred Householder Enterprise political candidates, among other
things. After the ballot initiative campaign failed and HB 6 became law for the benefit of
FirstEnergy, Longstreth consolidated most of the Householder Enterprise funding into
JPL-controlled accounts. As of January 1, 2020 that total balances within JPL-
controlled accounts exceeded $6.5 Million. This money is a direct benefit to the
Householder Enterprise.
b.
“PAC” is a federal PAC through which Generation Now funneled
FirstEnergy payments in furtherance of the conspiracy. The Householder Enterprise
primarily used the PAC during the May 2018 primary election as a way to conceal the
source of media buys for “Team Householder” candidates. The attorney who is listed
as the treasurer for Generation Now and who is a signatory on the Generation Now
accounts along with Jeff Longstreth, is the treasurer and a signor of the PAC account.
c.
Although Longstreth was not a signor on the PAC bank account,
documents obtained by the FBI confirm Longstreth’s control over the PAC. For
example, a Word document titled “Client Information Request Form,” last modified by
Longstreth in October 2016, listed Longstreth as the “Executive Director or President” of
the PAC. In addition, Longstreth’s resume, created by Longstreth in November 2016,
states that Longstreth oversees political activities for the PAC. Contribution forms for
the PAC list Longstreth as the “Contact” and include Longstreth’s e-mail address and
telephone number. Toll call records corroborate Longstreth’s role, showing frequent
contact with the attorney when Generation Now needed to move money to and from
d.
In early 2018, the PAC bank account was funded almost entirely by
a $250,000 wire transfer and a $750,000 wire transfer from Generation Now made on
April 2 and April 12, 2018, respectively. By April 30, 2018, nearly all of the one million
dollars was paid to two media services firms, which spent the money on media buys
and other efforts to benefit Householder political candidates, including Larry
Householder himself, in advance of the May 8, 2018, Ohio primary election.
e.
The account was unused until Generation Now wired an additional
$50,000 to the account in September 2018, in advance of the Fall 2018 election. Close
to $40,000 of that wire transfer was paid to a political strategy group within weeks of the
wire transfer. Aside from payments to the attorney’s law firm, the balance remained in
the account.
f.
The account remained largely inactive from October 2018 until
January-February 2020, when the Householder Enterprise wired $1,010,000 of money
from Defendants to the “Coalition” (described below), which passed through to PAC
roughly the same amount of money over the next two months. Expenditures from the
PAC in Federal Election Commission filings, along with media purchased by PAC, show
that the Householder Enterprise used FirstEnergy’s money funneled to the PAC to
benefit Team Householder candidates for the 2020 primary election.
g.
“Coalition” is another 501(c)(4) non-profit entity for which the
attorney who is treasurer and signor for the PAC is the signor on the Coalition’s bank
account. The attorney incorporated Coalition in Delaware one day after he incorporated
PAC. Longstreth’s resume states that he oversees political activities for the Coalition.
An FBI investigation indicated that Longstreth possessed a copy of the W-9 taxpayer
identification form for the Coalition. He also saved Word documents characterized as
“scripts” to use when soliciting money from donors to the Coalition.
h.
For calendar years 2017 through 2019, the Coalition was funded
almost exclusively through (1) $90,000 from First Energy, (2) $300,000 from “Energy
Pass-Through” (a FirstEnergy pass-through, as set forth below), and (3) $200,000 from
an interest group that was funded exclusively by $13 million from another energy
company that supported HB 6 and separately paid $150,000 to Generation Now during
the relevant period. Outgoing payments from the Coalition account were over $100,000
in two wires to JPL & Associates; $54,000 wired to Generation Now; $191,000 wired to
Media Placement Company 1; and $200,000 wired to a public relations firm.
i.
The Coalition account was largely unused from August 2018 until
January 2020 when, as described directly above, the Householder Enterprise used the
Coalition as a pass-through for FirstEnergy-to-Generation-Now money to PAC, which
the Householder Enterprise then used to support Larry Householder-backed candidates
in the 2020 primary election. The benefit of passing the money through the Coalition
was that the PAC listed the Coalition as the source of the $1,010,000 million in FEC
filings, not Generation Now. The Householder Enterprise sought to conceal Generation
Now as the source of PAC funds in 2020 for numerous reasons, including, as explained
in this Complaint and in the Affidavit, Generation Now had generated negative media
publicity in 2019 and candidates expressed concern to Larry Householder about their
association with it.
j.
Thus, this account is a mechanism for Generation Now to spend
secret money for the benefit of Larry Householder and the Householder Enterprise.
k.
“Dark Money Group 1” is an entity used by Householder Enterprise
conceal the source of media buys during the 2018 general election, similar to the way
the Householder Enterprise used PAC for the primaries in 2018 and 2020. An Ohio
lobbyist incorporated Dark Money Group 1 in Ohio on September 21, 2018, and opened
its bank account on September 25, 2018.
l.
The majority of activity in the account occurred roughly one month
later, between October 2018 and Election Day on November 6, 2018. From October 19
to October 29, 2018, Generation Now wired $670,000 into the account; FirstEnergy
wired $500,000 into the account; and other corporate interests wired $300,000 into the
account, totaling $1,470,000. From October 22 to November 2, 2018, Media Placement
Company 2 then spent $1,438,510 on media buys for advertisements paid for by Dark
Money Group 1 that generally targeted rivals of candidates aligned with Larry
Householder. Since Election Day in 2018, the account has been largely unused.
m.
“Front Company” is a pass-through entity used by the Householder
Enterprise to fund the campaign against the referendum in furtherance of the
conspiracy. The for-profit entity was organized in Ohio on July 30, 2019, just days after
the Ballot Campaign to overturn HB 6 began.
n.
From August 1, 2019 through October 2019, FirstEnergy
controlled accounts wired Generation Now $38 million; Generation Now then wired $23
million from those payments to Front Company, the vast majority of which was used to
pay signature collection firms to fight against the Ballot Campaign and to pay for media
opposing the Ballot Campaign. Generation Now was the sole source of money
deposited into the Front Company account. By November 2019, less than $5,000
remained in the Front Company account.
THE USE OF GENERATION NOW TO RECEIVE
BRIBE PAYMENTS FROM FIRST ENERGY
37.
On or about February 6, 2017, Generation Now, Inc. was incorporated in
Delaware, and two bank accounts were opened at Fifth Third Bank (account numbers
3310 and 6847). Bank records show that an attorney and Jeff Longstreth were
signatories on both accounts. On or about July 26, 2017, Generation Now registered
with the Ohio Secretary of State as a foreign nonprofit corporation “organized
exclusively for the promotion of social welfare and economic development purposes
within the meaning of Section 501(c)(4) of the Internal Revenue Code (“the Code”), or
the corresponding section of any future federal tax code.” The attorney signed the
application as the treasurer of Generation Now.
38.
Although Larry Householder was not listed on registration documents or in
account records for Generation Now, the Householder Enterprise used Generation Now
to receive secret payments for Larry Householder.
39.
At that time, there was aggressive lobbying for legislative action to save
FirstEnergy’s two nuclear power plants. Table One in Paragraph 47 of the Affidavit lists
each of FirstEnergy’s illicit payments received by Generation Now during the period
from March 2017 until March 2020, totaling $59,996.835.86.
40.
In addition to the $59,996.835.86 that FirstEnergy paid directly to
Generation Now, FirstEnergy made $890,000 in other timely payments to the
Householder Enterprise, including payments of $500,000 to Dark Money Group 1 and
$90,000 to Coalition, and an Energy Pass-Through payment of $300,000 to Coalition,
all of which are detailed in the Affidavit. These payments bring the total amount of
direct payments from FirstEnergy to the Householder Enterprise during the relevant
period as $60,886,835.86. During the scheme and conspiracy described in this
Complaint, other entities besides FirstEnergy deposited money into Generation Now;
the amounts of those deposits, however, are dwarfed by FirstEnergy’s payments.
41.
Although Larry Householder’s name is not on Generation Now’s
paperwork, an FBI investigation concluded, based on Larry Householder’s statements,
Neil Clark’s statements, and a review of documentation obtained pursuant to search
warrants and grand jury subpoenas, that Larry Householder controls Generation Now to
further the Householder Enterprise’s goals.
42.
FirstEnergy and FirstEnergy Service funded Householder’s Speakership
bid in exchange for a legislative fix for its nuclear power plants.
43.
The volume of FirstEnergy’s payments, the timing of these payments,
communications and coordination amongst co-conspirators and the Individual
Defendants, the official action(s) taken by Larry Householder, and the actions to
maintain the official action, show the corrupt arrangement of FirstEnergy’s funding of
Larry Householder’s speakership bid in exchange for a legislative fix.
44.
As described in this Complaint and in the Affidavit, the vehicle to collect
the vast amounts of money needed for Larry Householder’s Speakership bid was
Generation Now. From the time the Generation Now bank accounts were opened in
2017 through the November 2018 general election, the Householder Enterprise
received approximately $4.6 million into Generation Now. More than one-half of that
money came from FirstEnergy, FirstEnergy Service, or the Energy Pass-Through, fully
funded by FirstEnergy. More than one-half million of the remaining money came from
energy-related entities that either had a relationship with FirstEnergy or an interest in
the bailout legislation. The remaining amount of money (approximately $1.6 million)
came from approximately 31 other interest groups.
45.
The Individual Defendants caused FirstEnergy to make regular, quarterly
payments of $250,000 into Generation Now’s main bank account almost immediately
after Jeff Longstreth opened that account in 2017. But, in March 2018, approximately
two weeks before FirstEnergy’s corporate affiliates filed for bankruptcy, FirstEnergy
began funneling payments to Generation Now through Energy Pass-Through. The
payments wired from FirstEnergy Service into the Energy-Pass-Through originated from
account number 6496, the same account used to wire transfer payments directly from
FirstEnergy Service into Generation Now. In the final month before the 2018 general
election, FirstEnergy deposited another $500,000 into the Generation Now account.
This time the money was paid by check from account number 4788. The payments
from FirstEnergy during 2017-2018 are summarized in Paragraph 82 of the Affidavit.
Other payments are described in Paragraph 83 of the Affidavit. The close coordination
of activities between FirstEnergy, the Individual Defendants, and Larry Householder is
set forth in Paragraphs 84-86 of the Affidavit.
46.
On or about July 24, 2018, a few months after the primary elections,
$215,000 was wire transferred from Jeff Longstreth-controlled accounts to settle a
personal lawsuit against Larry Householder. On August 1, 2018, the same day that
Larry Householder was meeting with FirstEnergy executives in Columbus, according to
documents in Juan Cespedes’ possession, a court filing in Franklin County Court
“released and forever discharged” the judgment against Larry Householder and
Householder Ltd. The main JPL account was funded with wire transfers from
Generation Now, which was funded in large part by FirstEnergy wire transfers. In
addition, bank records will show that JPL’s main account also paid the fees of Larry
Householder’s attorneys involved in the lawsuit in May 2017 via two checks totaling
$60,000. At the time JPL made those payments, it had received more than $78,000
from Generation Now, which had been funded in part by a $250,000 wire from
FirstEnergy and a deposit from Longstreth on the date he opened the account. JPL
also paid the same law firm additional fees totaling $25,308.43 in 2018.
BAILOUT LEGISLATION PASSED FOR FIRST ENERGY
47.
The Householder Enterprise transitioned quickly to fulfilling its end of the
corrupt bargain with FirstEnergy by passing nuclear bailout legislation. In fact on
January 7, 2019, the day he was elected Speaker of the House, Larry Householder
pledged to create a standing subcommittee on energy generation. Larry Householder
then followed through shortly after his election as Speaker by passing the HB 6
legislation and defending the bill against the ballot initiative challenge.
48.
The Householder Enterprise's efforts to pass the legislation and preserve
it against the Ballot Campaign challenge were funded entirely by FirstEnergy and/or
FirstEnergy Service, through illicit payments to Generation Now. While HB 6 was
pending in the House, FirstEnergy wire transferred Generation Now the sum of
$9,500,000. When the bill was pending in the Senate, FirstEnergy wire transferred
Generation Now the sum of $7,358,255. And, to fund its efforts to defeat the Ballot
Campaign, FirstEnergy wire transferred an additional $38,000,000 to Generation Now.
The volume and frequency of these payments provide further evidence of the
Householder Enterprise's corrupt arrangement with FirstEnergy and the Individual
Defendants. These facts, including the Householder Enterprise's passage of HB 6, its
efforts to defeat the subsequent Ballot Campaign, and FirstEnergy’s involvement and
coordination funding these efforts, are set forth in this Complaint and in the Affidavit.
HOUSE BILL 6
49.
Consistent with their unlawful scheme, the Householder Enterprise
implemented a strategy to pass a legislative fix for FirstEnergy and its related entities
shortly after Larry Householder was selected Speaker. The strategy involved ramming
a sweeping piece of legislation – HB 6 – through the House and pushing the Senate to
agree. First, Larry Householder picked freshman representatives, which he had helped
to elect by using FirstEnergy-to-Generation-Now dollars for their benefit in the 2018
election, to sponsor the bill that he helped draft. Second, Larry Householder created a
new subcommittee to hear the bill, which was comprised mostly of his political
supporters. Third, the Householder Enterprise engaged in an expensive media blitz,
funded by FirstEnergy-to-Generation-Now payments, to pressure public officials to
support the bill. Fourth, Larry Householder strong-armed House members, particularly
the opponents of the bill. Finally, Larry Householder and the Householder Enterprise
pressured Senators to pass the legislation. The expediency and funding of this
legislative effort and the tactics used by the Householder Enterprise, along with timely
communications between Householder Enterprise members and agents of FirstEnergy,
including the Individual Defendants, are further evidence of the unholy and illicit
agreement between Larry Householder and FirstEnergy.
50.
On April 12, 2019, roughly three months after Larry Householder became
Speaker, HB 6 was introduced. Although the bill was entitled “Ohio Clean Air
Program,” the FBI investigation shows that HB 6 was conceived to prevent the
shutdown of FirstEnergy’s nuclear power plants as explained in Paragraphs 111-186 of
the Affidavit.
51.
HB 6 was important to the Householder Enterprise because it received
millions of dollars into Generations Now from FirstEnergy in exchange for enactment of
the bailout legislation. And, thus, the repeal of HB 6, which would prevent HB 6 from
taking effect in October 2019, was viewed as a threat to the Householder Enterprise.
52.
FirstEnergy and/or FirstEnergy Service funded and/or participated in the
funding of the Householder Enterprise to defeat the Ballot Campaign to repeal HB 6, as
alleged in Paragraphs 187-215 of the Affidavit. The efforts to prevent the repeal of HB
6 included bribing an employee of the Ballot Initiative to gain inside information, and
bribes to signature collectors, as detailed in Paragraphs 216-239 of the Affidavit.
53.
The members of the Householder Enterprise worked closely with
FirstEnergy and the Individual Defendants to defeat the repeal of HB 6. During this
period, the Individual Defendants caused FirstEnergy to pay the Householder
Enterprise over $38 million. For example, on October 10, 2019, FirstEnergy wire
transferred $10 million to Energy Pass-Through, which then wired $10 million to
Generation Now, as detailed in Paragraphs 169-170 of the Affidavit.
54.
The efforts to prevent a repeal of HB 6 were successful. On October 21,
2019, the Ballot Campaign failed to collect enough signatures and HB 6 went into
effect..
55.
The Ohio Legislature may well repeal and replace HB 6. But having
hijacked Ohio’s democracy and damaged Ohio’s trust of an elected government,
FirstEnergy, FirstEnergy Service, and the Individual Defendants are not entitled to
“keep the change” of their ill-gotten gains.
CLASS ACTION ALLEGATIONS
56.
Plaintiffs bring this action under Rules 23(a), (b)(1)(A), (b)(2), and (b)(3) of
the Federal Rules of Civil Procedure, on behalf of themselves and the other members of
the Class, which is defined as: All persons and entities resident in the State of Ohio
who have and/or will have to pay a monthly surcharge for electric service pursuant to
57.
Based on information and belief, the members of the Class exceed tens of
several million, making joinder of all Class members impracticable.
58.
The claims set forth in this Complaint are common to each member of the
Class. Plaintiffs and each Class member are subject to the same rate increases set
forth in HB 6.
59.
There are questions of law and/or fact common to the Class which
predominate over any questions effecting individual members of the Class. These
include: (a) whether the Defendants bribed the members of the Householder Enterprise
to obtain bailout nuclear power plant legislation, HB 6; (b) whether the conduct set forth
in this Complaint violated RICO and/or the Ohio Corrupt Activity Act; (c) whether the
Class members are entitled to actual damages, punitive damages, statutory damages,
or both; and (d) whether Defendants’ conduct entitles the Class to recovery of attorneys’
fees and expenses.
60.
Plaintiffs are adequate representatives of the Class members because
they are members of the Class, the claims they assert in the Complaint are typical of the
claims of the Class members, Plaintiffs’ claims are not subject to any unique defenses,
and Plaintiffs’ interests do not conflict with those of any other Class member.
61.
Plaintiffs will fairly and adequately protect the interests of the Class.
Plaintiffs’ interests do not conflict with any interest of the Class.
62.
The federal and state law claims set forth in this Complaint are proper for
certification as a class action under the provisions of Rule 23.
63.
After addressing the questions common to the Class, only the
determination of individual damages will remain, and that calculation is one of simple
mathematics using the records maintained by the Defendants.
64.
This class action is superior to other available methods for the fair and
efficient adjudication of the claims asserted herein because there are tens of thousands
of members in the proposed Class and repeated individual discovery and litigation of
the common issues shared by all Class members would needlessly waste judicial
resources. The names and addresses of Class members will be readily identifiable from
records of Defendants and through discovery of this action.
65.
The Class members’ interests in individually controlling the prosecution of
separate actions do not outweigh the benefits of class-based litigation on those issues.
66.
It is desirable to concentrate the litigation of these claims in one forum.
Any difficulty in managing this case as a class action is outweighed by the immense
benefits the class action has in efficiently disposing of common issues of law and fact
among the large number of litigants. Moreover, no Class member has enough at stake
to warrant individual litigation against these obviously well-funded and ruthless
defendants.
67.
The prosecution of this civil action by all Class members individually in
separate actions would create a risk of inconsistent or varying adjudications of claims by
the individual Class members that would establish incompatible standards of conduct
for Defendants, could be dispositive of interests of other Class members not parties to
the adjudications, or substantially impair or impede Class members ability to protect
their interests.
68.
Further, Plaintiffs have retained competent counsel experienced in class
action litigation to further insure such representation and protection of the Class.
Plaintiffs and their counsel intend to vigorously prosecute this action.
69.
Managing this case as a Class Action should not present any particular
difficulty.
VIOLATIONS OF FEDERAL RICO AND OHIO CORRUPT ACTIVITY ACT
(18 U.S.C. § 1962(c) & (d) AND OHIO REV. CODE § 2923.32(A)(1))
70.
Paragraphs 1-69 of this Complaint are realleged and incorporated by
reference. This claim is asserted against each of the Individual Defendants,
FirstEnergy, and FirstEnergy Service for violations of RICO and the Ohio Corrupt
Activity Act.
71.
Hudock is a natural person and, as such, is a “person” within the meaning
of 18 U.S.C. § 1961(3) and Ohio Rev. Code § 2923.31(G).
72.
Cameo is a corporate entity and, as such, is a “person” within the meaning
of 18 U.S.C. § 1961(3) and Ohio Rev. Code § 2923.31(G).
73.
Defendants FirstEnergy and FirstEnergy Service are corporate entities
and, as such, are “persons” within the meaning of 18 U.S.C. § 1961(3) and Ohio Rev.
Code § 2923.31(G). Each of the Individual Defendants is a natural person and, as
such, each of them is a “person” within the meaning of 18 U.S.C. § 1961(3) and Ohio
Rev. Code § 2923.31(G).
74.
At all times relevant to this case, FirstEnergy and FirstEnergy, as
corporate entities, both individually and acting together, constituted an “enterprise,” as
that term is defined in 18 U.S.C. § 1961(4) and Ohio Rev. Code § 2923.31(C). This
enterprise is referred to herein as the “FirstEnergy Enterprise.” The Individual
Defendants, and each of them, as individual persons and as corporate officers, are
separate and distinct from the FirstEnergy Enterprise. At all times relevant to this case
and for the reasons set forth in the Criminal Complaint, the Householder Enterprise also
constituted an “enterprise.” As alleged in this Complaint, FirstEnergy, FirstEnergy
Service, and the members of the Householder Enterprise constituted a group of persons
associated in fact, and this enterprise is referred to herein as the “FirstEnergy-
Householder Enterprise.”
75.
In violation of Section 1962(c) & (d) of RICO, and in violation of Section
2923.32(A)(1) of the Ohio Corrupt Activity Act, the Individual Defendants conducted the
affairs of the FirstEnergy Enterprise through a pattern of racketeering activity and a
pattern of corrupt activity and/or conspired to do so. In violation of the same statutory
provisions, FirstEnergy and FirstEnergy Service conducted the affairs of the
FirstEnergy-Householder Enterprise through a pattern of racketeering activity and a
pattern of corrupt activity and/or conspired to do so.
76.
The purpose of the FirstEnergy Enterprise and the FirstEnergy-
Householder Enterprise was to secure legislation favorable to FirstEnergy and
FirstEnergy Service through the use of bribes that the Individual Defendants caused
FirstEnergy and/or FirstEnergy Service to pay, as alleged in this Complaint.
77.
The FirstEnergy Enterprise and the FirstEnergy-Householder Enterprise
have been engaged in (since approximately 2017) and continue to be engaged in,
activities that affect interstate commerce. These enterprises have been and remain
longstanding, continuous, and open-ended. The Individual Defendants, FirstEnergy,
and FirstEnergy Service have engaged in a pattern of racketeering activity and a pattern
of corrupt activity, as described in this Complaint, in the Criminal Complaint, and in the
Affidavit including, but not limited to, the extensive use of the U.S. mails and/or
interstate wire facilities on different dates, to bribe Larry Householder and/or other
elected representatives to pass nuclear plant bailout legislation (HB 6), defeat the Ballot
Campaign (anti-HB 6 referendum effort), and expand Larry Householder’s power to
enable HB 6 to be passed and the Ballot Campaign defeated.
PATTERN OF RACKETEERING ACTIVITY
78.
The Individual Defendants, acting individually and collectively and/or in
conjunction with and/or coordinated with the members of the Householder Enterprise,
have engaged, directly or indirectly, in a pattern of racketeering activity and a pattern of
corrupt activity.
79.
The Individual Defendants, acting individually and collectively and/or in
conjunction with others, devised a scheme to obtain legislation and prevent the repeal
of legislation by means of false or fraudulent pretenses and representations, and
through the payment of bribes.
80.
The Individual Defendants used the U.S. mails and/or interstate wire
facilities and have caused the mails and wires to be used, or reasonably knew the mails
and wires would be used, in furtherance of their fraudulent scheme(s) and the payment
of bribes in return for the passage of nuclear plant bailout legislation (HB6) and to
prevent its repeal.
81.
The Individual Defendants have used the mails and wires in connection
with the payment of bribes for the passage of bailout legislation (the passage of HB 6),
fraudulently obtained, and through the use of the mails and wires which has furthered
this illegal scheme and enabled FirstEnergy and/or FirstEnergy Service to take money
and property from Plaintiffs and Class members by means of false pretenses and
representations and the payment of bribes, to obtain the passage of bailout legislation
(HB 6) and preventing its repeal.
82.
On information and belief, each and every one of the Individual
Defendants has specific knowledge that the mails and wires are/were being utilized in
furtherance of the overall purpose of executing the illegal scheme, and/or it was
reasonably foreseeable that the mails and wires would be so used.
83.
Each of the mails and wires in connection with the scheme(s) described in
this Complaint, in the Criminal Complaint, and in the Affidavit, spanning a period from
2017 to the present, constitutes a separate instance of mail and/or wire fraud and, thus,
is also a predicate act of racketeering activity and/or corrupt activity which, taken
together, constitute a pattern of racketeering activity and/or a pattern of corrupt activity
within the meaning of RICO and/or the Ohio Corrupt Activity Act. Other predicate acts,
including payment of bribes for the passage of HB6 and the payment of bribes to
prevent its repeal are set forth in this Complaint, in the Criminal Complaint, and in the
Affidavit.
84.
In addition, as alleged in this Complaint, in the Criminal Complaint, and in
the Affidavit, the Individual Defendants, FirstEnergy and/or FirstEnergy Service have
engaged in a variety of wrongful acts that constitute racketeering activity and/or corrupt
activity, including (a) violations of 18 U.S.C. § 1951, relating to interference with
commerce, robbery, or extortion; (b) violations of 18 U.S.C. § 1952 relating to
racketeering, including multiple acts of bribery in violation of Ohio Rev. Code §
3517.22(a)(2); (c) violations of 18 U.S.C. §1956, relating to money laundering; (d)
violations of 18 U.S.C. § 1957, relating to engaging in monetary transactions in property
derived from specified unlawful activity; and (e) multiple acts involving bribery that are
chargeable under Ohio Rev. Code § 2921.02.
RELATIONSHIP OF PATTERN OF RACKETEERING ACTIVITY AND/OR CORRUPT
ACTIVITY TO THE ENTERPRISE(S)
85.
As described in this Complaint, the goal of the FirstEnergy Enterprise and
the FirstEnergy-Householder Enterprise was to obtain the passage of HB 6 through
fraudulent, illegal means, through the payment of bribes to extract money and property
from Plaintiffs and Class members by requiring them to pay a surcharge on their electric
utility bills.
86.
The pattern of racketeering activity and the pattern of corrupt activity
described herein was integral to Defendants’ scheme. Without engaging in mail and
wire fraud, and the payment of bribes, FirstEnergy, FirstEnergy Service, and the
Individual Defendants would be unable to obtain passage of HB 6.
87.
As a direct and proximate result of the violations of RICO and/or the Ohio
Corrupt Activity Act described in this Complaint, Plaintiffs and Class members have
suffered substantial injuries. Plaintiffs and Class members have and/or will pay monthly
surcharges that range from 85 cents per month for residential customers to $2,400 per
month for commercial customers operating large industrial plants, thus constituting an
injury to Plaintiffs and Class members within the meaning of 18 U.S.C. § 1964(c) and/or
Ohio Rev. Code § 2923.34(E).
CIVIL CONSPIRACY
88.
Paragraphs 1-69 of this Complaint are realleged and incorporated by
reference. This claim is asserted against each of the Defendants.
89.
Defendants have engaged in a civil conspiracy to unlawfully injure
Plaintiffs and Class members. Their actions evidence a malicious combination with the
purpose of causing injury to the property of Plaintiffs and Class members in a way not
competent for one alone, resulting in actual damages.
90.
Apart from liability for a conspiracy to engage in racketeering or corrupt
practices violations, and independent of those violations, the actions of Defendants
previously described demonstrate a civil conspiracy with one or more members of the
Householder Enterprise under state law to commit fraud, theft, and the other illegal
activities previously described, including the scheme to obtain legislation and prevent
the repeal of legislation by means of false or fraudulent pretenses and representations,
and through the payment of bribes.
91.
The unlawful or tortious acts of the Defendants are attributable to one
another. All Defendants have agreed to and acted in pursuance of a common plan or
design to commit unlawful or tortious acts, actively took part in it, and ratified and
adopted the wrongdoer’s act done for their benefit.
92.
Plaintiffs and Class Members have been proximately injured as a result of
Defendants’ civil conspiracy.
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury for all claims in this Complaint so triable.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of the members of the Class,
respectfully request that the Court enter judgment in their favor and against each of the
Defendants, jointly and severally, as follows:
A. Declaring that this action is a Rule 23 class action, certifying the Class
as requested herein, designating Plaintiffs as Class Representatives,
and appointing Plaintiffs’ counsel as Class Counsel for the Class;
B. Declaring that HB6 is illegal and invalid legislation;
C. Ordering that any and all charges sought to be collected pursuant to
HB6 be enjoined;
D. Ordering Defendants to render an accounting for all fees and charges
collected from the Class;
E. Ordering Defendants to pay actual damages to Plaintiffs and the other
members of the Class;
F. Ordering Defendants to pay treble damages, as allowable by law, to
Plaintiffs and the other members of the Class;
G. Ordering Defendants to pay statutory damages, as provided by law;
H. Ordering Defendants to pay attorneys’ fees and litigation costs to
Plaintiffs and other members of the Class;
I. Ordering Defendants to pay both pre and post-judgment interest on
any amounts awarded; and
J. Ordering such other and further relief as may be just and proper.
Dated: August 5, 2020
Respectfully submitted,
THE KERGER LAW FIRM
By:
Richard Kerger
RICHARD KERGER
4159 N. Holland Sylvania Road
Toledo, OH 43623
Telephone: (419) 255-5990
rkerger@kergerlaw.com
Marvin A. Miller*
Andrew Szot*
MILLER LAW, LLC
115 South LaSalle Street, Suite 2910
Chicago, IL 60603
Telephone: (312) 332-3400
mmiller@millerlawllc.com
aszot@millerlawllc.com
Kevin P. Roddy*
WILENTZ, GOLDMAN & SPITZER, P.A.
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Telephone: (732) 636-8000
kroddy@wilentz.com
Attorneys for Plaintiffs and the Members of the
Class (* - attorneys to be admitted pro hac
vice)
| criminal & enforcement |
lELw_IgBF5pVm5zYONwC | UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1:21-cv-06866
Bobby Phillips, individually and on
behalf of all others similarly situated,
Plaintiff,
- against -
Class Action Complaint
Johnson & Johnson Consumer Inc.,
Jury Trial Demanded
Defendant
Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
which are based on personal knowledge:
1.
Johnson & Johnson Consumer Inc. (“defendant”) manufactures, labels, markets, and
sells herbal mint mouthwash under its Listerine brand represented as “Listerine Naturals”
(“Product”).
2.
The relevant front label claims include “Listerine Naturals,” “99% Naturally Derived
Formula,” and “Free of Artificial Sweeteners & Dyes.”
I.
CONSUMERS VALUE NATURAL PRODUCTS DESCRIBED
3.
Consumers are increasingly conscious of the products they buy, from food to
cosmetics and to oral care.
4.
Numerous surveys reveal that “natural” – and its variations, i.e., “naturals,”
“naturally,” etc. – is one of the top descriptors consumers consider.
5.
Consumers purchase products described as natural based on beliefs they are
conducive to and promote health and are made in ways that does not harm the environment.
6.
Reasonable consumers understand “natural” and its variations to mean free from
synthetic ingredients and ingredients made in non-natural, synthetic methods.
II.
PRODUCT’S INGREDIENTS ARE NOT NATURAL
7.
The representations are misleading because the Product’s ingredients – even if they
begin with natural raw materials – undergo significant alterations through non-natural process like
chemical reactions and the use of catalysts.
8.
The ingredients are separated into “Active” and “Inactive.”
Active ingredient
Sodium Fluoride 0.02% (0.01% w/v Fluoride Ion)
Inactive ingredients Water, Alcohol (21.6% v/v), Sorbitol, Poloxamer
407, Eucalyptol, Methyl Salicylate, Thymol, Stevia Rebaudiana Leaf
Extract, Phosphoric Acid, Menthol, Flavor, Disodium Phosphate
A.
Active Ingredients
9.
Sodium fluoride, the Product’s active ingredient, is a byproduct of the phosphate
fertilizer industry.
10.
Sodium fluoride is made through reacting hydrofluoric acid with sodium carbonate
or sodium hydroxide, and the resulting salt is centrifuged and dried.
11.
Sodium fluoride is used for water fluoridation, to treat metal surfaces, etch glass and
adjust pH in industrial textile processing.
12.
Sodium fluoride is toxic and can severely irritate the skin or eyes.
B.
Inactive Ingredients
i.
Sorbitol
13.
Sorbitol is a naturally occurring sweetener (“sugar alcohol”), found in fruits such as
apples and plums.
14.
However, the sorbitol in the Product is not from fruits, but from corn starch, subject
to hydrolysis and hydrogenation, with chemical catalysts, under high pressure.
ii.
Poloxamer 407
15.
Poloxamers are nonionic compounds made from synthetic materials and chemical
processes.
16.
To produce poloxamers, propylene and ethylene oxide are added to propylene glycol
in the presence of chemical catalysts, at high temperatures and under high pressure.
17.
According to scientific studies and dentists, poloxamer 407 is believed to be highly
toxic and linked to breast cancer.
18.
Poloxamer 407 is used in mouthwash to blend immiscible liquids.
iii.
Methyl Salicylate
19.
Methyl salicylate, or wintergreen oil, comes from the wintergreen plant.
20.
Presently, methyl salicylate used commercially is produced through synthetic means
by esterifying salicylic acid with methanol.
iv.
Thymol
21.
Thymol is a phenol and found in thyme, oregano, and basil.
22.
Thymol can be extracted from these natural sources using aqueous sodium hydroxide
and acidification.
23.
However, natural thymol typically contains carvacrol, a malodorous substance which
spoils the sweeter, herbal, and medicinal odors of this compound.
24.
Almost all thymol is entirely synthetic, produced from the precursor compound
meta-cresol, an organic chemical extracted from coal tar.
25.
Meta-cresol is mixed with iso-propyl alcohol, resulting in alkylation, forming pure
thymol.
v.
Stevia Rebaudiana Leaf Extract
26.
The use of stevia originates with indigenous Guarani peoples, who use leaves from
the Stevia rebaudian plant to sweeten Yerba mate and other foods.
27.
Commercial use of stevia focuses on steviol glycosides extracted from the stevia leaf
(mainly stevioside and rebaudioside), which is 30 to 150 times sweeter than sugar.
28.
Stevia is produced commercially in two ways.
29.
In the first method, steviol glycosides are extracted from the stevia leaf and harshly
purified through chemical processes, filtered with an ion-ex-change resin to remove salts and ionic
molecules.
30.
The ion-exchange process and resin remove the color from the aqueous solution.
31.
The resin is washed with solvents and re-crystallized from methanol, resulting in
highly purified steviol glycosides.
32.
The second method involves genetic engineering and synthetic biology which are
euphemisms for genetically modified organisms or “GMOs.”
33.
The result is a substance that mimics the taste of stevia but has no relation to stevia.
34.
Regardless of the method used, the claim that the Product is free from artificial
sweeteners is misleading because stevia is made through an artificial process.
vi.
Phosphoric Acid
35.
While phosphatic ores have geological origins in mines, phosphoric acid is a
synthetic chemical.
36.
To produce phosphoric acid, tricalcium phosphate is converted through reactions
with sulphuric acid and calcium sulphate.
37.
The calcium sulphate is separated by filtration from the phosphoric acid.
38.
The result is an ingredient reasonable consumers would not consider “natural” or
naturally derived.
vii.
Menthol
39.
The two most important commercial sources of menthol are Mentha arvensis (corn
mint) and Mentha piperita (peppermint).
40.
Natural l-menthol is obtained by freezing essential oil from these plants.
41.
The resultant crystals are then separated by filtration.
42.
Impurities in the crystals give a slight peppermint aroma to the crystallized l-
menthol.
43.
The Mint Growers Association of India, the largest producer of natural menthol, says
that many oral care products use the synthetic version of menthol.
44.
The largest producer of synthetic l-menthol is Symrise, a global flavor company.
viii.
Disodium Phosphate
45.
Sodium phosphate is a generic term for any sodium salts of phosphoric acid.
46.
Sodium phosphate is manufactured by treating phosphoric acid with sodium, such
as sodium bicarbonate, and is recognized as synthetic. 7 C.F.R. § 205.605(b).
47.
Disodium phosphate is used in oral care products to control acidity.
III. “NATURALS,” “99% NATURALLY DERIVED” AND “FREE FROM ARTIFICIAL
SWEETENERS” CLAIMS ARE MISLEADING
48.
The Product’s natural claims are false, deceptive, and misleading.
49.
The representations, “LISTERINE NATURALS,” “99% naturally derived,” and
“Free from Artificial Sweeteners,” are false, deceptive, and misleading.
50.
Reasonable consumers understand the prominent statement of “Listerine Naturals”
to mean most or all the ingredients are natural and made through processes which do not involve
chemical reactions.
51.
No uniform standard or definition exists with respect to cosmetic (and oral care)
products.
52.
In this gap, various organizations have promulgated criteria under which a product
may use terms such as “natural.”
53.
The International Standards Organization (“ISO”) developed a standard entitled,
“Guidelines on technical definitions and criteria for natural and organic cosmetic ingredients and
products.” ISO 16128.
54.
This standard has numerous weaknesses and loopholes, which enable its use to
mislead consumers.
55.
Additionally, consumers cannot even review this standard because it is locked behind
paywalls.
56.
The publisher does not even allow sharing a purchased copy with the public.
57.
The standard’s two parts deal with “Definitions for Ingredients” and “Criteria for
ingredients and products.”
1
1 ISO 16128-1 and ISO 16128-2.
A.
Inconsistent with Consumer Expectations
58.
A reasonable consumer understands a natural product to be one that does not contain
man-made, synthetic ingredients, is not subject to harsh chemical processes, and is only minimally
processed.
59.
Synthetic is defined as of, relating to, or produced by chemical or biochemical
synthesis and encompasses substances produced artificially.
60.
Consumers understand that cosmetic products do not exist in nature, and raw
ingredients must be transformed until they can be combined and eventually sold at stores.
61.
Natural processing methods include distillation, fermentation, and extraction.
62.
Even where the Product’s ingredients may be derived from a natural source, they are
subject to processing methods which use chemical catalysts and chemical reactions.
63.
ISO 16128 allows processes that are not considered natural and has no limitation on
using catalysts or auxiliaries if they are removed from the final product.
64.
ISO 16128 has no prohibition against any specific ingredient or class of ingredients.
65.
Consumers do not expect products touting their “natural qualities” to contain
ingredients derived from petrochemicals, silicone, or GMOs.
2
B.
Ingredients in Product are not Natural
66.
According to ISO 16128, a natural ingredient is one obtained from plants, animals,
or minerals.
67.
However, the standard permits an ingredient to be considered “natural” or “derived
natural” if more than 50% of its molecular weight is from a natural source or through a process
2 Silicone, a silicon-oxygen chain which does not exist in nature, is considered natural under ISO 16128, since it comes
from sand and can therefore be of natural origin.
permitted by the standard.
68.
Even where the ingredients are from a natural source, they undergo synthetic
processes which fundamentally change their nature and/or function, so that they have no relation
to the original source material and are considered synthetic.
69.
ISO 16128 is inconsistent with consumer expectations that do not expect products
made with synthetic ingredients and through chemical processes to prominently proclaim they are
“natural,” “naturally derived” or made with “natural ingredients.”
C.
“99% Naturally Derived Formula*” is Misleading
70.
The front label contains small print – “99% Naturally Derived Formula*” – which
purports to qualify the prominent description of the Product as “[Listerine] Naturals.”
71.
The back label contains a definition from the front label asterisk:
*LISTERINE NATURALS Enamel Repair formula is over 99% naturally derived (using ISO
16128 average cumulative volume, water included) with mineral Fluoride and sweetened with
plant derived stevia leaf extract. The remaining 1% includes a flavor and other ingredients
essential
for
blending
to
achieve
product
efficacy.
To
learn
more,
visit
www.listerine.com/naturals.
72.
This “99%” claim is misleading for several reasons.
73.
First, the ISO 16128 standard arrives at a “natural origin index,” which appears to be
the basis for the 99% claim, based on criteria which are inconsistent with how reasonable
consumers understand “natural.”
74.
The criteria for a product’s “natural origin content” is based on “the mass percentage,
between 0 % and 100 %, of all natural ingredients and natural portions of derived natural
ingredients in that product.”
3
75.
This calculation is misleading because it is based upon how this standard defines
natural and natural derived ingredients.
76.
The ISO 16128 standard is not intended to facilitate the types of natural claims made
by the Product.
77.
Second, ISO 16128 permits a product to include formulation water in its natural
origin content calculation, which is how it arrived at the 99% claim by including.
78.
If water was excluded, the percentage – even when using the above-criticized ISO
16128 standard for evaluating ingredients – would be significantly less than 99%.
79.
Most independent certification standards for natural products exclude water because
its use results in inflating the percent of the total mass of the product which is natural.
80.
No reasonable consumer would consider Coca-Cola as a drink containing
substantially natural ingredients because it has a high-water content.
IV. CONCLUSION
81.
Consumers lack the meaningful ability to test or independently ascertain the
truthfulness of labeling claims, especially at the point of sale.
82.
Consumers would not know the true nature of the ingredients or final product merely
by reading the ingredient label.
83.
Reasonable consumers must and do rely on a company to honestly identify and
describe the components and features of their products.
84.
The value of the Product that plaintiff purchased was materially less than its value as
represented by defendant.
85.
Defendant sold more of the Product and at higher prices than it would have in the
absence of this misconduct, resulting in additional profits at the expense of consumers.
86.
Had Plaintiff and proposed class members known the truth, they would not have
bought the Product or would have paid less for it.
87.
The Product is sold for a price premium compared to other similar products,
approximately than $4.49 per 500 mL, a higher price than it would otherwise be sold for, absent
the misleading representations and omissions.
Jurisdiction and Venue
88.
Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
U.S.C. § 1332(d)(2).
89.
Upon information and belief, the aggregate amount in controversy exceeds $5
million, including any statutory damages, exclusive of interest and costs.
90.
Plaintiff Bobby Phillips is a citizen of New York.
91.
Defendant Johnson & Johnson Consumer Inc. is a New Jersey corporation with a
principal place of business in Skillman, Somerset County, New Jersey.
92.
The parties are citizens of different states.
93.
Venue is proper because plaintiff resides in this district and a substantial portion of
the events giving rise to the claims occurred in this district.
Parties
94.
Plaintiff Bobby Phillips is a citizen of Bronx, Bronx County, New York.
95.
Defendant Johnson & Johnson Consumer Inc., is a New Jersey corporation with a
principal place of business in Skillman, New Jersey, Somerset County.
96.
Defendant is one of the largest manufacturers of oral care products in the world.
97.
The Listerine brand was the first over-the-counter consumer mouthwash, and its
yearly sales are over $1 billion.
98.
snacks and cookies in the United States.
99.
The Product is sold to consumers from retail and online stores of third-parties.
100. Plaintiff would not have purchased the Product, or would have paid less for it, if he
knew the truth.
101. During the relevant statutes of limitations, plaintiff purchased the Product within her
district and/or State for personal and household consumption and/or use in reliance on the
representations of the Product.
102. Plaintiff purchased the Product on one or more occasions, during the relevant period,
at stores including but not necessarily limited to, Rite Aid, 1510 St Nicholas Ave, New York, NY
10033, between May and June 2021, among other times.
103. Plaintiff bought the Product at or exceeding the above-referenced prices because he
wanted a product that contained mostly or all natural ingredients, understood as being derived from
natural raw materials and not made through processes understood to be artificial, including
chemical reactions.
104. Plaintiff chose between Defendant’s Product and other similar products which were
represented similarly.
105. The Product was worth less than what Plaintiff paid and he would not have paid as
much absent Defendant's false and misleading statements and omissions.
106. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
with the assurance that Product's representations are consistent with its composition.
Class Allegations
107. The class will consist of all New York residents who purchased the Product during
the statutes of limitations for each cause of action alleged.
108. Common questions of law or fact predominate and include whether defendant’s
representations were and are misleading and if plaintiff and class members are entitled to damages.
109. Plaintiff's claims and basis for relief are typical to other members because all were
subjected to the same unfair and deceptive representations and actions.
110. Plaintiff is an adequate representative because his interests do not conflict with other
members.
111. No individual inquiry is necessary since the focus is only on defendant’s practices
and the class is definable and ascertainable.
112. Individual actions would risk inconsistent results, be repetitive and are impractical
to justify, as the claims are modest relative to the scope of the harm.
113. Plaintiff's counsel is competent and experienced in complex class action litigation
and intends to protect class members’ interests adequately and fairly.
114. Plaintiff seeks class-wide injunctive relief because the practices continue.
New York General Business Law (“GBL”) §§ 349 & 350
(Consumer Protection Statute)
115. Plaintiff incorporates by reference all preceding paragraphs.
116. Plaintiff and class members desired to purchase a Product that contained mostly or
exclusively natural ingredients and did not contain ingredients made through artificial processes.
117. Defendant’s false and deceptive representations and omissions are material in that
they are likely to influence consumer purchasing decisions.
118. Defendant misrepresented the Product through statements, omissions, ambiguities,
half-truths and/or actions.
119. Plaintiff relied on the representations.
120. Plaintiff and class members would not have purchased the Product or paid as much
if the true facts had been known, suffering damages.
Breaches of Express Warranty, Implied Warranty of Merchantability and
Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
121. The Product was manufactured, marketed, and sold by defendant and expressly and
impliedly warranted to plaintiff and class members that it contained mostly or exclusively natural
ingredients and did not contain ingredients made through artificial processes.
122. Defendant had a duty to disclose and/or provide non-deceptive descriptions, and
marketing of the Product.
123. This duty is based on Defendant’s outsized role in the market for this type of Product.
124. Plaintiff provided or will provide notice to defendant, its agents, representatives,
retailers, and their employees.
125. Defendant received notice and should have been aware of these issues due to
complaints by regulators, competitors, and consumers, to its main offices.
126. The Product did not conform to its affirmations of fact and promises due to
defendant’s actions and were not merchantable because it was not fit to pass in the trade as
advertised.
127. Plaintiff and class members would not have purchased the Product or paid as much
if the true facts had been known, suffering damages.
Negligent Misrepresentation
128. Defendant had a duty to truthfully represent the Product, which it breached.
129. This duty is based on defendant’s position, holding itself out as having special
knowledge and experience this area.
130. The representations took advantage of consumers’ cognitive shortcuts made at the
point-of-sale and their trust in defendant.
131. Plaintiff and class members reasonably and justifiably relied on these negligent
misrepresentations and omissions, which served to induce and did induce, their purchase of the
Product.
132. Plaintiff and class members would not have purchased the Product or paid as much
if the true facts had been known, suffering damages.
Fraud
133. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
that it contained mostly or exclusively natural ingredients and did not contain ingredients made
through artificial processes.
134. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
consistent with its representations.
Unjust Enrichment
135. Defendant obtained benefits and monies because the Product was not as represented
and expected, to the detriment and impoverishment of plaintiff and class members, who seek
restitution and disgorgement of inequitably obtained profits.
Jury Demand and Prayer for Relief
Plaintiff demands a jury trial on all issues.
WHEREFORE, Plaintiff prays for judgment:
1. Declaring this a proper class action, certifying plaintiff as representative and the
undersigned as counsel for the class;
2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
challenged practices to comply with the law;
3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
representations, and restitution and disgorgement for members of the class pursuant to the
applicable laws;
4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
interest pursuant to the common law and other statutory claims;
5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
experts; and
6. Other and further relief as the Court deems just and proper.
Dated: August 15, 2021
Respectfully submitted,
Sheehan & Associates, P.C.
/s/Spencer Sheehan
60 Cuttermill Rd Ste 409
Great Neck NY 11021-3104
Tel: (516) 268-7080
Fax: (516) 234-7800
spencer@spencersheehan.com
| consumer fraud |
0MayDYcBD5gMZwczBOeL | KIRA M. RUBEL [CALIF. STATE BAR NO. 253970]
ALANNA J. PEARL [CALIF. STATE BAR NO. 256853]
LAW OFFICES OF KIRA M. RUBEL
krubel@kmrlawfirm.com
555 West Beech Street, Suite 230
San Diego, California 92101
Telephone: (800) 836-6531
Attorney for Representative Plaintiff
STEVEN WATERBURY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
'15CV2824
RBB
L
STEVEN WATERBURY, on behalf of
himself and all others similarly situated,
Plaintiff,
vs.
Hi Tech Remodeling, Group, Inc., a
California Company; Does 1 – 10;
Defendants.
CASE NO.
CLASS ACTION
Complaint for Damages and
Injunctive Relief Pursuant To The
Telephone Consumer Protection
Act, 47 U.S.C § 227
Jury Trial Demanded
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Introduction
1.
This is a class action against Defendant Hi Tech Remodeling, Group, Inc.
(“Defendant”) for violations of the Telephone Consumer Protection Act, 47 U.S.C. §
227 et seq. (“TCPA”) with respect to Defendant’s illegal, nationwide telemarketing
campaign. Specifically, from September to October, 2015, Plaintiff STEVEN
WATERBURY (“Plaintiff”) received no less than eight (8) telemarketing calls on his
residential telephone from Defendant’s agent in its effort to sell him home remodeling
services, despite the fact that Plaintiff’s number has been on the National Do-Not-Call
registry since 2003.
2.
Plaintiff brings this class action lawsuit for damages, injunctive relief,
and any other available legal or equitable remedies, resulting from the illegal actions
of Defendant, including attorneys’ fees.
3.
Plaintiff alleges as follows upon personal knowledge as to himself, his
own acts and experiences, and as to all other matters, upon information and belief,
including investigation conducted by his counsel.
Parties
4.
Plaintiff is, and at all times mentioned herein was, a citizen and resident
of the State of California who resides in San Diego, California.
5.
Defendant is a home remodeling company which performs tasks such as
installing or fixing roofs, bathroom remodeling, kitchen remodeling, room additions
and similar home improvement projects. Plaintiff is informed and believed, and
thereon alleges, that Defendant is, and at all times mentioned herein was, a
corporation founded under the laws of the State of California, whose primary
corporate office is located at 23679 Calabasas Road Suite 1101Calabasas, California
91302. Plaintiff alleges that at all times relevant herein Defendant conducted business
in the State of California, in the County of San Diego, and within this judicial district.
On information and belief, Defendant attempts to sell its services to thousands of
residents of California and other states either directly through its website or other
methods, or through the telemarketing efforts of its agent – Eco California.
6.
Eco California [“Eco”] is a telemarketing company, form unknown,
which made calls on behalf of Defendant during all times relevant to this complaint.
Plaintiff is unable to locate the business address of Eco. Eco operated as Defendant’s
agent in the illegal telemarketing campaign which resulted in Plaintiff’s receipt of
multiple calls in violation of §227(c) of the TCPA.
7.
The true names and capacities of the Defendants sued herein as DOE 1
through 10, inclusive, are currently unknown to Plaintiff, who therefore sues such
Defendants by fictitious names. Each of the Defendants designated herein as a DOE is
legally responsible for the unlawful acts alleged herein. Plaintiff will seek leave of
Court to amend the Complaint to reflect the true names and capacities of the DOE
Defendants when such identities become known.
8.
Plaintiff is informed and believes and thereon alleges that at all relevant
times, each and every Defendant was acting as an agent and/or employee of each of
the other Defendants and was the owner, agent, servant, joint venturer and employee,
each of the other and each was acting within the course and scope of its ownership,
agency, service, joint venture and employment with the full knowledge and consent of
each of the other Defendants. Plaintiff is informed and believes and thereon alleges
that each of the acts and/or omissions complained of herein was made known to, and
ratified by, each of the other Defendants.
9.
At all times mentioned herein, each and every Defendant was the
successor of the other and each assumes the responsibility for each other’s acts and
omissions.
Jurisdiction and Venue
10.
Jurisdiction is proper under 28 U.S.C. § 1331 as the case involves a cause
of action for violations of the TCPA, a federal law of the United States, which grants
this Court with federal question jurisdiction. The Court has personal jurisdiction over
Defendants because they conduct significant business transactions within this District,
solicit consumer sales in this District, and committed tortious acts in this District.
Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff alleges a
national class, which will result in at least one class member belonging to a different
state than that of Defendant. Plaintiff seeks up to $1,500.00 (one-thousand-five-
hundred dollars) in damages for each call in violation of the TCPA, which, when
aggregated among a proposed class numbering in the tens of thousands, or more,
exceeds the $5,000,000.00 (five-million dollars) threshold for federal court
jurisdiction under the Class Action Fairness Act (“CAFA”). Therefore, both the
elements of federal and CAFA jurisdiction are present.
11.
Venue is proper in the United States District Court for the Southern
District of California pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of
the events or omissions giving rise to the claim occurred in this judicial district. On
information and belief, in addition to the calls made to Plaintiff, Defendant has also
made the same or similar calls complained of by Plaintiff to others within this judicial
district.
The Telephone Consumer Protection Act of 1991
12.
In 1991, Congress enacted the Telephone Consumer Protection Act, 47
U.S.C. § 227 (TCPA),1 in response to a growing number of consumer complaints
regarding abusive telemarketing practices.
13.
47 U.S.C. §227(c) provides that any person who has received more than
one telephone call within any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this subsection may bring a private action
based on a violation of the TCPA. Subsection (c) was established to protect telephone
subscribers' privacy rights and help them to avoid receiving unwanted telephone
solicitations. 2
14.
The TCPA's implementing regulation, 47 C.F.R. § 64.1200(c), provides
that "No person or entity shall initiate any telephone solicitation" to " . . . (2) A
residential telephone subscriber who has registered his or her telephone number on the
national do-not-call registry of persons who do not wish to receive telephone
solicitations that is maintained by the federal government."
15.
47 C.F.R. § 64.1200 (d) further provides that "No person or entity shall
initiate any call for telemarketing purposes to a residential telephone subscriber unless
such person or entity has instituted procedures for maintaining a list of persons who
request not to receive telemarketing calls made by or on behalf of that person or
entity. The procedures instituted must meet the following minimum standards”:
(1) Written policy. Persons or entitles making calls for telemarketing
purposes must have a written policy, available upon demand, for
maintaining a do-not-call list.
(2) Training of personnel engaged in telemarketing. Personnel engaged
in any aspect of telemarketing must be informed and trained in the
existence and use of the do-not-call list.
(3) Recording, disclosure of do-not-call requests. If a person or entity
making a call for telemarketing purposes (or on whose behalf such a
call is made) receives a request from a residential telephone
subscriber not to receive calls from that person or entity, the person
or entity must record the request and place the subscriber's name, if
provided, and telephone number on the do-not-call list at the time the
request is made. Persons or entities making calls for telemarketing
purposes (or on whose behalf such calls are made) must honor a
residential subscriber's do-not-call request within a reasonable time
from the date such request is made. This period may not exceed thirty
days from the date of such Request.
(4) Identification of sellers and telemarketers. A person or entity making
a call for telemarketing purposes must provide the called party with
the name of the individual caller, the name of the person or entity on
whose behalf the call is being made, and a telephone number or
address at which the person or entity may be contacted. The
telephone number provided may not be a 900 number or any other
number for which charges exceed local or long distance transmission
charges.
(5) Affiliated persons or entities. In the absence of a specific request by
the subscriber to the contrary, a residential subscriber's do-not-call
request shall apply to the particular business entity making the call
(or on whose behalf a call is made), and will not apply to affiliated
entities unless the consumer reasonably would expect them to be
included given the identification of the caller and the product being
advertised.
(6) Maintenance of do-not-call lists. A person or entity making calls for
telemarketing purposes must maintain a record of a consumer's
request not to receive further telemarketing calls. A do-not-call
request must be honored for 5 years from the time the request is
made.
16.
47 C.F.R. § 64.1200 (e), provides that §§ 64.1200 (c) and (d) are
applicable to any person or entity making telephone solicitations or telemarketing
calls to wireless telephone numbers as well, ‘to the extent described in the
Commission's Report and Order, CG Docket No. 02-278, FCC 03-153, Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991.’
17.
The term “telephone solicitation” 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…” at §64.12000(f)(14).
18.
Defendant violated § 64.1200 (c) by initiating telephone solicitations to
Plaintiff’s phone number, even though that number was registered on the National Do-
Not-Call Registry.
19.
Plaintiff also specifically requested not to receive calls from Defendant,
as set forth in § 64.1200 (d)(3) and requested a copy of Defendant’s do-not-call
policy, as set forth in § 64.1200 (d)(1). His requests were denied and ignored.
20.
Defendant and/or its agents made more than one unsolicited telephone
call to Plaintiff within a 12-month period without his prior express consent and, in
fact, made eight (8) such calls. Plaintiff never provided any form of consent to
receive telephone calls of this nature from Defendant, let alone prior express consent.
21.
Defendant violated § 64.1200 (d) by initiating calls for telemarketing
purposes to Plaintiff’s phone number without instituting procedures that comply with
the regulatory minimum standards for maintaining a list of persons who request not to
receive telemarketing calls from them.
22.
Defendant also violated § 64.1200 (d) by spoofing its name which
appeared on Plaintiff’s caller ID.
Factual Allegations
23.
At all relevant times, Plaintiff was a citizen of the State of California.
Plaintiff is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C.
§ 153 (39).
24.
Defendant, at all times mentioned herein, was an entity that meets the
definition of “person,” as defined by 47 U.S.C. § 153 (39).
25.
Eco is an entity which makes telemarketing calls to telephone numbers
for which it has no prior express consent in order to sell home remodeling services.
26.
On information and belief, Eco was hired by Defendant to make calls on
its behalf and in order to increase its sales to new customers.
27.
Plaintiff also alleges on information and belief that Eco might be more
than a third party telemarketer for Hi-Tech. In fact, Plaintiff believes that Eco might
be Hi-Tech’s own telemarketing company, and simply claims it is a referral company
for “high quality home remodeling services” in order to better sell Hi-Tech’s services.
28.
Plaintiff was able to learn, through various conversations with Eco
representatives, that Eco makes calls for Defendant and sets up appointments on
behalf of Defendant, such that Defendant would then visit the consumer and attempt
to sell a home remodeling or upgrade. Eco always called Plaintiff from the same
number – (858) 483-5954 – and called Plaintiff a minimum of eight (8) times. The
substance of these conversations are as follows:
29.
Plaintiff received his first telemarketing call from Eco on September 24,
2015. Plaintiff missed this initial call and when he called back, received a busy signal.
In fact, Plaintiff called Eco’s number on several occasions and, each time, received a
busy signal.
30.
On October 13 and 20, 2015, Plaintiff answered calls from Eco.
Although no one spoke to him on either occasion, he could hear the hum of many
voices in the background and believes it sounded like a telemarketing “boiler room.”
Plaintiff stated loudly, “DO NOT CALL ME AGAIN” before he hung up the phone.
During the call on October 20, 2015, he also requested Defendant’s do-not-call policy.
No one responded.
31.
Plaintiff answered a call from Eco on October 22, 2015 and was able to
speak with an Eco representative. The caller stated his name was “James” and that he
was calling from “Eco California.” He asked for a Mr. or Mrs. Waterbury. “James”
asked Plaintiff if he needed any work done around his house because he represented
several quality home remodeling companies. “James” stated that his manager, David,
would call back later to confirm the time of the sales rep’s visit to Plaintiff’s home.
As promised, “David” called Plaintiff that same day and stated that he was calling
from his company, Hi Tech Remodeling, and gave the company’s website (www.high-
tech-remodeling-group.com) and its contractor’s license (#986591). Plaintiff told
David that he was not interested in receiving a quote for services. A review of Hi-
Tech’s website reveals the same contractor’s license that David gave to Plaintiff.
32.
On October 26, 2015, Mr. Waterbury received two phone calls from Eco,
the second of which he answered. This time, Plaintiff spoke with a manager named
“Dennette,” who asked whether he needed any construction work done. Dennette
stated she worked for Eco and that Eco represented a couple of different companies.
Dennette gave Plaintiff an accurate phone number at which to reach her and set up an
appointment for a Hi-Tech sales person to come to Plaintiff’s home for an inspection.
33.
On October 28, 2015, a salesman, “Dan”, from Hi-Tech Remodeling
came to Plaintiff’s house to inspect the home for possible remodeling jobs. Plaintiff
asked “Dan” for a business card, but he stated he did not have any. Instead, “Dan”
gave Plaintiff a copy of Hi-Tech’s contractor’s license detail. A true and correct copy
of this document is attached hereto at Exhibit “A”.
34.
When Plaintiff inquired who “Eco” was, “Dan” stated that Eco made
calls on behalf of Defendant in order to set up appointments for Defendant.
35.
Plaintiff has never had any business relationship with Defendant and is
unaware of how Eco could have located his telephone number. Regardless, he has
been called many times in violation of the TCPA.
36.
Defendant never obtained Plaintiff's prior express consent to receive
telemarketing calls of this nature. Notwithstanding the fact that Plaintiff did not
provide Defendant with his telephone number at any time, Defendant, or its agents,
have called Plaintiff on his residential telephone for the purposes of telemarketing,
even though Plaintiff’s phone number has been on the national do-not-call registry
since 2003.
37.
Plaintiff never, during any of these phone calls, gave consent to receive
continued telemarketing calls from Defendant.
38.
Defendant made more than one telemarketing call to Plaintiff within a
12-month period, in violation of §227(c).
39.
Defendant has not implemented reasonable practices or procedures to
prevent telephone solicitations in violation of the TCPA, pursuant to §227(c).
40.
Defendant provided a spoofed caller ID during its illegal telemarketing
calls and failed to identify itself during these calls, all while making continued
unsolicited telemarketing calls to Plaintiff, in violation of §64.1200(d).
Class Action Allegations
41.
Plaintiff brings this action on behalf of himself and on behalf of all others
similarly situated (“the Class”).
42.
Plaintiff represents, and is a member of, the Class, which is defined as
follows:
All persons within the United States who received more than
one unsolicited telemarketing call in a 12-month period from
Defendant Eco on behalf of Hi-Tech Remodeling to his or her
residential or wireless telephone, who did not provide prior express
consent or prior express written consent, and/or was on the National
do-not-call registry, within the four years prior to the filing of the
Complaint in this action.
43.
Excluded from the Class are Defendant and any entities in which
Defendant has a controlling interest, Defendant’s agents and employees, the Judge to
whom this action is assigned and any member of the Judge’s staff and immediate
family, and claims for personal injury, wrongful death, and/or emotional distress.
44.
Plaintiff does not know the number of members in the Class, but believes
the Class members number in the hundreds or thousands. Thus, this matter should be
certified as a class action to assist in the expeditious litigation of this matter.
45.
Plaintiff and his fellow members of the Class were harmed by the acts of
Defendant in, but not limited to, the following ways: Defendant, either directly or
through its agents, illegally contacted Plaintiff and the Class members by calling their
telephones more than one time in a 12-month period, to telemarket its goods or
services and invading the privacy of Plaintiff and the Class members. Plaintiff and the
Class members were damaged as a result.
46.
This suit seeks only damages and injunctive relief for recovery of
economic injury on behalf of the Class and it expressly is not intended to request any
recovery for personal injury and claims related thereto. Plaintiff reserves the right to
expand the Class definition to seek recovery on behalf of additional persons as
warranted as facts are learned in further investigation and discovery.
47.
The joinder of all Class members is impracticable and the disposition of
their claims in the class action will provide substantial benefits both to the parties and
to the court. The disposition of the claims in a Class Action will provide substantial
benefit to the parties and the Court in avoiding a multiplicity of identical suits. The
Class can be identified through Defendant’s or its agents’ records.
48.
There is a well-defined community of interest in the questions of law and
fact involved affecting the parties to be represented. The questions of law and fact to
the Class predominate over questions that may affect individual Class members,
including the following:
a.
Whether, within the four years prior to the filing of this Complaint,
Defendant and/or its agents made more than one telemarketing call
to a Class Member with his or her prior express consent and in
violation of the TCPA;
b.
Whether Defendant and/or its agents can meet its burden of
showing it obtained prior express written consent to make such
calls;
c.
Whether Defendant and/or its agents maintains an internal do-not-
call list;
d.
Whether Defendant and/or its agents maintains a do-not-call
policy;
e.
Whether Defendant’s conduct, or that of its agents, was knowing
and/or willful;
f.
Whether Defendant and/or its agents are liable for damages, and
the extent of statutory damages for such violation; AND
g.
Whether Defendant and/or its agents should be enjoined from
engaging in such conduct in the future.
49.
As a person that received numerous calls in violation of the national do-
not-call registry in a 12-month period, Plaintiff is asserting claims that are typical of
the Class. Plaintiff will fairly and adequately represent and protect the interests of the
Class in that Plaintiff has no interests antagonistic to any member of the Class.
50.
Plaintiff and the members of the Class have all suffered irreparable harm
as a result of the Defendant’s unlawful and wrongful conduct. Absent a class action,
the Class will continue to face the potential for irreparable harm. In addition, these
violations of law would be allowed to proceed without remedy and Defendant would
undoubtedly continue such illegal conduct. Because of the size of the individual Class
members’ claims, few Class members could afford to seek legal redress for the
wrongs complained of herein.
51.
Plaintiff has retained counsel experienced in handling class action claims
and claims involving violations of the Telephone Consumer Protection Act.
52.
A Class action is the superior method for the fair and efficient
adjudication of this controversy. Class-wide damages are essential to induce
Defendant to comply with federal law. The interest of Class members in individually
controlling the prosecution of separate claims against Defendant is small because the
maximum statutory damages in an individual action for a violation of this statute is
minimal. Management of these claims as a class action is likely to present
significantly fewer difficulties than those presented in many individual claims.
Defendant has acted on grounds generally applicable to the Class, thereby making
appropriate final injunctive relief with respect to the Class as a whole.
First Cause Of Action
Negligent Violations Of The Telephone Consumer Protection Act
(47 U.S.C. § 227)
53.
Plaintiff incorporates by reference all of the above paragraphs of this
Complaint as though fully stated herein.
54.
The foregoing acts and omissions of Defendant constitute numerous and
multiple negligent violations of the TCPA, and specifically, 47 U.S.C. § 227(c), as
further defined at C.F.R. § 64.1200(c), (d), and (e).
55.
As a result of Defendant’s negligent violations of § 64.1200(c), (d), and
(e), Plaintiff and the class is entitled to an award of $500.00 in statutory damages for
each and every violation, pursuant to 47 U.S.C. § 227(c).
56.
Plaintiff is also entitled to injunctive relief prohibiting such conduct in
the future 47 U.S.C. §227(c)(5)(A).
57.
Plaintiff and Class members are also entitled to an award of attorneys’
fees and costs.
Second Cause Of Action
Knowing and/or Willful Violations Of The Telephone Consumer Protection Act
(47 U.S.C. § 227)
58.
Plaintiff incorporates by reference all of the above paragraphs as though
fully stated herein.
59.
The foregoing acts and omissions of Defendant constitute numerous and
multiple willful violations of the TCPA, and specifically, 47 U.S.C. §227(c), as
further defined at C.F.R. § 64.1200(c), (d), and (e).
60.
At all times, Defendant knew that it was telemarketing to Plaintiff and
the Class members without regard to whether the call recipients’ numbers were on the
National Do-Not-Call registry, and in spite of requests to be removed from the
telemarketing list, as evidenced by Defendant providing a spoofed name on the caller
ID in order to mask its illegal conduct.
61.
As a result of Defendant’s knowing and/or willful violations of 47 U.S.C.
§ 227(c), (d), and (e), Plaintiff and the Class are entitled to treble damages, as
provided by statute, up to $1,500.00, for each and every violation.
62.
Plaintiff and the Class members are also entitled to and seek injunctive
relief prohibiting such conduct in the future pursuant 47 U.S.C. §227(c)(5)(A).
63.
Plaintiff and Class members are also entitled to an award of attorneys’
fees and costs.
Prayer For Relief
WHEREFORE, Plaintiff respectfully requests the Court grant Plaintiff and the
Class members the following relief against Defendant:
First Cause of Action for Negligent Violation of the TCPA
1.
As a result of Defendant’s negligent violations of 47 U.S.C. § 227(c),
Plaintiff seeks $500.00 (five-hundred dollars) in statutory damages, for each and every
violation against him and every Class member;
2.
Injunctive relief prohibiting such conduct in the future;
3.
An award of attorneys’ fees and costs paid from the common fund
provided for the Class;
4.
An order certifying this action to be a proper class action pursuant to
Federal Rule of Civil Procedure 23, establishing an appropriate Class and any
Subclasses the Court deems appropriate, finding that Plaintiff is a proper
representative of the Class, and appointing the lawyer and law firm representing
Plaintiff as counsel for the Class; and
5.
Any other relief the Court may deem just and proper.
Second Cause of Action for Knowing and/or Willful Violation of the TCPA
1.
As a result of Defendant’s willful and/or knowing violations of 47 U.S.C.
§ 227(c), Plaintiff seeks treble damages, as provided by statute, of $1,500.00 (one-
thousand-five-hundred dollars) for each and every violation against him and every
Class member;
2.
Injunctive relief prohibiting such conduct in the future;
3.
An award of attorneys’ fees and costs paid from the common fund
provided for the Class;
4.
An order certifying this action to be a proper class action pursuant to
Federal Rule of Civil Procedure 23, establishing an appropriate Class and any
Subclasses the Court deems appropriate, finding that Plaintiff is a proper
representative of the Class, and appointing the lawyer and law firm representing
Plaintiff as counsel for the Class; and
5.
Any other relief the Court may deem just and proper.
Trial By Jury Demanded
Pursuant to the Seventh Amendment of the Constitution of the United States of
America, Plaintiff is entitled to, and demands, a trial by jury on all counts so triable.
Date: December 16, 2015
LAW OFFICES OF KIRA M. RUBEL
____/s/ Kira M. Rubel_______________
By: Kira M. Rubel, Esq.
Attorney for Representative Plaintiff Steven
Waterbury
EXHIBIT “A”
Business Entity Detail
Dala. is updated to the California Business Se~rch on Wednesday and Saturday
mornings. Results reflect work processed through Tuesday, October 27, 2015.
Please refer :0
:::T:')''':I·,~.':,:',:iJI,q
r'1\.i.1:\(:~::' for the received dates of filings currently
being processed. The data. provided i.s not i'i complete or cerl.ified record of an
entity.
HT·~·'T'E:CJl
FEWJDr.:.:L·:'~K';,
f:~F:{)I.!t),
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Entity NalJl@:
Entity Numb6:t'~
Dat", 11i..l .. d,
Status;
ACTIVE
Ci\Ll ~'(IRNIA
Ju:t"i adiction:
Entity Address:
2]G7~' CALABASAS Rn
;~T~ '1101
Ent~ty City, State, Zip'
Agent Address:
Agant CitYt
Sta~Q, Zip:
• Indicates the information is not oontained in the California Secretary of
State's database.
If the status of ~he corporation is "Surrender,!1 the agent for service of
prOcess is automatical1,y IRvokcd. Please refer to California CorporatJons
Code
~e,;'t,tGrl ::t'),4 for information relating to service upon corporations that
h~ve surrendered.
For information on checking or reserving a name,
ref~r to Njnl0 Av~i j,ability .
•
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'l·,~p~ .
• For descriptions of tr.e various fields and statu!J types, .refer to ,ml1
;)\';::: I': 1:' ,J., t:' t J.. ') n .~:j ;;J.nd ::.; I.: -:;\:.: Uti
u";~ f J, 1 ~ j" t.. i, i) II ;,~: •
copyright 0 2015
california secretary of BtClte
| privacy |
a7jyC4cBD5gMZwczCtDA | "UNITED STATES DISTRICT COURT\nDISTRICT OF UTAH\nCLASS ACTION COMPLAINT FOR\nVIOLATIONS OF THE FEDER(...TRUNCATED) | securities |
60pWA4kBRpLueGJZEQhg | "IN THE UNITED STATES DISTRICT COURT \n EASTERN DISTRICT OF MICHIGAN \n DETROIT DIVISON \n \nANGEL(...TRUNCATED) | consumer fraud |
mkLu_IgBF5pVm5zYGsk8 | "Randy M. Andrus (10392) \nANDRUS LAW FIRM, LLC \n299 South Main Street, Suite 1300 \nSalt Lake City(...TRUNCATED) | civil rights, immigration, family |
r1Bu_ogBF5pVm5zYmiFe | "Bibianne U. Fell (SBN 234194) \nFELL LAW, P.C. \nMailing: 11956 Bernardo Plaza Dr., Box 531 \nSan D(...TRUNCATED) | consumer fraud |
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