IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT LAKE COUNTY, ILLINOIS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FIRST AMENDED CLASS ACTION COMPLAINT

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1 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT LAKE COUNTY, ILLINOIS SHAUN FAULEY, SABON, INC., SANDY ROTHSCHILD & ASSOCIATES, INC., DEBAUN DEVELOPMENT, INC. and CHRISTOPHER LOWE HICKLIN DC PLC, RICHARD CADENASSO and C-MART, INC., individually and as the representatives of a class of similarly-situated persons, v. Plaintiffs, METROPOLITAN LIFE INSURANCE COMPANY, STORICK GROUP CO., THE STORICK GROUP CORPORATION, SCOTT R. STORICK and JOHN DOES 1-10, Defendants. No. 14 CH 1518 Hon. Luis Berrones FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs, SHAUN FAULEY, SABON, INC., SANDY ROTHSCHILD & ASSOCIATES, INC., DEBAUN DEVELOPMENT, INC. and CHRISTOPHER LOWE HICKLIN DC PLC, RICHARD CADENASSO and C-MART, INC. ( Plaintiffs, bring this action on behalf of themselves and all other persons similarly situated, through their attorneys, and except as to those allegations pertaining to Plaintiffs or their attorneys, which allegations are based upon personal knowledge, allege the following upon information and belief against Defendants, METROPOLITAN LIFE INSURANCE COMPANY, STORICK GROUP CO., THE STORICK GROUP CORPORATION, SCOTT R. STORICK and JOHN DOES 1-10 ( Defendants :

2 PRELIMINARY STATEMENT 1. This case challenges Defendants practice of sending facsimiles without proper notice as required pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227 ( TCPA. 2. The TCPA prohibits a person or entity from faxing or having an agent fax advertisements without sufficient notice to allow that person to opt-out of receiving future facsimiles. ( faxes. The TCPA provides a private right of action and provides statutory damages of $500 per violation. 3. On behalf of themselves and all others similarly situated, Plaintiffs brings this case as a class action asserting claims against Defendants under the TCPA. 4. Plaintiffs seeks an award of statutory damages for each violation of the TCPA. 5. Two other class action suits were filed based upon the same allegations which tolled the statute of limitations for Plaintiffs and the entire class. No class determination has been made in either suit. JURISDICTION AND VENUE 6. Jurisdiction is conferred by 735 ILCS 5/2-209 in that Defendants have transacted business and committed tortious acts related to the matters complained of herein. 7. Venue is proper in Lake County pursuant to 735 ILCS 5/2-101, et seq. because some of the tortuous acts complained of arose here and some of the class members reside in Illinois. 8. Plaintiffs individual claims are worth less than $75,000.00, inclusive of all forms of damages and fees. Plaintiffs expressly disclaims any individual recovery in excess of $75,000.00, inclusive of all forms of damages and fees. 2

3 PARTIES 9. Plaintiff, SHAUN FAULEY, is an Illinois resident. 10. Plaintiff, SABON, INC., is a Florida corporation. 11. Plaintiff, SANDY ROTHSCHILD & ASSOCIATES, INC., is a Missouri corporation. 12. Plaintiff, C-MART, INC., is a Missouri corporation. 13. Plaintiff, DEBAUN DEVELOPMENT, INC., is a New York corporation. 14. Plaintiff, CHRISTOPHER LOWE HICKLIN DC PLC, is a Florida corporation. 15. Plaintiff, RICHARD CADENASSO, is a California resident. 16. On information and belief, Defendant, METROPOLITAN LIFE INSURANCE COMPANY ( Met Life, is a New York corporation with its principal place of business in New York, NY. 17. On information and belief, Defendant, STORICK GROUP CO., is a Florida corporation with its principal place of business in Boca Raton, FL. Storick Group Co. was at all relevant times a Met Life Agency that marketed and sold Met Life products. 18. On information and belief, Defendant, THE STORICK GROUP CORPORATION, is a North Carolina corporation with its principal place of business in Charlotte, NC. The Storick Group Corporation was at all relevant times a Met Life Agency that marketed and sold Met Life products. 19. On information and belief, Defendant, SCOTT R. STORICK, is an officer, director and shareholder of THE STORICK GROUP CORPORATION and STORICK GROUP CO. 20. On information and belief, SCOTT R. STORICK, approved, authorized and 3

4 participated in the scheme to broadcast advertisements by facsimile by (a directing a list to be purchased or assembled; (b directing and supervising employees or third parties to send the advertisements by fax; (c creating and approving the form of advertisements to be sent; (d determining the number and frequency of the facsimile transmissions; and (e approving or paying the employees or third parties to send the advertisements by facsimile transmission. 21. John Does 1-10 will be identified through discovery, but are not presently known. FACTS 22. Each of the Plaintiffs received one or more facsimiles from one or more of the Defendants on or after August 23, Defendants created or made the facsimiles which are goods or products which Defendants distributed to Plaintiffs and the other members of the class. 24. The facsimiles are a part of Defendants work or operations to market Defendants goods or services which was performed by Defendants and on behalf of Defendants. Therefore, the facsimiles constitute material furnished in connection with Defendants work or operations. 25. The facsimiles are material advertising the commercial availability of any property, goods, or services. 26. The transmission of the advertisements by facsimile to Plaintiffs and the other class members did not contain a proper notice that states that the recipient may make a request to the sender of the facsimiles not to send any future facsimiles to a telephone facsimile machine or machines and that failure to comply, within 30 days, with such a request meeting the requirements under paragraph 47 C.F.R (a(3(v of this section is unlawful. 4

5 27. The transmissions of the advertisements via fax to Plaintiffs did not contain a notice that complied with the provisions of 47 U.S.C. 227(b(1(C and/or 47 C.F.R (a( On information and belief, Defendants sent advertisements via facsimile to Plaintiffs and more than 39 other recipients without the appropriate notice requirements discussed above. 29. Defendants knew or should have known that: (a the facsimiles were advertisements; and (b Defendants did not display a proper opt out notice on the advertisements sent via facsimile. TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C In accordance with 735 ILCS 5/2-801, Plaintiffs brings this action pursuant to the Telephone Consumer Protection Act, 47 U.S.C. 227, on behalf of the following class of persons: All persons in the United States who were sent a facsimile advertisement by or on behalf of MetLife or the Storick Defendants between August 23, 2008 and the date of preliminary approval of this settlement, where the facsimile advertisement was unsolicited and/or did not contain opt-out language compliant with the requirements of the TCPA and/or its accompanying regulations (the Class. Excluded from membership in this class are: (a the defendants and their present and former officers, directors, employees, and their successors, heirs, assigns, and legal representatives; (b the Court and its officers. 31. A class action is warranted because: (a On information and belief, the class includes forty or more persons and is so numerous that joinder of all members is impracticable. 5

6 (b There are questions of fact or law common to the class predominating over questions affecting only individual class members, including without limitation: (i (ii Whether Defendants sent unsolicited fax advertisements; Whether Defendants facsimiles advertised the commercial availability of property, goods, or services; (iii The manner and method Defendants used to compile or obtain the list of fax numbers to which it sent the faxes; (iv Whether Defendants violated the provisions of 47 USC 227; (v Whether Plaintiffs and the other class members are entitled to statutory damages; (vi (vii Whether the Court should award trebled damages; and Whether Defendants advertisements displayed a proper opt out notice as required by 47 C.F.R Plaintiffs will fairly and adequately protect the interests of the other class members. Plaintiffs counsel are experienced in handling class actions and claims involving unsolicited advertising faxes. Neither Plaintiffs nor Plaintiffs counsel have any interests adverse or in conflict with the absent class members. 33. A class action is an appropriate method for adjudicating this controversy fairly and efficiently. The interest of each individual class member in controlling the prosecution of separate claims is small and individual actions are not economically feasible. 34. The TCPA prohibits the use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine. 47 U.S.C. 227(b(1. 6

7 35. The TCPA defines unsolicited advertisement, as any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person s express invitation or permission. 47 U.S.C. 227(a( The TCPA provides: 3. Private right of action. A person may, if otherwise permitted by the laws or rules of court of a state, bring in an appropriate court of that state: (A An action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B An action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C Both such actions. 37. The Court, in its discretion, can treble the statutory damages if the violation was knowing. 47 U.S.C Defendants violated the 47 U.S.C. 227 et seq. by sending advertising faxes to Plaintiffs and the other members of the class without displaying a proper opt out notice as required by 47 C.F.R The TCPA is a strict liability statute and Defendants are liable to Plaintiffs and the other class members even if its actions were only negligent. 40. Defendants knew or should have known that the facsimile advertisements Defendants sent did not display the proper opt out notice as required by 47 C.F.R WHEREFORE, Plaintiffs, SHAUN FAULEY, SABON, INC., SANDY ROTHSCHILD & ASSOCIATES, INC., DEBAUN DEVELOPMENT, INC., and CHRISTOPHER LOWE HICKLIN DC PLC, RICHARD CADENASSO and C-MART, INC., individually and on behalf 7

8 of all others similarly situated, demand judgment in their favor and against Defendants, METROPOLITAN LIFE INSURANCE COMPANY, STORICK GROUP CO., THE STORICK GROUP CORPORATION, SCOTT R. STORICK and JOHN DOES 1-10, jointly and severally, as follows: A. That the Court adjudge and decree that the present case may be properly maintained as a class action, appoint Plaintiffs as the representative of the class, and appoint Plaintiffs counsel as counsel for the class; B. That the Court award $ in damages for each violation of the TCPA; C. That the Court enter an injunction prohibiting Defendants from engaging in the statutory violations at issue in this action; and D. That the Court award costs and such further relief as the Court may deem just and proper, but in any event, not more than $75, per individual, inclusive of all damages and fees. SHAUN FAULEY, SABON, INC., SANDY ROTHSCHILD & ASSOCIATES, INC., DEBAUN DEVELOPMENT, INC., CHRISTOPHER LOWE HICKLIN DC PLC, RICHARD CADENASSO and C-MART, INC., individually and as the representatives of a class of similarly-situated persons By: One of Plaintiffs Attorneys Brian J. Wanca # ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL Telephone: 847/ Fax: 847/