Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 1 of 43 PageID #: 1631 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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1 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 1 of 43 PageID #: 1631 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JARRETT JENKINS, EMMOT STEELE and FRANCES ROYAL, on behalf of themselves and all others similarly situated, - against Plaintiffs, Case No. 15-cv-1219 Hon. Joanna Seybert, U.S.D.J. Hon. Gary R. Brown, U.S.M.J. JURY TRIAL DEMANDED NATIONAL GRID USA, NATIONAL GRID NORTH AMERICA INC., NATIONAL GRID PLC, NATIONAL GRID USA SERVICE COMPANY, INC., NATIONAL GRID ELECTRIC SERVICES, LLC, BOSTON GAS COMPANY, COLONIAL GAS COMPANY, ESSEX GAS COMPANY, KEYSPAN CORPORATION, KEYSPAN GAS EAST CORPORATION, MASSACHUSETTS ELECTRIC COMPANY, NANTUCKET ELECTRIC COMPANY, NIAGARA MOHAWK HOLDINGS, INC., NIAGARA MOHAWK POWER CORPORATION, THE BROOKLYN UNION GAS COMPANY, AND THE NARRAGANSETT ELECTRIC COMPANY, Defendants. FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs Jarrett Jenkins, Emmot Steele and Frances Royal (collectively Plaintiffs ), by and through their counsel, on behalf of themselves and the Classes defined herein, allege based upon personal knowledge as to Plaintiffs own acts, and upon information and belief as to all other matters based upon the investigations conducted by and through Plaintiffs attorneys, against Defendants National Grid USA, National Grid North America, Inc., National Grid PLC, National Grid USA Service Company, Inc., National Grid Electric Services, LLC, Boston Gas Company, 1

2 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 2 of 43 PageID #: 1632 Colonial Gas Company, Essex Gas Company, Keyspan Corporation, Keyspan Gas East Corporation, Massachusetts Electric Company, Nantucket Electric Company, Niagara Mohawk Holdings, Inc., Niagara Mohawk Power Corporation, The Brooklyn Union Gas Company, The Narragansett Electric Company, and their subsidiaries operating in the United States (collectively National Grid or Defendants ). NATURE OF THE ACTION 1. Plaintiffs bring this action on behalf of themselves and Classes of customers who received calls to their cellular telephone numbers without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq., and the Federal Communication Commission rules promulgated thereunder, 47 C.F.R (hereinafter referred to as the TCPA ). Defendants and their debt collectors used automated telephone dialing systems and/or automated or prerecorded voice to call Class members cellular telephone numbers. That conduct violates the TCPA. 2. In many instances, Defendants left prerecorded, artificial voice messages at residential and cellular telephone numbers that failed to provide information required by New York. For such Class members who reside in New York, that conduct violated New York GBL 399-p. 3. Under the TCPA, Defendants are liable for all calls made by or on behalf of Defendants, including calls made by debt collectors and third parties retained by Defendants. 4. Plaintiffs and the Classes were injured as a direct and proximate result of Defendants TCPA violations. 5. Plaintiffs Steele and Royal and members of the New York GBL 399-p Class 2

3 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 3 of 43 PageID #: 1633 were injured as a direct and proximate result of Defendants violations of the GBL 399-p. 6. Plaintiffs bring this action for injunctive relief and statutory damages resulting from Defendants illegal actions and to permanently enjoin Defendants violations of the TCPA and New York GBL 399-p. 7. Because Defendants unlawful acts were and are knowing and willful, Plaintiffs and the Classes are entitled to additional remedies and damages under the TCPA and New York GBL 399-p. THE PARTIES 8. Plaintiff Jarrett Jenkins is a resident of West Hempstead, New York, located in Nassau County. County. 9. Plaintiff Emmot Steele is a resident of Edgemere, New York, located in Queens 10. Plaintiff Frances Royal is a resident of Schenectady, New York, located in Schenectady County. 11. Defendants collectively do business under the trade name National Grid providing natural gas and electricity services to customers in New York and New England. 12. According to Defendants United States website, National Grid is an international electricity and gas company based in the UK and northeastern US. We play a vital role in connecting millions of people safely, reliably and efficiently to the energy they use. Source: (last visited June 30, 2015). 13. Defendants state on their United States website: National Grid (LSE: NG; NYSE: NGG) is an electricity and gas company that connects consumers to energy sources through its networks. In the 3

4 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 4 of 43 PageID #: 1634 northeast US, we connect more than seven million gas and electric customers to vital energy sources, essential for our modern lifestyles. National Grid delivers electricity to approximately 3.4 million customers in Massachusetts, New York and Rhode Island. We own over 4,000 megawatts of contracted electricity generation, providing power to over one million LIPA customers. We are the largest distributor of natural gas in the northeast US, serving approximately 3.6 million customers in New York, Massachusetts and Rhode Island. Source: (last visited June 30, 2015). 14. Defendant National Grid PLC repeats in its Forms 20-F filed with the United States Securities and Exchange Commission ( SEC ) that it owns and controls subsidiaries operating and organized in the United States that provide utility services to over seven million customers in New York and New England. 15. National Grid PLC defines its subsidiaries in its Forms 20-F as, entit[ies] controlled by the Company [National Grid PLC]. Control is achieved where the Company has the power to affect the returns of an entity to which it is exposed or to which it has rights. 16. A complete list of National Grid PLC s subsidiaries annexed to its 2014 Form 20-F is annexed hereto as Exhibit 1. It lists defendant National Grid PLC s wholly-owned Principal subsidiary undertakings with operating results reported in its March 31, 2014 consolidated financial statements. Among those principal subsidiary undertakings of defendant National Grid PLC incorporated in the United States are the following named defendants, along with their principle activities: Name: (a). Boston Gas Company (b). Keyspan Corporation (c). Keyspan Gas East Corporation Principle Activity: Distribution of gas Holding Company Distribution of gas 4

5 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 5 of 43 PageID #: 1635 (d). Massachusetts Electric Company (e). Niagara Mohawk Holdings, Inc. Distribution of electricity Holding Company (f). Niagara Mohawk Power Corporation Transmission of electricity and distribution of electricity and gas (g). National Grid North America Inc. (h). National Grid USA (i). The Brooklyn Union Gas Company (i). The Narragansett Electric Company Holding Company Holding Company Distribution of gas Transmission and distribution of electricity 17. National Grid PLC s 2014 Form 20-F further states that: The Company s agent in the United States is National Grid USA. 18. National Grid USA is authorized to do business and regularly conducts business in New York. It is a Delaware corporation, which maintains its principle office at 40 Sylvan Road, Waltham, Massachusetts where its shares officers, directors and key employees with other Defendants. National Grid USA is the direct or indirect parent company of defendants Keyspan Corporation, Keyspan Gas East, The Brooklyn Union Gas Company, Niagara Mohawk Power Company, Boston Gas Company, Massachusetts Electric Company, The Narragansett Electric Company, The Narragansett Gas Company, Colonial Gas Company, and Nantucket Electric Company, who collectively provide natural gas and electricity services to customers in New York and New England. National Grid USA is also the direct parent company of defendants Keyspan Corporation and Niagara Mohawk Holdings, Inc., National Grid USA is wholly-owned by National Grid North America Inc., which is a wholly-owned indirect subsidiary of defendant National Grid, PLC. National Grid USA is liable for telephone calls 5

6 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 6 of 43 PageID #: 1636 made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 19. Keyspan Corporation is organized as a domestic New York corporation, which maintains its principle office at One Metrotech Center, Brooklyn, New York. Keyspan Corporation operates as National Grid. It is the direct or indirect parent of Keyspan Gas East and The Brooklyn Union Gas Company, which provide natural gas and/or electricity services to customers. Keyspan Corporation is wholly-owned by defendant National Grid USA. Keyspan Corporation is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 20. Keyspan Gas East Corporation is organized as a domestic New York corporation, which maintains its principle office at 175 East Old Country Road, Hicksville, New York. Keyspan Gas East Corporation is a distributor of natural gas in New York and operates as National Grid. Keyspan Gas East Corporation is a wholly-owned subsidiary of Keyspan Corporation and an indirect wholly-owned subsidiary of defendants National Grid USA National Grid North America Inc. and National Grid, PLC. Keyspan Gas East Corporation is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 21. The Brooklyn Union Gas Company is organized as a domestic New York corporation, which maintains its principle office at One Metrotech Center, Brooklyn, New York. The Brooklyn Union Gas Company is a distributor of natural gas in New York and operates as National Grid. The Brooklyn Union Gas Company is an indirect wholly-owned subsidiary of defendants Keyspan Corporation, National Grid USA, National Grid North 6

7 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 7 of 43 PageID #: 1637 America Inc. and National Grid, PLC. The Brooklyn Union Gas Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 22. Niagara Mohawk Power Corporation is organized as a domestic New York corporation, which maintains its principle office at 300 Erie Boulevard West, Syracuse, New York. Niagara Mohawk Power Corporation is a distributor of electricity and natural gas in New York and operates as National Grid Niagara. Mohawk Power Corporation is a wholly-owned subsidiary of Niagara Mohawk Holdings, Inc. Niagara Mohawk Power Corporation is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 23. Niagara Mohawk Holdings, Inc. is organized as a domestic New York corporation, which maintains its principle office in New York. Niagara Mohawk Holdings, Inc. operates as National Grid. It is the direct parent of Niagara Mohawk Power Corporation, which provides natural gas and electricity services to customers. Niagara Mohawk Holdings, Inc. is wholly-owned by defendant National Grid USA. Niagara Mohawk Holdings, Inc. is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 24. National Grid Electric Services, LLC, is organized as a domestic New York limited liability company, which maintains its principle office at 175 East Old Country Road, Hicksville, New York. National Grid Electric Services, LLC operates or operated as the agent for Long Island Lighting Company d/b/a LIPA pursuant to a Management Services Agreement, dated January 1, 2006, as amended. National Grid Electric Services, LLC is liable for telephone 7

8 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 8 of 43 PageID #: 1638 calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 25. National Grid North America Inc. is organized as a Delaware corporation, which maintains its principle office at 40 Sylvan Road, Waltham, Massachusetts where its shares officers, directors and key employees with other Defendants. National Grid North America Inc. is the indirect parent company of Keyspan Corporation, Keyspan Gas East, The Brooklyn Union Gas Company, Niagara Mohawk Power Company, Boston Gas Company, Massachusetts Electric Company, The Narragansett Electric Company, The Narragansett Gas Company, Colonial Gas Company, and Nantucket Electric Company, which collectively provide natural gas and electricity services to customers in New York and New England. National Grid North America Inc. is also the direct parent company of National Grid USA, Keyspan Corporation and Niagara Mohawk Holdings, Inc. National Grid North America Inc. is a wholly-owned indirect subsidiary of defendant National Grid, PLC. National Grid North America Inc. is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA and New York GBL 399-p. 26. Boston Gas Company is organized under the laws of Massachusetts, which maintains its principle office in Massachusetts. Boston Gas Company is a distributor of natural gas in New England and operates as National Grid. Boston Gas Company is an indirect whollyowned subsidiary of defendants Keyspan Corporation, National Grid USA, National Grid North America Inc. and National Grid, PLC. Boston Gas Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. 8

9 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 9 of 43 PageID #: Colonial Gas Company is organized under the laws of Massachusetts, which maintains its principle office in Massachusetts. Colonial Gas Company is a distributor of natural gas in New England and operates as National Grid. Colonial Gas Company is an indirect wholly-owned subsidiary of defendants National Grid USA, National Grid North America Inc. and National Grid, PLC. Colonial Gas Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. 28. Essex Gas Company is organized under the laws of Massachusetts, which maintains its principle office in Massachusetts. Essex Gas Company is a distributor of natural gas in New England and operates as National Grid. Essex Gas Company merged into Boston Gas Company in 2010, and an indirect subsidiary of defendants National Grid USA, National Grid North America Inc. and National Grid, PLC. Essex Gas Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. 29. Massachusetts Electric Company is organized under the laws of Massachusetts, which maintains its principle office in Massachusetts. Massachusetts Electric Company is a distributor of electricity in New England and operates as National Grid. Massachusetts Electric Company is a wholly-owned direct subsidiary of defendant National Grid USA. Massachusetts Electric Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. 30. Nantucket Electric Company is organized under the laws of Massachusetts, which maintains its principle office in Massachusetts. Nantucket Electric Company is a 9

10 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 10 of 43 PageID #: 1640 distributor of electricity in New England and operates as National Grid. Nantucket Electric Company is regulated as part of Massachusetts Electric Company and is an indirect whollyowned subsidiary of defendants National Grid USA, National Grid North America Inc. and National Grid, PLC. Nantucket Electric Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. 31. National Grid USA Service Company, Inc., is organized under the laws of Massachusetts. National Grid USA Service Company, Inc. is authorized with the New York Secretary of State to do business in New York and maintains offices in New York. As described in a Service Agreement between National Grid USA Service Company, Inc. and EnergyNorth Natural Gas, Inc., dated April 1, 2009, National Grid USA Service Company, Inc., is a company engaged primarily in the rendering of services to companies in the National Grid USA holding company system. As provided in Schedule I of that Service Agreement, the services provided by National Grid USA Service Company, Inc. to its National Grid affiliates include accounting, auditing, construction, corporate record keeping, customer cervices, emergency services, employee relations, engineering, executive and administrative services, information systems, insurance, intellectual property, property acquisition and management, power supply, pubic information and relations, purchasing and storage, rate review and analysis, regulation handling, regulation analysis, preparation of applications and registrations, establishing procedures and standards, tax preparation and services and treasury and statistical services. National Grid USA Service Company, Inc. is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the 10

11 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 11 of 43 PageID #: 1641 TCPA and New York GBL 399-p. 32. The Narragansett Electric Company is organized under the laws of Rhode Island, which maintains its principle office in Rhode Island. The Narragansett Electric Company is a distributor of electricity in New England and operates as National Grid. The Narragansett Electric Company is a wholly-owned direct subsidiary of defendant National Grid USA. The Narragansett Electric Company is liable for telephone calls made by it or on its behalf to Plaintiffs and Class members cellular telephone numbers in violation of the TCPA. SUBJECT MATTER JURISDICTION 33. Plaintiffs invoke the subject matter jurisdiction of this Court pursuant to 28 U.S.C. 1331, which confers original jurisdiction upon this Court for all civil actions arising under the laws of the United States, and pursuant to 47 U.S.C. 227(b)(3)). 34. This matter in controversy exceeds $5,000,000, as each member of the proposed Classes is entitled to up to $1, in statutory damages for each call that has violated the TCPA. Further, Plaintiffs allege Classes that will result in at least one Class member belonging to a different state. Therefore, the elements of subject matter jurisdiction pursuant to 28 U.S.C. 1332(d) and the Class Action Fairness Act ( CAFA ) are present. 35. This Court has supplemental jurisdiction over the Plaintiffs and the Classes state law claims pursuant to 28 U.S.C. 1367(a). PERSONAL JURISDICTION 36. This Court possesses specific personal jurisdiction over all Defendants pursuant to New York Civil Practice Law and Rules 302(a) and federal constitutional due process. 37. This Court possesses general personal jurisdiction over all Defendants pursuant 11

12 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 12 of 43 PageID #: 1642 to New York Civil Practice Law and Rules 301 and federal constitutional due process. 38. All Defendants have sufficient minimum contacts with New York and this District, have purposefully availed themselves to doing business in New York and this District, and possess such a significant and continuous presence in New York and this District such as to be considered at home for the purposes of establishing personal jurisdiction. 39. In addition, Plaintiffs and the Class members injuries alleged in this action arise from Defendants business of providing utility services in New York, and result from Defendants tortuous conduct in violation of the TCPA and New York GBL 399-p within New York and directing their conduct to having intended effects within New York. 40. Defendants have not disputed that this Court has personal jurisdiction over defendants Keyspan Corporation, Keyspan Gas East Corporation, Niagara Mohawk Holdings, Inc., Niagara Mohawk Power Corporation and The Brooklyn Union Gas Company, each of which are incorporated in New York or registered with the New York Secretary to do business in New York. Additionally, defendant National Grid Electric Services, LLC is organized as a domestic New York limited liability company and defendant National Grid USA Service Company, Inc. is registered with the New York Secretary of State to do business in New York. 41. Defendants organized in New York or authorized to do business in New York operate as the agents, and/or the alter-egos, of Defendants that are organized outside New York. 42. Defendants collectively represent themselves as doing business as a single, cohesive and unified business providing generation, transmission and distribution of electricity and/or gas utility services to customers in New York and New England under the trade name National Grid. 12

13 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 13 of 43 PageID #: On February 18, 2014, Defendants filed a petition (the 2014 National Grid Petition ) with Federal Communications Commission ( FCC ). In that petition, Defendants requested permission to identify themselves to their customers uniformly as National Grid and represented that they operate as a single utility company, regardless of any historical trade names or corporate formations: I. Factual Background. National Grid is a public company traded on the London Stock Exchange (NG) and the New York Stock Exchange (NGG). It is an electricity and gas company providing service to more than seven million gas and electric customers in the northeast U.S. National Grid delivers electricity to approximately 3.3 million customers in Massachusetts, New York and Rhode Island. National Grid also owns over 4,000 megawatts of contracted electricity generation, providing power to over one million Long Island Power Authority (LIPA) customers. It is also the largest distributor of natural gas in northeastern U.S., serving approximately 3.4 million customers in New York, Massachusetts, and Rhode Island. All of these services are provided under the National Grid name. Marketing is conducted under this name and bills are sent under the National Grid name. Its service trucks bear the National Grid name. It also maintains its website under the National Grid name. In short, regardless of the technical legal corporate name of the company involved, customers identify their electric and gas service as coming from National Grid. National Grid operates both gas and electric utilities and has retained certain historical legacy corporate names [fn] that are specific to those utility services and the geographic regions they serve. Retaining these names is important as it facilitates the company s compliance with regulatory obligations specific to gas and electric utilities regulated by different state and federal governmental authorities. Transitioning all services to the corporate name of National Grid would be enormously confusing from an internal perspective due to differing utility regulation for gas and electric in the states that National Grid operates. Therefore, National Grid retains the legacy names for these background utilityregulation purposes, but uses the National Grid d/b/a name for all public-facing purposes - including marketing, billing, and service matters. The National Grid name is the only name used for customer interaction. Within the corporate structure, the legacy regulated retail companies are all wholly-owned subsidiaries of National Grid USA, Inc. [FN] The legacy regulated retail companies are Massachusetts Electric Company, 13

14 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 14 of 43 PageID #: 1644 Nantucket Electric Company, Colonial Gas Company, and Boston Gas Company in Massachusetts; Niagara Mohawk Power Corporation, The Brooklyn Union Gas Company, and Keyspan Gas East Corporation in New York; and The Narragansett Electric Company in Rhode Island. [Emphasis added]. 44. The 2014 National Grid Petition further stated: In National Grid s specific situation, customers will be able to identify the caller more easily if the caller is identified by its registered d/b/a name. National Grid uses the National Grid name for customer service purposes, billing, and marketing. The service trucks that customers see operating in the area have National Grid logos. Thus, National Grid is the name that its customers are familiar with and associate with their service provider. Placing calls from Boston Gas or Nantucket Electric Company will be confusing to customers who are unfamiliar with these corporate entities and do not understand the legal relationship between these entities and National Grid. 45. Thirteen companies operating as National Grid under common ownership and control collectively contracted with debt collectors to contact Defendants customers. 46. Debt collector NCO Financial Systems, Inc. ( NCOF ) made calls to Plaintiff Jenkins cellular telephone number in New York that is the subject of this action pursuant to a single agreement entered into with defendants Niagara Mohawk Power Company, Massachusetts Electric Company, The Narragansett Electric Company, Granite State Electric Company, Nantucket Electric Company, Keyspan Gas East Corporation, Boston Gas Corporation, Colonial Gas Company, Essex Gas Company, EnergyNorth Natural Gas, Inc. and The Brooklyn Union Gas Company, all doing business as National Grid. Defendant National Grid Electric Services, LLC was added as a party by amendment Under that agreement, Proof of insurance by NCOF was required to be provided 1 National Grid PLC sold Energy North Natural Gas, Inc. and Granite State Electric Company, its electricity and gas subsidiaries operating in New Hampshire, in

15 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 15 of 43 PageID #: 1645 by NCOF to National Grid USA at its New York office located at 300 Erie Boulevard West, Syracuse, NY The National Grid parties to the debt collection agreement with NCOF collectively nominated the Director, Credit & Collections for National Grid to receive all notices required under the agreement for all National Grid parties, to be provided at her office located at 300, Erie Boulevard West, Syracuse, NY A single National Grid employee signed the debt collection agreement with NCOF on behalf of the eleven named National Grid parties to that agreement. That agreement was amended on multiple occasions. 50. The same twelve National Grid parties to the debt collection agreement with NCOF, or a subset thereof, joined in some agreements by National Grid USA Service Company, Inc., signed substantially similar debt collection agreements with New Yorkorganized debt collectors including but not limited to Mercantile Adjustment Bureau, LLC (a New York domestic limited liability company), that made calls at issue in this lawsuit. 51. Among the further facts that establish this Court s specific and general jurisdiction over Defendants are the following contacts with New York: (a). According to a National Grid investment publication, entitled Intro to US, dated November 2014 and annexed hereto as Exhibit 2, Defendants provide gas or electricity services over 3.9 million New York customers, more than twice the number of customers to whom National Grid provides utility services in any other state; (b). Defendants operating under the National Grid trade name provide gas or 15

16 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 16 of 43 PageID #: 1646 electricity services to more customers in New York than in all other states combined; (c). Defendants operating under the National Grid trade name derive twice as much utility service income from customers in New York than from all other states combined; (d). Defendants own or lease many separate properties, offices and facilities within New York, from which they provide energy generation, transmission or distribution services, in addition to related customer service and administrative functions; (e). At least eight Defendants are incorporated or authorized to do business in New York, and act as agents for the National Grid companies doing business in New York; (f). Defendants incorporated or authorized to do business in New York share officers, directors and management with other Defendants; (g). Defendants are authorized by the New York Public Service Commission ( NYPSC ) and Federal Energy Regulatory Commission to generate, transmit and distribute electricity and gas in New York, and make frequent filings with those agencies related to their New York business; (h). Defendants pay property and entity taxes in New York; (i). Defendants individually or identified as d/b/a National Grid have filed tens of thousands of lawsuits in the New York and federal courts, invoking and conceding personal jurisdiction over them and their business; (j). Defendants National Grid USA and National Grid PLC have been named as defendants in lawsuits filed in the New York state and federal courts, either conceding personal jurisdiction or only rarely disputing personal jurisdiction; 16

17 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 17 of 43 PageID #: 1647 (k). Defendant National Grid PLC sells debt and equity securities in New York on the New York Stock Exchange; (l). Defendant National Grid PLC has entered into contracts to market and sell its securities in New York, which contracts contain New York choice-of-law provisions; (m). Defendants make telephone calls to New York Class members cellular and residential telephone numbers that violate the TCPA and New York GBL 399-p, identifying themselves under the trade and operating name National Grid; (n). Defendants retain debt collectors to make telephone calls to New York Class members cellular and residential telephone numbers that violate the TCPA and New York GBL 399-p using an ATDS; (o). Telephone calls to Plaintiffs and Class members cellular and residential telephone numbers that violate the TCPA and/or New York GBL 399-p were made from within New York; (p). According to the NYPSC, National Grid is located at 300 Erie Boulevard West, Syracuse, NY. In filings by National Grid with the FCC, it lists the same New York address, among others; and (q). National Grid has filed Corporate DBA Certificates listing physical addresses throughout this District, including One Metrotech Center, Brooklyn, NY and other locations in Lindenhurst, Brentwood, Bridgehampton, Coram, East Hampton, Greenlawn, Melville, Patchogue and Riverhead. 52. National Grid USA is identified as one of National Grid PLC s principle subsidiaries operating in the United States, and is among the unified group of National Grid 17

18 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 18 of 43 PageID #: 1648 companies providing utility services to millions of New York customers. National Grid USA is the direct or indirect parent, and principle, to the six Defendants incorporated or authorized to do business in New York. National Grid USA shares officers and/or directors with its subsidiaries and agents incorporated or authorized to do business in New York. National Grid USA has itself filed multiple petitions with the NYPSC, concerning facilities or utilities located in New York. National Grid USA maintains employees in New York. National Grid USA has itself paid property taxes in New York. National Grid USA has often been named as a defendant in lawsuits filed in New York federal and state courts, some by its own employees, and litigated such lawsuits without disputing the personal jurisdiction of the New York federal or state courts. Judgments have been entered and filed against National Grid USA in New York. 53. National Grid USA has filed counterclaims and cross-claims for relief in and invoked the personal jurisdiction of New York and federal courts located within New York. 54. National Grid USA had repeatedly admitted to being authorized to do business in the State of New York. See, e.g., Pantaleon v. National Grid USA, et al., E.D.N.Y. 1:13-cv- 821-KAM-RLM; Doc. No. 15 (Answer; Paragraph 15: DENIES the allegations contained in paragraph 15 of the Complaint, except ADMITS that Defendant National Grid USA and/or its affiliates provides electric service to millions of customers in the northeastern United States and is authorized to do business in the State of New York and maintains offices in One Metrotech Center, Brooklyn, New York and 175 East Old Country Road, Hicksville, New York ) (Emphasis added) (filed May 20, 2013). 55. As stated in a United States Federal Energy Regulatory Commission Order Denying Request for Extension of Request to Issue Securities, dated November 29, 2013, in 18

19 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 19 of 43 PageID #: 1649 response to a petition by National Grid USA: Through its direct and indirect subsidiaries, National Grid [USA] is engaged in electric transmission and the distribution and sale of electricity and natural gas to residential, commercial, and industrial customers in New York and parts of New England. These subsidiaries sell and distribute natural gas to 3.5 million customers in New York and Rhode Island and transmit and deliver electricity to nearly 4.5 million customers in New York, Massachusetts, Rhode Island, and New Hampshire. 56. National Grid PLC is the parent, and principle, to the eight Defendants incorporated or authorized to do business in New York. National Grid PLC shares officers and/or directors with its subsidiaries and agents incorporated or authorized to do business in New York. National Grid PLC has itself filed multiple petitions with the NYPSC, concerning facilities or utilities located in New York. National Grid PLC maintains employees in New York. National Grid PLC has often been named as a defendant in lawsuits filed in New York, including in this Court, and litigated such lawsuits without disputing the personal jurisdiction of the New York federal or state courts. See Anderson v. Nat l Grid, PLC, 2015 U.S. Dist. LEXIS 38163, at *5 (E.D.N.Y. Mar. 25, 2015) ( National Grid is a public utility that provides natural gas service to customers on Long Island and elsewhere in New York. ). In a lawsuit where National Grid PLC did dispute personal jurisdiction, that motion was denied. See Metropolitan Transp. Auth. v Keyspan Corp., 2010 N.Y. Misc. LEXIS 2019 (N.Y. Sup. Ct. Apr. 30, 2010). 57. National Grid PLC sells its equity and debt securities on the New York Stock Exchange. According to a National Grid PLC investor publication titled NG.news (2015): National Grid s ADRs are issued by Bank of New York Mellon and are equivalent to 5 ordinary shares. The ADRs are listed on the New York Stock Exchange (NYSE) under the ticker, NGG. Approximately 10% of National Grid s shares are actively traded via its ADR programme, making it one of the more liquid ADRs available. 19

20 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 20 of 43 PageID #: 1650 The same National Grid PLC investor publication directs investors to contact employee George Laskaris for additional information about National Grid PLC ADRs. According to a National Grid PLC investor publication titled Introduction to National Grid (October 1, 2013), Mr. Laskaris maintains an office in this District and hold the title, US Investor Relations Director. 58. National Grid PLC has entered into agreements with Bank of New York Mellon to issue its ADRs. Bank of New York Mellon, a New York banking corporation, lists its Depositary office in its Amended and Restated Deposit Agreement with National Grid PLC as 101 Barclay Street, New York, NY That agreement contains a Governing Law provision, directing that all disputes relating to the Deposit Agreement to be governed by the laws of the State of New York. 59. National Grid PLC filed a registration statement and Prospectus with the SEC on July 20, 2012 to sell debt securities in the United States. That Registration Statement contained the following statement of the Governing Law for the securities: The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in that state. 60. The Narragansett Electric Company has filed lawsuits in New York courts. See The Narragansett Electric Co. v. American Home Assurance Co., S.D.N.Y. Case No. 1:11-cv LGS. 61. All Defendants, including Boston Gas Company, Colonial Gas Company, Essex Gas Company, Massachusetts Electric Company, and Nantucket Electric Company, regularly, continuously and intentionally do business in New York as among the cohesive and unified 20

21 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 21 of 43 PageID #: 1651 businesses operating as National Grid, and through its agents organized and authorized to do business in New York. 62. Defendants share officers, directors and managers, often serving in those capacities simultaneously for at least one Defendant domiciled or authorized to do business in New York. (a). During the Class Periods, Steven Holliday served as the Chief Executive Officer ( CEO ) of Keyspan Corporation, CEO of National Grid USA, CEO of National Grid USA Service Company, Inc., CEO of National Grid PLC and CEO of The Narragansett Electric Company; (b). During the Class Periods, Thomas King served as the CEO of Keyspan Corporation, CEO of Niagara Mohawk Holdings, Inc., a Director of National Grid USA, Executive Director of National Grid USA Service Company and an Executive Director of National Grid PLC; (c). During the Class Periods, William Akley served as the CEO of Keyspan Gas East Corporation and a Director of Boston Gas Company; (d). During the Class Periods, Mark Fairbarn served as an Executive Director of Keyspan Gas East Corporation and an Executive Director of The Narragansett Electric Company; (e). During the Class Periods, Edward Astle served as an Executive Director of Keyspan Corporation and an Executive Director of The Narragansett Electric Company; and (f). During the Class Periods, Stephen Pettit served as a Director of Keyspan 21

22 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 22 of 43 PageID #: 1652 Corporation and a Director of The Narragansett Electric Company. VENUE 63. Venue is proper in this District under 28 U.S.C THE TELEPHONE CONSUMER PROTECTION ACT 64. In 1991, Congress enacted the TCPA, 2 in response to a growing number of consumer complaints regarding certain telemarketing practices. 65. The TCPA regulates, among other things, the use of automated telephone equipment, or autodialers. Specifically, the plain language of TCPA Section 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party 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. The FCC also explicitly recognized that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used On January 4, 2008, the FCC released a Declaratory Ruling wherein it confirmed that autodialed and prerecorded message calls to a wireless number by a creditor (or on behalf of a creditor) are permitted only if the calls are made with the prior express consent of the 2 Telephone Consumer Protection Act of 1991, Pub. L. No , 105 Stat (1991), codified at 47 U.S.C. 227). The TCPA amended Title II of the Communications Act of 1934, 47 U.S.C. 201 et seq U.S.C. 227(b)(1)(A)(iii). 4 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No , Report and Order, 18 FCC Rcd (2003). 22

23 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 23 of 43 PageID #: 1653 called party. 5 The FCC emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed In the same 2008 Declaratory Ruling, the FCC emphasized that creditors and their third party debt collector may be held liable under the TCPA for debt collection calls: A creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call... A third party collector may also be liable for a violation of the Commission s rules. STATEMENT OF FACTS 69. Defendants are utility providers of natural gas and electricity in the Northeastern United States. During the Class Periods, Defendants provided gas or electricity to customers in New York and New England. 70. Defendants or others operating on their behalf place telephone calls to consumers using autodialers and/or leave prerecorded telephone messages for their customers residing in the United States who allegedly owe monies for utility services. 71. To make these telephone calls, Defendants employ automatic telephone dialing systems and artificial or prerecorded voices to call Class members cellular telephone numbers. 72. Defendants concede the practice. In the 2014 National Grid Petition, Defendants admitted to the FCC that they routinely use prerecorded calls as a means of communicating 5 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 ( FCC Declaratory Ruling ), 23 F.C.C.R. 559, 23 FCC Rcd. 559, 43 Communications Reg. (P&F) 877, 2008 WL (F.C.C.) (2008). 6 FCC Declaratory Ruling, 23 F.C.C.R. at ( 10). 23

24 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 24 of 43 PageID #: 1654 with their customers. Feb. 18, 2014 Petition at 4. The 2014 National Grid Petition states: These prerecorded calls are an important tool that National Grid used to keep its customers informed of service issues on a timely basis. The same 2014 National Grid Petition concedes that many of the prerecorded calls are made to Defendants customers cellular telephones. 73. Defendants also conceded that they use prerecorded messages in a submission to the FCC on March 26, 2015, after this action was filed. In that submission, Defendants additionally admitted to using prerecorded calls as means to collect overdue bills and that their communications can include prerecorded and autodialed calls. March 26, 2015 Submission at 3, 4. That FCC submission concedes that many of the prerecorded calls are made to Defendants customers cellular telephones. 74. Defendants also jointly retain debt collectors to make calls on behalf of Defendants to collect debts allegedly owed by Defendants utility customers. 75. Defendants debt collectors also use automatic telephone dialing systems and artificial or prerecorded voices to call Class members cellular telephone numbers. 76. Under the TCPA and pursuant to the FCC s January 2008 Declaratory Ruling, the burden is on Defendants to demonstrate that Plaintiffs and Class Members provided express consent within the meaning of the statute Neither Plaintiffs nor the other members of the Classes provided their prior express consent during the transaction that resulted in the claimed debt owed to permit Defendants or others operating on their behalf to make automated telephone calls to Plaintiffs or Class members cellular telephone numbers. 7 See FCC Declaratory Ruling, 23 F.C.C.R. at 565 ( 10). 24

25 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 25 of 43 PageID #: Defendants and their debt collectors calls to Plaintiffs and other members of the Classes cellular phones were not for emergency purposes as described in 47 U.S.C. 227(b)(1)(A). TELEPHONE CALLS TO PLAINTIFF JENKINS CELLULAR TELEPHONE NUMBER 79. Plaintiff Jenkins did not provide Defendants or their debt collectors with his prior express consent to call his cellular telephone number utilizing an artificial or prerecorded voice or placed by an automatic telephone dialing system, within the meaning of 47 U.S.C. 227(b)(1)(A). 80. Nevertheless, non-party debt collector NCOF called Plaintiff Jenkins cellular telephone number many times on behalf of Defendants, including on or about the following dates during the Class Periods: March 7, 2011, March 8, 2011, March 9, 2011, March 10, 2011 March 11, 2011 March 12, 2011, March 30, 2011 (twice), April 8, 2011 (three times), April 12, 2011 (twice), April 20, 2011 (six times), April 29, 2011 (twice), June 22, 2011 (twice), June 28, 2011 (twice), July 5, 2011, July 15, 2011 (twice), July 21, 2011 (twice), July 25, 2011 (twice), August 19, 2011, August 24, 2011, August 30, 2011 (twice), September 9, 2011 (twice), September 12, 2011 (twice), September 13, 2011 and September 16, See Exhibits 3 and 4 annexed hereto. 81. Records and discovery produced by NCOF confirm that NCOF made the telephone calls to Plaintiff Jenkins cellular telephone number on the dates identified in the preceding Paragraph using an automatic telephone dialing system and/or an artificial or prerecorded voice. See Exhibit 3 and 4 annexed hereto. 82. Plaintiff Jenkins owned the cellular telephone number called by NCOF through 25

26 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 26 of 43 PageID #: 1656 September On or about September 8, 2011, the cellular account related to Plaintiff Jenkins cellular telephone number was transferred to Tate LLC. Plaintiff Jenkins is the sole member of Tate LLC and user of the cellular telephone number registered to Tate LLC. 83. NCOF frequently leaves messages on consumers telephones using prerecorded voice messages. See Marisco v. NCO Fin. Sys., 946 F. Supp. 2d 287, 289 (E.D.N.Y. 2013); Santino v. NCO Fin. Sys., 2011 U.S. Dist. LEXIS 18185, *9 (W.D.N.Y. Feb. 23, 2011). 84. Records and discovery produced by NCOF confirm that NCOF called Plaintiff Jenkins cellular telephone to collect two alleged debts owed to National Grid. 85. NCOF was retained by Defendants to engage in debt collection. 86. NCOF made all calls to Plaintiff Jenkins cellular telephone number after the closure of his subject National Grid account(s) in or about NCOF s computer files pertaining to its efforts to collect alleged debts for Defendants from Plaintiff are annexed hereto as Exhibits 3 and 4 (highlighting added; social security number redacted). 88. NCOF used an automatic telephone dialing system when it called Plaintiff Jenkins cellular telephone number. The hardware and software used by NCOF has the capacity to generate and store random numbers, or receive and store lists of telephone numbers, and to dial those numbers, en masse, in an automated fashion without human intervention. NCOF s automated telephone dialing equipment also is, or includes features substantially similar to, a predictive dialer, meaning that it is capable of making numerous phone calls simultaneously and automatically connecting answered calls to available telemarketers and disconnecting the rest. 89. NCOF s computer files annexed hereto as Exhibits 3 and 4 indicate calls made 26

27 Case 2:15-cv JS-GRB Document 99 Filed 07/02/15 Page 27 of 43 PageID #: 1657 by NCOF s automatic telephone dialing systems by the designations VOX, ASP and T Charles Petro is a debt collector formerly employed by NCOF. He testified during a deposition on October 17, 2013 as follows at page 115 of the transcript: Q. I m sorry. So let me stop you for a second, do you know what MN stands for? A. I don t know what the MN is, but I know it s -- I know it s the autodialer. Q. And you know that because it says VOX, right? A. I know because it s VOX. 91. NCOF s VOX references are to a telephone calling system termed LiveVox, which has been held to be a predictive dialer and an automatic telephone dialing system for the purposes of the TCPA. See Smith v. MarkOne Fin., LLC, 2015 U.S. Dist. LEXIS 11803, *9 (M.D. Fla. Feb. 2, 2015) ( As the LiveVox system automatically dials numbers from a downloaded list and predicts when a collection agent will be available to pick up the call, it is a predictive dialer and an ATDS. ); Echevvaria v. Diversified Consultants, Inc., 2014 U.S. Dist. LEXIS 32136, *16-26 (S.D.N.Y. Feb. 28, 2014) ( Rather, the evidence -- including the LiveVox Memo and Diversified s Jamie Sullivan s admission -- is that LiveVox is a predictive dialer that under the FCC's rules interpreting the TCPA, is an ATDS covered by the TCPA. ); Davis v. Diversified Consultants, Inc., 2014 U.S. Dist. LEXIS 87867, *19 (D. Mass. 2014) ( In short, the LiveVox system, as utilized by defendant, was an ATDS. ); see also Donnelly v. NCO Fin. Sys., 263 F.R.D. 500, 506 (N.D. Ill. 2009) (noting that NCOF produced its contract with LiveVox and the LiveVox Operations Guide in discovery). 92. NCOF s ASP references are to a telephone calling system termed Aspect, which has been held to be a predictive dialer and an automatic telephone dialing system for the 27