Jenkins v. Pandora Marketing, LLC et al

COMPLAINT against John Doe Corporation, Pandora Marketing, LLC, Timeshare Compliance, LLC (Filing fee $400 receipt number 0420-9170296) filed by Michelle Jenkins. Service due by 9/21/2020

District of South Carolina, scd-0:2020-cv-02337

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0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 1 of 20 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA MICHELLE JENKINS, on behalf of herself: and others similarly situated,: CIVIL ACTION FILE NO. XXXXXX: 0:20-cv-02337-MGL Plaintiff,:: v.: COMPLAINT – CLASS ACTION: PANDORA MARKETING, LLC f/k/a: TIMESHARE COMPLIANCE, LLC and: JURY TRIAL DEMANDED d/b/a TIMESHARE COMPLIANCE,: TIMESHARE COMPLIANCE, LLC, and: JOHN DOE CORPORATION,:: Defendants. / Plaintiff Michelle Jenkins (hereinafter referred to as "Plaintiff" or "Ms. Jenkins"), individually and on behalf of all others similarly situated, allege on personal knowledge, investigation of her counsel, and on information and belief, as follows: PRELIMINARY STATEMENT 1. Ms. Jenkins brings this action under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., 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. Ms., Jenkins alleges that Defendants Pandora Marketing, LLC, Timeshare Compliance, LLC, and John Doe Corporation (collectively "Defendants") collaborated to send her unsolicited telemarketing calls without prior express written consent in an attempt to persuade Ms. Jenkins into enlisting the services of Pandora Marketing, LLC and/or Timeshare 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 2 of 20 Compliance, LLC to eliminate Ms. Jenkins' timeshare obligations. The calls were physically dialed by John Doe Corporation. 3. Because these calls were transmitted using technology capable of generating thousands of similar calls per day, Ms. Jenkins sues on behalf of a proposed nationwide class of other persons who received similar calls. 4. A class action is the best means of obtaining redress for the Defendants' 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. NATURE OF ACTION The Telephone Consumer Protection Act 5. Even as far back as 2012, the Pew Research Center reported 69 percent of cellular users who use text messaging receive unwanted text message spam, with 25 percent of them receiving it on a weekly basis. Jan Lauren Boyles and Lee Rainie, Mobile Phone Problems, Pew Research Center (Aug. 2, 2012), problems. 6. Robocalls, including automated calls have only increased since the 2012 study. "Robocalls and telemarketing calls are currently the number one source of consumer complaints at the FCC." Tom Wheeler, Cutting off Robocalls (July 22, 2016), events/blog/2016/07/22/cutting-robocalls (statement of FCC Chairman). 7. "The FTC receives more complaints about unwanted calls than all other complaints combined." Comment of the Staff of the Federal Trade Commission's Bureau of Consumer Protection, In re Rules and Regulations Implementing the TCPA of 1991, Notice of 2 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 3 of 20 Proposed Rulemaking, CG Docket No. 02-278, at p. 2; FCC 16-57 (June 6, 2016), available at consumer-protection-federal-communications-commission-rules- regulations/160616robocallscomment.pdf. Summary of Plaintiff's Allegations 8. This case involves a campaign by Pandora Marketing, LLC and/or Timeshare Compliance, LLC's (Pandora Marketing, LLC and Timeshare Compliance, LLC are hereinafter referred to as the "Marketing Companies") to market their services through the use of automated telemarketing calls in plain violation of the TCPA. 9. The Marketing Companies have a relationship with a third-party telemarketers, including John Doe Corporation who make, or hire others to make automated calls for the Marketing Companies. 10. Moreover, the Marketing Companies' vendors send multiple calls to cellular and residential telephone numbers that are registered on the National Do Not Call List (hereafter "NDNC"), which is a separate and additional violation of the TCPA. The recipients of these illegal calls, which include Plaintiff and the proposed classes, are entitled to damages under the TCPA. PARTIES 11. Plaintiff Michelle Jenkins is, and at all times mentioned herein was, an individual citizen of Rock Hill, South Carolina. 3 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 4 of 20 12. Defendant Pandora Marketing, LLC is a Wyoming limited liability company, with a principal place of business of 26970 Aliso Viejo Parkway, Suite 150 in Aliso Viejo, California 92656 and a registered agent of William Wilson at the same address. 13. Defendant Pandora Marketing, LLC was formally known as Timeshare Compliance LLC. See Exhibit A. Upon information and belief, Pandora Marketing, LLC continues to do business and represent itself to the public as "Timeshare Compliance." 14. Upon information and belief, Timeshare Compliance, LLC was a Wyoming limited liability company with a principal place of business of 1712 Pioneer Avenue, Suite 500, Cheyenne, Wyoming, 82001 and a registered agent of Capital Administrations LLC located at 1712 Pioneer Avenue, Suite 115 Cheyenne, Wyoming, 82001. Upon information and belief, the name of Timeshare Compliance, LLC was changed to "Pandora Marketing, LLC." However, on the website maintained at "", Pandora Marketing, LLC and/or Timeshare Compliance LLC represents to the general public that "Timeshare Compliance LLC is a subsidiary of Pandora Marketing, LLC. See, (last visited June 15, 2020). 15. Defendant John Doe Corporation is a currently unidentified telemarketing vendor utilized by the Marketing Companies that contacted Ms. Jenkins. JURISDICTION AND VENUE 16. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 47 U.S.C. § 227 et seq. 4 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 5 of 20 17. This Court has personal specific jurisdiction over John Doe Corporation because the company contracted with Pandora Marketing, LLC and Timeshare Corporation, LLC to make calls to individuals in this District. 18. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the illegal telemarketing calls that are the subject of this putative class action lawsuit were made into this District to consumers living in this District. TCPA BACKGROUND Calls Made Using an "Automated Telephone Dialing System" 19. The TCPA regulates, among other things, the use of a pre-recorded message or an automated telephone dialing system ("ATDS") to make calls or send automated calls. See 47 U.S.C. § 227, et seq.; In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 ¶ 165 (2003). 20. Specifically, the TCPA prohibits the use of an automated telephone dialing system to make any telemarketing call or send any telemarketing text message to a wireless number in the absence of an emergency or the prior express written consent of the called party. See 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(2); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1831 (F.C.C. 2012). 21. The TCPA defines an "automatic telephone dialing system" as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." § 227(a)(1)(A)-(B). The first component of this definition is satisfied when a dialing system has the capacity to call "a given 5 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 6 of 20 set of numbers" or when "dialing equipment is paired with. . . a database of numbers." In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, ¶ 133 (2003); see In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 566 (F.C.C. 2008) (rejecting argument that a dialing system "meets the definition of autodialer only when it randomly or sequentially generates telephone numbers, not when it dials numbers from customer telephone lists" and reasoning that "the teleservices industry had progressed to the point where dialing lists of numbers was far more cost effective"); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018) (holding that "equipment that made automatic calls from lists of recipients was. . . covered by the TCPA"). 22. "[T]elemarketing means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person." 47 C.F.R. § 64.1200(f)(12). 23. "[P]rior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered." 47 C.F.R. § 64.1200(f)(8). The National Do Not Call Registry 24. Second, § 227(c) of the TCPA requires the FCC to "initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers' privacy rights to 6 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 7 of 20 avoid receiving telephone solicitations to which they object." 47 U.S.C. § 227(c)(1). 25. In this rulemaking proceeding, the FCC was instructed to "compare and evaluate alternative methods and procedures and "develop proposed regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish purposes of this section." Id. at (c)(1)(A), (E). 26. Pursuant to this statutory mandate, the FCC issued two regulations, only one of which is relevant here. 27. The National Do Not Call Registry allows consumers to register their telephone numbers and thereby indicate their desire not to receive telephone solicitations at those numbers. See 47 C.F.R. § 64.1200(c)(2). 28. A listing on the Registry "must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator." Id. 29. The TCPA and implementing regulations prohibit the initiation of telephone solicitations to residential telephone subscribers to the Registry and provides a private right of action against any entity that makes those calls, or "on whose behalf" such calls are promoted. 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2). FACTUAL ALLEGATIONS 30. Defendants are each a "person" as the term is defined by 47 U.S.C. § 153(39). 7 0:20-cv-02337-MGL Date Filed 06/22/20 Entry Number 1 Page 8 of 20 Calls to Plaintiff 31. At no point has Ms. Jenkins sought out or solicited information regarding the timeshare related services purported provided by Pandora Marketing, LLC and/or Timeshare Compliance, LLC. 32. Ms. Jenkins' telephone number, XXX-XXX-7515, is registered to a cellular telephone service (hereinafter the "Cellphone Number"). 33. On September 29, 2012, Ms. Jenkins' Cellphone Number was registered with the National Do Not Call Registry. See Exhibit B. 34. Ms. Jenkins has received several telemarketing calls promoting the timeshare related services provided by Pandora Marketing, LLC and/or Timeshare Compliance, LLC. 35. One such call occurred on February 25, 2020. 36. Unlike on a normal call, no one promptly announced themselves to Ms. Jenkins when she answered the phone. Instead, Plaintiff heard several unnatural clicks and a lengthy pause between Ms. Jenkins answering "hello" and a repres