Class Action Complaint, Schmidt v. Chris Biz Services LLC, No. 2:23-cv-14284 (S.D. Fla.), Doc. 1 (Sept. 11, 2023)

Summary

A class action complaint and demand for jury trial by plaintiffs George Schmidt and Zachary Charles Baughman against defendant Chris Biz Services LLC, a Wyoming company, in the U.S. District Court for the Southern District of Florida, Schmidt v. Chris Biz Services LLC, No. 2:23-cv-14284 (Document 1). The plaintiffs seek to stop the defendant from violating the Telephone Consumer Protection Act (TCPA) by making unsolicited calls to consumers using pre-recorded voice messages and calls to consumers who registered their numbers on the National Do Not Call Registry, and seek injunctive and monetary relief for all persons injured. They allege the facts on personal knowledge as to themselves and on information and belief otherwise.

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“Class Action Complaint, Schmidt v. Chris Biz Services LLC, No. 2:23-cv-14284 (S.D. Fla.), Doc. 1 (Sept. 11, 2023).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/class-action-complaint-schmidt-v-chris-biz-services-llc-no-2-23-cv-142-68344eac0a/, SHA-256 6d4dab02fd0923f348b3acde1719369ea045f09f95b1aaf3cf605c7afa101239.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

GEORGE SCHMIDT, individually, Case No.
ZACHARY CHARLES BAUGHMAN,
individually, and on behalf of all others CLASS ACTION COMPLAINT
similarly situated,
DEMAND FOR JURY TRIAL
Plaintiffs,

CHRIS BIZ SERVICES LLC, a Wyoming
company,

Defendant.

CLASS ACTION COMPLAINT

Plaintiff George Schmidt (“Schmidt” or “Plaintiff Schmidt”) and Plaintiff Zachary Charles

Baughman (“Baughman” or “Plaintiff Baughman”) bring this Class Action Complaint and

Demand for Jury Trial against Defendant Chris Biz Services LLC (“Defendant” or “CBS”), to stop

the Defendant from violating the Telephone Consumer Protection Act (“TCPA”) by making

unsolicited calls to consumers using pre-recorded voice messages and calls to consumers who

registered their phone numbers on the National Do Not Call Registry (“DNC”) and to otherwise

obtain injunctive and monetary relief for all persons injured by Defendant’s actions. The Plaintiffs

allege 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 their

attorneys.

PARTIES

1. Plaintiff Schmidt is a Stuart, Florida resident.

2. Plaintiff Baughman is a Greenville, Ohio resident.

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3. Defendant CBS is a Wyoming company headquartered in Sheridan, Wyoming.

CBS conducts business throughout this District, Florida, and the United States.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331,

as the action arises under the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”).

5. This Court has personal jurisdiction over the Defendant because the Defendant

conducts business in this jurisdiction and solicits customers from this jurisdiction.

6. Venue is proper in this District under 28 U.S.C. § 1391(b) because the Plaintiff is

located in this District and the wrongful conduct giving rise to this case was directed into this

District.

INTRODUCTION

7. As the Supreme Court explained at the end of its term this year, “Americans

passionately disagree about many things. But they are largely united in their disdain for robocalls.

The Federal Government receives a staggering number of complaints about robocalls—3.7 million

complaints in 2019 alone. The States likewise field a constant barrage of complaints. For nearly

30 years, the people’s representatives in Congress have been fighting back.” Schmidt v. Am. Ass’n

of Political Consultants, No. 19-631, 2020 U.S. LEXIS 3544, at *5 (U.S. July 6, 2020).

8. 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).

9. 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.

2
10. When Congress enacted the TCPA in 1991, it found Americans were receiving

more than 18 million calls every day. 105 Stat. 2394 at § 2(3).

11. By 2003, due to more powerful autodialing technology, Americans were receiving

more than 100 million calls every day. In re Rules and Regulations Implementing the TCPA of

1991, 18 FCC Rcd. 14014, ¶¶ 2, 8 (2003).

12. The problems Congress identified when it enacted the TCPA have only grown

exponentially in recent years.

13. Industry data shows that the number of robocalls made each month increased from

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

14. According to online robocall tracking service “YouMail,” 4.5 billion robocalls were

placed in April 2023 alone, at a rate of 144.8 million calls per day. www.robocallindex.com. (Last

checked August 14, 2023).

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

calls, with over 150,000 complaints in 2020, and over 160,000 complaints in 2021. FCC,

Consumer Complaint Data Center, www.fcc.gov/consumer-help-center-data.

16. “Robocalls and telemarketing calls are currently the number one source of

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

of FCC chairman.1

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

combined.” Staff of the Federal Trade Commission’s Bureau of Consumer Protection, In re Rules

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

3
and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of

Proposed Rulemaking, CG Docket No. 02-278, at 2 (2016).2

COMMON ALLEGATIONS

18. Defendant CBS operates a call center that provides telemarketing services on behalf

of other companies, as well as for its own purposes.3

19. Defendant CBS generates business on behalf of companies like Bottom Line

Concepts. The website: ercfederalcredit.com the footer shows that the website is created by

Defendant Chris Biz Services but the top of the website advertises Bottom Line Concepts, who

Chris Biz Services transfers all of their leads that they generate to.

2
https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-bureau-
consumer-protection-federal-communications-commission-rules-
regulations/160616robocallscomment.pdf
3
https://chrisbizservices.com/#
4
https://ercfederalcredit.com/bottomline-home-new/
5
Id.

4
20. Defendant CBS makes telemarketing calls to consumers to solicit the services of

companies like Bottom Line Concepts, as per the experience of Plaintiff Baughman and Plaintiff

Schmidt.

21. Defendant CBS makes telemarketing calls to consumers using pre-recorded voice

messages without consent.

22. Defendant CBS is open about the pre-recorded voice message calls it places, as per

its corporate website:

23. Consumers have captured and posted pre-recorded voicemails that they received

from Defendant CBS online which exactly match the voicemails that Plaintiff Baughman and

Plaintiff Schmidt received, including:

6
https://chrisbizservices.com/#

5
7

24. Defendant CBS also makes telemarketing calls to residential telephone consumers

whose numbers are registered on the DNC, who have never provided their phone number to

Defendant, and who never consented to receive phone calls from the Defendant.

25. Many consumers have posted complaints online regarding unsolicited

telemarketing calls that they received from Defendant CBS, such as:

• “786-936-1984 called 27 April 2023 at 12:36pm. "Exciting news. Debra Tim has an
urgent notice regarding your Grant application that can provide funding of up to 26,000
dollars per employee for your business. We don't want you to miss out on this
opportunity. Please call us back now at 786-936-1984 to speak with a specialist who
can guide you through the application process and help you secure this free grant. This
may be your last chance to receive this funding, so don't wait. To get connected with a
specialist. Act now to secure your business' financial future.’ Total Calls: 19,807;
Robokiller User Reports: 125; Total Blocked Texts:18.” 8

• “Once a day sometimes more. No option to opt out.” 9

• “reported and that my # is on the Do Not Call Registry. They block their # so you can't
call them. No words that I can print for their rudeness and inhumanity.”10 (emphasis
added)

7
https://directory.youmail.com/phone/786-936-1984
8
https://www.callercenter.com/786-936-1984.html
9
Id.
10
Id.

6
• “Scam. They call only one ring and leave a robo voicemail. Called 4 weeks in a row.
If you call back it's a fake scam grant for businesses.” 11

•
“They call multiple times a day i have asked multiple times to stop and they blocked
me from calling in to them but they still call all day i am going to contact the local
police dept” 12

•
“Yet another auto-generated robocall re: an "urgent" and "limited-time" offer in order
to secure "government" tax benefits for small business owners who had employees
during 2020 and 2021” 13

• “Continues to call multiple times a day. I finally spoke with an actual person and when
I asked for the company name, the guy laughed and said "why would I give you my
company name? what are you gonna do, report us?". This is so ridiculously out of hand.
Do we need a class action lawsuit to get results??” 14

• “I have asked/demanded to be put on list to never contact but each day I get 1-2-3 robo
calls from the number 786-936-1984 and when try to cal it back it goes to unavailable
fast busy signal.” 15
• “Leaves a voicemail have number blocked so can't call back on main phone have to use
backup called back multiple times telling them to remove my number and they keep
calling I am fed up with it and contact me better business bureau on them and
everything” 16
• “Scam. They call only one ring and leave a robo voicemail. Called 4 weeks in a row.
If you call back it’s a fake scam grant for businesses.” 17
• “That is what they have done to me as well. I asked them to stop calling me but they
still call but they blocked me so I cant call them again to ask them not to keep calling
Im just going to call the local police dept at this point”18

26. In response to these calls, Plaintiff Baughman and Plaintiff Schmidt bring this case

seeking injunctive relief requiring the Defendant to cease from violating the TCPA, as well as an

award of statutory damages to the members of the Classes and costs.

11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
https://800notes.com/Phone.aspx/1-786-936-1984
18
https://www.yelp.com/biz/network-capital-funding-corporation-irvine-3?start=40

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PLAINTIFF SCHMIDT’S ALLEGATIONS

27. Plaintiff Schmidt’s phone number ending 3246 has been registered on the DNC

since February 25, 2006.

28. Plaintiff Schmidt’s cell phone number is not associated with a business and is used

for personal use only as one would use a residential landline home phone number.

29. Plaintiff Schmidt has never conducted any business with Defendant CBS, nor has

he given his consent to receive telemarketing calls from Defendant CBS.

30. Plaintiff Schmidt received an unsolicited call from Defendant CBS to his cell phone

on 650-780-3601 on May 3, 2023. This call was not answered but a pre-recorded voicemail that is

almost identical to the voicemail that Plaintiff Baughman received was left on Schmidt’s

voicemail.

31. On May 4, 2023, Plaintiff Schmidt received a 2nd unsolicited call from Defendant

CBS to his cell phone. This call was answered, and an employee identified the company name as

ERC Concepts.

32. On May 9, 2023, Plaintiff Schmidt received a 3rd unsolicited call from Defendant

CBS to his cell phone. This call was answered and an employee identified the company name as

ERC Concepts.

33. On May 11, 2023, Plaintiff Schmidt received a 4th unsolicited call from Defendant

CBS to his cell phone. This call was answered, and an employee identified the company name as

ERC Concepts.

34. One hour later, on May 11, 2023, Plaintiff Schmidt received a 5th unsolicited call

from Defendant CBS to his cell phone. Frustrated by the previous unsolicited calls, Schmidt

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answered the call and was told the company name is ERC Concepts which matches Defendant’s

website ERCConceptsInc.com.

35. The unauthorized telephone calls placed by Defendant, as alleged herein, have

harmed Plaintiff Schmidt in the form of annoyance, nuisance, and invasion of privacy, and

disturbed the use and enjoyment of his phone, in addition to the wear and tear on the phone’s

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

PLAINTIFF BAUGHMAN’S ALLEGATIONS

36. Plaintiff Baughman is the subscriber and the sole user of the cell phone number

ending with 2984.

37. Plaintiff Baughman’s cell phone number is not associated with a business and is

used for personal use only as one would use a residential landline home phone number.

38. Plaintiff Baughman has never conducted any business with Defendant CBS, nor

has he given his consent to receive telemarketing calls from or on behalf of Defendant CBS.

39. Despite not owning a business, Plaintiff Baughman has received multiple calls

regarding ERC credits placed by Defendant CBS.

40. On April 18, 2023 at 2:05 PM, Plaintiff Baughman received an unsolicited call to

his cell phone from Defendant CBS from the phone number 786-936-1984. The call rang once and

went straight to his voicemail. A pre-recorded voicemail was left on Plaintiff’s cell phone which

he listened to:

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41. Plaintiff believes this voicemail was pre-recorded due to its impersonal nature,

scripted nature, and because other consumers posted exactly the same pre-recorded voicemail

online.

42. When 786-936-1984 is called, an employee identifies the company name as ERC

Concepts and then transfers the caller to a specialist who answers as Bottom Line Concepts.

43. Defendant Chrs Biz Services also operates the website ERCConceptsInc.com.

44. The unauthorized telephone calls placed by Defendant, as alleged herein, have

harmed Plaintiff Baughman in the form of annoyance, nuisance, and invasion of privacy, and

disturbed the use and enjoyment of his phone, in addition to the wear and tear on the phone’s

10
hardware (including the phone’s battery) and the consumption of his phone line and memory on

the phone.

45. Seeking redress for these injuries, Plaintiff Baughman and Plaintiff Schmidt, on

behalf of themselves and Classes of similarly situated individuals, bring suit under the Telephone

Consumer Protection Act, 47 U.S.C. § 227, et seq.

CLASS ACTION ALLEGATIONS

46. Plaintiffs brings this action pursuant to Federal Rules of Civil Procedure 23(b)(2)

and 23(b)(3) and seek certification of the following Classes:

Pre-recorded No Consent Class: All persons in the United States who from four years
prior to the filing of this action through class certification (1) the Defendant called on their
cellular telephone number (2) using an artificial or pre-recorded voice.
Do Not Call Registry Class: All persons in the United States who from four years prior
to the filing of this action through trial (1) Defendant called more than one time to their
residential telephone number, (2) within any 12-month period, (3) where the person’s
telephone number had been listed on the National Do Not Call Registry for at least thirty
days, (4) for substantially the same reason that Defendant called Plaintiff Schmidt.

47. The following individuals are excluded from the Classes: (1) any Judge or

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

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

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

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

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

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

released. Plaintiffs anticipate the need to amend the Class definitions following appropriate

discovery.

11
48. Typicality and Numerosity: On information and belief, there are hundreds, if not

thousands of members of the Classes, all of which received calls from Defendant as part of a single

telemarketing campaign, and joinder of all members is impracticable.

49. Commonality and Predominance: There are many questions of law and fact

common to the claims of the Plaintiffs and the Classes, and those questions predominate over any

questions that may affect individual members of the Classes. Common questions for the Classes

include, but are not necessarily limited to the following:

(a) whether Defendant placed pre-recorded voice message calls to Plaintiff Baughman,

Plaintiff Schmidt and members of the Pre-recorded No Consent Class without first

obtaining consent to make the calls;

(b) whether the Defendant placed multiple calls within a 12-month period to Plaintiff

Schmidt and other consumers whose telephone numbers were registered with the

National DNC for at least 30 days at the time of each call;

written consent;

(d) whether the calls violated the TCPA;

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

willfulness of Defendant’s conduct.

50. Adequate Representation: Plaintiff Baughman and Plaintiff Schmidt will fairly

and adequately represent and protect the interests of the Classes, and have retained counsel

competent and experienced in class actions. Plaintiffs have no interests antagonistic to those of the

Classes, and Defendant has no defenses unique to Plaintiffs. Plaintiffs and their counsel are

committed to vigorously prosecuting this action on behalf of the members of the Classes, and have

12
the financial resources to do so. Neither Plaintiffs nor their counsel have any interest adverse to

the Classes.

51. Appropriateness: This class action is also appropriate for certification because the

Defendant has acted or refused to act on grounds generally applicable to the Classes as a whole,

and thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of

conduct toward the members of the Class and making final class-wide injunctive relief appropriate.

Defendant’s business practices apply to and affect the members of the Class uniformly, and

Plaintiffs’ challenge of those practices hinges on Defendant’s conduct with respect to the Classes

as a whole, not on facts or law applicable only to Plaintiff Baughman or Plaintiff Schmidt.

Additionally, the damages suffered by individual members of the Classes will likely be small

relative to the burden and expense of individual prosecution of the complex litigation necessitated

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

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

the benefits of single adjudication, economies of scale, and comprehensive supervision by a single

court.

FIRST CLAIM FOR RELIEF
Telephone Consumer Protection Act
(Violation of 47 U.S.C. § 227)
(On Behalf of Plaintiff Schmidt, Plaintiff Baughman and the
Pre-recorded No Consent Class)
52. Plaintiff Schmidt and Plaintiff Baughman repeat and reallege the prior paragraphs

of this Complaint and incorporate them by reference herein.

53. Defendant transmitted unwanted telephone calls to Plaintiff Schmidt, Plaintiff

Baughman, and the other members of the Pre-recorded No Consent Class using a pre-recorded

voice message.

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54. These pre-recorded voice calls were made en masse without the prior express

written consent of the Plaintiffs and the other members of the Pre-recorded No Consent Class.

55. The Defendant has, therefore, violated 47 U.S.C. § 227(b)(1)(A)(iii). As a result of

Defendant’s conduct, Plaintiff Baughman, Plaintiff Schmidt and the other members of the Pre-

recorded No Consent Class are each entitled to a minimum of $500 in damages, and up to $1,500

in damages, for each violation.

SECOND CLAIM FOR RELIEF
Telephone Consumer Protection Act
(Violation of 47 U.S.C. § 227)
(On Behalf of Plaintiff Schmidt and the Do Not Call Registry Class)
56. Plaintiff Schmidt repeats and realleges paragraphs 1-51 of this Complaint and

incorporates them by reference herein.

57. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o

person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber

who has registered her 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.”

58. 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” may bring a private action based on a violation of said regulations, which were

promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone

solicitations to which they object. 47 U.S.C. § 227(c).

59. Defendant violated 47 C.F.R. § 64.1200(c) by initiating, or causing to be initiated,

telephone solicitations to telephone subscribers such as the Plaintiff Schmidt and the Do Not Call

Registry Class members who registered their respective telephone numbers on the National Do

14
Not Call Registry, a listing of persons who do not wish to receive telephone solicitations that is

maintained by the federal government.

60. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff Schmidt and the Do Not

Call Registry Class received more than one telephone call in a 12-month period made by or on

behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of

Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual

damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in

damages for such violations of 47 C.F.R. § 64.1200.

61. To the extent Defendant’s misconduct is determined to be willful and knowing, the

Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages

recoverable by the members of the Do Not Call Registry Class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Schmidt and Baughman individually and on behalf of the

Classes, pray for the following relief:

a) An order certifying this case as a class action on behalf of the Classes, as defined above;

appointing Plaintiffs Baughman and Schmidt as the representatives of the Classes; and

appointing their attorneys as Class Counsel;

b) An award of actual and/or statutory damages and costs;

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

d) An injunction requiring Defendant to cease all unsolicited calling activity, and to

otherwise protect the interests of the Classes; and

e) Such further and other relief as the Court deems just and proper.

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JURY DEMAND

Plaintiffs Schmidt and Baughman request a jury trial.

Respectfully Submitted,

GEORGE SCHMIDT, individually, ZACHARY
CHARLES BAUGHMAN, individually, and on
behalf of those similarly situated individuals.

DATED this 11th day of September, 2023.

By: /s/ Stefan Coleman

Stefan Coleman
Coleman PLLC
66 West Flagler Street
Suite 900
Miami, Florida 33130
law@stefancoleman.com
Telephone: (877) 333-9427

Avi R. Kaufman
kaufman@kaufmanpa.com
KAUFMAN P.A.
237 South Dixie Highway, Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881

Attorneys for Plaintiff and the putative Classes

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