IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

HEIDI EICHNER, )
Individually and on behalf of all others )
similarly situated, )
)
Plaintiff, )
)
v. ) Case No.
)
JPMORGAN CHASE BANK, NA, and )
CHASE AUTO FINANCE CORP., ) Class Action Complaint
)
Defendants. ) Jury Trial Demanded
)

CLASS ACTION COMPLAINT

Plaintiff Heidi Eichner, by and through the undersigned attorneys, makes the

following allegations and claims against JPMorgan Chase Bank, NA (“Chase”) and

Chase Auto Finance Corp. (“CAF”),1 upon personal knowledge as to her own actions and

status, and upon information and belief as to all other matters.

INTRODUCTION
1. This action seeks redress for business practices that violate the

Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, et seq. (“TCPA”).

JURISDICTION AND VENUE

2. The court has jurisdiction to grant the relief sought by the plaintiff

pursuant to 47 U.S.C. § 227(b) and 28 U.S.C. §§ 1331 and 1337; Brill v. Countrywide

Home Loans, Inc., 427 F.3d 446, 451 (7th Cir. 2005).

1
Chase and CAF are collectively referred to hereinafter as “Defendants.”

Case 2:11-cv-00003-WEC Filed 01/04/11 Page 1 of 9 Document 1

 3. Venue in this District is proper as plaintiff lives in this District and

some of the acts which give rise to this Complaint occurred in this District.

PARTIES

4. Plaintiff Heidi Eichner is an individual who resides in Milwaukee

County, Wisconsin, and within the Eastern District of Wisconsin. Plaintiff received

numerous autodialed calls from Defendants on Plaintiff’s wireless telephone. Plaintiff

had not consented to receiving such calls from Defendants and did not provide

Defendants with her number.

5. Chase is one of the world’s largest banks, and is among the top

three largest makers of car loans in the United States, with its primary place of business

at 270 Park Avenue, New York, New York 10017-2070.

6. CAF is a corporation engaged in the business of buying, selling,

servicing and financing motor vehicles with its primary place of business at 270 Park

Avenue, New York, New York 10017-2070. CAF has various locations throughout the

nation, including locations in this state in Oconomowoc and Appleton, Wisconsin. CAF

is a wholly owned subsidiary of Chase. At all times relevant to this complaint, CAF was

acting as Chase’s agent, and is thus jointly and severally liable with Chase for violations

of the TCPA.

FACTS

7. Through its subsidiaries and agents, Defendants employ thousands

of persons at various call centers, including those in Dallas, Texas and Phoenix, Arizona.

8. These calling centers use automatic telephone dialing systems and

computerized account information to track, record, and maintain the millions of accounts

maintained by CAF on behalf of Chase.

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 9. Plaintiff does not have a car loan with Chase or CAF.

10. Within the past twelve months, Defendants used an automatic

telephone dialing system to contact Plaintiff on her cellular telephone, with regard to a

relative’s car loan, for which Plaintiff has no responsibility.

11. In 1991, Congress enacted the TCPA in response to a growing

number of consumer complaints regarding certain telemarketing practices.

12. The TCPA regulates, inter alia, the use of automated dialing

systems. Specifically, the plain language of 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.

13. 47 U.S.C. § 227(b) states in pertinent part:

(b) Restrictions on use of automated telephone equipment

(1) Prohibitions
It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded voice—
***
(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party is
charged for the call;

(3) Private right of action

A person or entity 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.
If the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court

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 may, in its discretion, increase the amount of the award to an amount
equal to not more than 3 times the amount available under subparagraph
(B) of this paragraph.

14. According to findings by the Federal Communication Commission

(“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

recognized that wireless customers are charged for incoming calls whether they pay in

advance or after the minutes are used. Rules and Regulations Implementing the

Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order,

18 FCC Rcd 14014 (2003).

15. On January 4, 2008, the FCC released a Declaratory Ruling

confirming 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 called party. 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 65485 (F.C.C.) (2008).

16. 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.”

FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10).

17. Under the TCPA and pursuant to the FCC’s January 2008

Declaratory Ruling, the burden is on Defendants to demonstrate that Plaintiff provided

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express consent within the meaning of the statute. See FCC Declaratory Ruling, 23

F.C.C.R. at 565 (¶ 10).

18. Plaintiff has no loan with Chase or CAF, and never provided any

telephone numbers whatsoever to Chase or CAF in connection with any car loan.

19. Plaintiff has never given CAF consent to call her.

20. The calls made to plaintiff were made on behalf of Chase, and

therefore, regardless of whether Chase, CAF or their agents made the call, Chase is liable

for the TCPA violation. See FCC Order 07-232, at ¶ 10 (January 4, 2008) (“Similarly, 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”).

21. Defendants acted willfully and/or knowingly in calling telephone

numbers without regard to the TCPA or whether the telephone is cellular telephone.

22. In calling Plaintiff on her cellular telephone line, Defendants

violated 47 U.S.C. § 227(b).

CLASS ALLEGATIONS

23. Plaintiff brings this class action pursuant to Federal Rule of Civil

Procedure 23 on behalf of herself and a Class of all others similarly situated consisting of

all persons in the United States who, on or after January 4, 2007 until the final disposition

of this case (the “Class Period”), received a non-emergency telephone call from CAF to a

cellular telephone through the use of an automatic telephone dialing system or an

artificial or prerecorded voice and who did not provide prior express consent for such

calls during the transaction that resulted in the debt owed.

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 24. Excluded from the Class are Defendants; officers, directors, and

employees of Defendants; any entity in which Defendants have a controlling interest; the

affiliates, legal representatives, attorneys, heirs, and assigns of Defendants; any federal,

state, or local government entity; and any judge, justice, or judicial officer presiding over

this matter and the members of their immediate families and judicial staffs. The

members of the Class are so numerous that joinder of all members would be

impracticable. Plaintiff reasonably estimates that there are hundreds of consumers who

have been subject to calls from CAF, on behalf of itself and Chase, in violation of the

TCPA.

25. There are questions of law and fact common to the members of the

Class that predominate over any questions affecting only individual members, including,

whether Defendants have made any call (other than a call made for emergency purposes

or made with the prior express consent of the called party) using any automatic telephone

dialing system or an artificial or prerecorded voice to any telephone number assigned to a

paging service, cellular telephone service, specialized mobile radio service, or other radio

common carrier service, or any service for which the called party is charged for the call,

in violation of the TCPA.

26. Plaintiff’s claims are typical of the claims of the members of the

Class. Plaintiff has no interests antagonistic to those of the Class, and Defendants have

no defenses unique to Plaintiff.

27. Plaintiff will fairly and adequately protect the interests of the

Class, and has retained attorneys experienced in class and complex litigation.

28. A class action is superior to all other available methods for the fair

and efficient adjudication of this controversy for the following reasons:

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 a) It is economically impractical for members of the Class to

prosecute individual actions;

b) The Class is readily definable; and

c) Prosecution as a class action will eliminate the possibility

of repetitious litigation.

29. A class action will cause an orderly and expeditious administration

of the claims of the Class. Economies of time, effort, and expense will be fostered and

uniformity of decisions will be ensured.

30. Plaintiff does not anticipate any undue difficulty in the

management of this litigation.

COUNT I — NEGLIGENT VIOLATIONS OF THE TCPA

31. Plaintiff incorporates the above allegations by reference as if set

forth herein in full.

32. The foregoing acts and omissions of Chase and CAF constitute

numerous and multiple negligent violations of the TCPA, including but not limited to

each of the above cited provisions of 47 U.S.C. § 227 et seq.

33. As a result of Chase and CAF’s negligent violations of 47 U.S.C. §

227 et seq., Plaintiff and Class members are entitled to an award of $500.00 in statutory

damages for each and every call in violation of the statute, pursuant to 47 U.S.C. §

227(b)(3)(B).

34. Plaintiff and all Class members are also entitled to and do seek

injunctive relief prohibiting such conduct violating the TCPA by Chase and CAF in the

future.

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 COUNT II — KNOWING AND/OR WILLFUL VIOLATIONS OF THE TCPA

35. Plaintiff incorporates the above allegations by reference as if set

forth herein in full.

36. The foregoing acts and omissions of Chase and CAF constitute

numerous and multiple knowing and/or willful violations of the TCPA, including but not

limited to each of the above-cited provisions of 47 U.S.C. § 227 et seq.

37. As a result of Chase’s and CAF’s knowing and/or willful

violations of 47 U.S.C. § 227 et seq., Plaintiff and each member of the Class is entitled to

treble damages of up to $1,500.00 for each and every call in violation of the statute,

pursuant to 47 U.S.C. § 227(b)(3).

38. Plaintiff and all Class members are also entitled to and do seek

injunctive relief prohibiting such conduct violating the TCPA by Chase and CAF in the

future.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of

Plaintiff and against Defendants for:

a. An injunction against the calling of cellular telephones by

Chase’s and CAF’s call centers, except where the cellular telephone subscriber has

provided prior express consent to the calls.

b. Damages pursuant to 47 U.S.C. § 227(b)(3);

c. Attorneys’ fees, litigation expenses and costs of suit;

d. Such other or further relief as the Court deems proper.

JURY DEMAND

Plaintiff demands trial by jury.

Respectfully submitted,

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 S/ Robert K. O’Reilly
Robert K. O’Reilly (SBN 1027032)
John D. Blythin (SBN 1046105)
ADEMI & O’REILLY, LLP
3620 East Layton Avenue
Cudahy, Wisconsin 53110
roreilly@ademilaw.com
(414) 482-8000
(414) 482-8001 (FAX)

MILBERG LLP
Peter G. Safirstein
Andrei V. Rado
Anne Marie Vu
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
avu@milberg.com
(212) 594-5300
(212) 868-1229 (FAX)

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