179 F. Supp. 3d 817
N.D. Ill.2016Background
- From Aug. 2011–Aug. 2012 ESG ran a national phone campaign that played prerecorded political-survey messages offering a "free cruise" incentive; respondents who asked to learn more were transferred to CCL sales representatives and sometimes routed into timeshare sales involving Berkley and VOMT.
- ESG (founded and run by Jacob DeJongh) created and placed the calls; LSS and contracts with CCL show relationships where ESG would transmit prerecorded survey messages and be paid for transfers that led to sales leads.
- Plaintiffs sued under the TCPA, alleging prerecorded and autodialed calls to cellular phones and prerecorded calls to residential landlines without prior express consent; plaintiffs obtained class certification for cellular and landline classes.
- Defendants (CCL, VOMT, Berkley) moved for summary judgment arguing (1) ESG alone made the calls, (2) factual disputes whether an autodialer or prerecorded voice played for each call, and (3) FCC exemptions (political survey/tax-exempt nonprofit) shield calls to landlines and should extend to cell phones.
- The court found undisputed evidence that prerecorded messages played on every call and granted plaintiffs summary judgment that calls to the cellular-phone class violated 47 U.S.C. § 227(b)(1)(A)(iii); it denied summary judgment for the landline class because FCC exemptions might apply if ESG acted on its own behalf.
- The court also denied defendants’ summary-judgment requests on vicarious/joint liability, ruling that sufficient evidence exists for a reasonable jury to find actual authority, ratification, or alter-ego/subagency relationships tying CCL, VOMT, and Berkley to ESG’s calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the calls unlawful under the TCPA to cellular phones? | Calls used prerecorded voice and autodialer; no consent => unlawful. | Evidence disputed whether an autodialer was used and whether prerecorded voice actually played for each call; FCC exemptions should apply. | Court: prerecorded voice undisputed; even if autodialer fact issue remains, calls to cellular class violate §227(b)(1)(A)(iii); partial SJ for plaintiffs. |
| Are calls to residential landlines exempt under FCC rules? | Calls had commercial component (lead generation for cruise/timeshare) so exemptions do not apply. | Calls were political/noncommercial or made by tax-exempt ESG; exemptions for landlines apply (and should extend to cell phones). | Court: factual dispute whether ESG acted on its own vs. as agent for defendants; cannot resolve exemptions on summary judgment—deny plaintiffs’ SJ for landline class. |
| Can CCL, VOMT, Berkley be vicariously/jointly liable for ESG’s calls? | Evidence (contracts, shared ownership/management, edits to scripts, payments, acceptance of benefits) supports agency, ratification, alter-ego, or joint-venture theories. | Defendants argue they were not "sellers," lacked apparent authority, and were not adequately pleaded as liable. | Court: plaintiffs gave adequate notice; apparent authority unsupported, but evidence permits reasonable juries to find actual authority, ratification, or alter-ego/subagency—deny defendants’ SJ on vicarious liability. |
| Are named plaintiffs adequate and do records defeat individual claims? | N/A (plaintiffs rely on testimony, phone records, and class-definition methods). | Defendants contend Parkes and Stone’s records show they did not hear messages or receive landline calls, making Stone inadequate representative. | Court: class definitions permit alternative proof (affidavits, complaints); testimony and other evidence suffice to create triable issues—deny SJ as to Parkes and Stone. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (reasonable-jury standard at summary judgment)
- Ybarra v. Dish Network, LLC, 807 F.3d 635 (prerecorded message must actually play for liability)
- Chesbro v. Best Buy Stores, LP, 705 F.3d 913 (dual-purpose calls with marketing component not exempt)
- Bridgeview Health Care Ctr., Ltd. v. Jerry Clark, 816 F.3d 935 (agency principles and TCPA liability)
- Del Marcelle v. Brown Cty. Corp., 680 F.3d 887 (pleading legal theories not required to survive notice pleading)