Dana Herra Aug. 26, 2016, 12:47pm

A cruise line and other companies being sued for allegedly cloaking telemarketing calls under the guise of nonprofit surveys lost an attempt to use the recent U.S. Supreme Court Spokeo ruling to defeat a class action against them.

In the lawsuit pending in Chicago federal court, three plaintiffs who received calls from defendant Economic Strategy Group are representing two classes of plaintiffs – those who received the calls on their cell phones and those who received them on landlines. The calls were placed using an autodialer and consisted of a pre-recorded voice asking the call recipient to take a political survey and promising that by completing the survey, the recipient would be eligible for a “free cruise” to the Bahamas. After taking the survey, interested persons were connected to a sales representative for co-defendant Caribbean Cruise Line. Though the cruises were “nominally free,” court documents noted people who took advantage of the offer still had to pay taxes, port fees, gratuities and fees for amenities or activities. Those customers were also offered an upgraded package if they agreed to take a timeshare tour at a facility owned by the remaining defendants, Berkley Group and Vacation Ownership Marketing Tours.

The plaintiffs have claimed the unsolicited calls violated the federal Telephone Consumer Protection Act by using an autodialer and prerecorded voice to sell the vacation packages.

Defendants have argued the primary reason for the calls was to deliver a survey on behalf of a nonprofit, exempting them from some provisions of the TCPA.

In April, U.S. District Judge Matthew F. Kennelly granted the plaintiffs summary judgment on the charge that the calls to cell phones violated the TCPA, but did not determine which of the defendants were responsible for the violation. That issue, he wrote, should be determined at trial.

Kennelly also allowed the charge on the landline calls to proceed, finding that should a jury determine the calls were made by a nonprofit for a non-commercial purpose, the calls to landlines would be exempted from liability.

However, in the wake of the U.S. Supreme Court’s much analyzed May decision in Spokeo v. Robins - in which the high court ruled people suing companies for procedural violations of a law must also demonstrate “concrete and particularized injuries” – the cruise line and its related defendants attempted to use the reasoning in that ruling to again ask Kennelly to take another look at the case and decertify the plaintiffs’ classes.

In relying on the decision, the defendants in this case argued the plaintiffs had shown the defendants companies had violated the TCPA, but had not proven that the violation caused any “concrete” injury.

Kennelly, however, said the Economic Strategy Group and its co-defendants misinterpreted the Supreme Court’s reasoning in Spokeo.

The judge pointed out that the Supreme Court had not reversed the lower court’s decision outright; it simply found that the court had not considered the question adequately and remanded it for reconsideration. He also said the defendants were not fully interpreting the point of the ruling.

“The Supreme Court’s point in Spokeo was not that a statutory violation cannot constitute a concrete injury, but rather that where the bare violation of a statute conferring a procedural right could cause a congressionally identified harm or material risk of harm and just as easily could not, it is not sufficient simply to allege that the statute at issue was violated,” he wrote. “The TCPA section at issue … directly forbids activities that by their nature infringe the privacy-related interests that Congress sought to protect by enacting the TCPA. There is no gap.”

Plaintiffs in the action are represented by attorneys with the firms of Loevy & Loevy and Edelson P.C., each of Chicago.

The defendant companies are represented by the firms of Greenspoon Marder, of Ft. Lauderdale, Fla.; Tabet DiVito & Rothstein, of Chicago; Mayer Brown, of Chicago; the Forde Law Offices, of Chicago; and McGuireWoods LLP, of Chicago.

Want to get notified whenever we write about any of these organizations ?
Next time we write about any of these organizations, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

Greenspoon Marder, P.A.
100 W. Cypress Creek Road
Fort Lauderdale, FL 33309

Loevy & Loevy
312 N May St
Chicago, IL 60607

Edelson PC
350 N LaSalle St Suite 1300
Chicago, IL 60654

Tabet DiVito and Rothstein LLC
The Rookery Building, 209 South La Salle Street
Chicago, IL 60604

Mayer Brown LLP
71 S. Wacker Dr.
Chicago, IL 60606

Forde Law Offices, LLP
111 W Washington St Suite 1100
Chicago, IL 60602

McGuireWoods LLP
77 W Wacker Dr
Chicago, IL 60601

More News