A federal judge has ruled a group of companies that used promises of free cruises to entice people to take telephone political surveys appeared to have broken federal law, clearing the way for a class action to continue against a cruise line and seller of vacation timeshares.

U.S. District Judge Matthew F. Kennelly granted summary judgment to the plaintiffs on a charge that Economic Strategy Group, Caribbean Cruise Line Inc., Berkley Group Inc. and Vacation Ownership Marketing Tours Inc. violated the federal Telephone Consumer Protection Act by using a prerecorded voice to call cell phone numbers. A charge that the companies also violated the TCPA by calling landlines remains disputed and can proceed to trial.

The plaintiffs are representing two groups of people, all of whom received unsolicited phone calls from Economic Strategy Group to either their home or cell phones. Economic Strategy Group, whose founder, Jacob DeJongh, is its sole employee, made the calls under the names ESG or Political Opinions of America. According to court documents, DeJongh testified he founded ESG, a registered nonprofit, to raise awareness of political issues he cared about, spread his political message and conduct meaningful political surveys so he could market the results to political parties, political action committees and news outlets.

When a person answered an ESG phone call, an automated voice asked them to take a political survey, and promised at the survey’s completion they would be eligible for a “free” cruise to the Bahamas. Once the survey was complete, people interested in the cruise were connected to a representative with 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 Berkley facility.

The defendants claimed the calls were made by and for a nonprofit with the sole purpose of collecting political survey data, exempting them from some provisions of the TCPA. The plaintiffs, however, claimed the calls were primarily intended to drum up business for the companies contracted with ESG.

The defendants filed a motion to dismiss in 2012, arguing that the plaintiffs failed to distinguish the unique role of each of the defendants, that only the party actually placing the calls could be held liable, and that political surveys were exempt from the law. The court rejected the motion, finding that the parties had allegedly worked in concert and that the prohibition on calls made with prerecorded voices and autodialers stood despite the call’s intention.

Under the TCPA, it is illegal to deliver a prerecorded message to a consumer cellular line without express consent unless in an emergency situation. In granting summary judgment, Kennelly wrote that there was no question that provision of the law had been violated.

The defendants requested summary judgment on the landline charge as well, because the named class representative for that group could not show in either her phone records or the phone records of ESG that she had ever been called. Kennelly wrote that it would go too far to dismiss the entire charge on the basis of the representative being unfit to represent the class; if she was deemed unfit, he wrote, a new representative could be named.

The plaintiffs in the case are represented by attorneys with the firms of Loevy & Loevy, of Chicago; Edelson PC, of Chicago; the Law Offices of Scott D. Owens, of Hallandale, Fla.; the Margulis Law Group, of Chesterfield, Mo.; and the Steward Law Firm, of St. Louis, Mo.

Caribbean Cruise Line is represented by the firms of Greenspoon Marder, of Fort Lauderdale, Fla., and Tabet DiVito Rothstein, of Chicago.

Berkley is represented by the firms of McGuireWoods LLP, of Chicago, and the Forde Law Offices, of Chicago.

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Edelson PC Loevy & Loevy McGuireWoods LLP Tabet DiVito and Rothstein LLC

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