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
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
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
“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.