CHICAGO — A fundraising and marketing company has been let off the hook in a class action lawsuit after a federal judge said its work on behalf of a breast cancer research charity meant it couldn't be made to pay for allegedly violating a federal telemarketing law. 

However, plaintiffs are appealing that decision.

U.S. District Judge Edmond Chang ruled in favor of non-profit Associated Community Services Inc. (ACS), which had been sued under the federal Telephone Consumer Protection Act (TCPA) for making fundraising phone calls for the Breast Cancer Society.

The decision was filed in the U.S. District Court for the Northern District of Illinois.

Marshall Spiegel, on behalf of a class of similarly situated individuals, filed suit against ACS and several affiliated people, claiming ACS violated the TCPA by allegedly calling him even though his phone number had been on the do-not-call registry since 2003. Spiegel claimed ACS called him four times between October 2013 and August 2014, using pre-recorded messages.

ACS works for the non-profit Breast Cancer Society, helping it raise funds.The Breast Cancer Society controlled the content of the marketing and solicitation materials, according to a 2011 contract between the two organizations, which was cited in Chang's decision.

In his original complaint, Spiegel also claimed certain individuals associated with ACS also pocketed donations to the Breast Cancer Society, alleging ACS is a sham.

ACS admitted it placed multiple calls to Spiegel on behalf of the Breast Cancer Society to solicit donations. But the company argued the calls were made on behalf of a tax-exempt, non-profit organization, and so was not subject to the TCPA. ACS also claimed it was too late for the plaintiffs to raise any arguments over the pre-recorded messages, as that contention was not raised in the original complaint filed in the action.

Chang noted the content of the calls was not in dispute.

“The scripts informed the potential donors that the Breast Cancer Society gave direct aid to breast cancer patients by 'helping out with things like medical supplies, pain medication, in-home health care, or … household expenses,'" Chang wrote in the decision. "Speigel has pointed to no evidence that ACS attempted to sell or promote any other products or services during the phone calls. The calls were made using pre-recorded voices to deliver the scripted messages.”

The standard for granting summary judgment is that no material facts are in dispute and the petitioner is entitled to see the case dismissed.

“Both claims fail as a matter of law because the calls were made 'on behalf of' the society, a tax-exempt, nonprofit organization," Chang said in the decision. "The do-not-call claim also fails because the calls did not constitute 'telephone solicitation' under the TCPA.”   

Federal court records indicate Spiegel's attorneys appealed Chang's decision to the U.S. Seventh Circuit Court of Appeals on Nov. 14.

Spiegel is represented in the action by the firm of Langone, Batson & Lavery LLC, of Chicago.

ACS is defended by the firm of Freeborn & Peters LLP, of Chicago, and Venable LLP, of Washington, D.C.

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Langone Batson & Lavery U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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