Law360, New York (April 19, 2016, 2:43 PM ET) — A class of as many as 1 million Americans who allegedly received robocalls offering a free cruise for taking part in a political opinion survey on Monday snagged a win from an Illinois federal judge, who said calls with prerecorded messages to cellphones were unlawful under the Telephone Consumer Protection Act.
U.S. District Judge Matthew F. Kennelly, in a 31-page order, granted partial summary judgment for the cellphone calls, saying that whether or not the robocalls offered a free cruise in addition to a survey, the tax-exempt nonprofit Economic Strategy Group and its founder, Jacob DeJongh, broke the law because calls made to the cellphone class were made without prior express consent.
“The evidence is uncontroverted that a prerecorded message was played on each call; DeJongh himself testified to this effect during his deposition,” Judge Kennelly said. “This is a violation of the TCPA, irrespective of whether the calls were made by or on behalf of a tax-exempt nonprofit, were made for a political or non-commercial purpose, or did not make reference to or play long enough to mention defendants’ vacation products.”
Judge Kennelly, however, denied the class’s motion to find Caribbean Cruise Line Inc., Vacation Ownership Marketing Tours Inc. and the Berkley Group Inc. liable for using a political campaign run by Economic Strategy Group to drum up business, saying it is a matter that must be decided by a jury.
“It is not clear at this stage of the litigation … that ESG made the calls on its own behalf or rather did so as an agent of other defendants,” Judge Kennelly said. “Indeed, plaintiffs have not moved for summary judgment on whether ESG acted as the other defendants’ authorized agent; they argue that this is a question the jury must decide.”
The judge also denied defendants’ motions for summary judgment and set an April 25 status hearing to discuss a schedule for further proceedings, including a trial date.
The class, certified in 2014 for members who allegedly received the calls on either their cell or landline phones, said Nov. 23 that its claims of a TCPA violation are clear and a jury should resolve direct or indirect liability for each defendant.
At the same time, Caribbean Cruise, Vacation Ownership Marketing Tours — which the class representatives accuse of being a shell company of Caribbean’s — and timeshare company the Berkley Group, which are accused of together participating in the alleged violations, filed motions to drop the claims against them in the case.
The class complaint alleges the defendants violated the TCPA by using an autodialer and an artificial or prerecorded voice over the course of about one year to call more than 1 million people’s cell and landline phones throughout the United States from the ESG organization, requesting their participation in various short political surveys.
“Every one of these calls featured prerecorded messages, some or all of which offered recipients an incentive to participate: if they would briefly answer a handful of questions regarding their satisfaction with Congress and the president or their perspectives on certain issues of national concern, they would be eligible for a ‘free cruise to the Bahamas,’” according to the judge’s order.
Upon completing the survey, call recipients were asked if they wanted to learn more about their prize, said the complaint filed in May 2012. The name of the cruise provider was not mentioned in the prerecorded messages, but people who chose to learn more were transferred to a Florida company that markets and sells cruise and vacation packages to consumers.
Although the cruise was said to be free, representatives requested call recipients’ credit card numbers and told them they would be responsible for taxes, port fees, and gratuities, as well as the cost of any upgraded amenities or activities during their trip, the plaintiffs said. Participants who opted for the cruise were also offered an upgraded package that would require them to take a timeshare tour at a Berkley vacation village, but Berkley’s name was never mentioned during these phone calls, the plaintiffs said.
Loevy & Loevy lawyer Scott Rauscher, who represents the class, said Tuesday in an email that the plaintiffs are pleased with the court’s opinion and look forward to a trial.
Representatives for the plaintiffs did not immediately respond Tuesday to requests for comment.
The class is represented by Jay Edelson, Rafey S. Balabanian and Eve-Lynn J. Rapp ofEdelson PC and Jonathan I. Loevy, Scott R. Rauscher and Michael I. Kanovitz of Loevy & Loevy.
The Berkley Group Inc. is represented by Brian Patrick O’Meara of Forde Law Offices LLP and M. Peebles Harrison of Rose Harrison & Gilreath PC.
Caribbean Cruise Line Inc. and Vacation Ownership Marketing Tours Inc. are represented by Richard W. Epstein and Jeffrey A. Backman of Greenspoon Marder PA and by Timothy A. Hudson of Tabet DiVito Rothstein LLC.
The case is Gerardo Aranda et al. v. Caribbean Cruise Line Inc. et al., case number 1:12-cv-04069, in the U.S. District Court for the Northern District of Illinois, Eastern Division.
–Editing by Kelly Duncan.
