Birchmeier v. Caribbean Cruise Line, Inc., 2012 WL 7062748 (N.D.Ill. Dec. 31, 2012)

Plaintiffs filed suit alleging Defendants made or caused unsolicited calls to their cell phones in violation of the TCPA while acting under the guise of conducting a political survey to get their foot in the door to sell ocean cruises.

Defendants filed Motions to Dismiss, advancing multiple arguments, all of which were rejected.

For example, Defendants argued that Plaintiffs ran afoul of Rule 8 by not distinguishing the role of each Defendant. But the court held that Plaintiffs alleged Defendants acted in concert and that was sufficient for present purposes, adding that the whole point of Plaintiffs’ allegations were that it was difficult to tell where one Defendant stopped and the next started.

The Court also rejected Defendants’ contention that liability attaches under the TCPA only to the party that actually placed the call, stating this is not the law, and Plaintiffs sufficiently alleged each Defendant’s involvement in making the calls at issue.

Defendants further argued the Complaint established that because the calls were alleged to have involved a political survey, they were not actionable because the FCC has exempted political surveys from coverage under the TCPA. Characterizing the argument as a “non-starter,” the court stated that the FCC exemption on which Defendants relied appeared to involve the prohibition on calls with artificial or prerecorded voices, not the prohibition on calls made with automated dialers. Plaintiffs, however, also alleged liability under the autodialer prohibition, so their claim survived this exemption, assuming it applies. The court also noted that it need not, at this juncture, address whether the statute as interpreted by the FCC permits liability for a nonautodialed but unsolicited prerecorded call to a cellular phone for the purpose of initiating a commercial transaction where the call includes what is alleged to be a “sham” political survey.

The court declined Defendants’ request to strike Plaintiffs’ class action allegations, concluding Plaintiffs alleged the necessary elements under Rule 23, and did so plausibly. Determination of whether Plaintiffs can actually establish the basis for class certification was premature.

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.