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Greene v. DirecTV

April 14, 2010

BRIANNA GREENE, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
DIRECTV, INC., DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on the motion of Defendant DirecTV, Inc. to dismiss the complaint of Plaintiff Brianna Greene for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion is granted in part and denied in part.

BACKGROUND*fn1

In January 2010, DirecTV opened a television account on credit associated with Greene at the request of someone other than Greene. Prior to opening the account, DirecTV had been informed by one or more credit bureaus that Greene's credit file had a fraud alert on it. Three days after the account was opened in Greene's name, a third- party contractor of DirecTV named iQor used an autodialer and a prerecorded voice message to call her cell phone to find out whether she had authorized the opening of the account. Greene avers that she never provided her cell phone number to DirecTV and surmises in her complaint that DirecTV obtained it from a skip trace company, her credit report, or some other sort of directory. When Greene answered the call on her cell phone, a message instructed Greene to push "0" on her phone to speak to a representative if the account was not authorized. Greene followed those instructions but was never connected with an actual person.

After being unable to connect to a representative, Greene hung up and called the number that her caller ID system had identified as that of the incoming caller. In so doing, she eventually reached a DirecTV operator, who informed her about the account that had been opened in her name and told her that DirecTV had received a fraud alert from at least one credit bureau. She was informed that she would have to fill out a form to close the account that had been opened and associated with her.

Three days later, Greene filed the instant suit, setting forth three causes of action. The first asserts that when DirecTV employed a service that used an automatic telephone dialing system, prerecorded or automated voice message, or both, it violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii). According to the second claim, DirecTV violated the Truth in Lending Act ("TILA"), 15 U.S.C. § 1642, by providing a satellite dish, television converter box, and remote control to the person who opened the account, which would permit the other person to access pay-per-view content. In the third claim, Greene asserts a violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681c-1(h)(B)(i), which requires that DirecTV use reasonable policies and procedures in order to form a reasonable belief that a person requesting credit is the same as the person whose information is being provided in order to make the decision whether to provide credit. According to Greene, at least one credit bureau notified DirecTV that the address provided in the request to open a DirecTV account was not the same as the one contained in her credit report but that DirecTV opened the account anyway, despite the fraud alert on her account. She urges that such a practice is not a reasonable policy or practice. DirecTV now moves to dismiss the complaint against it in its entirety pursuant to Fed. R. Civ. P. 12(b)(6).

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable claim, a complaint must describe the claim in sufficient detail to give the defendant notice of what it is and the ground upon which it rests and plausibly suggest that the plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).

With these principles in mind, we turn to the instant motion.

DISCUSSION

Though not in connection with any specific count of the complaint, DirecTV argues throughout its memorandum that Greene cannot pursue her claims in this case because no DirecTV account was ever opened for her. However, ¶¶ 15, 19, and 20 of Greene's complaint specifically allege that an account was established before DirecTV contacted her. Given the procedural posture of the current motion, we accept that allegation as true and therefore disregard any argument made by DirecTV premised on a contrary factual assertion.

I. TCPA Claims

The first three counts of Greene's complaint are premised upon an asserted violation of the TCPA, which states in pertinent part that

[i]t shall be unlawful for any person within the United States...to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number ...


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