United States District Court, N.D. Illinois, Eastern Division.
GERARDO ARANDA, GRANT BIRCHMEIER, STEPHEN PARKES, and REGINA STONE, on behalf of themselves and classes of others similarly situated, Plaintiffs,
CARIBBEAN CRUISE LINE, INC., ECONOMIC STRATEGY GROUP, ECONOMIC STRATEGY GROUP, INC., ECONOMIC STRATEGY, LLC, THE BERKLEY GROUP, INC., and VACATION OWNERSHIP MARKETING TOURS, INC., Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge
Aranda, Grant Birchmeier, Stephen Parkes, and Regina Stone
filed suit on behalf of themselves and similarly situated
individuals against Caribbean Cruise Line, Inc. (CCL),
Vacation Ownership Marketing Tours, Inc. (VOMT), The Berkley
Group, Inc., and Economic Strategy Group and its affiliated
entities (collectively ESG). Plaintiffs alleged that
defendants violated the Telephone Consumer Protection Act, 47
U.S.C. § 227, by using an autodialer and an artificial
or prerecorded voice to call their cellular and landline
phones. According to plaintiffs, ESG placed millions of calls
to consumers who did not consent to receive them. The nominal
purpose of the calls was to conduct public opinion surveys,
but plaintiffs alleged that the calls were in fact
telemarketing calls designed to sell vacation products at the
direction and on behalf of CCL, VOMT, and Berkley.
moved to certify two classes, one consisting of consumers who
received calls to their cellular telephones and the other
consisting of consumers who received calls to their
residential landlines. In opposition to plaintiffs'
motion to certify, defendants argued (among other things)
that the proposed classes lacked commonality under Rule 23(a)
and that Rule 23(b)(3) prohibited certification because
individual issues would predominate over common ones.
Specifically, defendants argued that plaintiffs' claimed
injuries and their associated damages varied widely: some
plaintiffs would be able to show they received a call and
ascertained that it was one of the allegedly unlawful calls,
but others would not be able to demonstrate they received a
call at all, and still others would be able to show they
received a call but did not hear its contents.
August 2014, the Court certified two classes of persons who
allegedly received calls featuring prerecorded messages from
ESG between August 2011 and August 2012. Individuals in the
first class, represented by Aranda, Parkes, Stone, and
Birchmeier, allegedly received calls on their cellular
telephones. Individuals in the second class, represented by
Stone alone, allegedly received calls on their residential
landlines. Each class was defined as follows:
All persons in the United States to whom (1) one or more
telephone calls were made by, on behalf, or for the benefit
of the Defendants, (2) purportedly offering a free cruise in
exchange for taking an automated public opinion and / or
political survey, (3) which delivered a message using a
prerecorded or artificial voice; (4) between August 2011 and
August 2012, (5) whose (i) telephone number appears in
Defendants' records of those calls and / or the records
of their third party telephone carriers or the third party
telephone carriers of their call centers or (ii) own records
prove that they received the calls-such as their telephone
records, bills, and / or recordings of the calls-and who
submit an affidavit or claim form if necessary to describe
the content of the call.
Birchmeier v. Caribbean Cruise Line, Inc., 302
F.R.D. 240, 256 (N.D. Ill. 2014).
granting plaintiffs' motion for class certification, the
Court disagreed that the proposed classes lacked commonality
because they "by definition received the same calls
offering a free cruise in exchange for a political or public
opinion survey, made by or for one of the defendants, using
the same artificial or prerecorded voice technology.
a common alleged injury presenting a common question."
Id. at 251. The Court explained that plaintiffs were
alleging "a common injury, resulting from receipt of the
allegedly offending calls, not to mention common questions
regarding the liability of the defendants who did not
themselves place the calls." Id. The Court also
rejected the argument that individual issues would
predominate over common ones. It explained:
As noted earlier, the common question among class members is
whether they received calls fitting the description in the
class definitions. These definitions do not leave much room
for variation and are undoubtedly common to each class
member: offer of a free cruise, offer made in exchange for
participation in a political or public opinion survey; use of
a prerecorded or artificial voice; date of call; by, on
behalf of, or for the benefit of defendants. Defendants have
not shown that any of these elements will be subject to
variation among those described in the proposed class
definitions. To put it another way, whether a particular
defendant is liable is not an individual issue among
class members. . . . Furthermore, defendants' contention
about calculation of individual damages is a non-issue in
terms of predominance. Plaintiffs are asking only for
statutory damages, which eliminates individual variations.
sought permission from the court of appeals to appeal the
class certification order under Federal Rule of Civil
Procedure 23(f). The court of appeals denied defendants'
request. See In re Caribbean Cruise Line, Inc., No.
14-8021 (7th Cir. Oct. 10, 2014).
April 2016, the Court granted partial summary judgment for
the plaintiffs, finding that they had established that the
calls that the plaintiffs in the cell phone class received
from ESG violated the TCPA. See Aranda v. Caribbean
Cruise Line, Inc., No. 12 C 4069, 2016 WL 1555576, at
*4-7 (N.D. Ill. Apr. 18, 2016). The Court granted partial
summary judgment because the evidence showed the calls were
made using a prerecorded voice, the recording was played on
every call without regard to whether the recipient gave a
voice response, no plaintiff gave prior express consent to be
called, and no statutory or regulatory exemption applied. The
Court's ruling did not determine which defendants were
responsible for the TCPA violation. That issue remains for
Court denied plaintiffs' motion seeking a determination
of defendants' TCPA liability for the landline calls. The
Court determined that were a jury to conclude that the calls
were made exclusively by and for ESG (a tax-exempt non-profit
organization) for a non-commercial purpose, FCC regulations
would exempt the calls from liability. Id. at *9.
The Court also denied defendants' motions for summary
judgment, finding that disputes of material fact persisted
regarding the purpose of the calls and the relationships
between and among the defendants.
2016, the Supreme Court decided Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016). In Spokeo, the
Court vacated and remanded a Ninth Circuit decision finding
that a plaintiff asserted a concrete and particularized
injury sufficient to confer constitutional standing where he
sued based on a defendant's violation of a consumer
protection statute. Defendants, ...