United States District Court, N.D. Illinois, Eastern Division
ANGEL BAKOV and JULIE HERRERA, individually and on behalf of all others similarly situated, Plaintiffs,
CONSOLIDATED WORLD TRAVEL, INC. d/b/a HOLIDAY CRUISE LINE, a Florida Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court
Angel Bakov and Julie Herrera, as class representatives,
allege that Defendant Consolidated World Travel, Inc.
(“CWT”), d/b/a/ Holiday Cruise Line, Inc.,
directed a company called Virtual Voice Technologies Pvt.
Ltd. (“VVT”) to place phone calls to class
members without prior express written consent in violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227,
et seq. The Court certified a class of Illinois
residents who (1) VVT called from December 29, 2014, through
March 20, 2016, to market a cruise aboard the Grand
Celebration cruise liner sold by CWT; and (2) answered those
calls. Bakov v. Consolidated World Travel, 2019 WL
1294659, at *4 (N.D. Ill. March 21, 2019) (certifying class).
Parties now cross-move for summary judgment.
reasons stated herein, Defendant's Motion for Summary
Judgment (Dkt. No. 228) is denied. Plaintiffs' Motion for
Partial Summary Judgment (Dkt. No. 225) is granted.
following facts are undisputed unless otherwise noted.
Plaintiffs bring this class action suit against Defendant for
violating the Telephone Consumer Protection Act
(“TCPA”). The TCPA makes it illegal to call any
cell phone “using . . . an artificial or prerecorded
voice.” 47 U.S.C. § 227(b)(1)(A)(i). Plaintiffs
allege that Defendant violated the TCPA by calling class
members using “prerecorded voice.” From December
29, 2014, through March 20, 2016, Defendant Consolidated
World Travel (“CWT”), a Florida company operating
under the fictitious name “Holiday Cruise Line, ”
employed an Indian company called Virtual Voice Technologies
Pvt. Ltd. (“VVT”) to call millions of people in
the United States and offer anybody who was interested
“a free cruise simply to show you a great time.”
Bakov, 2019 WL 1294659, at *2. VVT pitched the
cruise to recipients as a trip to the Bahamas for two aboard
the Grand Celebration Cruise Liner for the cost of the port
fees ($59.00 per person). Id. VVT's calls all
began with the same introduction: “Hi, this is Jennifer
with Holiday Cruise Line on a recorded line. Can you hear me
okay?” (Def.'s Resp. to Pls.' Stmt. of Material
Facts (“PSOF”) ¶ 17, Dkt. No. 244.) Jennifer
was not a real person speaking in real time on the other end
of the line. Instead, VVT agents used software to play
recordings of a professional voice actor reading from a
call centers used a type of “soundboard”
telemarketing technology called “Virtual Voice
Technology Software” to play “voice-assisted
prompts that were scripted out and recorded prior.”
(Jennifer Poole Dep. 70:16-17, Ex. C to Pls.' Stmt. of
Material Facts, Dkt. 225-4.) VVT agents had 47 prompts to
choose from, including introductory messages such as
“the reason for my call is because we are looking for
qualified travelers that would like to occupy unused cabin
space aboard our magnificent cruise liner…” and
“let me just ask you a couple of questions to make sure
you qualify.” (VVT Prompts, Ex. B to Pls.' Stmt. of
Material Facts, Dkt. No. 225-3.) They also included basic
interjections (“I understand, ” “Thanks,
” and “Hold on”) and other discrete
disclosures (“you should know that I'm not selling
anything” and “I'm a real person”).
(Id.) They also included the prompt: “I'm
assisted by prerecorded audio.” (Id.)
VVT's employees, known as “live agents, ”
used VVT's software through a web page on a computer.
(Pls.' Resp. to Def.'s Stmt. of Material Facts
(“DSOF”) ¶ 9, Dkt. No. 247-1.) Live agents
pressed a button to place each call manually. (DSOF ¶
12.) After placing the call, the voice assistance prompts
showed up on the agent's screen. (DSOF ¶ 10.) The
VVT platform did not automatically deliver messages or
prompts when calls were answered. (DSOF ¶ 17.) If the
consumer answered the phone, the live agent would play the
first prompt, the “hello” greeting. (DSOF ¶
16.) The live agents then chose whether and how to respond to
a person who answered by clicking one of the audio prompts on
his or her screen or by unmuting the system and using their
own voice to speak. (DSOF ¶ 15.) CWT did not take steps
to confirm that consumers VVT called provided consent. (PSOF
independent contractors named Vance Vogel and Clifford
Albright developed this software for CWT and trained VVT
agents to use it. Bakov, 2019 WL 1294659, at *5.
Albright coded and developed the VVT platform. (DSOF ¶
7.) Albright testified that, as a technical matter, it was
not possible to transfer calls from VVT to CWT until agents
played a certain set of prompts. (Albright Tr. 53:6-54:6, Ex.
F to Pls.' Stmt. of Material Facts, Dkt. No. 225-7).
and VVT's relationship was governed by an Advertising
Agreement (the “Agreement”). (Agreement, Ex. N to
Sealed Document, Dkt. No. 226-3). The Agreement provided in
part that Defendant had sole control over the script VVT
would use and that Defendant could alter the script at any
time. (Id.) The Agreement also provided that VVT was
responsible for following all applicable laws, including the
TCPA. (Id.) The Agreement prohibited VVT from making
any modifications to or deviating from the script without
CWT's prior approval. (Id.) VVT earned its money
through commission: Defendant paid VVT $3.50 for each
“qualified transfer, ” defined in the
parties' contract as a customer who agreed to be
transferred from VVT to Defendant and who stayed on the line
afterward for at least 60 seconds. (Agreement.)
move for partial summary judgment on their class claims
against Defendant. To hold Defendant liable to the class for
violating the TCPA, Plaintiffs ask the Court to find that:
(1) VVT used “prerecorded voice” within the
meaning of the TCPA in every call to class members; (2)
Defendant is vicariously liable for those calls by VVT; (3)
Defendant cannot prove its affirmative defense of consent as
to any class member; and (4) Defendant's conduct was
“willful” or “knowing” under the
cross-moves for summary judgment on all of Plaintiffs'
claims. In the alternative, the Defendant asks the Court to
reduce the class by one named Plaintiff, Julie Herrera,
contending that Herrera is not properly a member of the class
because she did not answer a call from VVT.
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a); see also Liu v.
T&H Mach., Inc., 191 F.3d 790, 794 (7th Cir. 1999)
(citation omitted). A genuine issue of material fact exists
only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir.
2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). When cross-motions for summary
judgment are filed, courts “look to the burden of proof
that each party would bear on an issue of trial, ” and
require that party to “establish a genuine issue of
material fact.” Santaella v. Metropolitan Life Ins.
Co., 123 F.3d 456 (7th Cir. 1997).
TCPA prohibits initiation of “any telephone call . . .
using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party.”
47 U.S.C. § 227(b)(1)(B). Plaintiffs argue VVT used
“prerecorded voice.” Defendant contends it did
parties offer competing interpretations of the word
“prerecorded.” Plaintiffs urge the Court to
interpret “prerecorded” by its plain meaning.
Defendant argues against Plaintiff's plain-meaning
interpretation and urges that the overall statutory text and
legislative history of the TCPA makes clear that the TCPA
regulates “only telephone calls that deliver a
single, monolithic message that is
“blasted” to many recipients at the same
time, without any variation.” (Def.'s Reply at 4,
Dkt. No. 250) (emphasis in original). Defendant further
argues that this Court found that “the word
‘prerecorded' is a term of law under the TCPA . .
.” and that therefore a definition of
“prerecorded” other than its plain meaning should
apply. See Bakov, 2019 WL 1294659, at *9. Finally,
Defendant claims that if the Court granted summary judgment
for Plaintiffs on the meaning of “prerecorded, ”
it would “likely subject millions of people to
liability under the TCPA every time they send a recorded
message” (Def.'s Resp. at 5, Dkt. No. 243), and
argues the Court has an obligation to avoid interpreting the
statute in a way that leads to an absurd result.
227 does not define “prerecorded voice.” In the
absence of a statutory definition, courts must start with
“the language employed by Congress” and assume
that the “legislative purpose is expressed by the
ordinary meaning of the words used.” I.N.S. v.
Phinpathya, 464 U.S. 183, 189 (1984). Statutory
interpretation begins with the plain language of the statute.
United States v. Berkos, 543 F.3d 392, 396 (7th Cir.
2008). Although the language and design of the statute as a
whole may also provide guidance in determining the plain
meaning of its provisions, absent clearly expressed
Congressional intent to the contrary, the plain language
should be conclusive. Id.
definition of “prerecorded” is simply:
“recorded in advance.” Prerecorded,
Merriam-Webster's Dictionary (2019). There is no other
language in the TCPA that provides any clues or offers
contrary evidence as to the meaning of
“prerecorded.” Rather, the evidence demonstrates
that the plain meaning should control. The statute defines
other terms that appear. For example, it is unlawful to make
any call using an “automatic telephone dialing
system.” 47 U.S.C. 227(b)(1)(A). A separate TCPA
subsection defines “automatic telephone dialing
system.” See 47 U.S.C. § 227(a)(1).
Similarly, the TCPA defines “established business
relationship, ” “telephone facsimile machine,
” “telephone solicitation, ” and
“unsolicited advertisement.” See 47
U.S.C. § 227(a)(2)-(5). The failure to define
“prerecorded” differently from its plain meaning
while giving a special definition for other terms that appear
in the statute is evidence that Congress intended for the
plain meaning of the word to control.
is correct that, in a prior opinion in this case, the Court
noted, “‘prerecorded' is a term of law under
the TCPA that carries certain penalties.”
Bakov, 2019 WL 1294659, at *9. Defendant takes this
sentence out of context. That sentence was taken from the
Court's decision to exclude an expert witness because the
expert lacked proper foundation to give an opinion. The
witness had not listened to recordings of the calls at issue
in this case and was not capable of “thoroughly
analyzing and understanding whether the TCPA's use of
‘prerecorded' carries a meaning other than the one
he bestowed upon it.” Id. That observation was
not a ruling on the meaning of “prerecorded, ”
nor was it a ...