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Bakov v. Consolidated World Travel, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 9, 2019

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.


          Harry D. Leinenweber, Judge United States District Court

         Plaintiffs 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.

         For the 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.

         I. BACKGROUND

         A. Class Claims

         The 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 CWT-approved script.

         VVT 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 ¶ 34.)

         Two 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).

         Defendant's 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.)

         Plaintiffs 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 TCPA.

         Defendant 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.

         II. STANDARD

         Summary 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).


         A. Prerecorded Voice

         The 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 not.

         The 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.

         Section 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.

         The 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.

         Defendant 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 ...

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