Aranda v. Caribbean Cruise Line, Inc.

• Decision Date: 23 August 2016
• Docket Number: Case No. 12 C 4069
• Parties: Gerardo ARANDA, Grant Birchmeier, Stephen Parkes, and Regina Stone, on behalf of themselves and classes of others similarly situated, Plaintiffs, v. 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.
• Court: U.S. District Court — Northern District of Illinois

202 F.Supp.3d 850

Gerardo ARANDA, Grant Birchmeier, Stephen Parkes, and Regina Stone, on behalf of themselves and classes of others similarly situated, Plaintiffs,

v.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.

Case No. 12 C 4069

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

Signed August 23, 2016

Jonathan I. Loevy, Scott R. Rauscher, Arthur R. Loevy, Michael I. Kanovitz, Loevy & Loevy, Chicago, IL, Jay Edelson, Alexander Tievsky, Edelson PC, Chicago, IL, Rafey S. Balabanian, Eve-Lynn J. Rapp, Edelson PC, San Francisco, CA, for Plaintiffs.

Rebecca F Bratter, Richard W. Epstein, Jeffrey Backman, Greenspoon Marder, P.A., Fort Lauderdale, FL, Timothy A. Hudson, Tabet Divito Rothstein, Vincent J. Connelly, Mayer Brown LLP, David Luther Hartsell, Andrew Robert Woltman, Sarah Ann Zielinski, McGuireWoods LLP, Brian Patrick O'Meara, Kevin Michael Forde, Kevin R. Malloy, Forde Law Offices LLP, Chicago, IL, M. Peebles Harrison, Rose Harrison & Gilreath, P.C., Kill Devil Hills, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Gerardo 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.

Plaintiffs 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.

In 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).

In 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. This is 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.

Id.

Defendants 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).

In 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. , 179 F.Supp.3d 817, 823–27, 2016 WL 1555576, at *4–7 (N.D.Ill.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 trial.

The 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 828, *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.

In May 2016, the Supreme Court decided Spokeo, Inc. v. Robins , –––U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (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, relying on Spokeo , have renewed their motion for summary judgment and have moved to decertify the classes.

Discussion

"Article III of the Constitution limits federal judicial power to certain ‘cases' and ‘controversies,’ and the ‘irreducible constitutional minimum’ of standing contains three elements." Silha v. ACT, Inc. , 807 F.3d 169, 173 (7th Cir.2015) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The first of these three elements is that the plaintiff must have suffered an "'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The injury must also be "fairly traceable to the challenged action of the defendant" and redressable through judicial action. Id.

In Spokeo , the Supreme Court considered a case in which a plaintiff brought suit to enforce the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681e(b), a consumer protection statute intended to ensure "fair and accurate credit reporting," id. § 1681(a)(1). The defendant, Spokeo Inc., was alleged to be a consumer reporting agency that operated a website through which users could search for information about a person by inputting that person's name, e-mail address, or telephone number. In response to an online inquiry, Spokeo would search its databases and provide information to the searcher about the search subject, such as his or her address, telephone number, marital status, age, occupation, finances, and education. The plaintiff, Thomas Robins, sued Spokeo when he learned that the company incorrectly reported that he was married with children, in his fifties, gainfully employed, affluent, and highly educated. This, Robins claimed, violated the FCRA, which provides that consumer reporting agencies must "follow reasonable procedures to assure maximum possible accuracy" of consumer reports. 15 U.S.C. §...