Bakov v. Consol. World Travel, Inc.

Decision Date21 March 2019
Docket NumberCase No. 15 C 2980
PartiesANGEL BAKOV and JULIE HERRERA, individually and on behalf of all others similarly situated, Plaintiffs, v. CONSOLIDATED WORLD TRAVEL, INC. d/b/a HOLIDAY CRUISE LINE, a Florida Corporation, Defendant.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

Judge Harry D. Leinenweber


In this class action lawsuit, Plaintiffs Angel Bakov, Julie Herrera, and Kinaya Hewlett (collectively, the "Plaintiffs") allege that Defendant Consolidated World Travel Inc., d/b/a Holiday Cruise Line, Inc. ("Defendant"), directed an Indian company called Virtual Voice Technologies Pvt. Ltd. to place phone calls to Plaintiffs and potential class members without prior express written consent in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. Plaintiffs now seek class certification under Federal Rule of Civil Procedure 23(b)(3), and also move to exclude the expert opinion testimony of Kenneth R. Sponsler. Defendant responds that the Court lacks jurisdiction over a nationwide class, and that Plaintiffs have failed to meet the requirements of Rule 23(a) and 23(b)(3). Defendant also moves to exclude the expert opinion testimonies of Colin Weir, Randall Snyder, and Christina Peters-Stasiweicz. For the reasons stated herein, Plaintiffs' Motion for Class Certification (Dkt. No. 165) is granted in part and denied in part. The Court certifies the class as to the claims of the Illinois residents, but lacks jurisdiction over Defendant as to the claims of the nonresident, proposed class members. Plaintiffs' Motion to Exclude the Testimony of Kenneth R. Sponsler (Dkt. No. 169) is denied. Defendant's Motion to Exclude the Testimony of Randall Snyder (Dkt. No. 172) is granted. Defendant's Motions to Exclude the Testimonies of Colin Weir (Dkt. No. 170) and Christina Peters-Stasiweicz (Dkt. No. 171) are denied.

A. The Telephone Consumer Protection Act

The Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, is a consumer protection statute designed to prohibit a business's use of automated technologies or prerecorded telephone calls. Pub. L. No. 102-243, 105 Stat. 2394. Congress found that such a general prohibition was "the only effective means of protecting telephone consumers from this nuisance and privacy invasion." Id. Specifically, the TCPA bans use of prerecorded messages:

It shall be unlawful for any person within the United States . . .
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . prerecorded voice . . . (iii) to any telephone number assigned to a . . . cellular telephone service . . .
(B) to initiate any telephone call to any residential telephone line using . . . prerecorded voice to deliver a message without the prior express consent of the called party[.]

47 U.S.C. § 227(b)(1)(A)-(B) (emphasis added). Pursuant to Section 227(b)(1)(B), the Federal Communications Commission ("FCC") promulgated a comprehensive set of rules governing telemarketing and telephone solicitation, including 47 C.F.R. § 64.1200, which requires "prior express written consent" for such calls. The phrase "prior express written consent" is defined as follows:

[A]n agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

47 C.F.R. § 64.1200(f)(8).

There are limits to the TCPA and FCC's ban on the use of prerecorded voice messaging in telemarketing, but those limitsmust be raised as affirmative defenses for which defendants bear the burden of proof. See Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2007). When no exceptions apply, the TCPA grants consumers a private right of action to seek injunctive relief and a minimum of $500 in damages for each violation of the statute or FCC regulation. 47 U.S.C. § 227(b)(3). If the defendant knowingly and willfully violates the TCPA, a court has the discretion to award treble damages. Id. With this backdrop in mind, the Court proceeds with the facts of the case.

B. Factual Background

From December 29, 2014, through March 20, 2016 (the "Class Period"), Defendant Consolidated World Travel, Inc. ("CWT" or "Defendant") 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." (Consol. Class Action Compl. ("Compl.") ¶ 1, Dkt. No. 31; VVT Prompts at VOGEL-0011, Ex. 1 to Pls.' Mot. for Class Cert., Dkt. No. 165-1.) The vacation package included a supposedly free two-night cruise for two aboard the Grand Celebration cruise liner to be purchased for the cost of the port fees ($59.00 per person). (See Julie Herrera Email, Ex. 5 to Pls.' Mot. for Class Cert., Dkt. No. 165-5.) VVT's calls all began with the same introduction: "Hi, this is Jennifer with HolidayCruise Line on a recorded line. Can you hear me okay?" (Id.) Jennifer, however, was not a real person speaking in real time on the other end of the phone call. Instead, VVT agents utilized software to play recordings of a professional voice actor reading from a script approved by CWT.

1. VVT Software

VVT call centers used a type of "soundboard" telemarketing technology called Virtual Voice Technology software ("VVT Software") to play "voice-assisted prompts that were scripted out and recorded prior." (Jennifer Poole Dep. 70:12-7:12, Ex. 14 to Pls.' Mot. for Class Cert, Dkt. No. 165-14.) "That capability was important when agents spoke English as a second language and spoke with a noticeable foreign accent." (Kenneth Sponsler Report, Ex. 22 to Pls.' Mot. for Class Cert., Dkt. No. 165-22; see also Vance Vogel Dep. 117:17-19, Ex. 15 to Pls.' Mot. for Class Cert., Dkt. No. 165-15 (agreeing that VVT agents had heavy Indian accents).) VVT agents accessed the VVT Software like a regular web page. (Clifford Albright Dep. 31:12-32:1, Ex. 16 to Pls.' Mot. for Class Cert., Dkt. No. 165-16.) They entered their username and password, which directed VVT agents to the main screen from which they could make and transfer calls:

It's a screen that has a dial next button on it, and then it has a bunch of voice prompt buttons. And then so you dial next, the phone rings. When the person answers,you hit the first recording which is the hello greeting, and then you go down to the required prompts. There's about 40 of them, various ones to use for various responses, and you click on the prompts to generate the customer's interest and get them qualified, and then you transfer the call.

(Vogel Dep. 75:7-23.) The Software is "self-explanatory" and "designed in a way to be pretty much idiot proof . . . press button 1, then go to button 2, dial next button 3, dial next—there's not really a lot of training involved." (Vogel Dep. 62:6-8.)

VVT agents could choose between forty-seven different voice messages on the main screen. (See generally VVT Prompts.) The messages vary from an initial greeting ("Hi, this is Jennifer . . .") to inquiring about the caller's interest (". . . wouldn't you be interested in a free cruise to the Bahamas?") to completing a final transfer to CWT ("This looks really good. Congratulations you do qualify for the free cruise . . . But I just want to tell you that there is nothing like a cruise to the Bahamas. So I am going to place you on a brief hold to connect you to the cruise specialist."). (VVT Prompts at VOGEL-0011.) The messages also include basic interjections ("Hold on" and "could you repeat that?") and other discrete disclosures ("you should know that I'm not selling anything," "I'm a real person," and "I'm assisted by prerecorded audio."). (VVT Prompts at VOGEL-0011-13.)

2. VVT Calls

The record shows that VVT agents could make multiple calls simultaneously. Clifford Albright, who created the VVT Software, posits that VVT agents can make such calls by logging into two different computers at the same time and by wearing two headsets. (Albright Dep. 48:1-12, 5015-22.) Vance Vogel, who assisted Albright in training VVT agents to use the Software, agreed. (Vogel Dep. 88:1-11 ("Q: Is it possible using the VVT software for one agent to make two calls at the same time? . . . A: Yes.").) Albright and Vogel also agreed that VVT agents did, in fact, make such simultaneous calls with consumers. (Albright Dep. 48:13-49:4; Vogel Dep. 88:11-89:13.) As part of an onboarding process for new call centers, Albright and Vogel oversaw and fulfilled VVT's requests for multiple logins per agent. (Vogel Dep. 89:17-90:11.) Apparently, these multiple login requests signified to Albright and Vogel that VVT agents were making more than one call at a time. (Id.) CWT's expert Kenneth Sponsler asserts, however, that Albright and Vogel denied VVT agents were making calls in such a manner. (See Sponsler Supp. Decl., Ex. D to Def.'s Resp. to Pls.' Mot. to Strike, Dkt. No. 187-4.) The Court will discuss the conflicting evidence when appropriate in its analysis but recites the conflict here for convenience of the reader.

VVT agents also could—and from time to time did—unmute the VVT System and use their own voices to speak with consumers. (Kenneth Sponsler Dep. 52:11-22, Ex. B to Def.'s Resp. to Pls.' Mot for Class Cert., Dkt. No. 180-2.) Though, it seems, they rarely did this for lack of authorization. Pursuant to their agreement with CWT (See Advertising Agreement, Ex. 3 to Pls.' Mot for Class Cert., Dkt. No. 165-3), VVT agents were required to stick to the script they were provided (See Poole Dep. 84:11-16) ("Q: And VVT was not allowed to improvise, they were not allowed to say anything on the phone...

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