Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Claims against cruise line over free cruise drawing text message survive motion to dismiss, (Jul 17, 2013)

By Jody Coultas, J.D.

A cell phone user stated Telephone Consumer Protection Act (TCPA) and Illinois Consumer Fraud and Deceptive Practices Act (CFA) claims against Caribbean Cruise Line, Inc. for allegedly sending a deceptive text message using an autodialer, according to the federal district court in Chicago (Volpe v. Caribbean Cruise Line, Inc., July 16, 2013, Guzman, R.).

The cell phone user alleged that Caribbean sent a text message to his cellular phone that said: “Valentine’s day draw, your [cell number] has been drawn to win a FREE Bahama’s [sic] trip for two just call: 1-800-631-5049 winning code: LOVE” in violation of the TCPA and CFA.

The TCPA prohibits making calls using any automatic telephone dialing system or an artificial or prerecorded voice to a cellular telephone or any service for which the called party is charged for the call without prior express consent. To state a CFA claim, a plaintiff must allege that the defendant engaged in an unfair act in commerce, it intended plaintiff to rely on the act and the act proximately caused plaintiff to suffer damages.

Allegations that the contested message was sent by an autodialer was sufficient to state a TCPA claim, according to the court. The purchaser alleged that Caribbean posted an ad for sales agents to make calls to clients who filled out a form to win a free cruise, the message was not personalized and was sent for marketing purposes, and many people reported that they had received similar messages. These allegations strongly suggested that the cell phone user consented to having Caribbean contact him on his cell phone, but the complaint did not conclusively establish consent. It was an issue on which Caribbean bore the burden of proof and was not a basis for dismissal.

The court also declined to dismiss the CFA claim. Caribbean argued that the cell phone user was not a consumer under the CFA. It was not clear to the court that CFA standing is limited to consumers. Even if the party must be a consumer to have standing, the cell phone user sufficiently alleged consumer status by asserting that Caribbean entered into and breached unilateral contracts with consumers for free cruises. Although the cell phone user did not expressly allege Caribbean intended consumers to rely on the allegedly misleading message, it could be inferred from the complaint. The damage element of the CFA was satisfied by allegations that the cell phone user did not receive the free cruise for which he contracted.

The case is No. 13 C 1646.

Attorneys: Mark T. Lavery (Lavery Law Firm) for Mark Volpe. Jeffrey Backman (Greenspoon Marder, P.A.) for Caribbean Cruise Line, Inc.

Companies: Caribbean Cruise Line, Inc.

Cases: ConsumerProtection Privacy StateUnfairTradePractices IllinoisNews