United States: Employer Defeats Novel TCPA Class Action

Seyfarth Synopsis:  In a first-of-its kind ruling, an employer recently secured the dismissal with prejudice of what is believed to be one of the first Telephone Consumer Protection Act class actions ever brought against a company while acting as an employer – specifically in this instance, the use of robo-calls to contact applicants about employment opportunities. The ruling ought to be required reading for corporate counsel in order to understand this emerging risk and to craft strategies to protect companies against such claims.

When most people think of class actions brought under the Telephone Consumer Protection Act ("TCPA"), they envision lawsuits against companies using automated voices to tell them they won a free cruise or are eligible to receive a discount on a product.  But in Dolemba v. Kelly Services, Inc., No. 16-CV-4971, 2017 U.S. Dist. LEXIS 13508 (N.D. Ill. Feb. 1, 2017), the Plaintiff, who had previously given her contact information to temporary staffing company Kelly Services, Inc. ("Kelly") to be contacted regarding employment opportunities, brought a class action against Kelly under the TCPA and Illinois Consumer Fraud Act ("ICFA") alleging that Kelly made an unauthorized robo-call to her cell phone.  Kelly resisted the claim, filed a motion to dismiss, and Judge Sara Ellis of the U.S. District Court for the Northern District of Illinois granted Kelly's motion to dismiss both claims with prejudice, finding that the Plaintiff never revoked her consent to be contacted about employment opportunities.

The ruling in Dolemba is believed to be one of the first TCPA class actions ever brought against a company while acting as an employer, thus making this ruling a landmark victory for employers nationwide.  The potential for employers to face similar novel TCPA class actions in the near future is now imminent – and employers can and should add this decision to their arsenal as a powerful tool to help defeat such actions.

Case Background

In March 2007, Plaintiff applied for employment with Kelly, indicating interest in positions using office skills such as accounts payable and accounts receivable.  Id. at *1.  Plaintiff's employment application included her cellular phone number.  In signing the application, Plaintiff "authorize[d] Kelly to collect, use, store, transfer, and purge the personal information that [she] provided for employment-related purposes."  Id.  Kelly never offered Plaintiff a job, nor did Plaintiff ever accept employment through Kelly.  She also did not receive any communications from Kelly between the end of 2007 and February 2016.  Id. at *1-2.

On February 27, 2016, Plaintiff received an automated call on her cellular phone from Kelly.  Id. at *1.   Kelly contacted Plaintiff about potential job opportunities.  Because Plaintiff did not answer the call, Kelly left a voicemail message regarding opportunities for employment as a machine operator in the Chicagoland area.  Plaintiff alleged that she had no reason to believe that Kelly still treated her application as active in 2016.  Responding inconsistent with the notion that no good deed goes unrewarded,  Plaintiff brought a class action lawsuit alleging that Kelly violated the TCPA and ICFA by calling her cellular telephone using an automatic telephone dialing system.  As part of its defense strategy, Kelly moved to dismiss Plaintiff's claims and strike her class allegations.

The Court's Decision

The Court dismissed Plaintiff's TCPA and ICFA claims with prejudice.  First, the Court accepted Kelly's argument that Plaintiff had essentially "pleaded herself out of court" and further found that Kelly met its burden of consent as an affirmative defense.  Id. at *3-4.  Specifically, the Court held that although Plaintiff need not have anticipated or pleaded revocation of consent, she only maintained that she had no reason to believe her employment application was active and she had no further communications with Kelly after consenting to receive employment-related communications.  Id. at *5-6.  Therefore, the Court found that Plaintiff's consent remained valid at the time Plaintiff filed the case.  Id. at *6.

The Court also rejected Plaintiff's attempt to "recast her consent" as only agreeing to accept calls relating to specific employment opportunities, holding that "the call [Plaintiff] received clearly related to an employment opportunity.  Although not specifically tailored to the exact job interests [Plaintiff] indicated in her application, it still fell within the broad consent she gave to use her cellular phone number to contact her generally for employment-related purposes regardless of whether that job matched her job interests."  Id. at *7.  Accordingly, the Court found that because Plaintiff pleaded herself out of court by attaching her employment application, which indicated she consented to receiving calls from Kelly for employment-related purposes, her TCPA claim must be dismissed.

Plaintiff also brought a claim under the ICFA alleging that Kelly engaged in unfair acts and practices by making the allegedly unauthorized robo-call to her cellular phone in violation of §§ 2 and 2Z of ICFA, 815 Ill. Comp. Stat. 505/2, 2Z.  Id. at *8.  The Court explained that to state an ICFA claim, Plaintiff must allege: (1) a deceptive or unfair act or practice by Kelly, (2) Kelly's intent that Plaintiff rely on the deceptive or unfair practice, (3) the unfair or deceptive practice occurred in the course of conduct involving trade or commerce, and (4) Kelly's unfair or deceptive practice caused Plaintiff actual damage.  Id. at *8-9.  In dismissing Plaintiff's ICFA claim, the Court found  that "receiving one pre-recorded message does not rise to the level of an oppressive practice" and that damages such as "loss of time and loss of battery life" are "so negligible from an economic standpoint as to render any damages unquantifiable."  Id. at *10.  The Court further rejected Plaintiff's argument that Kelly violated the Illinois Telephone Act because the message did not solicit the sale of goods and or services and therefore, did not fall under the definition of "recorded message" in the Illinois Telephone Act.  Id. at *10-11.  Accordingly, the Court dismissed Plaintiff's ICFA claims with prejudice.

Implications For Employers

This is a landmark victory for employers, especially companies who utilize automated calls and text messages to contact prospective and/or current employees about job-related opportunities or employment matters.  Employers can almost certainly expect similar lawsuits brought against them under the TCPA.  Fortunately for employers, Kelly's victory provides a roadmap for how to defeat such cutting edge class actions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald L. Maatman Jr.
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions