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.
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.