Battle v. Bridgepoint Education, Inc.
Filing
27
ORDER. Signed by the Honorable Manish S. Shah on 2/27/2017: Defendant's partial motion to dismiss, 12 , is granted. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ENSHELLA BATTLE,
Plaintiff,
No. 16 CV 9513
v.
Judge Manish S. Shah
BRIDGEPOINT EDUCATION, INC., d/b/a
ASHFORD UNIVERSITY, LLC,
Defendant.
ORDER
Defendant’s partial motion to dismiss, [12], is granted.
STATEMENT
Plaintiff Enshella Battle brings an action under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq., and the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 501/1 et seq., against defendant
Bridgepoint Education for repeatedly calling her cell phone to solicit her to take
classes through Ashford University. [1] ¶¶ 1, 6, 14, 18.* Defendant moves to dismiss
Battle’s ICFA claim.
To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain factual allegations that plausibly suggest a right
to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). The court must construe all
factual allegations as true and draw all reasonable inferences in the plaintiff’s
favor, but the court need not accept legal conclusions or conclusory allegations.
Virnich v. Vorwald, 664 F.3d 206, 212 (2011) (citation omitted).
The ICFA is a remedial statue that is “intended to protect consumers,
borrowers and business persons against fraud, unfair methods of competition, and
other unfair and deceptive business practices.” Cripe v. Leiter, 184 Ill.2d 185, 191
(1998). To state a claim under the ICFA, Battle must allege the following elements:
a deceptive act or practice by the defendant; the defendant’s intent that the plaintiff
*
Bracketed numbers refer to entries on the district court docket.
rely on the deception or unfairness; and that the deception or unfairness occurred in
the course of conduct involving trade or commerce. Id.
A course of conduct is deceptive or unfair if it: (1) offends public policy; (2) is
immoral, unethical, oppressive, or unscrupulous; and (3) causes substantial injury
to consumers. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 418 (2002). All
three criteria do not need to be satisfied; a practice can be deceptive or unfair if it
overwhelmingly meets one of the criteria or if it satisfies all three criteria to a lesser
degree. Id. (quotation omitted).
Battle says Ashford began calling her in June 2016 to solicit her to take
classes. [1] ¶¶ 9, 14. After she told a representative at Ashford she was not
interested in taking classes and to stop calling her, Ashford called her at least
twelve additional times. [1] ¶¶ 15, 18. Under Illinois law, conduct offends “public
policy” as it is established by statutes, common law, or “within the penumbra of
some established concept of unfairness.” Ekl v. Knecht, 223 Ill.App.3d 234, 242
(1991) (citations omitted). Assuming the allegations in Battle’s complaint are true,
defendant’s conduct violated the Illinois Telephone Solicitations Act, see 815 ILCS
413/25, and the TCPA, see 47 U.S.C. § 227(b)(1)(A). Therefore, the public policy
factor weighs in Battle’s favor.
Despite Battle’s repeated demands that Ashford stop calling her, Battle
continued to receive phone calls; she would answer the phone and hear several
seconds of silence before a live Ashford representative would begin speaking to her.
[1] ¶¶ 16, 17, 19. Battle believed Ashford was using an automatic telephone dialing
service to call her, when it did not have permission to do so. [1] ¶ 37. Battle
purchased an application on her cell phone to block defendant’s calls and she
switched cell phone providers. [1] ¶¶ 21, 22. Conduct is oppressive when it leaves
the consumer with few alternatives beyond submitting to the practice. Robinson,
201 Ill.2d at 418. Even viewing the facts in Battle’s favor, the oppressiveness of
defendant’s conduct here is slight; Battle pleads in her complaint that she avoided
the calls with relative ease by downloading an application and switching
providers—steps that are not particularly burdensome or indicative of oppression.
Battle says Ashford’s calls caused her to suffer charges and expenses that she
otherwise would not have incurred. [1] ¶ 24. Her economic loss took the form of
purchasing an application to block Ashford’s calls, changing cell phone providers,
and loss of cell phone capacity. [1] ¶¶ 21, 22, 24. These allegations sufficiently
suggest calculable, economic injuries. See Morris v. Harvey Cycle & Camper, Inc.,
392 Ill.App.3d 399, 402 (1st Dist. 2009). The complaint also includes an allegation
about how Ashford’s practice increased Battle’s stress level, [1] ¶ 25, which is
actionable under the ICFA so long as actual economic damages are also plausibly
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alleged. Morris, 392 Ill.App.3d at 402. But even crediting Battle’s feelings of
frustration, these injuries were far from substantial; they were mild inconveniences.
Although the public policy factor weighs in Battle’s favor, defendant’s conduct
was not significantly immoral, unethical, oppressive, or unscrupulous, and
amounted to little more than a nuisance to Battle. On balance, Battle’s complaint
does not state a claim against defendant under the ICFA. The motion to dismiss,
[12], is granted.
ENTER:
Date: 2/27/2017
Manish S. Shah
U.S. District Judge
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