Sullivan v. All Web Leads, Inc.

Filing 24

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/1/2017:Mailed notice(wp, )

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION WILLIAM SULLIVAN, Individually and on Behalf of All Others Similarly Situated, Case No. 17 C 1307 Plaintiff, Judge Harry D. Leinenweber v. ALL WEB LEADS, INC., a Delaware Corporation, Defendant. MEMORANDUM OPINION AND ORDER Before Plaintiff’s the Court Complaint is or, in Defendant’s the Proposed Class [ECF Nos. 7, 12]. Motion Alternative, to to Dismiss Strike the For the reasons stated herein, the Motion is denied. I. FACTUAL BACKGROUND Plaintiff William Sullivan (“Sullivan”) filed this lawsuit under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (the “TCPA”), to address allegedly deceptive marketing practices of Defendant All Web Leads, Inc. (“All Web”). The following facts are drawn from Sullivan’s Complaint and are, for purposes of this Motion, accepted as true, with all inferences drawn in his favor. See, e.g., Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2015). All Web offers services to insurance industry customers, typically insurance agents, by generating “leads.” Specifically, All Web places calls to potential purchasers of insurance coverage and then customers. (Compl. ¶ 16.) transfers those calls to its To identify “leads,” All Web owns and operates various websites claiming to offer insurance quotes. (Id. ¶ 18.) Upon visiting one of these websites, a consumer is directed to fill out a quote request form specific to the type of insurance consumer. of On interest. January 13, (Ibid.) 2017, Sullivan he visited was one such www.affordable- to obtain quotes on health insurance plans that would comply with the Patient Protection and Affordable Care Act, 52 U.S.C. § 18001 et seq. (“Obamacare”). (Id. ¶¶ 31, 37-38.) When prompted (see figure below), Sullivan entered his zip code and clicked “Start Now.” - 2 - (Compl. ¶¶ 19, 32.) Once directed to the next page, Sullivan filled (reproduced out the form below) by entering personal information, including a “Day phone” number, and then clicked the “Submit” button. - 3 - (Id. ¶ 20.) Because it appeared in small print at the bottom of the page, Sullivan did not see All Web’s consent language before he clicked “Submit”: - 4 - (Id. ¶ 23.) He therefore had no reason to suspect that he was agreeing to be contacted via autodialed calls. (Id. ¶ 26.) Soon after completing the quote form, Sullivan received an autodialed call from a representative at All Web. (Compl. ¶ 34.) Upon answering, Sullivan heard “an immediate pause on the other end, followed by a distinct ‘clicking’ noise before the connection with the representative was made.” (Id. ¶ 35.) The representative asked Sullivan a series of questions, confirmed that he was seeking information about health insurance, and then transferred Sullivan him informed to a the health agent insurance that he agent. was (Id. seeking ¶ a 36.) health insurance plan that would comply with the Obamacare individual mandate; yet the agent attempted to persuade Sullivan “to enroll in a limited benefit non-major medical plan, and suggested that it was a better option than an ‘Obamacare-compliant’ plan.” (Id. ¶ 38.) When it became clear that the agent was not offering the opportunity to review and compare “Obamacare-compliant” health insurance quotes, Sullivan ended the call. (Ibid.) He continued to receive additional similar phone calls over the next several days. (Id. ¶ 40.) Sullivan filed this lawsuit seeking injunctive relief and money damages on behalf of himself and a nationwide class of individuals who utilized the same website, clicked “Submit” on - 5 - the associated quote form, and then received autodialed calls. (Compl. ¶ 42.) II. The TCPA THE TELEPHONE CONSUMER PROTECTION ACT makes it unlawful for any “person within the United States” to, inter alia, “make any call (other than a call made for consent emergency of the purposes called or party) made with using any the prior automatic express telephone dialing system or . . . artificial or prerecorded voice . . . to any telephone service.” number assigned to a . . . cellular telephone 47 U.S.C. § 227(b)(A)(iii). (The exception to this prohibition - calls “made solely to collect a debt owed to or guaranteed by the United States” - is a non-issue here.) TCPA authorizes “FCC”) to promulgate requirements. Fin. the Servs., Federal Communications regulations Commission implementing the The (the statute’s 47 U.S.C. § 227(b)(2); see also, Mims v. Arrow LLC, 565 U.S. 368, 370 (2012) (“The Act . . . directs the Federal Communications Commission (FCC or Commission) Ira to Holtzman, prescribe C.P.A. v. implementing Turza, 728 regulations.”); F.3d 682, 687 accord, (7th Cir. 2013). Under the express language of the TCPA, an automated call may be lawfully made to a cell phone in certain circumstances, only one of which is relevant to this case. - 6 - Specifically, a call is not unlawful if it is made “with the prior express consent of the called party.” 47 U.S.C. § 227(b)(A)(iii). The FCC recognizes that the statute itself is mute on what form of express consent – oral, written, or some other kind – suffices “for calls that use an automatic telephone dialing system or prerecorded voice to deliver a telemarketing message.” In the Matter of Rules & Regs. Implementing the Tel. Cons. Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1838 ¶ 21 (Feb. 15, 2012) (hereinafter, the “2012 Order”). At “prior one time, express FCC consent” implementing for regulations automated calls to required cell only phones, meaning that a person had only to “knowingly release their phone number [to contrary.” the caller] . . . absent instructions to the 2012 Order at 1833 ¶ 7 n.20 (citation omitted). In 2012, however, the FCC announced a new rule to take effect on October 16, 2013, that modified the consent requirements for automated telemarketing calls under the TCPA. at 1831 ¶ 1; 47 C.F.R. § 64.1200. See, 2012 Order The new rule for automated telemarketing calls to cell phones requires the “prior express written consent of the called party.” 47 C.F.R. § 64.1200(a)(2). The FCC defines “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or - 7 - services, which § 64.1200(f)(12). is transmitted to any person.” 47 C.F.R. Prior express written consent means: an 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 marketing messages to be delivered. 47 C.F.R. § 64.1200(f)(8). To be effective, such consent also must satisfy further requirements: (i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property goods, or services. (ii) The term “signature” shall include an electronic or digital form signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law. Ibid. FCC In tandem with elevating these consent requirements, the also created an promulgated exemption certain from the exceptions. prior express As relevant, written it consent requirement for health care messages made to cellular lines. That exception states that no person or entity may: (2) Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or - 8 - constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii) of this section, other than . . . a call that delivers a “health care” message made by, or on behalf of a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103[.] 47 C.F.R. ambiguity § 64.1200(a)(2) in the (emphasis wording of this added). “health Despite some rule” (the care parties’ shorthand), the FCC has clarified that such calls are exempted only from the written consent requirement. See, Consumer & Governmental Aff. Bureau Seeks Comment on Petition for Expedited Declaratory Ruling & Exemption from Am. Ass’n of Healthcare Admin. Mgmt., 29 F.C.C. Rcd. 15267, 15267 n.7 (Dec. 17, 2014); cf. Jackson v. Safeway, Inc., No. 15 C 4419, 2016 WL 5907917, at *7 n.10 (N.D. Cal. Oct. 11, 2016) (“[B]oth parties assume that there is a ‘prior express consent’ requirement for such ‘health care’ calls.”). The “health care rule” speaks in HIPAA-defined terms and, as with most explication. administrative Under the alphabet Health soup, Insurance requires further Portability and Accountability Act (“HIPAA”), “health care” is defined as “care, services, or supplies related to the health of an individual,” including, but not limited to, “(1) [p]reventive, diagnostic, therapeutic, rehabilitative, maintenance, - 9 - or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body; and (2) [s]ale or dispensing of a drug, device, equipment, or other item in accordance with a prescription.” 45 C.F.R. § 160.103. Last to mention is this lawsuit’s bedrock. Section 227 of the TCPA “authorizes private litigation”; aggrieved parties need not depend on the FCC. 565 U.S. at 370. Holtzman, 728 F.3d at 688; accord, Mims, In general, a district court presiding over such litigation gives controlling weight to final decisions of the FCC implementing and interpreting the TCPA. See, e.g., CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 449-50 (7th Cir. 2010) (noting that “Congress vested the power of agency review of final FCC orders exclusively in the courts of appeals”); Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 97 (N.D. Ill. 2013) (stating in a TCPA case that the court is “bound by the FCC’s orders, which are final and controlling”). III. ANALYSIS All Web seeks to dismiss Sullivan’s Complaint under FED. R. CIV. P. 12(b)(6) for failure to state a claim on which relief can be granted. In the alternative, All Web moves to strike the - 10 - class allegations in the Complaint for failure to satisfy the strictures of FED. R. CIV. P. 23. A. Motion to Dismiss Based on a mélange of arguments, All Web moves to dismiss. The gravamen of its Motion is that Sullivan has pled himself out of court because the Complaint establishes his prior express consent or, alternatively, his prior express written consent to receive the call(s). Sullivan responds that All Web’s Motion is bankrupt because its website, as alleged, does not procure valid express written consent. 1. Legal Standard To survive a Rule 12(b)(6) motion to dismiss, a complaint “must state a claim that is plausible on its face.” Adams, 742 F.3d at 728 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). plaintiff A pleads claim enjoys sufficient “facial factual plausibility content the allows that when the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” (quoting plaintiff Ashcroft must v. allege Adams, 742 F.3d at 728 Iqbal, 556 U.S. 662, that all elements 678 of (2009)). his claim A are satisfied, but cannot survive a Rule 12(b)(6) motion to dismiss by alleging only legal conclusions. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010). - 11 - “Threadbare recitals of the elements of a cause of action, conclusory statements, do not suffice.” supported by mere Iqbal, 556 U.S. at 678. To state a claim under the TCPA, Sullivan must allege that: (1) a call was made (2) using an automatic telephone dialing system or artificial or prerecorded voice; (3) the number called was assigned to cellular telephone service; and (4) the party making the call lacked the requisite consent. See, e.g., Thrasher-Lyon v. Illinois Farmers Ins. Co., 861 F.Supp.2d 898, 904-05 (N.D. Ill. 2012). 2. Discussion At the outset, Sullivan objects to treating the issue of consent at the pleading Response”) at 6-7.) stage. (See, ECF No. 10 (“Pl.’s The prevailing view in this district is that “prior express consent” under the TCPA “is an affirmative defense on which the defendant bears the burden of proof; it is not a required element of the plaintiff’s claim.” Kolinek v. Walgreen Co., No. 13 C 4806, 2014 WL 518174, at *2 (N.D. Ill. Feb. 10, 2014) (collecting cases). anticipate and defeat Because complaints need not affirmative defenses, dismissal is typically only appropriate if the affirmative defense “is set out entirely reason, in courts Rule 12(b)(6) the plaintiff’s reject motion to a complaint.” TCPA argue defendant’s consent - 12 - Ibid. For attempt contrary to this on a express allegations in a complaint pleading lack of consent. or attack a complaint for not See, e.g., Charvat v. Allstate Corp., 29 F.Supp.3d 1147, 1149 (N.D. Ill. 2014); Thrasher-Lyon, 861 F.Supp.2d at 905; Greene v. DirecTV, Inc., No. 10 C 117, 2010 WL 1506730, at *2 (N.D. Ill. Apr. 14, 2010). In more garden- variety circumstances, the Court would end the inquiry without engaging in a detailed consent analysis, because it is clear enough that Sullivan has alleged sufficient facts to alert All Web of the substance of his TCPA claim. See, e.g., Bakov v. Consolidated Travel Holdings Grp., Inc., No. 15 C 2980, 2016 WL 4146471, at (finding that *3 (N.D. the Ill. Aug. plaintiffs 4, 2016) sufficiently (Leinenweber, alleged that J.) “they received unsolicited phone calls on their cell phones that were prerecorded,” which “is all that is necessary” for a TCPA claim). However, All Web’s Motion is at least formally premised on the allegations of (illegitimate) consent contained within the four corners of the Complaint. All Web does not attack the Complaint for failure to plead lack of consent. speculate arguing contrary only their to the legal facts of the significance. Nor does it Complaint, See, e.g., instead U.S. v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (“The exception occurs where, as here, the allegations - 13 - of the complaint itself set forth everything necessary defense. . . .”). Alas, to satisfy because the the argument affirmative here is that Plaintiff’s own consent allegations plead him out of court, the Court excavates the consent issue before denying All Web’s Motion. a. The Calls at Issue Fall outside the “Health Care” Rule If the “health care rule” applies in this case, then All Web needed only Sullivan’s prior express consent to autodial his cell phone. To qualify for the less demanding consent requirements of the “health care rule,” an automated call must deliver a “health care message.” All Web contends that the autodialed as calls at issue qualify “health care messages” because Sullivan was seeking “more affordable health insurance” and the calls were part of securing “supplies related to the health of an individual.” (ECF No. 12 (“Def.’s Mot.”) at 10.) Although it abjures comprehensively defining “health care message,” the FCC describes such calls as those placed by or on behalf of “the consumer’s health care provider consumer . . . concern[ing] the consumer’s health.” at 1855 ¶ 63. Archetypical messages include to the 2012 Order “immunization reminders,” ibid., “prescription notifications,” In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031 - 14 - ¶ 146 (July 18, 2015) (hereinafter the “2015 Order”), and flu shot notices. See, e.g., Zani v. Rite Aid Headquarters Corp., No. 14 C 9701, 2017 WL 1383969, at *9-12 (S.D.N.Y. Mar. 30, 2017); Jackson v. Safeway, Inc., No. 15 C 4419, 2016 WL 5907917, at *8-9 (N.D. Cal. Oct. 11, 2016). Guidance from the FCC and the limited case law on point establish the relevance of three factors to whether a call conveys a “health care message”: First, if such a call concerns a product or service that is inarguably health-related, . . . it likely conveys a health care message. Such category would include the administration of medication “prescribed by a doctor or other healthcare provider,” but would not include any product simply because it may be construed to benefit a consumer's health. Second, if such a call is made by or on behalf of a health care provider to a patient with whom she has an established health care treatment relationship, that too is material to application of the rule. Finally, if the call concerns the individual health care needs of the patient recipient, that too is material. The operative question as to this last factor would be whether a nexus exists between the subject matter of the call and the established health care needs of its recipient. Zani, 2017 WL 1383969, at *11 (emphasis added) (internal citations omitted). Applying these factors to this case leads inescapably to the conclusion that All Web’s lead-generating calls are not “health care messages.” First, such calls are not “inarguably health-related”; they rather, smack of messages designed to promote a “product simply because it may be construed to benefit - 15 - a consumer’s health.” As the Zani court indicated, such subject matter is not as a matter of law “inarguably health-related.” Second, behalf of All “established does health a Web care health care not autodial provider” treatment consumers in the “by or of course relationship.” on an All Web’s calls neither remind patients who had a flu shot last year to come into the same pharmacy to receive this year’s flu shot, nor confirm provision of medication to an individual “in accordance with a prescription.” See, Zani, 2017 WL 1383969, at 11; Jackson, 2016 WL 5907917, at *8-9; 45 C.F.R. § 160.103; 2012 Order at 1855 ¶ 63 (noting that “immunization reminders” and calls “‘pushing’ flu vaccines” may convey health care messages). Instead, All Web’s calls represent an effort to inaugurate a new relationship between an individual and a health insurance issuer. Finally, there is no nexus between the subject matter of an All Web autodialed call as alleged “and the established health care needs of its recipient.” care” in non-limiting diagnostic, physical individual or or or fashion therapeutic mental that Recall that HIPAA defines “health services condition, affects to the or include “with functional structure or preventative, respect status, function to of of the an the body” and medications or devices “dispensed in accordance with a - 16 - prescription.” 45 C.F.R. hopelessly divorced from Indeed, footnote in a § 160.103. these the All examples FCC’s 2015 Web’s of calls “health Order are care.” confirms that “insurance-coverage calls” – even where the insurer actually had a relationship with the insured and was calling to notify a patient that coverage already rendered - was not do available necessarily definition of “health care.” n.473 (“We note, for a fall medical within service the HIPAA See, 2015 Order at 8028-39 ¶ 141 additionally, that insurance-coverage calls, which are included in AAHAM’s list of ‘healthcare calls,’ are not necessarily ‘health among care.’”); Healthcare Declaratory In the the Administrative Rulings and topics Matter in HIPAA’s of Petition Exemption Regarding of Association American Management definition of for Expedited Non-Telemarketing Healthcare Calls, CG Dkt. No. 02-278, at 3 (Oct. 21, 2014). While All Web is correct in the narrow sense that, under these cases and FCC guidance, calls otherwise qualifying as “health care messages” need not eschew all advertising content, it has not shown how Sullivan’s Complaint establishes antecedent issue of the alleged calls’ health care content. the As such, for purposes of its Motion, All Web cannot rely on the TCPA’s prior express consent requirement under the “health care rule.” - 17 - b. All Web Needed, but Did Not as a Matter of Law Effectively Procure, Sullivan’s Prior Express Written Consent All Web argues in the alternative that Sullivan’s complaint does not adequately allege “telemarketing” calls triggering the heightened written consent requirement and that, even if it does, Sullivan pleads himself out of court by establishing that All Web had his prior express written consent. All Web fails to show how its alleged calls to consumers like Sullivan calls. constitute anything other than telemarketing As set forth in its implementing regulations, the TCPA defines “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12). That is, whether a call is a “telemarketing” call depends not on its content but instead on its purpose. See, Golan v. Veritas Entertainment, LLC, 788 F.3d 814, 820 (8th Cir. 2015); see also, Payton v. Kale Realty, LLC, No. 13 C 8002, 164 F.Supp.3d 1050, 1062-63 (N.D. Ill. Feb. 22, 2016). In this case, Sullivan alleges that All Web’s purpose in placing these calls is to encourage the purchase of insurance from All Web’s insurance industry customers. (Compl. ¶¶ 16-18, 21, 31, 36-38.) And, as set forth above, no content of these alleged calls falls within - 18 - the ambit of the “health care rule.” As such, Sullivan has adequately pled him purposes. See, e.g., Margulis v. Eagle Health Advisors, LLC, that All Web called for telemarketing No. 4:15 C 1248, 2016 WL 1258640, at *3 (E.D. Mo. Mar. 31, 2016) (denying motion to dismiss the plaintiff’s claim, which adequately pled that the defendant used a “telemarketing robot” to place calls insurance). to him for the purpose of selling health All Web therefore needed Sullivan’s prior express written consent. The parties vigorously dispute whether Sullivan’s Complaint establishes that he gave All consent to make the calls. language on the quote form Web his prior express written All Web claims that the consent webpage, coupled with the user’s choice to click the “Submit” button, constitutes prior express written consent under the TCPA. Sullivan responds that this method of procuring consent is legally insufficient. The Court feels that the legal enforceability of All Web’s consent language is an issue best left for later in the litigation when there is a fully developed factual record. In ruling on All Web’s Motion to Dismiss, however, the Court must determine whether Sullivan states a plausible TCPA violation based on lack of (effective) prior express written consent, with inferences drawn in his favor. The Court finds it plausible on - 19 - the facts alleged that Sullivan’s consent. All Web did not effectively procure This is because the Complaint does not as a matter of law establish reasonable notice of the terms to which Sullivan purportedly gave prior express written consent, let alone a disclosure that was “clear and conspicuous” under the TCPA. 47 C.F.R. § 64.1200(f)(8)(i); id. 64.1200(f)(3) (“The term clear and conspicuous means a notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.”) (emphasis in original). Sullivan unequivocally alleges not only that he lacked actual notice of All Web’s consent language, but also that these disclosures were unreasonably camouflaged in the context of the webpage and below its “Submit” button. reasonable notice to the consumer is Given that at least required, consider how courts in contract cases analyze the reasonableness of notice of terms to online consumers. “prior express “written written agreement” (Also note that the definition of consent” and, incorporates contract law. relies on least in at the concept part, of a expressly See, 47 C.F.R. § 64.1200(f)(8)(ii) (“to the extent that such form of signature is recognized as a valid signature under . . . state contract law”).) Regardless of whether All Web’s consent agreement is characterized as a - 20 - “clickwrap” or a “browsewrap” agreement, contract law only permits its enforcement if there was reasonable notice of its terms plus some action capable of being construed as assent. The following cases establish this proposition and provide salient data points: • Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014) (invaliding a browsewrap agreement, i.e., a “Terms of Use” hyperlink placed directly below or a few inches away from the button users had to click to proceed with checkout, because the website did not provide any notice to users or promote any affirmative action to demonstrate their assent to the agreement); • Hancock v. Am. Tel. & Telegraph Co., Inc., 701 F.3d 1248, 1256 (10th Cir. 2012) (enforcing a clickwrap agreement whose terms were displayed in a scrollable text box and underneath it were buttons labeled “Exit Registration,” “I Reject,” and “I Agree”); • Specht v. Netscape Communications Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.) (refusing to enforce an agreement whose terms were placed below the “Accept” button); • Sgouros v. TransUnion Corp., No. 14 C 1850, 2015 WL 507584, at *6-7 (N.D. Ill. Feb. 5, 2015) (“It is unreasonable to expect users to scroll down the Window when they are not aware of a possibility of being bound by the terms in the Window.”); • Van Tassell v. United Marketing Group, LLC, 770, 790 (N.D. Ill. 2011) (invalidating agreement because the webpage failed to have to the Conditions of Use and also required process to locate the Conditions of Use); • Burcham v. Expedia, Inc., No. 4:07 C 1963, 2009 WL 586513, at *1, 3 (E.D. Mo. Mar. 6, 2009) (finding a valid clickwrap agreement where a “Continue” button led to a page that stated “By continuing on you agree to the following terms - 21 - 795 F.Supp.2d a browsewrap any reference a multi-step and conditions,” provided the terms and conditions, and included a clickable box stating “I agree to the terms and conditions”); and • Feldman v. Google, Inc., 513 F.Supp.2d 229, 236 (E.D. Pa. 2007) (finding reasonable notice of a clickwrap agreement where users did not need to scroll down to a submerged screen to see the terms, and “a prominent admonition in boldface to read the terms and conditions . . . and indicate assent” made the text of the agreement immediately visible to users). In this case, after Sullivan input his personal information, he clicked the “Submit” button immediately below the end of the health insurance quote form without scrolling down further to the bottom of the webpage to read All Web’s Lilliputian consent language. thinks it merely “reasonable constituted submitting their for health insurance quote. clicking displayed processed, “Submit,” on an users ensuing especially speedy quotes. users their personal in In these circumstances, the Court to assent assume to information that [an] further their click authorization” to getting Sgouros, 2015 WL 507584 at *5. would likely webpage once light of the expect their quotes By to information website’s a promises be was of (See, e.g., Compl. ¶¶ 19 (“The Fastest Way to Get On & Off Exchange Quotes.”), 20 (“The Fastest Way to Get Free Health Insurance Quotes.”).) Given the website’s silence on quotes proceeding by phone and failure to alert users that legal disclosures appear below the - 22 - “Submit” box, the Court cannot, while drawing inferences in Sullivan’s favor, find that All Web’s alleged consent mechanism gave Sullivan reasonable notice sufficient for an enforceable written “agreement” - to say nothing of the TCPA’s heightened “clear and conspicuous” disclosure requirement governing prior express written consent agreements. the Thus, All Web has not made a legal showing based on complaint’s allegations that it effectively procured Sullivan’s prior express written consent. Presented with no other basis for dismissing Sullivan’s complaint, the Court denies All Web’s Rule 12(b)(6) Motion to Dismiss. B. In his Motion to Strike Proposed Class Complaint, Sullivan proposes the following class definition: All persons within the United States who filled out and submitted an insurance quote form on Defendant’s website and then received a non-emergency telephone call from All Web Leads, or any party acting on its behalf, to a cellular telephone through the use of an automated telephone dialing system or an artificial or prerecorded voice. (Compl. ¶¶ 45, 49.) The Complaint goes on to exclude from the class entities All Web, any in which it has a controlling interest, its agents and employees, the Court and its staff, and all claims for personal injury, wrongful death, and emotional distress. (Id. ¶ 46.) Although he cannot pinpoint the exact - 23 - number of putative class members, Sullivan asserts that they total in the thousands and can be identified through records maintained by All Web. (Id. ¶¶ 47, 52.) call Finally, he identifies several common questions of law and fact, such as whether All Web uses an automatic telephone dialing system to make non-emergency calls to class members’ cell phones; whether All Web gives proper notice to those who fill out a quote form that it intends to place calls using an automatic dialing system to the phone numbers provided; whether the website’s requirement that users consent to receive phone calls via the use of an autodialer as a condition to provision of services violates FCC rulings; and whether All Web can meet its burden of showing prior express written consent to make such calls. (Id. ¶¶ 5355.) As an alternative to its Motion to Dismiss, All Web argues that the Court should strike the proposed class for failure to comply with the requirements of FED. R. CIV. P. 23(a) and FED. R. CIV. P. 23(b)(3). (All Web does not claim that the proposed class is insufficiently ascertainable, which is an independent class certification requirement.) Courts generally address class certification at the pleading stage “only when the class allegations are facially and inherently deficient.” Machowicz v. Kaspersky Lab, Inc., No. 14 C 1394, 2014 WL 4683258, at *5 - 24 - (N.D. Ill. Sept. 19, 2014) (internal quotation marks omitted). The problem for All Web is that Sullivan’s class allegations are not facially or inherently deficient. The nub of All Web’s typicality, commonality, adequacy, and predominance arguments is that Sullivan seeks impermissibly to represent putative class members regardless of the form of their consent. (See, Reply”) at 8-10.) Def.’s Mot. at 18-20; ECF No. 17 (“Def.’s In a similar vein, All Web contends that the common issue of “whether Defendant gave proper notice to users” who filled out the quote form “cannot be resolved without a series of mini-trials.” (Def.’s Reply at 10.) All Web grounds its argument in Cholly v. Uptain Grp., Inc., No. 15 C 5030, 2017 WL 449176 (N.D. Ill. Feb. 1, 2017). There, the court struck the plaintiff’s class allegations on typicality grounds because she sought to “represent a class of persons who received calls from Uptain where Uptain did not have express consent,” whereas her individual claim was “based only on telephone calls made to her cellular phone after she had expressly revoked her consent.” Id. at *3 (emphasis added). Thus, the plaintiff’s class in Cholly was facially deficient under Rule 23(a)(2). Plainly, this is not the case here. Sullivan seeks to represent a class of individuals each of whom engaged in the same consent procedure that he did – filling out the quote form, - 25 - clicking “Submit,” and then receiving an autodialed cell phone call. Thus, absent some other interface with All Web, each putative class member gave the same consent; the ability of All Web to invoke consent as an affirmative defense to each class member is uniform; and determining the legal efficacy of this consent under the TCPA “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Holtzman, 728 F.3d at 684 (“Class certification is normal in litigation under § 227, because recipients.”). the main questions . . . are common to all All Web therefore fails to identify any facial deficiency in Sullivan’s proposed class. Even if Sullivan’s class definition conceptually includes those consumers who gave All Web some sort of individualized consent, it would be premature at this pre-discovery procedural stage to determine whether this suit can proceed as a class action. “Courts determine whether issues of individualized consent defeat commonality and predominance in a TCPA [case] on a case-by-case basis after available to prove consent.” evaluating the specific evidence Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 298 (N.D. Ill. 2014) (“Optimum, however, fails to present speculation any — specific that this evidence — purportedly - 26 - as opposed to individualized mere issue predominates over common issues. Nor can it given that Optimum has refused to provide any class discovery while its motion to strike is pending.”). Indeed, many of the cases All Web invokes were denials of class certification based on evidence obtained through discovery. See, e.g., Jamison, 290 F.R.D. at 107 (finding that individualized consent issues predominated because the defendant significant “set[] percentage forth of specific the evidence putative showing class that consented a to receiving calls on their cellphone”); Quality Mgmt. and Consult. Servs., Inc. v. SAR Orland Food, Inc., No. 11 C 6791, 2013 WL 5835915 (N.D. Ill. Oct. 30, 2013) (holding that the plaintiff failed to meet its burden on class certification to introduce evidence showing that the defendant’s consent defense as to the representative plaintiff applied to the class as a whole); Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235 (S.D. Ill. 2011) (“[T]he Casino has provided evidence that at least three telephone numbers identified using Vigus’ culling process did not indicate reassigned numbers.”) (emphasis in original). These cases furnish no support for All Web’s motion to strike Sullivan’s proposed class before discovery has commenced. Kasalo v. Harris & Harris, Ltd., 656 F.3d 557 (7th Cir. 2011), is not to the contrary. The authorization granted there - 27 - to deny class certification “even before the plaintiff files a motion requesting certification” rested on the truism that the court “need not delay a ruling on certification if it thinks that additional discovery would not be useful in resolving the class determination.” omitted). Id. at 563 (emphasis added) (citations Here, as mentioned above, this action can on its face be maintained on a class basis, and discovery – which has not occurred yet - may assist both parties in arguing the propriety of certification. Because All Web’s arguments do not clarify why the proposed class is conceptually deficient, “discovery is needed to determine whether a class should be certified.” Santiago v. RadioShack Corp., No. 11 C 3508, 2012 WL 934524, at *4 (N.D. Ill. Feb. 10, 2012). Striking the class allegations would be premature. In a final gambit, All Web points to language in Sullivan’s Complaint that he was “tricked” into providing his cell phone number and clicking “Submit.” This allegation of “trickery,” All Web claims, amounts to a fraud claim necessitating minitrials into whether each putative class member was deceived. Simply put, this argument strains credulity. Sullivan’s only claims on behalf of the class are under the TCPA, and his belief that he was “tricked” seems merely an individual variation on the Complaint’s objective theme that All Web’s consent procedure - 28 - is ineffective and unenforceable. Even if Sullivan had actually meant to plead a claim for fraud, this would not necessarily furnish grounds for striking all the class allegations prior to discovery. See, e.g., Volling v. Antioch Rescue Squad, 999 F.Supp.2d 991, 1006 (N.D. Ill. 2013) (noting that “there is no penalty wrong for invoking name to the identify wrong a [legal theory,” theory], and that or it using would the be “premature to strike” the legal theories presented in different counts “before discovery reveals the appropriate theory”). The Court therefore denies All Web’s Motion to Strike as premature in light of the absence of any class discovery. IV. For the reasons CONCLUSION stated herein, the Court denies Defendant’s Motion to Dismiss Plaintiff’s Complaint or, in the Alternative, to Strike the Complaint’s Class Allegations [ECF Nos. 7, 12]. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 6/1/2017 - 29 -

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