Unchageri v. YuppTV, Inc. et al
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 3/7/2018.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
YUPPTV USA, INC.,
17 C 3862
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Chandan Unchageri alleges in this suit that YuppTV USA, Inc., a provider of online
television content, sent him a series of unsolicited text messages in violation of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. Doc. 14. The court
previously dismissed a related entity, YuppTV, Inc., for want of personal jurisdiction after
Unchageri conceded that it had no Illinois-related contacts. Doc. 26 at 1-2; Doc. 29. In addition,
the court previously struck the operative complaint’s class allegations after putative class counsel
failed without adequate justification to serve any discovery requests during the four-month
discovery period and after Unchageri himself failed to comply with his own discovery-related
obligations as the putative class representative. Doc. 45. Now before the court is YuppTV
USA’s motion to dismiss Unchageri’s individual claims under Federal Civil Procedure Rule
12(b)(6). Doc. 19. The motion is denied.
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Unchageri’s brief opposing dismissal, so long as those additional facts “are consistent
with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir.
2013). The facts are set forth as favorably to Unchageri as those materials allow. See Pierce v.
Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage,
the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank,
N.A., 610 F.3d 382, 384 (7th Cir. 2010).
Before proceeding, the court notes that YuppTV USA appears to contend that its service
on Unchageri of a Rule 11(b) motion—in response to which, it contends, he amended his
complaint—enables the court to look past the pleadings to ascertain the underlying truth of his
allegations. Doc. 20 at 3. But YuppTV USA cites no authority for this contention, and in the
absence of a filed Rule 11 motion, the court at this juncture cannot address, let alone determine,
whether Unchageri’s factual allegations are true. See Fed. R. Civ. P. 11(c)(2) (“A motion for
sanctions must be made separately from any other motion and must describe the specific conduct
that allegedly violates Rule 11(b).”); Lance v. Betty Shabazz Int’l Charter Sch., 2014 WL
340092, at *1 (N.D. Ill. Jan. 29, 2014) (“Despite Defendants’ urging that the Court sanction
Plaintiff’s attorney for what they characterize as insincere motives, the Court will accept wellpleaded facts as true and will draw all reasonable inferences in Plaintiff’s favor.”).
YuppTV USA is an internet-based television service, specializing in providing South
Asian media programming. Doc. 14 at ¶ 4. In the six-month period from May 2015 to
November 2015, YuppTV USA sent or caused to be sent twelve promotional text messages to
Unchageri’s cell phone using an automatic telephone dialing system (“ATDS”). Id. at ¶¶ 15, 17;
Doc. 14-1 (screenshots of the twelve text messages). Unchageri did not consent to receiving
those messages, nor did he have an account with YuppTV USA. Doc. 14 at ¶¶ 26-28.
Offering deals on YuppTV USA’s programming, the texts appeared on Unchageri’s
phone as though they had come from seven different phone numbers with seven different area
codes. Id. at ¶ 16; Doc. 14-1. Several days after receiving the eighth unwanted message on June
26, Unchageri attempted to unsubscribe, texting back “Stop.” Doc. 14 at ¶¶ 18-19. He received
this text message in response: “You have successfully been unsubscribed. You will not receive
any more messages from this number.” Id. at ¶ 19 (emphasis omitted). Unchageri, however,
received several more unwanted texts from YuppTV USA, albeit from different phone numbers.
Id. at ¶¶ 20-22. Unchageri attempted to unsubscribe again on October 10, but received another
unwanted promotional text the next month. Id. at ¶¶ 23-25.
Count I of the operative complaint alleges that YuppTV USA’s text messages violated
the TCPA. Id. at ¶¶ 33-51. As relevant here, the TCPA prohibits “mak[ing] any call (other than
a call made for emergency purposes or made with the prior express consent of the called party)
using any [ATDS] … to any telephone number assigned to a … cellular telephone service … .”
47 U.S.C. § 227(b)(1)(A)(iii). The statute defines an ATDS as “equipment which has the
capacity … to store or produce telephone numbers to be called, using a random or sequential
number generator; and … to dial such numbers.” Id. § 227(a)(1). The parties agree that a text
message is a “call” within the meaning of the TCPA. Doc. 14 at ¶ 13; Doc. 20 at 8; see Blow v.
Bijora, Inc., 855 F.3d 793, 798 (7th Cir. 2017); Sojka v. DirectBuy, Inc., 35 F. Supp. 3d 996,
1000-01 (N.D. Ill. 2014).
YuppTV USA contends that Unchageri fails to state a viable TCPA claim for two
reasons. First, it argues that Unchageri does not “plead … facts to plausibly support the
contention that the at-issue text messages were sent without human intervention,” and thus fails
to meet the statute’s requirement that the alleged violator have used an ATDS to send the text
messages. Doc. 20 at 9. Second, YuppTV USA argues that Unchageri fails to allege that he did
not give it prior express consent to send him text messages. Id. at 10. Both arguments fail.
As to the first, Rule 8(a) “require[s] plaintiffs to plead claims rather than facts
corresponding to the elements of a legal theory.” Chapman v. Yellow Cab Coop., 875 F.3d 846,
848 (7th Cir. 2017). Thus, “it is manifestly inappropriate for a district court to demand that
complaints contain all legal elements (or factors) plus facts corresponding to each.” Ibid.
Rather, the plaintiff need plead only “a plausible claim, after which ‘[he] receives the benefit of
imagination, so long as the hypotheses are consistent with the complaint.’” Ibid. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007)); see also Swanson v. Citibank, N.A., 614 F.3d
400, 404 (7th Cir. 2010) (“[T]he plaintiff must give enough details about the subject-matter of
the case to present a story that holds together. In other words, the court will ask itself could
these things have happened, not did they happen.”) (emphasis in original); Redbox Automated
Retail, LLC v. Xpress Retail LLC, 2018 WL 950098, at *2 (N.D. Ill. Feb. 20, 2018) (same).
Here, Unchageri has provided far more than a bare allegation that YuppTV USA used an
ATDS in sending him the unsolicited text messages, making it plausible that it in fact did so.
The screenshots of the twelve text messages attached to the complaint reflect that Unchageri
twice received this identical message from two different numbers: “We miss you at YuppTV!
Please take time out to check this exclusive offer just for you. Kannada Channels @
$69.99/year. Call 18666637557 or http://goo.gl/RUh1Lv.” Doc. 14-1 at 2-3; see Izsak v.
Draftkings, Inc., 191 F. Supp. 3d 900, 904-05 (N.D. Ill. 2016) (considering screenshots of text
messages in determining whether the plaintiff had plausibly alleged that the defendant used an
ATDS). Unchageri received another message—“YuppTV challenge offer Lowest price
guaranteed or else you win 1 month on yearly pack. Call 18666637557 or
http://goo.gl/OxsmWL Reply STOP to unsubscribe”—five times from two different numbers.
Doc. 14-1 at 3-6.
Unchageri’s factual allegation, backed up by the screenshots, that he received the same or
essentially the same messages from different phone numbers is “indicative of [their] impersonal
and automatic nature.” Sojka, 35 F. Supp. 3d at 1003. And the alleged content of the twelve
messages—each providing promotional offers and pricing for YuppTV USA’s subscription
packages, a 1-800 number, and a link to a website (sometimes, directly to www.yupptv.com;
other times, to sites beginning with http://goo.gl), Doc. 14-1—“suggests that [they are] from an
institutional sender without any personalization.” Abbas v. Selling Source, LLC, 2009 WL
4884471, at *3 (N.D. Ill. Dec. 14, 2009). Thus, while Unchageri has not proved that YuppTV
USA used an ATDS to send him the text messages, proof is not necessary at this stage, only
plausibility, and the complaint together with its exhibits plausibly allege that YuppTV USA did
just that. See Collins v. Travel, Entm’t, & Mktg., LLC, 2017 WL 85446, at *4 (N.D. Ill. Jan. 10,
2017) (in denying dismissal of a TCPA claim, stating: “The messages were generic and aimed
not at Plaintiff personally, but at a large group of potential customers, i.e., individuals who have
some involvement with sorority or fraternity formals. They do not provide any way for Plaintiff
to reach a human, but instead were sent from an SMS ‘short code’ and merely provide links to
Defendant’s websites to check out the services Defendant offers.”); Serban v. Cargurus, Inc.,
2016 WL 4709077, at *4 (N.D. Ill. Sept. 8, 2016) (denying dismissal of a TCPA claim where the
plaintiff “reproduce[d] the exact language of the text message, which was both promotional and
generic in nature”); Izsak, 191 F. Supp. 3d at 905 (holding that it was “plausible … that the
generic nature of the message indicates it was actually sent from an institutional sender for
marketing purposes and only crafted to appear personalized”).
As to YuppTV USA’s second argument, that Unchageri fails to allege that he did not give
prior express consent to receiving the text messages, Seventh Circuit precedent explicitly
forecloses it. “Express consent is an affirmative defense on which the defendant bears the
burden of proof.” Blow, 855 F.3d at 803. Accordingly, even assuming that Unchageri does not
plead the lack of express consent, the court may not dismiss his TCPA claim on that ground. See
Stuart v. Local 727, 771 F.3d 1014, 1018 (7th Cir. 2014) (“A plaintiff is not required to negate
an affirmative defense in his or her complaint … .”); Levin v. Miller, 763 F.3d 667, 671 (7th Cir.
2014) (“The Court held in Gomez v. Toledo, 446 U.S. 635 (1980), that complaints need not
anticipate affirmative defenses; neither Iqbal nor Twombly suggests otherwise.”).
Count II of the operative complaint alleges that YuppTV USA’s text messages—and, in
particular, its failure to follow through on its promise to unsubscribe Unchageri from its
promotional texts—violated ICFA. Doc. 14 at ¶¶ 52-69. ICFA “is a regulatory and remedial
statute intended to protect consumers, borrowers, and business persons against fraud, unfair
methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota
Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002). “The elements of a claim under ICFA are:
(1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the
plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred
during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932,
934 (7th Cir. 2010); see also Robinson, 775 N.E.2d at 960. In addition, the allegedly unfair or
deceptive acts must have proximately caused the plaintiff to suffer actual damage. See Oliveira
v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002) (“[A] private cause of action brought under
section 10a(a) requires proof of ‘actual damage.’ Further, a private cause of action brought
under section 10a(a) requires proof that the damage occurred ‘as a result of’ the deceptive act or
practice. As noted previously, this language imposes a proximate causation requirement.”)
(citations omitted); Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th Cir. 2006) (same).
ICFA prohibits both “unfair” and “deceptive” acts or practices. 815 ILCS 505/2. Allegations of
unfair acts under ICFA are subject to Rule 8(a)’s general pleading standard, while allegations of
deceptive acts “sound[ ] in fraud” and are therefore subject to Rule 9(b)’s heightened pleading
standard. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631
F.3d 436, 446-47 (7th Cir.2011) (citation and internal quotation marks omitted).
YuppTV USA argues that Unchageri has not pleaded “the threshold element of a
deceptive act or practice” with the particularity demanded by Rule 9(b). Doc. 20 at 11. Even
setting aside the fact that Unchageri’s ICFA claim also arises under the statute’s unfairness
prong, Doc. 14 at ¶ 66, YuppTV USA’s argument fails because it relies exclusively on facts
outside the pleadings. Doc. 20 at 3-5, 11-12 (citing YuppTV USA’s Rule 11(b) motion and
Unchageri’s “recent discovery responses and admissions,” which according to YuppTV USA
show that Unchageri had several accounts with YuppTV USA and paid to subscribe to a
YuppTV USA service, and therefore that Unchageri “was not deceived by the opt-out
confirmations that he received”). Those argument may be appropriate on summary judgment,
but they offer no basis on which to dismiss Unchageri’s ICFA claim under Rule 12(b)(6). See
Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (“A motion under Rule
12(b)(6) can be based only on the complaint itself, documents attached to the complaint,
documents that are critical to the complaint and referred to in it, and information that is subject to
proper judicial notice.”); Culver Franchising Sys., Inc. v. Steak N Shake Inc., 2016 WL 4158957,
at *3 (N.D. Ill. Aug. 5, 2016) (disregarding on a Rule 12(b)(6) motion exhibits falling outside the
pleadings); City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817, 827 (N.D. Ill. 2014)
(disregarding on a Rule 12(b)(6) motion “evidence adduc[ing] facts not referenced in the
complaint and not subject to judicial notice”).
YuppTV USA’s motion to dismiss is denied, and it shall answer the surviving portions of
the operative complaint by March 21, 2018.
March 7, 2018
United States District Judge
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