• Defendant to Prove Consent Unless Plaintiff Pleads Himself Out of Court by Admitting Consent
  • August 28, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • After receiving a text on his cell phone offering him a free cruise, an Illinois man was disappointed to discover that the offered cruise was not really free. He sued the cruise company in federal court, alleging violations of the federal Telephone Consumer Protection Act and state consumer protection laws. The cruise company moved the court to dismiss the case, arguing that the man had failed to plead that he had not given consent for the call. The court denied the cruise company’s motion, finding that the burden fell on the cruise company to prove lack of consent at a later stage of the case. (Volpe v. Caribbean Cruise Line, Inc. (Slip Copy, N.D.Ill., July 16, 2013).


    Mark Volpe received a text message on his cell phone announcing he had won a free trip to the Bahamas. He called the number listed in the text and reached the call center of Caribbean Cruise Line, Inc. (“Caribbean”). The call center representative told Volpe that the supposedly free trip had associated charges. Volpe filed suit in federal district court, alleging that Caribbean’s text violated the Telephone Consumer Protection Act (“TCPA”), as well as other Illinois state law claims. Caribbean moved to dismiss the case for failure to state a legal claim.


    The United States District Court for the Northern District of Illinois denied Caribbean’s motion and allowed Volpe’s case to proceed. The Court explained that the TCPA prohibits auto-dialed or artificially-voiced calls made to a cell phone without the recipient’s consent. The Court rejected Caribbean’s argument that Volpe failed to allege use of an auto dialer and lack of consent. The Court noted that although Volpe did not explicitly state that an autodialer had been used, the circumstances he described suggested that one had been. Volpe alleged that Caribbean posted an ad for sales positions that referenced use of an autodialer, the message he received was not personalized and was sent for marketing purposes, and numerous persons reported on various websites that they had received similar messages.

    Regarding consent, the Court observed that Volpe had stated that Caribbean had a practice of making calls to individuals who filled out a form to win a free cruise, and the text to Volpe said his cell number had been drawn. The Court concluded that although these allegations suggested that Volpe consented to the call, they did not “conclusively establish” that fact. Further, under the TCPA, the burden fell on Caribbean as the defendant to prove Volpe’s consent. The Court concluded that a defense such as lack of consent generally should not be the basis of an order to dismiss a case for failure to state a claim.