Case: 1:22-cv-07158 Document #: 1 Filed: 12/20/22 Page 1 of 12 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`RONALD FRENCH, individually and on
`behalf of others similarly situated,
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`Plaintiff,
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`TRIBUNE PUBLISHING COMPANY,
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`Defendant.
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`v.
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`Case No. 1:22-cv-07158
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`Jury Trial Demanded
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`CLASS ACTION COMPLAINT
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`1.
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`Defendant Tribune Publishing Company (“Tribune”) has repeatedly called
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`Plaintiff’s residential phone line for the purpose of encouraging the purchase of its newspapers.
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`2.
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`Tribune continued making these telemarketing calls to Plaintiff’s number after
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`Plaintiff told it to stop calling, that his mother whom it was trying to reach had passed away, and
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`that consequently there would be no renewal of her Tribune subscription.
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`3.
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`Tribune’s calls to Plaintiff violated the Telephone Consumer Protection Act’s
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`robocall, Internal Do Not Call, and Do Not Call Registry provisions.
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`4.
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`Plaintiff seeks money damages and injunctive relief for himself and classes of
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`other similarly situated persons, pursuant to the Telephone Consumer Protection Act (“TCPA”),
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`47 U.S.C. § 227.
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`INTRODUCTION
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`5.
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`Advancements in telephone dialing technology by the 1980s and 90s made
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`reaching a large number of consumers by telephone easier and more cost-effective. However,
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`this technology has also brought with it an onslaught of unsolicited robocalls, spam text
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`messages, and junk faxes that intrude on individual privacy and waste consumer time and
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`money. “Unrestricted telemarketing,” Congress determined, “can be an intrusive invasion of
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`privacy.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (quoting TCPA, § 2, ¶ 5,
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`105 Stat. 2394, note following 47 U.S.C. § 227 (Congressional Findings)). As a result, the
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`government enacted the Telephone Consumer Protection Act to combat these widespread
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`telecommunications abuses. Id.
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`6.
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`As is relevant here, the TCPA’s regulations provide that “[n]o person or entity
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`shall initiate any telephone solicitation to ... [a] residntial telephone subscriber who has
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`registered his or her telephone number on the national do-not-call registry of persons who do not
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`wish to receive telephone solicitations that is maintained by the Federal Government.” 47 C.F.R.
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`§ 64.1200(c)(2).
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`7.
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`The TCPA further prohibits “initiat[ing] any call for telemarketing purposes to a
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`residential telephone subscriber unless such person or entity has instituted procedures for
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`maintaining a list of persons who request not to receive telemarketing calls made by or on behalf
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`of that person or entity[.]” 47 C.F.R. § 64.1200(d).
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`8.
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`The FCC—which develops the rules and regulations implementing the TCPA—
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`has explained that its “rules generally establish that the party on whose behalf a solicitation is
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`made bears ultimate responsibility for any violations.” In re Rules & Regulations Implementing
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`the TCPA, 10 FCC Rcd. 12391, at ¶ 13 (1995).
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`9.
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`The FCC has “repeatedly acknowledged the existence of vicarious liability under
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`the TCPA.” Gomez v. Campbell-Ewald Co., 768 F.3d 871, 878 (9th Cir. 2014) (citing In re Joint
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`Petition Filed by DISH Network, LLC et al. for Declaratory Ruling Concerning the TCPA Rules,
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`28 FCC Rcd. 6574 (2013) (“FCC 2013 Ruling”)). In addition to formal agency, principles of
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`apparent authority and ratification may also provide a basis for vicarious seller liability for
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`TCPA violations. FCC 2013 Ruling, 28 FCC Rcd. at 6584 ¶ 28.
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`10.
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`The TCPA provides for injunctive relief and the greater of actual damages or up
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`to $500 per violation, which can be trebled where the statute was “willfully or knowingly”
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`violated. 47 U.S.C. § 227(c)(5).
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`11.
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`Tribune made multiple telemarketing calls to the phones of Plaintiff and others
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`without their prior express invitation or permission or consent, despite such person’s prior
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`request to not be called and/or registration with the National Do Not Call Registry. Plaintiff files
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`this class action complaint on behalf of himself and others similarly situated, seeking relief from
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`Tribune’s illegal calling practices.
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`PARTIES
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`12.
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`Plaintiff Ronald French is a natural person and citizen of Illinois, who resides in
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`this District. He was in this District when he received the calls alleged herein.
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`13.
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`Defendant Tribune Publishing Company is a media company that publishes
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`numerous newspapers, including the Chicago Tribune. It is headquartered in Chicago, Illinois,
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`and is a citizen of Illinois. Tribune is incorporated in Delaware.
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`JURISDICTION AND VENUE
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`14.
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`This Court has federal question subject matter jurisdiction over this action
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`pursuant to 28 U.S.C. § 1331 with respect to Plaintiff’s TCPA claims. Mims v. Arrow Financial
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`Services, Inc., 132 S. Ct. 740 (2012).
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`15.
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`The Court also has Class Action Fairness Act jurisdiction, because there are
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`thousands of members of each nationwide class, at least one class member is a citizen of a
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`different state from where any defendant is a citizen, and because the aggregate damages exceed
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`$5,000,000, exclusive of fees, costs and interest.
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`16.
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`The Court has personal jurisdiction over Tribune and venue is appropriate in this
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`District under 28 U.S.C. § 1391(a) because Tribune does business in this District, Tribune made
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`or caused to be made the calls that are the subject of this lawsuit to Plaintiff and others in this
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`District, knowingly solicited newspaper home delivery subscriptions and other products and
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`services to Plaintiff and other Illinois consumers during the calls at issue, and because a
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`substantial portion of the events giving rise to this cause of action occurred in this District.
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`FACTS
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`17. Plaintiff is the subscriber to a residential telephone line, which has been registered
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`with the National Do Not Call Registry since at least approximately February 28, 2017.
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`18. Plaintiff’s mother was a prior customer of Tribune who lived with him for a
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`period of time before she passed away in July 2021.
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`19. After receiving unwanted calling from Tribune to his residential telephone line in
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`an attempt to get his mother to renew her terminated subscription to its newspapers, Plaintiff
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`informed Tribune in summer 2021 that his mother had passed away and to not call his phone.
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`20.
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`In response, Tribune’s representative indicated that Tribune would place
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`Plaintiff’s phone number on its internal do-not-call list.
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`21. On information and belief, Tribune’s representative’s statement to Plaintiff was
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`true; it placed Plaintiff’s phone number on its internal do-not-call list in summer 2021.
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`22. Nonetheless, Tribune continued to call Plaintiff until approximately the fall 2021,
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`after Plaintiff repeatedly asked it to stop and even warned it that he would sue if it did not.
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`23. While these prior do-not-call requests appeared to be initially successful at getting
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`the calls to stop, Tribune has started to make additional calls to Plaintiff’s residential line for
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`purposes of encouraging the purchase of its newspapers again in 2022—including from caller ID
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`(312) 598-9857 on September 19, 2022, September 20, 2022, September 21, 2022 (twice),
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`September 22, 2022, and September 23, 2022, and from caller ID (312) 530-9745 on August 17,
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`2022, August 18, 2022, October 25, 2022 (twice), and October 26, 2022, among other occasions.
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`24. For example, Plaintiff received a call from Tribune at caller ID (312) 530-9745 on
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`October 26, 2022, at approximately 5:24 p.m. When Plaintiff answered, he was thereafter
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`connected to a representative who identified herself as “Christie.” After indicating that she was
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`on a recorded line, Christie went into a sales pitch for Tribune newspapers, and asked if
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`Plaintiff’s mother would like to re-subscribe. Plaintiff advised Christie that he had told Tribune
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`several times in the past that his mother had passed away and to stop calling, that he did not
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`appreciate the solicitation call, and that he was upset that Tribune continued to call his phone
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`number after being told not to do so. Christie refused to provide her address or last name when
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`asked.
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`25.
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`Upon information and belief, Tribune keeps track of its contacts with consumers,
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`knew when it made these calls that Plaintiff’s number was on the National Do Not Call Registry,
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`and knew that Plaintiff was not a customer of Tribune when it made these calls to him and had
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`not made an inquiry regarding Tribune goods or services for more than three months. See 47
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`C.F.R. § 64.1200(f)(5).
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`26.
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`Plaintiff did not consent to or ask for Tribune’s calls. To the contrary, he asked
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`not to receive calls.
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`27.
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`Tribune knows that the public hates telemarketing calls like the ones at issue here,
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`and it knows that they are illegal. It has even published articles criticizing others for using some
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`of the same techniques it employed in these calls.
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`28.
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`Tribune is also well aware that its practices have resulted in violations. Indeed, it
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`previously paid $1.7 million to settle an earlier TCPA class lawsuit with similar do-not-call
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`allegations, Moore v. Tribune Publ’g Co., No. 1:20-cv-07666 (N.D. Ill. filed Dec. 22, 2020).
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`29.
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`Plaintiff and the classes were damaged by Tribune’s violations of the TCPA.
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`They were harassed, their privacy was invaded, the calls temporarily seized control of their
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`phone lines thus preventing legitimate use of the equipment, their time was wasted, and the calls
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`were annoying.
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`CLASS ACTION ALLEGATIONS
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`Plaintiff brings this action under Federal Rules of Civil Procedure 23(b)(2) and
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`30.
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`(b)(3), on behalf of the following classes:
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`National DNC Class: All persons within the United States whose residential
`cellular or landline numbers Tribune or someone on its behalf called more than
`once for the purpose of encouraging the purchase of goods or services within any
`12-month period, despite the phone number having been registered on the National
`Do Not Call Registry for more than 31 days, where Tribune did not have a signed,
`written agreement with the consumer stating that he or she agrees to be contacted
`by them at the phone number, and the person had been a customer of Tribune in the
`past 18 months or inquired as to goods or services in the past three months or, if so,
`had not revoked consent.
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`Internal DNC Class: All persons within the United States to whom Tribune or
`someone on its behalf initiated more than one call within any 12-month period for
`the purpose of encouraging the purchase of goods or services, after a request to stop
`calling.
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`31.
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`Upon information and belief, there are thousands of persons in each class as
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`alleged above.
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`32.
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`Common questions of law or fact exist as to all members of the classes, which
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`predominate over any questions solely affecting any individual member, including Plaintiff.
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`Such questions common to the class include but are not limited to:
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`a. Whether Tribune had proper prior express invitation or permission to call
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`Plaintiff and the National DNC Class;
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`b. Whether Tribune had properly implemented do-not-call procedures meeting
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`the minimum standards required under 47 C.F.R. § 64.1200(d);
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`c. Whether Tribune had established and implemented, with due care, reasonable
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`practices and procedures to effectively prevent telephone solicitations in
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`violation of the TCPA’s applicable do-not-call regulations; and
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`d. Damages, including whether any violations were willful or knowing, such that
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`Plaintiff and the other members of the class are entitled to treble damages
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`under 47 U.S.C. § 227(c)(5). Krakauer v. Dish Network, LLC, 925 F.3d 643,
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`663 (4th Cir.), cert. denied, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019)
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`(affirming award of treble damages in TCPA Do Not Call Registry class
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`action).
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`33.
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`Plaintiff’s claims are typical of the claims of the other members of each of the
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`classes. The factual and legal bases of Tribune’s liability to Plaintiff and the other members of
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`the class are the same: They violated the TCPA by causing multiple unsolicited telephone
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`solicitations to be made to the telephone number of each member of each class above.
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`34.
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`Plaintiff will fairly and adequately protect the interests of the classes. Plaintiff
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`has no interests that might conflict with the interests of the classes. Plaintiff is interested in
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`pursuing his claims vigorously, and he has retained counsel competent and experienced in class
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`and complex litigation, including with regards to the claims alleged herein.
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`35.
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`Class action treatment is superior to the alternatives for the fair and efficient
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`adjudication of the controversy alleged herein. Such treatment will permit a large number of
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`similarly situated persons to prosecute their common claims in a single forum simultaneously,
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`efficiently, and without the duplication of effort and expense that numerous individual action
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`would entail. There are, on information and belief, thousands of members of each class, such
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`that joinder of all members is impracticable.
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`36.
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`No difficulties are likely to be encountered in the management of this action that
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`would preclude its maintenance as a class action, and no superior alternative exists for the fair
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`and efficient adjudication of this controversy.
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`37.
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`Tribune has acted and failed to act on grounds generally applicable to Plaintiff
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`and the other members of the classes, thereby making relief appropriate with respect to each
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`class as a whole. Prosecution of separate actions by individual members of the classes, should
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`they even realize that their rights have been violated, would likely create the risk of inconsistent
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`or varying adjudications with respect to individual members of the classes that would establish
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`incompatible standards of conduct.
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`38.
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`The identity of the classes is, on information and belief, readily identifiable from
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`Tribune’s or its vendors’ records.
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`COUNT I
`Violations of the National Do Not Call Registry
`Provisions of the TCPA, 47 U.S.C. § 227, 47 C.F.R. § 64.1200(c)(2)
`(On Behalf of Plaintiff and the National DNC Class)
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`Plaintiff re-alleges and incorporates all prior paragraphs. This Count I is brought
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`39.
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`by Plaintiff on behalf of himself and the National DNC Class.
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`40.
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`It is a violation of the TCPA to initiate any telephone solicitation to a residential
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`telephone subscriber who has registered his or her residential landline or cellular telephone
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`number on the National Do Not Call Registry. 47 C.F.R. § 64.1200(c)(2).
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`41.
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`Defendant violated the TCPA by initiating or causing to be initiated multiple
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`telephone solicitations to Plaintiff and the other members of the National DNC Class in a 12-
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`month period, despite the person’s registration of his or her telephone numbers on the National
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`Do Not Call Registry.
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`42.
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`Upon information and belief, Tribune did not bother to scrub Plaintiff or the class
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`members’ phone numbers against the Do Not Call Registry, as the TCPA required it to do.
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`43.
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`44.
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`These violations were willful or knowing.
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`As a result of Tribune’s violations of the TCPA’s National Do Not Call Registry
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`rule, Plaintiff and the other members of the National DNC Class are each entitled to an
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`injunction and up to $500 in damages for each such violation. 47 U.S.C. § 227(c)(5).
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`45.
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`Because such violations were willful or knowing, the Court should treble the
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`amount of statutory damages, pursuant to 47 U.S.C. § 227(c)(5).
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`46.
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`To the extent a Tribune did not physically “initiate” the calling at issue itself, it is
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`nonetheless vicariously liable based on theories of actual authority, apparent authority, and
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`ratification, for these calls were made on its behalf.
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`WHEREFORE, Plaintiff Ronald French, individually and on behalf of the National DNC
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`Class, respectfully requests that the Court enter judgment against Tribune for:
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`A.
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`B.
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`C.
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`D.
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`E.
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`Certification of the National DNC Class as alleged herein;
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`Damages, pursuant to 47 U.S.C. § 227(c)(5);
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`Injunctive relief, pursuant to 47 U.S.C. § 227(c)(5), aimed at preventing
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`Tribune from violating the TCPA in the future;
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`Attorneys’ fees and costs, as permitted by law; and
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`Such other or further relief as the Court deems just and proper.
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`COUNT II
`Violations of the Internal Do-Not-Call
`Provisions of the TCPA, 47 U.S.C. § 227; 47 C.F.R. § 64.1200(d)
`(On Behalf of Plaintiff and the Internal DNC Class)
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`Plaintiff re-alleges and incorporates all prior paragraphs. This Count II is brought
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`47.
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`by Plaintiff on behalf of himself and the Internal DNC Class.
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`48.
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`It is a violation of the TCPA to “initiate any call for telemarketing purposes to a
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`residential telephone subscriber unless such person or entity has instituted procedures for
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`maintaining a list of persons who request not to receive telemarketing calls made by or on behalf
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`of that person or entity.” 47 C.F.R. § 64.1200(d).
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`49.
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`Tribune’s internal do-not-call policy was insufficient and/or it failed to adhere to
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`whatever policy it had. Its calls to Plaintiff and the Internal DNC Class after they had requested
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`no more calls therefore violated the TCPA.
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`50.
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`51.
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`These violations were willful or knowing.
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`As a result of Tribune’s violations of the TCPA’s internal do-not-call rule,
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`Plaintiff and the other members of the Internal DNC Class are each entitled to an injunction and
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`up to $500 in damages for each such violation. 47 U.S.C. § 227(c)(5).
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`52.
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`Because such violations were willful or knowing, the Court should treble the
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`amount of statutory damages, pursuant to 47 U.S.C. § 227(c)(5).
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`53.
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`To the extent a Tribune did not physically “initiate” the calling at issue itself, it is
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`nonetheless vicariously liable based on theories of actual authority, apparent authority, and
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`ratification, for these calls were made on its behalf.
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`WHEREFORE, Plaintiff Ronald French, individually and on behalf of the Internal DNC
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`Class, respectfully requests that the Court enter judgment against Tribune for:
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`A.
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`B.
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`C.
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`Certification of the Internal DNC Class as alleged herein;
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`Damages, pursuant to 47 U.S.C. § 227(c)(5);
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`Injunctive relief, pursuant to 47 U.S.C. § 227(c)(5), aimed at preventing
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`Tribune from violating the TCPA in the future;
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`D.
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`Attorneys’ fees and costs, as permitted by law; and
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`E.
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`Such other or further relief as the Court deems just and proper.
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`JURY DEMAND
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`Plaintiff requests a trial by jury of all claims that can be so tried.
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`Respectfully submitted,
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`RONALD FRENCH, individually and
`on behalf of others similarly situated
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`By: /s/ Alexander H. Burke
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`Dated: December 20, 2022
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`Alexander H. Burke
`Daniel J. Marovitch
`BURKE LAW OFFICES, LLC
`909 Davis St., Suite 500
`Evanston, IL 60201
`Telephone: (312) 729-5288
`aburke@burkelawllc.com
`dmarovitch@burkelawllc.com
`
`Larry P. Smith
`David M. Marco
`SMITHMARCO, P.C.
`55 W Monroe St., Suite 1200
`Chicago, IL 60603
`Telephone: (888) 822-1777
`lsmith@smithmarco.com
`dmarco@smithmarco.com
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`Counsel for Plaintiff
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`Document Preservation Demand
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`Plaintiff hereby demands that Defendant take affirmative steps to preserve all recordings,
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`data, databases, call records, consent and other defense evidence, e-mails, recordings,
`documents, and all other tangible things that relate to the allegations herein, Plaintiff, or the
`putative class members, or the making of telephone calls, the events described herein, any third
`party associated with any telephone call, campaign, account, sale, or file associated with Plaintiff
`or the putative class members, and any account or number or symbol relating to any of them.
`These materials are very likely relevant to the litigation of this claim. If Defendant is aware of
`any third party that has possession, custody, or control of any such materials, Plaintiff demands
`that Defendant request that such third party also take steps to preserve the materials. This
`demand shall not narrow the scope of any independent document preservation duties of
`Defendant.
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` /s/ Alexander H. Burke
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