In Toney v. Quality Resources, Inc., — F.Supp.3d —-, 2014 WL 6757978 (N.D.Ill. 2014), Judge St. Eve found that the Defendant’s efforts to “upsell” the debtor on other products (so-called “dual purpose” calls) exceeded the limited consent the consumer had given to be called on her cellular telephone. The facts were as follows:
Toney alleges that on December 8, 2012, she placed an order for three pairs of children’s slippers from a website called Stompeez.com (“Stompeez”).FN1 She entered her credit card information, shipping address, and e-mail address on the website’s order form. She also provided her cellular telephone number pursuant to the field of the order form that required it “for questions about [the] order.” (Third Am. Compl. ¶¶ 30–31.) Toney alleges that the representation that customers’ phone numbers would be used “for questions about order[s]” was “untrue” because Stompeez had a contract with Quality pursuant to which Quality purchased information about Stompeez’s customers for approximately $1.50 per customer and then used the information to make telemarketing calls to sell the products and services of other parties, such as Sempris and Provell. ( Id. ¶¶ 32–33.)
The District Court denied the Motion to Dismiss.
Rather, to the extent the FCC’s orders establish a rule, it is that the scope of a consumer’s consent depends on its context and the purpose for which it is given. Consent for one purpose does not equate to consent for all purposes.¶ This, in the Court’s view, is a more natural reading of the TCPA’s exception for a call “made with the prior consent of the called party.” 47 U.S.C. § 227(b)(1)(A). . . . Quality asserts that “[a]fter verifying and completing Plaintiff’s order, Quality was permitted to market or upsell” a third party’s services. (Quality’s Mot. at 16.) Quality argues that it is therefore entitled to summary judgment, but it offers no evidence that Toney’s Stompeez order was “incomplete” before Quality called. (Toney’s position is that the order was complete and that the need to “verify” her information was a pretext.) ¶ Quality bases its “upsell” argument in part on its argument that the complaint makes clear, or there is no genuine issue that, Toney expressly consented to Quality’s calls, which the court has rejected. Quality also contends that it “abided by the applicable TSR requirements for upselling.” (Quality’s Mot. at 16.) By “TSR,” Quality is referring to the “Telemarketing Sales Rule,” 16 C.F.R. § 310.1 et seq. (the “Rule”), an FTC rule that prohibits deceptive or abusive telemarketing acts or practices. Quality fails to develop its argument by explaining how the TSR interacts with the TCPA or why compliance with the Rule would entitle it to summary judgment on a claim for violation of the TCPA. Moreover, the Rule defines the act of “upselling” as “soliciting the purchase of goods or services following an initial transaction during a single telephone call. The upsell is a separate telemarketing transaction, not a continuation of the initial transaction.” 16 C.F.R. § 310.2(ee). Quality characterizes its Budget Savers offer as an “upsell” but fails to explain why the call fits within the Rule’s definition. Plaintiff does not allege, and Quality does not submit any evidence, that any “initial transaction” occurred during the call. Accordingly, Quality’s assertion that it was permitted under the TCPA to “upsell” Sempris and Provell’s services fails.