Judges: Per Curiam
Filed: Aug. 02, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 6, 2018 Decided August 2, 2018 Before DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge No. 17-3344 MARSHALL SPIEGEL, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 15 C 8504 ASSOCIATED COMMUNIT
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 6, 2018 Decided August 2, 2018 Before DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge No. 17-3344 MARSHALL SPIEGEL, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 15 C 8504 ASSOCIATED COMMUNITY..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 6, 2018
Decided August 2, 2018
Before
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐3344
MARSHALL SPIEGEL, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 15 C 8504
ASSOCIATED COMMUNITY Edmond E. Chang,
SERVICES, INC., et al., Judge.
Defendants‐Appellees.
O R D E R
Marshall Spiegel appeals the entry of summary judgment for Associated
Community Services (“ACS”) in this suit under the Telephone Consumer Protection
Act. As relevant here, the Act and its implementing regulations prohibit telemarketers
from calling numbers listed on the national Do Not Call Registry to solicit “the purchase
or rental of, or investment in, property, goods, or services” unless the call is made by or
on behalf of a “tax exempt nonprofit organization.” See 47 U.S.C. § 227(a)(4); 47 C.F.R.
§ 64.1200(f)(14)(iii). Spiegel contends that ACS violated the Act when it called him to
solicit donations to the Breast Cancer Society. On appeal the parties debate whether the
Breast Cancer Society is a “tax exempt nonprofit organization” within the meaning of
No. 17‐3344 Page 2
the Act. Because Spiegel waived the only argument he develops on appeal, we affirm
the judgment.
ACS called Spiegel’s home phone multiple times while his number was
registered on the national Do Not Call list. Although the purpose of these calls was
supposedly to solicit donations to the Breast Cancer Society, ACS kept about 85% of the
total revenue that it raised. At all times relevant to this appeal, the IRS recognized the
Breast Cancer Society as a tax‐exempt organization under 26 U.S.C. § 501(c)(3),
though the Federal Trade Commission has identified it as a fraudulent enterprise.
In September 2015 Spiegel filed a class‐action complaint seeking to represent all
persons whom ACS had called on behalf of the Breast Cancer Society in violation of the
Telephone Consumer Protection Act. (He also named as defendants three individuals
associated with the Breast Cancer Society, none of whom are participating in this
appeal.) ACS moved to dismiss the complaint, highlighting the Act’s exception for calls
made by, or on behalf of, tax exempt nonprofit organizations. Spiegel countered that
dismissal was inappropriate for two reasons: (1) ACS called Spiegel at least partially on
its own behalf, and (2) because of its fraudulent activities, the Breast Cancer Society
should not be considered a true tax exempt nonprofit organization. The judge denied
ACS’s motion to dismiss, reasoning that the IRS’s classification of the Breast Cancer
Society as a section 501(c)(3) entity resolved the question whether the charity was a tax
exempt nonprofit organization for purposes of the Act. But, the judge concluded,
dismissal on the pleadings was unwarranted because Spiegel plausibly alleged that
ACS made calls on its own behalf.
The judge later entered summary judgment for ACS because the undisputed
evidence showed that ACS called on behalf of the Breast Cancer Society. The judge
added that Spiegel’s claim also failed because the Act’s prohibition against “telephone
solicitation” does not include “requests for money donations.” As the judge observed,
the Act prohibits calls to numbers on the Do Not Call list for the purpose of “telephone
solicitation,” a term the Act defines 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.” § 227(a)(4) (emphasis added); see 47 C.F.R. § 64.1200(f)(14)(iii) (exempting calls
made “[b]y or on behalf of a tax‐exempt nonprofit organization”). Spiegel admitted at
summary judgment that ACS’s calls “did not seek the purchase of goods or services.”
Thus, the judge concluded, ACS could not have violated the Act even if the Breast
Cancer Society does not qualify as a tax exempt nonprofit organization.
No. 17‐3344 Page 3
Spiegel does not challenge the judge’s dispositive holding that solicitations of
donations do not violate the Act’s prohibition against calls to numbers on the Do Not
Call Registry. When asked about this issue at oral argument, Spiegel’s counsel
suggested that even if the noncommercial nature of the calls doomed any claim based
on the Do Not Call Registry, he might still have a claim under a different subsection
that prohibits any “telephone call to any residential line using an artificial or
prerecorded voice,” 47 U.S.C. § 227(b)(1)(B). But Spiegel’s briefs make no mention of
§ 227(b)(1)(B). And as the judge correctly observed at summary judgment, Spiegel’s
“complaint cannot fairly be read to allege calls using prerecorded voice technology.”
Spiegel has thus waived any claim based on § 227(b)(1)(B). See Trade Fin. Partners, LLC v.
AAR Corp., 573 F.3d 401, 412 (7th Cir. 2009.)
“[W]e may affirm on any basis that appears in the record.” Part‐Time Faculty
Ass’n at Columbia Coll. Chi. v. Columbia Coll. Chi., 892 F.3d 860, 865 (7th Cir. 2018)
(quoting Kidwell v. Eisenhauer, 679 F.3d 957, 965 n.1 (7th Cir. 2012)). So we could affirm
the judgment based solely on Spiegel’s failure to contest the judge’s interpretation of the
term “telephone solicitations.” But because ACS also did not raise the issue as an
alternative ground for affirmance, we leave for another day the question whether the
Act prohibits calling numbers on the Do Not Call Registry to solicit donations.
Moving on to the issue the parties have discussed, Spiegel contends that the
judge erred in finding the Breast Cancer Society’s section 501(c)(3) status dispositive to
whether it qualifies as a tax exempt, nonprofit organization for purposes of the Act.
ACS counters that Spiegel “abandoned” this argument when he failed to reassert it at
summary judgment. But “[i]t is not waiver—it is prudence and economy—for parties
not to reassert a position that the trial judge has rejected.” See Bastian v. Petren Res. Corp.,
892 F.2d 680, 683 (7th Cir. 1990).
The problem for Spiegel is that he never presented to the district court the only
argument that he advances on appeal. In arguing that the Breast Cancer Society is not a
“tax exempt nonprofit organization” within the meaning of the Act, he now relies
almost entirely on an extended comparison to Zimmerman v. Cambridge Credit Counseling
Corp., a case that interpreted a similar nonprofit exemption in the Credit Repair
Organizations Act. 409 F.3d 473, 475 (1st Cir. 2005). The Zimmerman court held that in
order to qualify for the exemption, a “credit repair organization” must “actually operate
as a nonprofit organization and be exempt from taxation under section 501(c)(3).” Id. at
478. The court reversed the dismissal of the complaint because it plausibly alleged that
No. 17‐3344 Page 4
the tax‐exempt organization “was not actually operating as a nonprofit organization.”
Id. at 479.
Spiegel never advanced any argument under Zimmerman in the district court.
Instead he merely cited cases like Bob Jones University v. United States, 461 U.S. 574
(1983), for the unremarkable proposition that “IRS findings are routinely challenged,
revisited, or reversed, by courts and by the IRS.” That the IRS has authority to revoke an
organization’s tax‐exempt status for good cause says nothing about whether the IRS’s
designation is controlling for purposes of the Telephone Consumer Protection Act
when, as here, the IRS has taken no action to revoke that tax‐exempt status. It certainly
does not support Spiegel’s bold assertion that “[t]he IRS’[s] designation is irrelevant
to … the applicability of the [Telephone Consumer Protection Act] exemption.”
Because Spiegel waived the only argument he raises on appeal, we AFFIRM the
district court’s judgment. ACS’s motion for leave to file a supplemental brief is
DENIED.