Elaine E. Bucklo, United States District Judge
Defendants' motion to dismiss, or in the alternative, to refer the "subsequent consent" issue to the FCC under the doctrine of primary jurisdiction, is denied.
Defendants raise three arguments for dismissing plaintiffs TCPA claim: first, that plaintiff did not plead lack of prior express consent to receive the call on which his claim is premised; second, that plaintiff has "forfeit[ed] the benefit of the TCPA and waive[d] the right to sue for its violation" because he allegedly followed the instructions provided by the prerecorded voice, then provided information to a live person who later came on the line; and third, that the complaint fails to plead an adequate basis for defendants' direct or vicarious liability for the alleged violation. Defendants also argue that plaintiff's claim for treble damages is defective because the complaint cannot reasonably be construed to allege a willful or knowing violation of the statute. None of these arguments has merit.
First, the prevailing view in this district is that "prior express consent" under the TCPA "is an affirmative defense on which the defendant bears the burden of proof; it is not a required element of the plaintiff's claim." Kolinek v. Walgreen Co., No. 13 C 4806, 2014 WL 518174, *2 (N.D.Ill. Feb. 10, 2014) (Kennelly, J.) (citing cases). Because plaintiffs are not required to anticipate and defeat affirmative defenses, dismissal is only appropriate if the affirmative defense "is set out entirely in the plaintiffs complaint." Kolinek, 2014 WL 518174 at *2. That is not the case here, and neither defendants' admittedly unsupported speculation that plaintiff might have provided prior express consent to one of the other insurance companies allegedly identified in the automated recording, nor the fact that plaintiff — a seasoned TCPA litigant
Finally, I conclude that plaintiff has sufficiently pled a substantive basis for either direct or vicarious liability. Plaintiff alleges that the prerecorded voice in the call he received "suggested that plaintiff could save money on his auto insurance, through obtaining quotes from Allstate, GEICO, Progressive and State Farm." Cmplt. ¶ 33. The complaint goes on to recount that after plaintiff "indicated that he was interested in a quote," he was transferred to another line where he heard "a prerecorded message that welcomed plaintiff to Esurance and noted that Esurance was backed by Allstate." Id. at ¶¶ 34-35. Then, "plaintiff was connected with a sales representative of Esurance," who solicited information from plaintiff and provided him a quote for insurance Id. at ¶¶ 36-37. Defendants acknowledge that in Dish Network, the FCC "observed that in appropriate circumstances, a seller that did not initiate a call may be held vicariously liable for violations of the TCPA that are committed by third-party telemarketers `under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.'" Def.'s Mem., 10 (quoting Dish Network, 28 FCC Red 14014 at ¶ 28. Defendants insist, however, that plaintiff has not pled any basis from which to infer
I also reject defendants' attempt to skirt plaintiff's allegations of their direct involvement in the automated call by recasting his allegations about being "transferred" to an Esurance agent as setting forth an "inbound call by plaintiff to a live Esurance employee." That characterization plainly distorts plaintiff's account of the call and of how he came to speak to a live agent. Moreover, plaintiff's allegations of defendants' direct participation in the call by connecting him to an Esurance agent (a company "backed by Allstate") suffice to entitle him to discovery to establish that their alleged violation of the TCPA was willful and/or knowing. See Sengenberger v. Credit Control Services, Inc., No. 09, 2010 WL 6373008, *2 (N.D.Ill. Jun. 17, 2010) (Zagel, J.) (willful or knowing violation of TCPA requires only that defendant know of the facts constituting the offense).