A plaintiff filed a complaint against an online university, alleging claims under the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) relating to the defendant’s alleged repeated and unsolicited calls to the plaintiff’s cell phone.

The defendant, Ashford University, LLC, allegedly called plaintiff Melissa Nelson’s cell phone on at least 50 different occasions in an attempt to solicit her business.  Nelson claimed that “her life and well-being were disrupted by the constant calls to her cell phone,” and that the repeated calls resulted in “emotional distress, mental anguish, invasion of privacy, increased anxiety, increased depression, general aggravation, increased usage of her cell service, and diminished data storage on her cell [phone].”

Ashford University filed a motion to dismiss Nelson’s ICFA claims.  The ICFA requires a plaintiff to show they suffered “actual damage” due to a defendant’s violation of the Act, and demands that “‘[a]ctual damages’ must arise from ‘purely economic injuries.’”  Ashford University argued that Nelson did not allege any actual damages in her complaint.  The Court agreed. 

With respect to the plaintiff’s claim of increased usage of her telephone service and diminished space for data storage, the Court pointed out that Nelson had not alleged that she had suffered any monetary cost that would not have otherwise occurred, such as overage charges for telephone or data services.  As to her claim of emotional distress, the ICFA provides that emotional distress damages are only compensable “when they are part of a total award that includes actual economic damages.”  Because Nelson failed to prove any pure economic damages, her emotional distress claims failed to suffice.

The Court therefore granted Ashford University’s motion to dismiss the ICFA claim.  Nelson’s TCPA claim is still pending.  Troutman Sanders will continue to monitor the developments in this case. 

 

 

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Photo of Julie D. Hoffmeister Julie D. Hoffmeister

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection…

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection Act (TCPA). Julie also applies her litigation knowledge in assisting businesses in developing compliance processes and procedures for the myriad federal consumer protection laws.

Photo of Ronald I. Raether, Jr. Ronald I. Raether, Jr.

Ron leads the firm’s Privacy + Cyber team. Drawing from nearly 30 years of experience, he provides comprehensive services to companies in all aspects of privacy, security, data use, and risk mitigation. Clients rely on his in-depth understanding of technology and its application

Ron leads the firm’s Privacy + Cyber team. Drawing from nearly 30 years of experience, he provides comprehensive services to companies in all aspects of privacy, security, data use, and risk mitigation. Clients rely on his in-depth understanding of technology and its application to their business to solve their most important challenges — from implementation and strategy to litigation and incident response. Ron and his team have redefined the boundaries of typical law firm privacy and cyber services in offering a 360 degree approach to tackling information governance issues. Their holistic services include drafting and implementing bespoke privacy programs, program implementation, licensing, financing and M&A transactions, incident response, privacy and cyber litigation, regulatory investigations, and enforcement experience.