Kyla Asbury Dec. 4, 2014, 10:53am

CHICAGO (Legal Newsline) - A federal judge refused to dismiss a class action lawsuit against Quality Resources for allegedly violating the Telephone Consume Protection Act.

U.S. District Judge Amy J. St. Eve denied the motion of Quality Resources to dismiss the complaint or for summary judgment.

Sarah Toney filed the class action lawsuit against the defendants on Jan. 3, 2013. Quality Resources filed its motion to dismiss on Aug. 21 for failure to state a claim.

Toney claimed on Dec. 8, 2012, she ordered three pairs of Stompeez children's slippers as Christmas presents and made the order via the website

The web order form required Toney's telephone number "for questions about order," and Toney filled out the web order form. However, she claimed she did not consent to receiving telemarketing calls advertising other Stompeez services.

On Dec. 10, 2012, and Dec. 11, 2012, Toney received calls from a number that she did not recognize and when she answered it, "started with a distinctive click and pause prior to someone being on the line, indicating it came from an automatic dialer that dialed plaintiff's phone number and routed the call to a sales agent when plaintiff answered."

Toney claimed when someone calls the numbers that called her, they are directed to Quality Resources.

"Quality argues that Toney fails to state a claim for violations of the TCPA because her allegations are 'conclusory and entirely inadequate' and 'impermissibly lump the defendants together,'" the order states.

St. Eve said in the order that Quality simply ignores the 16 pages of allegations in the complaint.

"Those allegations adequately describe plaintiff's theories of liability and each defendant's alleged role in the TCPA violations," the order states. "These allegations sufficiently put the defendants on notice of plaintiff's claims and the grounds upon which they rest."

St. Eve granted the motion to dismiss regarding Provell, finding that under Delaware law Toney's claims against a dissolved company cannot be allowed to continue.

The third amended complaint contains sufficient factual allegations to plead a plausible basis for holding Sempris vicariously liable for the alleged misconduct of Quality Resources under a formal agency theory, but not under theories of apparent authority or ratification, according to the order.


Toney is represented by Alexander Burke of Burke Law Offices LLC in Chicago; Anthony Paronich of Broderick Law PC in Boston; and Matthew McCue of the Law Office of Matthew McCue in Natick, Mass.

Quality Resources is represented by Jeffrey Backman and Richard W. Epstein of Greenspoon Marder PA in Ft. Lauderdale, Fla.; and Timothy A. Hudson of Tabet DiVito Rothstein in Chicago.

A status hearing is set for Dec. 9 to set a date for the close of discovery.

U.S. District Court for the Northern District of Illinois case number: 1:13-cv-00042

From Legal Newsline: Kyla Asbury can be reached at

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