The Judicial Panel on Multidistrict Litigation (JPML) recently centralized four putative class actions asserting that the defendants (Monitronics International, Inc. and its agents) violated the TCPA by making telemarketing calls to numbers on the national Do Not Call Registry or to persons from whom they did not have consent. See In Re Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL No. 2493 (Dec. 16, 2013). A copy of the JPML’s decision is available here.
Monitronics moved for centralization, which was supported by three of the four named plaintiffs but (notably) by only one of the four co-defendants. The JPML found that centralization would “serve the convenience of the parties and witnesses,” “promote the just and efficient conduct of this litigation,” “eliminate duplicative discovery,” “prevent inconsistent pretrial rulings,” “conserve the resources of the parties, their counsel and the judiciary,” and be “consistent with our prior decisions involving TCPA claims.” Slip Op. at 3; see also id. at 3 n.6 (citing In re Convergent Tel. Consumer Prot. Act Litig., — F. Supp. 2d —, 2013 WL 5596117, at *2 (J.P.M.L. Oct. 8, 2013); In re Enhanced Recovery Co., LLC, Tel. Consumer Prot. Act Litig., LLC, 899 F. Supp. 2d 1382 (J.P.M.L. 2012); In re Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 846 F. Supp. 2d 1380 (J.P.M.L. 2011); In re Midland Credit Mgmt., Inc., Tel. Consumer Prot. Act Litig., 818 F. Supp. 2d 1377 (J.P.M.L. 2011)).
The parties opposing centralization had argued that the actions were factually different because they concerned “different agents or dealers” and because some “focused exclusively on alleged Do Not Call Registry violations” while others “focused exclusively on automated telemarketing calls” to recipients who had not consented. The JPML acknowledged the factual differences but rejected the legal argument:
Although we agree that these actions present some individualized factual issues, the existence of such issues does not negate the common ones, including, in particular, those concerning Monitronics’ policies and procedures for calling consumers, directly or through agents, for the purpose of selling home security products or services, as well as its procedures for obtaining and recording the consumer’s consent for such calls. Additionally, all actions allege that Monitronics willfully violated the TCPA, and are likely to rely on the same alleged history of complaints to regulatory authorities and Monitronics’ knowledge of its TCPA obligations.
Id. at 2 (citing In re Capital One Tel. Consumer Prot. Act Litig., 908 F. Supp. 2d 1366, 1367 & n.1 (J.P.M.L. 2012)). As for different actions naming different agents as co-defendants, the JPML found those differences “of little consequence because most of the actions seek to hold Monitronics liable for calls by all agents placing calls on its behalf, rather than limiting the TCPA liability to calls placed by one specific agent.” Id. at 2 n.3 (emphasis in original).
The parties opposing centralization had also pointed to differences in proposed class definitions. The JPML acknowledged those differences but deemed them “overstated”:
Two actions propose virtually identical nationwide classes of persons who received automated telemarketing calls on wireless lines. Another action proposes a nationwide class that encompasses both types of the allegedly distinct violations—that is, calls to those on the Do Not Call Registry and calls using a prerecorded message. Thus, although there are differences in the proposed classes, a centralized proceeding is likely to facilitate a coordinated approach to the class claims.
Id. at 2.
Finally, those opposing centralization had pointed to differences in the procedural postures of the actions, for example that discovery had been conducted in some but not others. The JPML found that centralization would benefit all parties, even those in the more advanced actions:
Transfer under Section 1407 will offer the benefit of placing all related actions before a single judge who can structure pretrial proceedings to accommodate all parties’ legitimate discovery needs while ensuring that common witnesses are not subjected to duplicative discovery demands…. Section 1407 centralization thus will enable pretrial proceedings to be conducted in a manner that will lead to the just and expeditious resolution of all related actions, which is to the overall benefit of all parties.
Id. at 2 (citation omitted).
The JPML then transferred three of the actions to the Northern District of West Virginia (where the first-filed and most-advanced action was pending) and assigned them to the Honorable Irene M. Keeley (who was presiding over it). Id. at 3. In doing so, it expressed its confidence that Judge Keeley would “steer this litigation on a prudent course” and “structure this litigation so as to minimize delay and avoid unnecessary duplication of discovery and motion practice.”
The decision is a helpful reminder that those facing duplicative discovery demands in related TCPA actions can seek centralization despite differences in the facts alleged or claims asserted.
