Opinion
Case No. 2:21-cv-02557-JPM-atc
2022-02-16
Tuwanna CARMOUCHE, individually, and on behalf of all others similarly situated, Plaintiff, v. A1 DIABETES & MEDICAL SUPPLY, INC., Defendant.
Aaron David Radbil, The Law Office of Craig J. Ehrlich, LLC, Atlanta, GA, for Plaintiff. Robert F. Tom, Walter Preston Battle, IV, Zachary A. Kisber, Baker Donelson Bearman Caldwell & Berkowitz PC, Memphis, TN, for Defendant.
Aaron David Radbil, The Law Office of Craig J. Ehrlich, LLC, Atlanta, GA, for Plaintiff.
Robert F. Tom, Walter Preston Battle, IV, Zachary A. Kisber, Baker Donelson Bearman Caldwell & Berkowitz PC, Memphis, TN, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO STRIKE CLASS ALLEGATIONS WITH PREJUDICE
JON P. McCALLA, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant A1 Diabetes & Medical Supply, Inc.’s ("A1") Motion to Dismiss and/or Strike Class Allegations with Prejudice, filed on October 26, 2021. (ECF No. 19.) For the reasons discussed below, Defendant's Motion is DENIED IN PART and GRANTED IN PART .
I. BACKGROUND
a. Factual History and Assertions
Plaintiff Tuwanna Carmouche ("Ms. Carmouche") filed a Complaint alleging that A1 "routinely violated 47 U.S.C. § 227(b)(1)(A)(iii) by placing non-emergency calls using an artificial or prerecorded voice message to telephone numbers assigned to a cellular telephone service without prior express consent." (Compl., ECF No. 1 ¶ 2.) On occasions where Ms. Carmouche did not answer the phone, she alleges that the following message was left: "... to confirm your shipment. If it is more convenient, you may refill online at A1diabetes.com/refill. Again, please call us at 855-932-0599 to confirm your shipment. Or you may refill online at A1diabetes.com/refill. Thank you." (Id. ¶ 18.) Plaintiff alleges that A1 left these voicemail messages on her cellular phone after "Plaintiff informed Defendant that she was not diabetic, informed Defendant that she previously requested on a number of occasions that Defendant stop placing calls to her cellular telephone number, informed Defendant that it reached a wrong number, and instructed Defendant to stop placing calls to her cellular telephone number." (Id. ¶ 20.) In her Complaint, Ms. Carmouche contends that she is representative of the following classes brought under Federal Rule of Civil Procedure 23 :
A. All persons and entities throughout the United States (1) to whom A1 Diabetes & Medical Supply, Inc. placed, or caused to be placed, a call directed to a number assigned to a cellular telephone service, but not assigned to an A1 Diabetes & Medical Supply, Inc. customer, (2) by using an artificial or prerecorded voice, (3) from four years preceding the date of this class action complaint through the date of class certification.
B. All persons and entities throughout the United States (1) to whom A1 Diabetes & Medical Supply, Inc. placed, or caused to be placed, a call directed to a number assigned to a cellular telephone service, (2) by using an artificial or prerecorded voice, (3) after the party informed A1 Diabetes & Medical Supply, Inc. that the telephone number it called was a wrong or reassigned telephone number, or instructed A1 Diabetes & Medical Supply, Inc. that the telephone number it called was a wrong or reassigned telephone number, or instructed A1 Diabetes & Medical Supply, Inc. to stop placing calls to the telephone number, (4) from four years preceding the date of this class action complaint through the date of class certification.
(Id. ¶ 36.)
b. Procedural Background
Defendant A1 filed a Motion to Dismiss and/or Strike Class Allegations with Prejudice on October 26, 2021. (ECF No. 19.) A1 also filed a Memorandum in Support. (ECF No. 19-1.) Ms. Carmouche filed a Response in Opposition on November 30, 2021. (ECF No. 24.) A1 filed a Reply on December 14, 2021. (ECF No. 25.) The Court held a hearing on December 20, 2021. (ECF No. 27.) Ms. Carmouche filed a Notice of Supplemental Authority in Support of Her Response on January 18, 2022. (ECF No. 28.) A1 filed a Response to the Notice on January 21, 2022. (ECF No. 29.)
II. LEGAL STANDARD
a. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that "fail[s] to state a claim upon which relief can be granted." A Rule 12(b)(6) motion permits the "defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th Cir. 1987) ). A motion to dismiss only tests whether the plaintiff has pleaded a cognizable claim and allows the court to dismiss meritless cases which would waste judicial resources and result in unnecessary discovery. Brown v. City of Memphis, 440 F. Supp. 2d 868, 872 (W.D. Tenn. 2006).
When evaluating a motion to dismiss for failure to state a claim, the Court must determine whether the complaint alleges "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). If a court decides that the claim is not plausible, the case may be dismissed at the pleading stage. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The "[f]actual allegations must be enough to raise a right to relief above [a] speculative level." Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). A claim is plausible on its face if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). A complaint need not contain detailed factual allegations. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A plaintiff without facts who is "armed with nothing more than conclusions," however, cannot "unlock the doors of discovery." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 ; Green v. Mut. of Omaha Ins. Co., No. 10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011), aff'd 481 F. App'x 252 (6th Cir. 2012).
b. Motion to Strike
"The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Although courts generally defer ruling on class certification until discovery on the certification issue is complete ..., nothing in Rule 23 prevents a defendant from attempting to preemptively deny certification on the grounds that Rule 23(a) and (b) can never be satisfied." Schilling v. Kenton Cty., Ky., No. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011) (internal quotations omitted). "The court should defer decision on certification pending discovery if the existing record is inadequate for resolving the relevant issues." In re Am. Med. Sys., 75 F.3d 1069, 1086 (6th Cir. 1996) (internal quotations omitted).
III. ANALYSIS
a. Motion to Dismiss
A1 contends that "Plaintiff's claim fails as a matter of law because A1's alleged prerecorded voicemails to Plaintiff fall within the emergency purposes exception of the TCPA and therefore ‘fall outside the TCPA's consent framework.’ " (ECF No. 19-1 at PageID 69.) (quoting ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687, 714 (D.C. Cir. 2018).) A1 contends that "[t]he emergency purposes exception remains applicable even where calls are made to wrong or reassigned numbers." (Id. at PageID 71.) A1 contends that it "is a healthcare provider[,] and its calls are informational and directly related to the imminent health and safety risk posed from depleted medical supplies, particularly in light of COVID-19." (Id. at PageID 74.) A1 contends that "the content of A1's alleged prerecorded voice messages makes clear that the messages are for emergency purposes" because " ‘[t]he pandemic is a bona fide emergency, and information about how to obtain prescription medica[l supplies] without exposing oneself to COVID-19 is relevant to the public.’ " (Id. at PageID 75.) (second bracket in original.) (quoting Gabertan v. Walmart, Inc., 523 F. Supp. 3d 1254, 1260 (W.D. Wash. 2021).) Additionally, A1 contends that "[e]ven had the COVID-19 pandemic not taken place and not proliferated during the relevant timeframe when Plaintiff allegedly received calls in 2021, ‘a patient's ability to timely receive [ ] prescribed medic[al supplies] is critical in preventing a major health emergency.’ " (Id. at PageID 76.) (brackets in original.) (quoting Roberts v. Medco Health Sols., Inc., No. 4:15CV1368CDP, 2016 WL 3997071, at *3 (E.D. Mo. July 26, 2016).)
Ms. Carmouche, however, contends that because she is not a diabetic, "the artificial or prerecorded voice messages that Defendant delivered to Plaintiff's cellular telephone were not, and simply could not have been, ‘about a bona fide emergency that is relevant to [her].’ " (ECF No. 24 at PageID 107.) (brackets in original.) (quoting In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 31 F.C.C. Rcd. 6054, 9062 n.76 (2016).) Ms. Carmouche also contends that "[n]ot one of the decisions Defendant cites suggest[s] that the TCPA's ‘emergency purposes’ exception applies to artificial or prerecorded voice messages ... after she informed Defendant that she was not diabetic, informed Defendant that it reached a wrong number, and instructed Defendant to stop placing calls to her cellular telephone." (Id. at PageID 110.) Further, Ms. Carmouche contends that "the FCC 2020 declaratory ruling regarding COVID-19 does not compel a finding that the TCPA's ‘emergency purposes’ exception applies" because "nothing about Defendant's artificial or prerecorded voice messages to Plaintiff's cellular telephone w[as] ‘made necessary because of the COVID-19 outbreak.’ " (Id. at PageID 111–12.) (quoting In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 35 F.C.C. Rcd. 2840, 2841 (2020).)
On Reply, A1 contends that "Plaintiff's contention completely ignores the FCC's recent 2020 Declaratory Ruling, which states that ‘[i]n determining whether a call relating to the COVID-10 pandemic qualifies as a call made for an emergency purpose, we look to the identity of the caller and the content of the call.’ " (ECF No. 25 at PageID 140.) (emphasis and brackets in original.) (quoting 35 F.C.C. Rcd. At 2841.) As such, A1 contends that "the identity of the called party and whether it is a wrong or reassigned number is simply irrelevant for determining whether or not a call falls with[in] the emergency purposes exception." (Id. ) Further, A1 reiterates that "whether or not Plaintiff told A1 to stop calling her, i.e. , denied consent to call her, is irrelevant if a message fits within the exception because the TCPA and its consent requirements do not apply." (Id. at PageID 142.) (citing ACA Int'l, 885 F.3d at 714 ; Gabertan, 523 F. Supp. 3d at 1257 ; Dorfman v. Albertson's, LLC, No. 1:18-cv-00094-DCN, 2020 WL 86192, at *1 n.1 (D. Idaho Jan. 7, 2020) ; Dennis v. Amerigroup Wash., Inc., No. 3:19-cv-05165-RBL, 2020 WL 618472, at *3 (W.D. Wash. Feb. 10, 2020).)
Under federal law, automatic artificial or prerecorded voice calls to a cellular telephone service are unlawful "other than [ ] call[s] made for emergency purposes or made with the prior express consent of the called party." Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii). Calls made under the emergency purposes exception "fall outside the TCPA's consent framework; callers can make them even if recipients are known to object." ACA Int'l, 885 F.3d at 714. As a result, Ms. Carmouche's objections to the calls and her instructions for A1 to stop calling her do not create TCPA liability if the calls fall under the "emergency purposes" exception.
At issue, then, is whether A1's calls to Plaintiff fall under the "emergency purposes" exception and thus preclude the voice messages from TCPA liability. For health-related calls during the COVID-19 pandemic:
In determining whether a call relating to the COVID-19 pandemic qualifies as a call made for an emergency purpose, we look to the identity of the caller and content of the call. First, the caller must be from a hospital, or be a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf. Second, the content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.
35 F.C.C. Rcd. at 2840 ¶ 7. As a result of this FCC Declaratory Ruling, the following text message was found to be "an informational communication for an emergency purpose, to which the TCPA does not apply": "WalmartRx – Are you 60+, high-risk, self-quarantining, or have COVID-19 symptoms? Use curbside pickup or have your Rx mailed. More info [website url]." Gabertan, 523 F. Supp. 3d at 1256. The court held that the text message's "sole purpose was to provide information to its customer about the pandemic and its health and safety risks, and how to mitigate those risks, and was not an advertisement. It is exempt from the reach of the TCPA, as a matter of law." Id. at 1261. Notably though, the voice message at issue here does not mention COVID-19, and it is not, then, as plead in the facts by Plaintiff, directly related to the safety risks of the COVID-19 outbreak.
Regarding prescription notification calls generally, courts are split on whether or not such calls are for emergency purposes. For example, in Roberts v. Medco Health Solutions, the court held that "[c]alls like the ones here, involving an attempt to confirm or refill a prescription order, schedule a prescription delivery, or confirm that a prescription is on its way, fall within the ambit of calls made necessary in any situation affecting the health and safety of consumers" even though the call was made to a wrong number. No. 4:15 CV 1368 CDP, 2016 WL 3997071, at *3 (E.D. Mo. July 26, 2016) (internal citation omitted). See also Lindenbaum v. CVS Health Corp., No. 1:17-CV-1863, 2018 WL 501307, at *2 (N.D. Ohio Jan. 22, 2018) ("The calls here were made for the ‘health and safety of consumers.’ In most cases, information about where, when, and how to refill a prescription concerns the health and safety of consumers, who may be reliant on their medication.").
Other courts, however, have come to the opposite conclusion. For example, in Smith v. Rite Aid Corp., the court declined to "rule, as a matter of law, that prescription notices are necessarily shielded from TCPA liability by the emergency purpose exception." No. 17-CV-6044 CJS, 2018 WL 5828693, at *4 (W.D.N.Y. Nov. 7, 2018). See also Clair v. CVS Pharm., Inc., 222 F. Supp. 3d 779, 781 (N.D. Cal. 2016) ("Assuming, for argument's sake only, that Roberts was correctly decided, it does not stand for the proposition that all prescription-related calls are categorically made for emergency purposes.") ("CVS's argument stands for the proposition that pharmacies are totally immune from liability for making automated calls about prescriptions, no matter how often the calls are made and no matter how many times the customer asks for them to stop. This defies common sense."); Coleman v. Rite Aid of Ga., Inc., 284 F. Supp. 3d 1343, 1346 (N.D. Ga. 2018) ("If accepted, Rite Aid's argument would give carte blanche under the TCPA to companies that make automated calls related to prescription notifications.... [T]his outcome is inconsistent with the development of TCPA regulations and the emergency purpose exception generally: to prevent unwanted automated calls.").
Particularly because the "emergency purposes" exception is exempt from the consent requirement of the TCPA (see ACA Int'l, 885 F.3d at 714 ), it is all the more important that exempt calls truly be for "emergency purposes." Much like the courts in Smith, Clair, and Coleman, this Court finds that it is inappropriate to determine, as a matter of law, that A1's voice messages to Plaintiff's phone are calls "made necessary" for health and consumer safety. See, e.g., 47 C.F.R. § 64.1200(f)(4). Whether the calls were truly necessary and for "emergency purposes" is a question of fact requiring discovery into A1's reasons and criteria for making such calls and leaving voice messages. As a result, the Court DENIES Defendant's Motion to Dismiss.
b. Motion to Strike
A1 contends that, if the Court denies its Motion to Dismiss, the alleged classes should be stricken for three different reasons: (1) "individualized issues predominate over common questions of law and fact," (2) the "proposed classes are fail-safe classes and must be stricken and dismissed," and (3) a class certified under Rule 23(b)(2) would be improper "because Plaintiff explicitly seeks individualized monetary relief for class members." (ECF No. 19-1 at PageID 77–85.) A1 also contends that "[i]n the event that the Court finds that Plaintiff's proposed classes are not impermissible fail-safe classes, Class B is superfluous to Class A and should be stricken from the Complaint." (Id. at PageID 87.)
i. Predominance of Individualized Issues
"A class action may be maintained if ... the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). Defendant contends that Plaintiff cannot meet the predominance requirement, and as a result, the class action allegations should be stricken. (ECF No. 19-1 at PageID 77.)
Defendant contends that there are three factual issues which would require individualized consideration for each putative class member:
1. To the extent that the "emergency purposes" exception does not result in dismissal of this case, its applicability to each putative class member requires individualized determinations for each class member.
2. In regard to Class B, reasonable reliance on consent from a prior owner of a phone number is an individualized issue not appropriate for class certification.
3. Whether each class member is entitled to treble damages based on a knowing and willful violation of the TCPA with respect to that particular class member is an individualized issue.
(Id. at PageID 78.) Plaintiff responds that these arguments require fact discovery in order to make a class certification determination, and as such, do not provide a basis to strike the class allegations before discovery has started. (ECF No. 24 at PageID 117–18.)
A. Emergency Purposes Exception
Defendant contends that "[s]hould the Court find that Plaintiff's Complaint is not subject to dismissal at this stage based on the emergency purposes exception, the application of the exception nonetheless defeats Plaintiff's ability to certify a class." (ECF No. 19-1 at PageID 79.) Defendant contends that this case is factually similar to Dorfman, another case in which prescription order notification calls were being placed to the phone of a plaintiff who had never been a customer of that particular pharmacy. (See id. ) (citing Dorfman v. Albertson's, LLC, No. 1:18-cv-00094-DCN, 2020 WL 86192 (D. Idaho Jan. 7, 2020).) Defendant contends that, per Dorfman, " ‘the application of the emergency purposes exception is a fact-specific, individualized question’ that would require the Court ‘to make individualized inquiries into the circumstances and content of wrong number calls that class members received to determine if the messages fell within a TCPA exception.’ " (ECF No. 19-1 at PageID 79.) (emphasis omitted.) (quoting Dorfman, 2020 WL 86192 at *4.)
In response, Plaintiff contends that this case is distinguishable from Dorfman because, based on the way Plaintiff has defined the proposed classes, "this Court's ultimate decision as to whether, and under what circumstances, the TCPA's ‘emergency purposes’ exception is a defense to Plaintiff's claims, will apply to the proposed class members’ claims in a general and class-wide manner." (ECF No. 24 at PageID 122.)
At this early stage in the case, the Court cannot conclude with certainty that the application of the emergency purposes exception will require individualized consideration. Without adequate discovery, it is difficult to determine whether A1's "emergency purpose" for calling will be different for each plaintiff. If its "emergency purposes" rationale is solely due to the COVID-19 declaratory ruling, then as discussed above, whether the voice messages sufficiently fall under that exception will likely apply to all plaintiffs in the case. As such, this issue does not merit striking the class allegations from the case at this time. See In re Am. Med. Sys., 75 F.3d at 1086 ("[D]iscovery is to be encouraged on the class issue.") (internal quotation marks omitted).
B. Reasonable Reliance on Consent
A1 contends that, for Class B, "reasonable reliance on consent from a prior owner of a phone number is an individualized issue not appropriate for class certification." (ECF No. 19-1 at PageID 80.) A1 contends that, because the D.C. Circuit "vacated the on-call safe harbor" in ACA International, "the issue the Court must now consider in assessing TCPA liability in the context of a reassigned number is whether the ‘caller's ... reliance on the prior subscriber's consent [is] reasonable.’ " (Id. at PageID 80–81.) (quoting ACA Int'l, 885 F.3d at 707.) As a result, Defendant contends that "the proposed class implicates the highly individualized issue of whether A1 reasonably relied on consent obtained from a prior owner of the alleged wrong or reassigned number." (Id. at PageID 81.)
In response, Plaintiff contends that "multiple district courts have rejected the argument that Defendant now raises, which is that ACA Int'l mandated a ‘reasonable reliance’ defense." (ECF No. 24 at PageID 125.) (citing Jiminez v. Credit One Bank, N.A., 377 F.Supp.3d 324, 333–336 (S.D.N.Y. 2019) ; Perez v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2019 WL 1491694, at *7 (N.D. Cal. Apr. 4, 2019).) Further, Plaintiff contends that "this Court has no reason to address Defendant's suggested ‘reasonable reliance’ argument now, as Defendant neither moved to dismiss Plaintiff's class action complaint based on a defense sounding in reasonable reliance, nor asserted a defense sounding in reasonable reliance by way of an answer and affirmative defense to Plaintiff's complaint." (Id. at PageID 126.)
District courts are split on whether ACA International provides a "reasonable reliance" defense. See Perez, 2019 WL 1491694, at *7 ("Although defendant is correct that the decision in ACA International did not seem to contemplate leaving in place a ‘strict liability regime,’ nor did the court suggest that it was leaving in its place a ‘reasonable reliance’ standard."); but see Roark v. Credit One Bank, No. 16-173 (PAM/ECW), 2018 WL 5921652, at *3 (D. Minn. Nov. 13, 2018) ("To determine whether there has been a violation of this section of the TCPA under [ ACA International ], the Court must consider the reasonableness of the caller's reliance on a prior number holder's express consent."). As discussed below, however, there are other issues with Class B that make it an impermissible and duplicative class definition. As a result, the Court need not determine whether "reasonable reliance" is in fact an affirmative defense available post- ACA International.
C. Treble Damages for Knowing and Willful Violations
Defendant contends that "[e]ven assuming violations of the TCPA occurred as Plaintiff alleges, whether each putative class member is entitled to recover treble damages is an individualized issue not subject to class determination." (ECF No. 19-1 at PageID 82.) Defendant contends that "[w]hether a violation is willful or knowing will vary by each particular class member based on his/her own interactions and communications with A1 and what Defendant knew with respect to that particular class member." (Id. at PageID 83.)
Plaintiff contends that the willful or knowing requirement in seeking treble damages only requires that Defendant knowingly made the phone calls, not that it knew its conduct violated the TCPA. (ECF No. 24 at PageID 135.) (citing Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011) ; Sengenberger v. Credit Control Servs., Inc., No. 09C2796, 2010 WL 1791270, at *6 (N.D. Ill. May 5, 2010).) As a result, Plaintiff contends, seeking treble damages does not make this inquiry individualized. (Id. ) (citing Hossfeld v. Lifewatch, Inc., No. 1:13-CV-9305, 2021 WL 1422785, at *8 (N.D. Ill. Feb. 5, 2021).)
Defendant, in reply, contends that "[c]ourts in the Sixth Circuit reject the notion ... that a knowing violation occurs simply where a defendant ‘voluntarily made’ a phone call, because ‘[s]uch a broad application of willful or knowing would significantly diminish the statute's distinction’ " between violations that are willful and knowing and those that are not. (ECF No. 25 at PageID 146.) (quoting Harris v. World Fin. Network Nat'l Bank, 867 F. Supp. 2d 888, 895 (E.D. Mich. 2012).) As a result, Defendant contends that "Plaintiff's request for treble damages necessarily implicates the individualized issue of consent and should be stricken." (Id. )
While it would be illogical to simply require the Defendant to have knowingly made the phone calls to justify treble damages, Defendant's contention that willful or knowing conduct would necessarily require an individualized inquiry is also incorrect, at least at this stage in the case. It is possible that, based on, for example, Defendant's general practices or policies regarding its call logs, the matter of willful or knowing violations would not be a predominantly individualized inquiry; it is too soon to determine at this time.
ii. Fail-Safe Classes
Defendant also contends that "Plaintiff's class allegations based on consent and revocation should be stricken and dismissed because it is apparent from the face of the Complaint that they constitute improper fail-safe classes precluded by Rule 23." (ECF No. 19-1 at PageID 83.) Defendant states that "[i]n the Sixth Circuit, when a proposed class is defined in such a manner that it ‘only include[s] those who are entitled to relief,’ the class ‘is an improper failsafe class.’ " (Id. ) (quoting Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011).) Defendant contends that "[b]oth Class A and Class B in Plaintiff's Complaint are premised on consent that either never existed or that was revoked and, thus, they constitute impermissible fail-safe classes." (Id. at PageID 85.) Defendant contends that these are fail-safe classes because "Plaintiff's proposed class definitions would necessarily mean that only those with a successful claim against A1 will be a member of those classes." (Id. )
In response, Plaintiff contends that the proposed classes are not fail-safe classes because "if this Court finds, after certifying Plaintiff's first proposed class and on summary judgment, for example, that the ‘emergency purposes’ exception applies to every ‘wrong number’ call at issue, the claims of each member of Plaintiff's first proposed class will fail, but the class members will remain in the class." (ECF No. 24 at PageID 128.) Plaintiff further contends:
Likewise, if the Court finds, after certifying Plaintiff's second proposed class and on summary judgment, for example, that the "emergency purposes" exception applies to the "wrong number" calls at issue even after a called party informed Defendant to stop placing calls to him or her, the claims of each member of Plaintiff's second proposed class will fail, but the class members will remain in the class. So, again, if Defendant succeeds in convincing this Court of its post-cease and desist "emergency purposes" exception defense on summary judgment and after Plaintiff's second proposed class is certified, res judicata will bar members of Plaintiff's second proposed class from re-litigating their claims.
(Id. at PageID 129.) As a result, Plaintiff contends that "[n]o construction of Plaintiff's proposed class definitions, therefore, will allow members of Plaintiff's proposed classes to seek a remedy but not be bound by an adverse judgment." (Id. )
In reply, Defendant contends that "membership in Class A is premised on the issue of consent, which is central to determining a defendant's liability under the TCPA." (ECF No. 25 at PageID 147.) (citing Lindsay Transmission, LLC v. Office Depot, Inc., No. 4:12-CV-221 (CEJ), 2013 WL 275568, at *4 (E.D. Mo. Jan. 24, 2013).) Defendant contends that "[t]he same analysis applies for Class B's proposed members, who allegedly informed A1 that it had called a wrong number or instructed A1 to stop placing calls to the telephone number." (Id. ) Defendant contends that "the improper fail-safe class definitions do not hinge on the applicability of the emergency purposes exception." (Id. at PageID 148.)
In alleged class actions under the TCPA, courts have generally found that proposed classes defined based on a lack of consent were impermissible "fail-safe classes." See, e.g., Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 625–26 (E.D. Pa. 2015) ("Both classes Zarichny defined are fail-safe classes.") ("The putative TCPA class is comprised of those people who received CPRS telephone calls without the recipient's ‘prior express consent[.]’ ... [T]here is no way to provide notice to that putative class without the sort of extensive fact-finding that class actions should avoid."); Sauter v. CVS Pharm., Inc., No. 2:13-cv-846, 2014 WL 1814076, at *8–9 (S.D. Ohio May 7, 2014) ("Each of the Plaintiff's proposed classes is defined to include only those individuals who did not expressly consent to the receipt of the defendant's phone calls made with the use of an ATDS.") ("In other words, ‘the proposed class[es] consist[ ] solely of persons who can establish that defendant violated the TCPA.’ ") (quoting Lindsay Transmission, 2013 WL 275568 at *4 ); Boyer v. Diversified Consultants, Inc., 306 F.R.D. 536, 540 (E.D. Mich. 2015) (finding the proposed classes were fail-safe because they only "consist of those people who did not provide prior express consent to be contacted by defendants, and therefore can establish a violation of the TCPA").
That being said, in many of these cases, the courts allowed the plaintiff to revise the putative class action so that it would not define an impermissible fail-safe class. See Sauter, 2014 WL 1814076, at *9 (granting the plaintiff fourteen days to file an amended complaint after finding the proposed classes were fail-safe); Boyer, 306 F.R.D. at 540 (granting plaintiff fourteen days to file an amended complaint to no longer have fail-safe classes). In other instances, the court itself revised the putative class to allow the action to proceed. See Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2018 WL 2694457, at *9 (D.N.M. June 5, 2018) (modifying the class definition to include, "Excluded are customers of First National Bank Texas or First Community Bancshares, Inc." and determining that the modification did "not create an improper ‘fail-safe’ class").
Plaintiff's Class A does not reference consent or lack thereof in its definition. (See ECF No. 1 ¶ 36.) Much like the court's modified class definition in Lavigne, the proposed class instead consists of persons or entities that A1 called that were not A1 customers. Further, this definition does not encompass a class in which only those entitled to relief are included because it does not require a finding that A1 violated the TCPA in order to ascertain this proposed class.
For Class B, the class is defined by consent, as it requires that the individual affirmatively informed A1 to stop calling them. (See id. ) As such, it would more likely encompass a class solely based on those entitled to relief and, further, because it relies on fact-finding as to each individual's interactions with A1, it would require "the sort of extensive fact-finding that class actions should avoid." Zarichny, 80 F. Supp. 3d at 625–26. Also, as discussed below, Class B is effectively duplicative of Class A. The Court GRANTS the Motion to Strike as to Class B and DENIES the Motion as to Class A.
iii. Class Certification Under Rule 23(b)(2)
Defendant contends that "Plaintiff cannot certify a class pursuant to Rule 23(b)(2) ... because Plaintiff seeks individual monetary relief for each putative class member." (ECF No. 19-1 at PageID 85.) Plaintiff, in response, contends that "Defendant's argument is little more than a solution in search of a problem, because, as Plaintiff indicated through her complaint, she intends to seek certification under Rule 23(b)(3)." (ECF No. 24 at PageID 132.) The Court DENIES AS MOOT Defendant's Motion to Strike as to certifying a class under Rule 23(b)(2) because no such class has been alleged.
iv. Duplicative Class
Finally, Defendant contends that "[i]n the event that the Court finds that Plaintiff's proposed classes are not impermissible fail-safe classes, Class B is superfluous to Class A and should be stricken from the Complaint." (ECF No. 19-1 at PageID 87.) In support, Defendant cites a Western District of Kentucky opinion in which the court "struck a superfluous class that attempted to distinguish between consumers who had never consented to receive calls and those who revoked their consent, as Plaintiff alleges here." (Id. at PageID 88.) (citing Eldridge v. Cabela's Inc., No. 3:16-cv-536-DJH, 2017 WL 4364205, at *8–10 (W.D. Ky. Sept. 29, 2017).) In Eldridge, the court found that "[s]ection 227(b) does not distinguish between consumers who have requested to stop receiving calls and consumers who never consented in the first place." 2017 WL 4364205, at *10.
In response, Plaintiff contends that the classes are not duplicative because "Plaintiff's first proposed class definition includes non-customers of Defendant to whose cellular telephones Defendant delivered an artificial or prerecorded voice message," while "Plaintiff's second proposed class definition includes non-customers of Defendant to whose cellular telephones Defendant delivered an artificial or prerecorded voice message after the non-customers instructed Defendant to stop placing class to their cellular telephones." (ECF No. 24 at PageID 130.) Plaintiff contends that the distinction matters because in the event the Court finds the "emergency purposes" exception applies to Class A, it could not find that the exception applies "after recipients of the messages asked Defendant to stop delivering them." (Id. )
As discussed above, in evaluating the Motion to Dismiss, whether or not the class members told Defendant to stop calling is irrelevant as to whether the "emergency purposes" exception applies. As a result, the Court GRANTS Defendant's Motion to Strike as to Class B for this reason in addition to it being written as a fail-safe class, as discussed above.
IV. CONCLUSION
For the reasons set forth above, the Court DENIES Defendant's Motion to Dismiss and DENIES IN PART and GRANTS IN PART Defendant's Motion to Strike Class Allegations with Prejudice.
SO ORDERED , this 16th day of February, 2022.