In re Capital One Telephone Consumer Protection Act Litigation

Judicial Panel on Multidistrict Litigation

In re Capital One Telephone Consumer Protection Act Litigation

908 F. Supp. 2d 1366, 2012 WL 6554687, 2012 U.S. Dist. LEXIS 177693

CourtUnited States Judicial Panel on Multidistrict Litigation

DecidedDecember 10, 2012

DocketMDL No. 2416

StatusPublished

Cited by2 cases

This text of 908 F. Supp. 2d 1366 (In re Capital One Telephone Consumer Protection Act Litigation) is published on Counsel Stack Legal Research, covering United States Judicial Panel on Multidistrict Litigation primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Capital One Telephone Consumer Protection Act Litigation, 908 F. Supp. 2d 1366, 2012 WL 6554687, 2012 U.S. Dist. LEXIS 177693 (jpml 2012).

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Opinion

TRANSFER ORDER

JOHN G. HEYBURN II, Chairman.

Before the Panel:

* Pursuant to 28 U.S.C. § 1407, common defendant Capital One Bank (USA), N.A. (Capital One) moves to centralize this litigation in the Northern District of Illinois. The litigation encompasses the 31 actions listed on Schedule A.¹

[1367]*1367Leading Edge Recovery Solutions, LLC, which is a defendant in the Northern District of Illinois Martin action, supports centralization in the Northern District of Illinois. All responding plaintiffs (plaintiffs in 30 of the 31 actions), however, oppose centralization. If the Panel nevertheless orders centralization, plaintiffs in seven actions support selection of the Western District of Washington as the transferee district, while plaintiffs in the twenty so-called “Trustee Cases” — all of which are pending in the Middle District of Florida — support centralization in that district.

The subject actions share factual issues regarding Capital One’s policies and procedures for calling, or directing its agents to call, consumers, as well as Capital One’s policies and procedures for obtaining and recording a consumer’s consent to receive collection calls on his or her cell phone. In opposing centralization, responding plaintiffs argue, inter alia, that the actions involve primarily case-specific issues, contending that each plaintiff was subjected to different collection activity, including different frequencies of collection telephone calls, different statements made during those calls, and other different circumstances surrounding those calls. Although we agree that these actions do present a number of individualized factual issues, the existence of such issues does not negate the common ones, including, in particular, those concerning whether Capital One willfully violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.² Once discovery and other pretrial proceedings related to those common issues have been completed, the transferee judge may conclude that issues unique to one or more of the centralized actions counsel in favor of returning those actions to their transferor courts. See In re: Evergreen Valley Project Litig., 435 F.Supp. 923, 924 (J.P.M.L.1977) (“It is not contemplated that a Section 1407 transferee judge will necessarily complete all pretrial proceedings in all actions transferred and assigned to him by the Panel, but rather that the transferee judge in his discretion will conduct the common pretrial proceedings with respect to the actions and any additional pretrial proceedings as he deems otherwise appropriate.”). In that event, we encourage him to suggest remand promptly, in accordance with Panel Rule 10.1(b). See In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F.Supp.2d 1376, 1378 (J.P.M.L.2010).

On the basis of the papers filed and hearing session held, we find that these 31 actions involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. As stated above, these actions share factual issues regarding Capital One’s policies and procedures with respect to the placement of collection calls, as well as its policies and procedures for obtaining and recording a consumer’s consent to receive such calls. See In re: Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 846 F.Supp.2d 1380, 1381 (J.P.M.L.2011) (“[Cjentralization will promote efficient conduct of the litigation by preventing duplicative discovery into Portfolio’s policies and practices as to its calling procedures.”). Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings (on class certification³ and other matters), and [1368]*1368conserve the resources of the parties, their counsel, and the judiciary.

We conclude that the Northern District of Illinois is an appropriate transferee district for pretrial proceedings in this litigation. Two of the constituent actions are pending in that district, including one commenced in August 2011. In addition, the subject actions (both constituent and potential tag-along) are scattered throughout the country, and the Northern District of Illinois offers a relatively central and convenient forum for the involved parties and counsel. Finally, the Honorable James F. Holderman, Jr., to whom we assign this MDL, is a veteran transferee judge who has the experience to guide this litigation on a course that is both prudent and expeditious.

IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Northern District of Illinois are transferred to the Northern District of Illinois, and, with the consent of that court, assigned to the Honorable James F. Holder-man, Jr., for coordinated or consolidated pretrial proceedings.

SCHEDULE A

MDL No. 2416 — IN RE: CAPITAL ONE TELEPHONE CONSUMER PROTECTION ACT LITIGATION

Middle District of Florida

Lindy Libert v. Capital One Bank (USA), N.A., C.A. No. 3:12-00526

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:11-00752

Beth Ann Scharrer v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00053

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00074

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00077

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00241

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00301

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00352 Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00480

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00592

Larry S. Hyman v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00683

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00705

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00744

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00745

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00766

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00795

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00800

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00847

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00857

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00859

[1369]*1369Stephen L. Meininger v.

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TRANSFER ORDER

JOHN G. HEYBURN II, Chairman.

Before the Panel:
* Pursuant to 28 U.S.C. § 1407, common defendant Capital One Bank (USA), N.A. (Capital One) moves to centralize this litigation in the Northern District of Illinois. The litigation encompasses the 31 actions listed on Schedule A.¹

[1367]*1367Leading Edge Recovery Solutions, LLC, which is a defendant in the Northern District of Illinois Martin action, supports centralization in the Northern District of Illinois. All responding plaintiffs (plaintiffs in 30 of the 31 actions), however, oppose centralization. If the Panel nevertheless orders centralization, plaintiffs in seven actions support selection of the Western District of Washington as the transferee district, while plaintiffs in the twenty so-called “Trustee Cases” — all of which are pending in the Middle District of Florida — support centralization in that district.

The subject actions share factual issues regarding Capital One’s policies and procedures for calling, or directing its agents to call, consumers, as well as Capital One’s policies and procedures for obtaining and recording a consumer’s consent to receive collection calls on his or her cell phone. In opposing centralization, responding plaintiffs argue, inter alia, that the actions involve primarily case-specific issues, contending that each plaintiff was subjected to different collection activity, including different frequencies of collection telephone calls, different statements made during those calls, and other different circumstances surrounding those calls. Although we agree that these actions do present a number of individualized factual issues, the existence of such issues does not negate the common ones, including, in particular, those concerning whether Capital One willfully violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.² Once discovery and other pretrial proceedings related to those common issues have been completed, the transferee judge may conclude that issues unique to one or more of the centralized actions counsel in favor of returning those actions to their transferor courts. See In re: Evergreen Valley Project Litig., 435 F.Supp. 923, 924 (J.P.M.L.1977) (“It is not contemplated that a Section 1407 transferee judge will necessarily complete all pretrial proceedings in all actions transferred and assigned to him by the Panel, but rather that the transferee judge in his discretion will conduct the common pretrial proceedings with respect to the actions and any additional pretrial proceedings as he deems otherwise appropriate.”). In that event, we encourage him to suggest remand promptly, in accordance with Panel Rule 10.1(b). See In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F.Supp.2d 1376, 1378 (J.P.M.L.2010).

On the basis of the papers filed and hearing session held, we find that these 31 actions involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. As stated above, these actions share factual issues regarding Capital One’s policies and procedures with respect to the placement of collection calls, as well as its policies and procedures for obtaining and recording a consumer’s consent to receive such calls. See In re: Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 846 F.Supp.2d 1380, 1381 (J.P.M.L.2011) (“[Cjentralization will promote efficient conduct of the litigation by preventing duplicative discovery into Portfolio’s policies and practices as to its calling procedures.”). Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings (on class certification³ and other matters), and [1368]*1368conserve the resources of the parties, their counsel, and the judiciary.

We conclude that the Northern District of Illinois is an appropriate transferee district for pretrial proceedings in this litigation. Two of the constituent actions are pending in that district, including one commenced in August 2011. In addition, the subject actions (both constituent and potential tag-along) are scattered throughout the country, and the Northern District of Illinois offers a relatively central and convenient forum for the involved parties and counsel. Finally, the Honorable James F. Holderman, Jr., to whom we assign this MDL, is a veteran transferee judge who has the experience to guide this litigation on a course that is both prudent and expeditious.

IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Northern District of Illinois are transferred to the Northern District of Illinois, and, with the consent of that court, assigned to the Honorable James F. Holder-man, Jr., for coordinated or consolidated pretrial proceedings.

SCHEDULE A

MDL No. 2416 — IN RE: CAPITAL ONE TELEPHONE CONSUMER PROTECTION ACT LITIGATION

Middle District of Florida

Lindy Libert v. Capital One Bank (USA), N.A., C.A. No. 3:12-00526

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:11-00752

Beth Ann Scharrer v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00053

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00074

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00077

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00241

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00301

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00352 Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00480

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00592

Larry S. Hyman v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00683

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00705

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00744

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00745

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00766

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00795

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00800

V. John Brook v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00847

Stephen L. Meininger v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00857

Angela W. Esposito v. Capital One Bank (USA), N.A., Bky. Adv. No. 8:12-00859

[1369]*1369Stephen L. Meininger v. Capital One Bank (USA), N.A., C.A. No. 8:12-00641

Desiree McShane v. Capital One Services, LLC, C.A. No. 8:12-01273

Northern District of Illinois

Nicholas Martin, et al. v. Leading Edge Recovery Solutions, LLC, C.A. No. 1:11—05886

Charles G. Patterson v. Capital Management Services, L.P., C.A. No. 1:12-01061

Northern District of Indiana

Benjamin Wilkes v. Capital One National Association, C.A. No. 4:12-00047

Northern District of Iowa

Dean Schauf et al. v. Capital One Bank (USA), N.A., C.A. No. 2:12-01006

Southern District of Iowa

Jill Angela Coy v. Capital One Bank (USA), N.A., C.A. No. 4:12-00123

District of Minnesota

Marklyn Tyrone Johnson v. Capital One Bank (USA), N.A., C.A. No. 0:12-00584

Southern District ofNeiv York

Carrie Tate v. Capital One, N.A., C.A. No. 1:12-06361

Middle District of Pennsylvania

Jessica Vadella v. Capital One Bank (USA), N.A., et al., C.A. No. 3:12-00851

Western District of Washington

Bridgett Amadeck, et al. v. Capital One Financial Corporation, et al., C.A. No. 2:12-00244

Judge Kathryn H. Vratil took no part in the decision of this matter.

¹
. As filed, the Section 1407 motion encompassed two additional actions, one in the Southern District of Florida and one in the Middle District of Georgia. Both actions, however, have since been dismissed. The Panel has been notified of seven related feder[1367]*1367al actions. Those actions and any other related actions are potential tag-along actions. See Rules 1.1(h), 7.1, and 7.2.

²
. The TCPA authorizes an award of actual damages, or $500, per violation, whichever is greater. 47 U.S.C. § 227(b)(3). These amounts are trebled for willful violations. Id.

³
. Three of the constituent actions are putative class actions (two nationwide and one Illinois-wide).

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908 F. Supp. 2d 1366, 2012 WL 6554687, 2012 U.S. Dist. LEXIS 177693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-capital-one-telephone-consumer-protection-act-litigation-jpml-2012.

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