United States District Court, E.D. California
VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all similarly situated, Plaintiffs,
v.
WILSHIRE COMMERCIAL CAPITAL L.L.C., a California limited liability company, dba WILSHIRE CONSUMER CREDIT, Defendant.
ORDER
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE
Plaintiffs
brought this putative class action on July 6, 2015, alleging
that defendant Wilshire Commercial Capital, LLC used an
Automatic Telephone Dialing System ("ATDS") to
unlawfully call plaintiffs and the putative class without
their prior express consent in violation of the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. §
227 et seq. At the initial status conference on October 26,
2015, the parties agreed to stay all proceedings, with the
exception of certain limited discovery, pending the
resolution of certain dispositive motions in a
previously-filed and substantially similar putative class
action pending against defendant in the Southern District of
California ("Banarji"). (See Docket No. 19);
Banarji v. Wilshire Commercial Capital, LLC, Civ.
No. 3:14-2967 BEN KSC (S.D. Cal. filed Dec. 17, 2014). In the
meantime, the parties agreed to conduct limited discovery in
the present action on the capacity of the dialing system that
defendant used.
At a
further status conference on April 11, 2016, the parties
informed the court that the Southern District of California
denied class certification in Banarji and the plaintiff in
that action had filed an interlocutory appeal that was likely
going to be dismissed by the Ninth Circuit. (See Docket No.
28.) The parties agreed that, notwithstanding Banarji, the
present action should proceed in this district, and the court
lifted the stay of the proceedings here. (Id.) Since
April 11, 2016, the Ninth Circuit has dismissed the Banarji
plaintiff's interlocutory appeal, and the Southern
District of California has similarly denied the Banarji
plaintiff's motion for a certificate of appealability of
the order denying class certification. Banarji (ECF Nos. 57,
59). Because the class claims in Banarji can no longer
proceed, Banarji does not substantially overlap with the
present action.
The
parties now inform the court, however, that there is yet
another previously-filed and substantially similar putative
class action currently pending in the Western District of
Pennsylvania ("Duchene"). (See Docket No. 29);
Duchene v. Westlake Services, LLC, Civ. No.
2:13-1577 MRH (W.D. Pa. filed Sept. 26, 2013). That action
asserts similar TCPA class claims against defendant's
parent company--Westlake Services, LLC
("Westlake")--and its agents. Plaintiffs contend
that defendant should have notified plaintiffs and the court
of the Duchene action in the Notice of Related Action that
defendant filed on August 31, 2015. (See Docket No. 12.)
Defendant argues, however, that Duchene is not related to the
present action because "[t]he Duchene matter was filed
against Westlake Services, LLC and at no time was Defendant
Wilshire Commercial Capital, LLC a party thereto or
encompassed within the class definition." (Docket No. 29
at 2-3.)
Defendant's
argument that Duchene is not a related case is puzzling to
say the least. The complaint in Duchene alleges that Westlake
and its agents used an ATDS to call the putative class
members, who were listed as personal references on loan
applications, without their prior express consent in
violation of the TCPA. Duchene Compl. ¶¶ 1, 22-28
(ECF No. 1). The Complaint in the present action similarly
alleges that defendant--which is Westlake's
subsidiary--used an ATDS to unlawfully call the putative
class members, who were also listed as references on loan
applications, without their prior express consent in
violation of the TCPA. (Compl. ¶¶ 1, 20-29 (Docket
No. 2).) Both lawsuits seek to represent a class of persons
in the United States who received such calls during the four
years preceding the filing of the actions. (Compl. ¶
29); Duchene Compl. ¶ 28.
On
February 22, 2016, the Western District of Pennsylvania in
Duchene granted preliminary approval of a class action
settlement and conditionally certified the settlement class
as:
All persons to whom Westlake, its agents and/or its
independent contractors between January 11, 2012, and
November 7, 2013 placed a telephone call using an automatic
telephone dialing system or an artificial or prerecorded
voice to the person's cellular telephone in connection
with the confirmation of a loan applicant's references.
Duchene Prelim. Approval Order at 3 (ECF No.
108).[1] The approved Settlement Agreement in
Duchene defines "Westlake" as:
Westlake Services, LLC d/b/a Westlake Financial Services and
all Westlake entities, subsidiaries, affiliates, agents,
identified independent contractors, and identified vendors,
including their predecessor and successor entities and
related entities, that participated in making the Calls . . .
or in any other act or omission alleged in the Complaint to
have been wrongful.
Id. Settlement Ag. art. II, ¶ 2 (ECF No. 107-1)
(emphasis added).
The
Settlement Agreement in Duchene provides that, upon final
approval, all claims by the settlement class members shall be
dismissed with prejudice and "[n]o other action, demand,
suit, arbitration or other claim may be pursued against
Westlake or the related entities released herein with respect
to the Calls or released claims." Id. art. V,
¶ 1(a)-(b). Additionally, the Settlement Agreement
provides that, upon final approval, the settlement class
members "and all those who claim through them or who
assert claims (or could assert claims) on their behalf)"
shall release "Westlake . . . and its parents,
subsidiaries, affiliates, officers, directors, employees,
attorneys, shareholders, agents, independent contractors,
vendors and assigns" from "all past, present and
future claims . . . from the beginning of the world until
today, " arising out of the use "of any [ATDS] to
make Calls to a cellular telephone number . . . in connection
with efforts to contact or attempt to contact Settlement
Class Members, including but not limited to claims arising
under . . . the TCPA." Id. art. II, ¶ 24
(emphasis added); Id. art. V, ¶
1(c).[2]
The
final approval hearing in Duchene was held on July 12, 2016.
Following that hearing, the district court in Duchene issued
a minute order stating that "[a]n appropriate Order will
issue." Id. (ECF No. 138). The court in Duchene
also stated in its preliminary approval order that:
"Pending final determination of whether the Settlement
should be approved, Plaintiff, all persons in the Settlement
Class, and persons purporting to act on their behalf are
enjoined from commencing or prosecuting (either directly,
representatively, or in any other capacity) any released
claim against any of the released parties in any action,
arbitration or proceeding in any court, arbitration forum or
tribunal." Id. Prelim. Approval Order at 7.
In
light of the events in the Duchene action and pursuant to the
provisions of Federal Rule of Civil Procedure 16, the court
finds that a continuance of the July 18, 2016 status
conference in this matter is warranted pending the Western
District of Pennsylvania's ruling on the final approval
of the class action settlement in Duchene. The court will
therefore continue the July 18, 2016 status conference to
August 15, 2016.
Counsel
are required to appear at the August 15, 2016 status
conference and be prepared to address the following issues:
(1) whether any claims in the present action are or will be
barred if final approval of the class action settlement in
Duchene is granted; and (2) if final approval of the class
action settlement has not been granted in Duchene by the
August 15, 2016 status conference, whether the present action
should be stayed pending the resolution of the Duchene class
action settlement. Prior to the August 15, 2016 status
conference, the parties shall file an ...