Centralization – When Is It an Option? re: TCPA Litigation
On Friday August 7, 2015, the Judicial Panel on Multidistrict Litigation (the “Panel”) issued four decisions in pending TCPA cases: In re Holiday Cruise Line Tel. Consumer Prot. Act (TCPA) Litig., MDL No. 2637, 2015 U.S. Dist. LEXIS 103628 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re: Local Lighthouse Corp. Tel Consumer Prot. Act (TCPA) Litig., MDL No. 2644, 2015 US. Dist. LEXIS 103637 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re Portfolio Recovery Assoc., LLC, Tel. Consumer Prot. Act (TCPA) Litig., MDL 2295, 2015 U.S. Dist. LEXIS 103929 (J.P.M.L. Aug. 7, 2015) (granting motion to transfer for inclusion in coordinated or consolidated proceedings) and; In re Sirius XM Radio, Inc. Tel Consumer Prot. Act. (TCPA) Litig., MDL No. 2635, 2015 U.S. Dist. LEXIS 103629 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization). The four cases have relatively little in common aside from the fact that each involved a claim under the TCPA: In re Portfolio Recovery Assocs. involved alleged debt collection calls over VOIP lines, In re Sirius involved marketing calls that occurred after a free subscription to Sirius XM radio expired, In re Holiday Cruise Line involved unsolicited text messages, and In re Local Lighthouse Corp. involved marketing calls to both cellular and landline numbers. Despite the factual differences between the cases, there are two broad lessons from this group of decisions.
First, the decisions show that the Panel is committed to a thorough review of the facts of each case and that it may deny centralization even if the parties agree that centralization is appropriate. See In re: Local Lighthouse Corp., 2015 U.S. Dist. LEXIS 103637, at * 1-2. The Panel explicitly addressed this in its decision in In re Holiday Cruise Line, when it noted that “there is not sufficient factual overlap among these actions to warrant centralization. Two actions allege Holiday made telephone calls using an autodialer. Additionally, one action alleges violation of the ‘Do-Not-Call’ registry.” 2015 U.S. Dist. LEXIS 103628, at *2-3. The Panel only transferred the action in In Re Portfolio Recovery Assoc., after finding that the action “involve[d] common questions of fact with the actions previously transferred to MDL. No. 2295. . . .” 2015 U.S. Dist. LEXIS 103929 at * 2. But even here the Panel noted that there were claims brought against an unrelated Defendant and it encouraged the transferee judge to determine whether those claims should remain part of the action. Id. at *3 (“We encourage the transferee judge to scrutinize the claims and determine whether the claims against the non-Portfolio defendant are sufficiently related to the claims against Portfolio to remain in centralized proceedings.”).
Second, in the three cases denying centralization, the Panel once again reminded the parties that they could still coordinate and cooperate even without centralization. See In re: Sirius XM, 2015 U.S. Dist. LEXIS 103629, at * 3 (“In our view cooperation among the parties will be the best route to resolving these actions.”); In re Holiday Cruise Line, 2015 U.S. Dist. LEXIS 103628, at *3 (“Given the limited number of actions and common facts and the relative lack of complexity of the common issues, information cooperation among the involved attorneys will be sufficient to minimize any potential for duplicative discovery and inconsistent pretrial rulings.”). In these cases the Panel stressed informal mechanisms as a route to avoiding duplicative efforts, instead of transfer.
Ultimately, these decisions show that transfer, though a potentially useful tool for any party, is not available in every case. As the Panel reminded each of the parties in the cases in which it denied centralization, informal tools remain available to ease the burden on parties when transfer is denied.