Freeman et al v. Wilshire Commercial Capital L.L.C.

Filing 30

ORDER signed by Senior Judge William B. Shubb on 7/13/16 ORDERING the Status Conference set for July 18, 2016 is hereby continued to August 15, 2016 at 1:30 PM in Courtroom No. 5, pending the Western District of Pennsylvania's ruling on t he final approval of the class action settlement in Duchene v. Westlake Services, LLC, Civ. No. 2:13-1577 MRH (W.D. Pa.); the parties shall meet and confer prior to the August 15, 2016 Status Conference; and the parties shall submit an updated Joint Status Report by no later than August 8, 2016 addressing the issues outlined in this Order and any other issues that they think need to be addressed at the August 15, 2016 Status Conference. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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VERINA FREEMAN and VALECEA
DIGGS, individually and on
behalf of all similarly
situated,

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Civ. No. 2:15-1428 WBS AC
ORDER

Plaintiffs,
v.
WILSHIRE COMMERCIAL CAPITAL
L.L.C., a California limited
liability company, dba
WILSHIRE CONSUMER CREDIT,
Defendant.
----oo0oo---Plaintiffs brought this putative class action on July

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6, 2015, alleging that defendant Wilshire Commercial Capital, LLC

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used an Automatic Telephone Dialing System (“ATDS”) to unlawfully

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call plaintiffs and the putative class without their prior

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express consent in violation of the Telephone Consumer Protection

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Act (“TCPA”), 47 U.S.C. § 227 et seq.

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conference on October 26, 2015, the parties agreed to stay all

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proceedings, with the exception of certain limited discovery,
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At the initial status

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pending the resolution of certain dispositive motions in a

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previously-filed and substantially similar putative class action

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pending against defendant in the Southern District of California

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(“Banarji”).

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Capital, LLC, Civ. No. 3:14-2967 BEN KSC (S.D. Cal. filed Dec.

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17, 2014).

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limited discovery in the present action on the capacity of the

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dialing system that defendant used.

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(See Docket No. 19); Banarji v. Wilshire Commercial

In the meantime, the parties agreed to conduct

At a further status conference on April 11, 2016, the

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parties informed the court that the Southern District of

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California denied class certification in Banarji and the

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plaintiff in that action had filed an interlocutory appeal that

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was likely going to be dismissed by the Ninth Circuit.

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Docket No. 28.)

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Banarji, the present action should proceed in this district, and

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the court lifted the stay of the proceedings here.

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April 11, 2016, the Ninth Circuit has dismissed the Banarji

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plaintiff’s interlocutory appeal, and the Southern District of

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California has similarly denied the Banarji plaintiff’s motion

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for a certificate of appealability of the order denying class

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certification.

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claims in Banarji can no longer proceed, Banarji does not

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substantially overlap with the present action.

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(See

The parties agreed that, notwithstanding

Banarji (ECF Nos. 57, 59).

(Id.)

Since

Because the class

The parties now inform the court, however, that there

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is yet another previously-filed and substantially similar

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putative class action currently pending in the Western District

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of Pennsylvania (“Duchene”).

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Westlake Services, LLC, Civ. No. 2:13-1577 MRH (W.D. Pa. filed

(See Docket No. 29); Duchene v.

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Sept. 26, 2013).

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against defendant’s parent company--Westlake Services, LLC

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(“Westlake”)--and its agents.

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should have notified plaintiffs and the court of the Duchene

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action in the Notice of Related Action that defendant filed on

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August 31, 2015.

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however, that Duchene is not related to the present action

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because “[t]he Duchene matter was filed against Westlake

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Services, LLC and at no time was Defendant Wilshire Commercial

That action asserts similar TCPA class claims

Plaintiffs contend that defendant

(See Docket No. 12.)

Defendant argues,

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Capital, LLC a party thereto or encompassed within the class

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definition.”

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(Docket No. 29 at 2-3.)

Defendant’s argument that Duchene is not a related case

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is puzzling to say the least.

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that Westlake and its agents used an ATDS to call the putative

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class members, who were listed as personal references on loan

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applications, without their prior express consent in violation of

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the TCPA.

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in the present action similarly alleges that defendant--which is

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Westlake’s subsidiary--used an ATDS to unlawfully call the

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putative class members, who were also listed as references on

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loan applications, without their prior express consent in

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violation of the TCPA.

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Both lawsuits seek to represent a class of persons in the United

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States who received such calls during the four years preceding

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the filing of the actions.

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The complaint in Duchene alleges

Duchene Compl. ¶¶ 1, 22-28 (ECF No. 1).

The Complaint

(Compl. ¶¶ 1, 20-29 (Docket No. 2).)

(Compl. ¶ 29); Duchene Compl. ¶ 28.

On February 22, 2016, the Western District of

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Pennsylvania in Duchene granted preliminary approval of a class

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action settlement and conditionally certified the settlement
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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.

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Duchene Prelim. Approval Order at 3 (ECF No. 108).1

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Settlement Agreement in Duchene defines “Westlake” as:

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The approved

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.

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Id. Settlement Ag. art. II, ¶ 2 (ECF No. 107-1) (emphasis added).

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The Settlement Agreement in Duchene provides that, upon

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final approval, all claims by the settlement class members shall

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be dismissed with prejudice and “[n]o other action, demand, suit,

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arbitration or other claim may be pursued against Westlake or the

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related entities released herein with respect to the Calls or

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released claims.”

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Settlement Agreement provides that, upon final approval, the

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settlement class members “and all those who claim through them or

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who assert claims (or could assert claims) on their behalf)”

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shall release “Westlake . . . and its parents, subsidiaries,

Id. art. V, ¶ 1(a)–(b).

Additionally, the

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The settlement class in Duchene is estimated at 800,000
individuals.
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affiliates, officers, directors, employees, attorneys,

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shareholders, agents, independent contractors, vendors and

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assigns” from “all past, present and future claims . . . from the

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beginning of the world until today,” arising out of the use “of

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any [ATDS] to make Calls to a cellular telephone number . . . in

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connection with efforts to contact or attempt to contact

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Settlement Class Members, including but not limited to claims

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arising under . . . the TCPA.”

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added); id. art. V, ¶ 1(c).2

Id. art. II, ¶ 24 (emphasis

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In full, the release of claims includes:

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[A]ny and all past, present and future claims,
counterclaims, lawsuits, set-offs, costs, losses, rights,
demands, charges, complaints, actions, causes of action,
obligations, or liabilities of any and every kind,
including without limitation (i) those known or unknown
or capable of being known, and (ii) those which are
unknown but might be discovered or discoverable based
upon facts other than or different from those facts known
or believed at this time, including facts in the
possession of and concealed by [Westlake and its
subsidiaries], and (iii) those accrued, unaccrued,
matured or not matured, all from the beginning of the
world until today (collectively, the “Released Rights”),
that arise out of the use by [Westlake and its
subsidiaries] 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 or
relating to (i) the TCPA, and any other similar state or
federal law; (ii) statutory or common law claims
predicated upon any alleged violations of the TCPA and/or
any similar law; and (iii) statutory or common law claims
predicated upon and/or arising from [Westlake and its
subsidiaries’] use of any automated dialing system and/or
artificial or prerecorded voice, including any claim
under or for violation of federal or state unfair and
deceptive practices statutes, violations of any federal
or state debt collection practices acts (including, but
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The final approval hearing in Duchene was held on July

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12, 2016.

Following that hearing, the district court in Duchene

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issued a minute order stating that “[a]n appropriate Order will

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issue.”

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its preliminary approval order that: “Pending final determination

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of whether the Settlement should be approved, Plaintiff, all

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persons in the Settlement Class, and persons purporting to act on

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their behalf are enjoined from commencing or prosecuting (either

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directly, representatively, or in any other capacity) any

Id. (ECF No. 138).

The court in Duchene also stated in

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released claim against any of the released parties in any action,

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arbitration or proceeding in any court, arbitration forum or

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tribunal.”

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Id. Prelim. Approval Order at 7.

In light of the events in the Duchene action and

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pursuant to the provisions of Federal Rule of Civil Procedure 16,

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the court finds that a continuance of the July 18, 2016 status

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conference in this matter is warranted pending the Western

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District of Pennsylvania’s ruling on the final approval of the

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class action settlement in Duchene.

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continue the July 18, 2016 status conference to August 15, 2016.

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The court will therefore

Counsel are required to appear at the August 15, 2016

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not limited to, the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq.), invasion of privacy,
conversion, breach of contract, unjust enrichment,
specific performance and/or promissory estoppels. This
Release shall be included as part of any judgment, so
that all Released Rights shall be barred by principles of
res judicata, collateral estoppel, and claim and issue
preclusion.
Id. art. V, ¶ 1(c).

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status conference and be prepared to address the following

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issues: (1) whether any claims in the present action are or will

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be barred if final approval of the class action settlement in

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Duchene is granted; and (2) if final approval of the class action

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settlement has not been granted in Duchene by the August 15, 2016

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status conference, whether the present action should be stayed

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pending the resolution of the Duchene class action settlement.

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Prior to the August 15, 2016 status conference, the parties shall

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file an updated joint status report that succinctly addresses

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these issues and any other issues that they think need to be

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addressed at the status conference.

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IT IS THEREFORE ORDERED that:

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(1) the Status Conference set for July 18, 2016 is

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hereby continued to August 15, 2016 at 1:30 PM in Courtroom No. 5

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pending the Western District of Pennsylvania’s ruling on the

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final approval of the class action settlement in Duchene v.

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Westlake Services, LLC, Civ. No. 2:13-1577 MRH (W.D. Pa.);

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(2) the parties shall meet and confer prior to the
August 15, 2016 Status Conference; and

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(3) the parties shall submit an updated Joint Status

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Report by no later than August 8, 2016 addressing the issues

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outlined in this Order and any other issues that they think need

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to be addressed at the August 15, 2016 Status Conference.

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IT IS SO ORDERED.
Dated:

July 13, 2016

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