Savannah Pepka v. Kohls Department Stores, Inc.

Filing 13

ORDER DENYING TRANSFER re: pldg. (10 in CAC/2:16-cv-04293, 11 in CAC/5:16-cv-01300, 12 in CT/3:16-cv-00315, 16 in FLM/5:15-cv-00482, 10 in FLM/6:16-cv-00525, 14 in FLM/8:16-cv-01049, 14 in FLN/1:16-cv-00150, 15 in ILN/1:15-cv-01303, 45 in MDL No. 2736, 16 in MN/0:15-cv-04510, 12 in NJ/3:16-cv-01663, 14 in NJ/3:16-cv-03580, 14 in NV/2:14-cv-01646, 10 in NV/2:16-cv-01092, 17 in PAE/2:16-cv-01541, 13 in PAE/2:16-cv-01763, 10 in PAE/2:16- cv-03306, 12 in PAM/1:16-cv-00108, 10 in PAM/4:16-cv-00356, 14 in TXE/1:16-cv-00180, 12 in WIE/2:15-cv-01180), ( 4 in MDL No. 2736), ( 1< /a> in MDL No. 2736), ( 6 in MDL No. 2736) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 10/ 4/2016. Associated Cases: MDL No. 2736, CAC/2:16-cv-04293, CAC/5:16-cv-01300, CT/3:16-cv-00315, FLM/5:15-cv-00482, FLM/6:16-cv-00525, FLM/8:16-cv-01049, FLN/1:16-cv-00150, ILN/1:15-cv-01303, MN/0:15-cv-04510, NJ/3:16-cv-01663, NJ/3:16-cv-03580, NV/2:14-cv-01646, NV/2:16-cv-01092, PAE/2:16-cv-01541, PAE/2:16-cv-01763, PAE/2:16-cv-03306, PAM/1:16-cv-00108, PAM/4:16-cv-00356, TXE/1:16-cv-00180, WIE/2:15-cv-01180 (DP)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: KOHL’S TELEPHONE CONSUMER
PROTECTION ACT (TCPA) LITIGATION

MDL No. 2736

ORDER DENYING TRANSFER

Before the Panel:* Plaintiff in an action pending in the Northern District of Illinois
(Ankcorn) moves under 28 U.S.C. § 1407 to centralize twenty actions in that district. The actions,
which are listed on the attached Schedule A, are pending in a total of twelve districts. The Panel has
been informed of four additional related federal actions.
Responding plaintiffs’ positions on centralization vary. Plaintiffs in the District of Nevada
Spencer and Central District of California Pepka actions support centralization in the Northern
District of Illinois. Plaintiffs in the Eastern District of Pennsylvania Winner action oppose inclusion
of their action in the proposed MDL, as does plaintiff in the Central District of California Barshay
action, a potential tag-along case. Plaintiffs in three Florida actions,1 all of which are individual
actions, also oppose inclusion of their actions in an MDL, and further argue that any other individual
actions (i.e., non-class actions) should be excluded. Plaintiff in the District of Minnesota Larsen
action opposes centralization in any forum. Responding defendants2 support centralization in the
Northern District of Illinois of all actions except for the Winner action, as to which they take no
position.
On the basis of the papers filed and the hearing session held, we deny the Ankcorn plaintiff’s
motion. Most of these actions share certain factual issues arising from allegations that defendants
violated the Telephone Consumer Protection Act and, in some cases, analogous state law, by using
an automatic dialing system to repeatedly make debt collection calls to plaintiffs’ cell phones without
their express consent.3 At least with respect to those actions, factual issues encompass defendants’
*

Certain Panel members who could be members of the putative classes in this litigation have
renounced their participation in these classes and participated in this decision.
1

These actions are the Middle District of Florida Montalbo and Pritchard actions, and the
Northern District of Florida Simmons action.
2

Responding defendants are Kohl’s Department Stores, Inc., Kohl’s Corporation, Capital
One, N.A., and Capital One Financial Corporation.
3

The Winner action involves telemarketing text messages, rather than debt collection calls.
(continued...)

-2practices, policies, and procedures with respect to making debt collection calls and obtaining and
recording recipients’ consent (and any revocation thereof), as well as the nature of the dialing system
or systems used. But these issues, while common, appear to be relatively straightforward, and
discovery is unlikely to be unusually burdensome or time-consuming. In contrast, the amount of
individualized discovery into such matters as the number of calls each plaintiff received, the process
and documentation involving in obtaining that plaintiff’s consent, and the timing and circumstances
surrounding revocation seems likely to be quite significant.
The procedural disparity among the cases also weighs against centralization. Whereas some
of the actions have been commenced only within the past several months, others have been pending
far longer. For example, the Spencer action was filed in October 2014, and had a discovery cutoff
of July 8, 2016. Similarly, the discovery cutoff in Eastern District of Wisconsin Hernandez, which
was filed in October 2015, was August 31, 2016.4 Centralization at this juncture thus appears
unlikely to produce significant efficiencies.5
Finally, the record indicates that many of these cases may be susceptible to fairly quick
resolution. Of the 28 actions originally included on the Section 1407 motion, eight have since been
voluntarily dismissed, and five others appear to have been resolved, but not yet formally closed in
their respective districts.6 This pattern of dismissals suggests that centralization is not necessary.
See In re: Live Face on Web, LLC, Copyright Litig., 148 F. Supp. 3d 1373, 1374 (J.P.M.L. 2015)
(“[W]e have found that a ‘trend of quick dismissals’ can signal that centralization is not warranted.”)
(quoting In re: ArrivalStar S.A. Fleet Mgmt. Sys. Patent Litig., 802 F. Supp. 2d 1378, 1379
(J.P.M.L.2011)).

3

(...continued)
Plaintiff in the Barshay potential tag-along action contends that her action is akin to Winner in that
it involves telemarketing text messages, as well as phone calls. The complaints in several of the
other constituent actions (e.g., the District of New Jersey Levin action and the Middle District of
Pennsylvania Cranor action) do not identify the nature of the subject calls.
4

After the discovery cutoffs passed in Spencer and Hernandez, the actions were stayed
pending our decision on centralization.
5

See, e.g.,In re: Lifewatch, Inc., Tel. Consumer Prot. Act. (TCPA) Litig., 140 F. Supp. 3d
1342, 1343 (J.P.M.L. 2015) (denying centralization, in part because of the procedural disparity of
the subject actions). In re: Credit Prot. Ass’n, L.P., Tel. Consumer Prot. Act. (TCPA) Litig., — F.
Supp. 3d —, 2016 WL 3101832, at *1 (J.P.M.L. June 2, 2016) (same).
6

These actions include the three Florida actions referenced in footnote 1, the Middle District
of Florida Thompson action, and the District of Nevada Self-Forbes action.

-3IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: KOHL’S TELEPHONE CONSUMER
PROTECTION ACT (TCPA) LITIGATION

MDL No. 2736

SCHEDULE A

Central District of California
PEPKA v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 2:16-04293
FERRER v. KOHL'S CORPORATION, C.A. No. 5:16-01300
District of Connecticut
MANNING v. KOHL'S DEPT STORES, INC., C.A. No. 3:16-00315
Middle District of Florida
MONTALBO v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 5:15-00482
THOMPSON v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 6:16-00525
PRITCHARD v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 8:16-01049
Northern District of Florida
SIMMONS v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 1:16-00150
Northern District of Illinois
ANKCORN v. KOHL'S CORPORATION, C.A. No. 1:15-01303
District of Minnesota
LARSEN v. CAPITAL ONE BANK, NA, ET AL., C.A. No. 0:15-04510
District of Nevada
SPENCER v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 2:14-01646
SELF-FORBES v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 2:16-01092
District of New Jersey
MASLATON v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 3:16-01663
LEVIN v. CAPITAL ONE FINANCIAL CORPORATION, ET AL.,
C.A. No. 3:16-03580

- A2 MDL No. 2736 Schedule A (Continued)

Eastern District of Pennsylvania
WINNER, ET AL. v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 2:16-01541
MCFADDEN v. KOHL'S CORPORATION, C.A. No. 2:16-01763
RAMSEY v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 2:16-03306
Middle District of Pennsylvania
COOK v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 1:16-00108
CRANOR v. KOHL'S DEPARTMENT STORES, INC., C.A. No. 4:16-00356
Eastern District of Texas
BUZAN, ET AL. v. KOHL'S CORPORATION, C.A. No. 1:16-00180
Eastern District of Wisconsin
HERNANDEZ v. KOHL'S DEPARTMENT STORES, INC., ET AL.,
C.A. No. 2:15-01180