District Court (Ky.) Strikes TCPA “Revocation” Class at the Pleadings Stage

Cabela’s maintains that what Eldridge passes as “Stop” classes are really “Revocation” classes. In other words, the “Stop” classes are comprised of persons who had a prior relationship with Cabela’s but subsequently revoked their consent to be called by Cabela’s. (D.N. 20-1, PageID # 139) …Under Cabela’s interpretation, it is clear that caselaw favors striking the “Stop” classes. In recent TCPA cellular-telephone cases, district courts have struck “Revocation” classes from complaints or have denied class certification entirely. See, e.g., Cholly v. Uptain Grp., Inc., No. 15 C 5030, 2017 WL 449176, at *4 (N.D. Ill. Feb. 1, 2017) (“[I]ndividual inquires necessary to determine class membership will ‘inevitably predominate’ over any common questions of fact. Consequently, the proposed revocation class fails to satisfy Rule 23(b)(3) and the class allegations are stricken.” (citation omitted)); Saulsberry v. Meridian Fin. Servs., Inc., No. CV 14-6256 JGB, 2016 WL 3456939, at *11 (C.D. Cal. April 14, 2016) (“Each of these forms of revocation of consent may give rise to its own evidentiary issues, rendering it difficult for the Court to resolve any questions on a class-wide basis…. The commonality requirement is therefore not met with regards to the TCPA Revocation Class.”); Wolfkiel v. Intersections Ins. Servs., Inc., 303 F.R.D. 287, 293 (N.D. Ill. 2014) (“The Revocation Class fails to satisfy the predominance requirement. In order to determine whether each potential class member did in fact revoke his or her prior consent at the pertinent time, the Court would have to conduct class-member-specific inquiries for each individual.”).  Moreover, if these classes are “Revocation” classes, Eldridge is not a typical member. Eldridge alleges that he never provided consent to be called on his cell phone. (D.N. 1, PageID # 11) But Eldridge could not revoke consent he never gave in the first place. (D.N. 23, PageID # 215) Thus, the “Stop” classes fail to satisfy the Rule 23 prerequisites, barring certification under both Rule 23(b)(2) and (b)(3).  Additionally, even under Eldridge’s interpretation, the “Stop” classes cannot survive the motion to strike. Section 227(b) does not distinguish between consumers who have requested to stop receiving calls and consumers who never consented in the first place. Rather, the key distinction is between those who have consented and those who have not—the latter group consisting of both consumers who never consented and consumers who revoked their previous consent. 47 U.S.C. § 227(b) Accordingly, Cabela’s would be equally liable to those who have passively not consented to receive calls and to those who have taken affirmative steps to inform Cabela’s they do not wish to receive calls. See 2015 Order, 30 FCC Rcd. ¶ 95 (“[U]ninvolved new users of reassigned numbers are not obligated under the TCPA or our rules to answer every call, nor are they required to contact each caller to opt out in order to stop further calls.”).  It is clear, then, that if Eldridge’s “Stop” classes consist solely of those persons who have taken such affirmative steps, they are superfluous in light of Eldridge’s “No Consent” classes.³ In other words, Cabela’s had “no consent” from those persons who told it to stop calling them. If the facts are as Eldridge has alleged, these same individuals are already included in the “No Consent” classes.⁴ The “Stop” classes are therefore redundant and should be stricken. See Fed. R. Civ. P. 12(f). The Court will therefore strike from the complaint Eldridge’s “Stop” classes.