District of New Jersey Grants Summary Judgment and Strikes Class Allegations in TCPA Case

Class Actions  •  Litigation  •  TCPA

Last week, the District of New Jersey issued a noteworthy opinion in a putative TCPA class action against TD Bank and Target.  In Martinez v. TD Bank USA, N.A. et al., 2017 WL 2829601 (D.N.J. June 30, 2017), the court held the defendants were entitled to summary judgment because the plaintiff provided consent to be called and had not adequately revoked that consent.  Additionally, the court agreed to strike the plaintiff’s class allegations on alternative grounds—finding that her putative class was a failsafe class and the plaintiff was not even a member of that class.  The District of New Jersey’s decision to grant the defendants summary judgment and to strike the plaintiff’s class allegations is significant for defendants considering how best to respond to TCPA cases.

In Martinez, plaintiff alleged that the defendants violated the TCPA by calling her over 160 times in connection with her payment delinquency on a Target credit card.  The plaintiff had opened her Target credit card in 2007, and as part of the card application had consented to calls from Target and its agents including on her cell phone using an automatic dialer.  The plaintiff obtained her cellphone four years later, and in 2012 updated her contact information with Target to include her new cell phone number.  In 2014, the plaintiff failed to make payments on her credit card, and Target began calling her cell phone to address the delinquency.  In her complaint, the plaintiff alleged that she revoked her consent when her attorney faxed a revocation to two phone numbers associated with TD Bank (which allegedly serviced some Target cards, but did not service the plaintiff’s card), but that she continued to receive calls after her attorney faxed the revocations.

On summary judgment, the defendants argued that the plaintiff consented to calls and failed to revoke that consent.  The court agreed, finding that TD Bank was unassociated with the plaintiff’s Target credit card.  Additionally, the court concluded that the faxes did not effectively communicate her revocation of consent because the method of revocation she chose was not reasonable.

The court also granted the defendants’ motion to strike the plaintiff’s class allegations.  In so doing, the court reasoned that the plaintiff’s class claims could not stand because they presented a failsafe class (one in which either everyone in the putative class wins or no class exists) and because the plaintiff was not herself a member of the class.  Relying on its summary judgment decision, the court refused to allow the plaintiff to attempt to fix the issues with her class allegations by amending her complaint.

Martinez is a helpful reference point for those faced with TCPA claims.  First, Martinez demonstrates the potential benefits of challenging the merits of an individual plaintiff’s claims before a class certification motion is filed.  Second, Martinez joins the Northern District of Illinois’ recent decision in Cholly v. Uptain Group, Inc. to strike TCPA class allegations rather than to delay a certification decision until after a certification motion has been filed.  Defendants faced with TCPA claims might consider whether these strategies may be beneficial in their own cases.

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