Gannett Moves to Strike Class Allegations in TCPA Suit

Gannett cited a subscriber’s previous business relationship with its newspapers and her claim for monetary damages in a Friday motion (docket 2:22-cv-01464) to strike class allegations in a Telephone Consumer Protection Act case.

The motion followed the company’s February memorandum in support of its motion to dismiss in U.S. District Court for Eastern Wisconsin in Milwaukee (see 2302280058). The complaint asserted Gannett should be held “vicariously liable” for calls placed by A Marketing Resource on its behalf. Gannett said it provides contact information to AMR, an independent contractor, but doesn’t mandate or control how AMR is permitted to contact individuals.

Plaintiff Jean Zoulek, a Milwaukee Journal Sentinel subscriber for 40 years, canceled her subscription in June and soon began receiving phone calls from AMR asking her to renew, even after she communicated do-not-call requests, said the complaint. She seeks an award of actual and/or statutory damages and costs, legal fees and an injunction requiring the Gannett company to cease all unsolicited calling activity.

Zoulek asserted claims on behalf of herself and the do not call registry class, as well as the internal do not call class. A common question to both claims is whether Zoulek and other class members orally communicated a do-not-call request on phone calls with AMR, said Gannett’s motion. Analyzing whether each putative class member communicated such a request, and evaluating whether a consumer’s statement constitutes a valid request, would entail a case-by-case, call-by-call evaluation requiring individual “mini-trials” for each member -- “destroying the efficiencies of class litigation” required by the commonality and predominance tests, the motion said.

The complaint purports to identify a class pursuant to Rule 23(b)(2), which applies to class claims for injunctive relief, said the motion. Zoulek’s claim for “significant statutory damages” under the TCPA shows the action is “predicated on seeking monetary damages,” or, in the least, monetary damages are only “incidental” to injunctive relief, as required to maintain a class rule, defendants said. Permitting certification under the rule would “allow the monetary tail to wag the injunction dog,” the motion said, citing Balschmiter v. Auto Finance.

On the do-not-call registry claim, Zoulek and potentially other members of the class are subject to the defense of the existing business relationship exemption to registry requirements, the motion said. Zoulek lacks “typicality and adequacy" to represent the class since her unique issues “could seek to prejudice the class at large.”

On the internal do not call class, courts have “repeatedly struck class claims” on pleadings that depend on individual questions of whether a plaintiff and class members submitted a do-not-call request, the motion said. Citing Wolfkiel v. Intersections Insurance Services, the motion noted the court ruled the class didn’t satisfy the predominance requirement; to determine whether each class member revoked prior consent to telemarketing calls, it would have to conduct “class-member-specific inquiries for each individual.”