Soppet v. Enhanced Recovery Corporation

MOTION

N.D. Ill.August 29, 2012

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TERESA SOPPET, LOIDY TANG, individually and on behalf of a class, Plaintiffs, ) ) ) ) ) Case No. 1:10-cv-5469 v. ENHANCED RECOVERY COMPANY, LLC, as successor to ENHANCED RECOVERY CORPORATION and ILLINOIS BELL TELEPHONE COMPANY d/b/a AT&T ILLINOIS, Defendants. ) ) Hon. Matthew Kennelly ) ) ) ) ) ) ) MOTION OF DEFENDANT ILLINOIS BELL TELEPHONE COMPANY TO STAY PROCEEDINGS PENDING A DECISION BY THE JUDICIAL PANEL OF MULTIDISTRICT LITIGATION Defendant Illinois Bell Telephone Company d/b/a AT&T Illinois (“AT&T) respectfully moves the Court for a temporary stay of proceedings in this case pending a decision of the Judicial Panel on Multidistrict Litigation (“JPML”) on the plaintiffs’ motion to transfer and consolidate certain related cases, including this one, for all pretrial proceedings. Counsel for plaintiff Teresa Soppet and for defendant Enhanced Recovery Company, LLC (“ERC”) have authorized AT&T to state that their clients do not oppose this motion. Plaintiff Loidy Tang objects to the requested stay. INTRODUCTION This case is one of four similar putative class actions pending in three different judicial districts throughout the country. In each case, the plaintiff asserts that ERC violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., by allegedly using an automatic telephone dialing system to call cellular phones without the called party’s consent. Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 1 of 34 PageID #:1111 - 2 - AT&T recently has been added as a defendant to this case. The plaintiffs in these cases seek to represent overlapping putative nationwide classes. On July 11, 2012, the plaintiffs in this case and two others moved the JPML to transfer all four cases to a single federal district court for consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407, recommending transfer to this Court. A copy of this motion (without exhibits) is attached as Exhibit A. The defendants do not oppose consolidation, but have recommended transfer to the Middle District of Florida—where ERC is located—and have notified the JPML that this Court already has been assigned two MDL proceedings. Copies of the defendants’ filings before the JPML (also sans exhibits) are attached as Exhibit B. The JPML has scheduled a hearing on the ,motion for consolidation and transfer for September 20, 2012. A stay of proceedings in this case pending the JPML’s decision would serve the goal of judicial economy. If the motion for transfer is granted and the cases are sent to this Court, a stay would allow the Court and the parties to proceed with the cases on the same track. If the cases are sent elsewhere, a stay would eliminate the need for the Court and the parties to expend resources addressing issues that will ultimately be resolved by the transferee court. Accordingly, AT&T seeks a stay of all proceedings in this action pending the JPML’s ruling.1 ARGUMENT The fact that the JPML is poised to decide whether to consolidate this action with other actions—resulting in either a transfer to this Court or another one—warrants a brief stay of 1 Counsel for AT&T understands that on July 12, 2012—before AT&T was made a party to this lawsuit—the Court denied an oral request by plaintiffs for a stay of proceedings pending the JPML’s decision so that the existing parties could continue to engage in discovery. AT&T respectfully submits that a stay now makes sense; the JPML’s hearing is only three weeks away, and as a result of that hearing this case may be transferred to another federal court. And because AT&T has not yet responded to the complaint, a stay would not disrupt its discovery obligations. We respectfully suggest that there is little reason to require AT&T to file a dispositive motion in this Court when there is a significant possibility that the motion will have to be rebriefed— potentially in another jurisdiction—after the JPML’s impending decision. Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 2 of 34 PageID #:1112 - 3 - further proceedings to await the JPML’s decision. This Court has broad discretion and authority to stay proceedings before it. Such power to stay is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N Am. Co., 299 U.S. 248, 254 (1936); see also Tex. Indep. Producers & Royalty Owners Ass’n v. E.P.A., 410 F.3d 964, 980 (7th Cir. 2005) (same). As the Seventh Circuit has explained, “considerations of judicial economy, especially the need to avoid piecemeal litigation, strongly favor[]” a stay that serves efficiency, as it is “clearly within the sound discretion of the trial court” to enter a stay that “permit[s] the district court to manage its time effectively” while also “protect[ing] the substantial rights of the parties.” Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 685-86 (7th Cir. 1987). Federal courts within this district and others throughout the country have held that it is appropriate to stay pretrial proceedings while a motion to transfer is pending before the JPML, both to conserve judicial resources and to avoid prejudice to the parties. See, e.g., Paul v. Aviva Life & Annuity Co., 2009 WL 2244766, at *2 (N.D. Ill. July 27, 2009) (granting motion to stay pending JPML decision); Smith v. Merck & Co., Inc., 2006 WL 3842190, at *1 (S.D. Ill. Dec. 29, 2006) (same); Walker v. Merck & Co., 2005 WL 1565839, at *2 (S.D. Ill. June 22, 2005) (same); Bd. of Trs. of the Teachers' Ret. Sys. of the State of Ill. v. WorldCom, Inc., 244 F. Supp. 2d 900, 905-06 (N.D. Ill. 2002) (same); Tench v. Jackson Nat’l Life Ins. Co., 1999 WL 1049923, at *2 (N.D. Ill. Nov. 12, 1999) (same). Indeed, “a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel because of the judicial resources that are conserved.” Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (granting motion to stay proceedings Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 3 of 34 PageID #:1113 - 4 - pending resolution of transfer motion before the JPML); see also Fuller v. Amerigas Propane, Inc., 2009 WL 2390358, at *2 (N.D. Cal. Aug. 3, 2009) (citing Rivers). In considering a request for a stay based on a pending JPML motion, courts typically examine three factors: “(i) whether a stay will unduly prejudice or tactically disadvantage the non-moving party, (ii) whether a stay will simplify the issues in question and streamline the trial, and (iii) whether a stay will reduce the burden of litigation on the parties and on the court.” Markel Am. Ins. Co. v. Dolan, 787 F. Supp. 2d 776, 779 (N.D. Ill. 2011); see also Landis, 299 U.S. at 254. Here, all three factors weigh in favor of a stay. A. A Stay Will Not Prejudice The Plaintiff. The consent to this motion by one of the two named plaintiffs underscores that they too would benefit from the efficiencies achieved by a stay of further proceedings pending the JPML’s decision. Specifically, if the cases are consolidated elsewhere, plaintiffs would be spared the costs of potentially duplicative motions practice and discovery that may be repeated in the transferee court. And if the cases are consolidated here, a stay would permit the plaintiffs to tackle the overlapping issues in a coordinated rather than piecemeal way, thus saving time and resources. Moreover, because AT&T is requesting only a temporary stay pending a decision by the JPML—which likely will be coming in short order—any delay of proceedings will be brief. Indeed, where (as here) no time-sensitive issues would be postponed by a stay, courts have repeatedly rejected the notion that a plaintiff would be prejudiced by awaiting a ruling of the JPML. See, e.g., Emerson v. Lincoln Elec. Holdings, Inc., 2009 WL 690181, at *1 (W.D. Mo. Mar. 12, 2009) (finding that “potential prejudice to Plaintiff is minimal”); Conner v. AT&T, 2006 WL 1817094, at *4 (E.D. Cal. June 30, 2006) (“The prejudice to Plaintiffs does not outweigh the judicial economy interests described above and the potential prejudice to Defendants.”). Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 4 of 34 PageID #:1114 - 5 - B. A Stay Will Simplify The Issues And Promote Judicial Economy. In all four cases that are the subject of the plaintiffs’ motion to transfer, the plaintiffs assert that the defendant or defendants violated the TCPA by allegedly using an automatic telephone dialing system to call cellular phones without the called party’s consent. Piecemeal litigation of the similar factual and legal issues presented by these cases would drain judicial resources without any apparent benefit. See, e.g., In re Air W. Inc. Sec. Litig., 384 F. Supp. 609, 611 (J.P.M.L. 1974) (explaining that MDL treatment is appropriate “when two or more complaints assert comparable allegations against identical defendants based upon similar transactions and events”). Moreover, proceeding with further litigation would create a substantial likelihood of inconsistent pretrial rulings, particularly on critical questions such as class-wide discovery and class certification itself (should the case reach that stage). See, e.g., In re Hawaiian Hotel Room Rate Antitrust Litig., 438 F. Supp. 935, 936 (J.P.M.L. 1977) (“Section 1407 centralization is especially important to ensure consistent treatment of the class action issues.”). Accordingly, entry of a stay pending the JPML’s decision will prevent this Court from having to preside over discovery and pretrial proceedings that will likely either be conducted anew by the transferee court if the cases are sent elsewhere and in overlapping fashion by this Court if the cases are consolidated here but are in different postures. See Rivers, 980 F. Supp. at 1360. As one federal court put it, “there is simply no reason for this Court to expend its time and energy on these cases until the pending motion before the MDL Panel is resolved, as transfer of this matter to another court would render redundant the efforts of this Court.” Fuller, 2009 WL 2390358, at *2. For these reasons, a stay is necessary and appropriate to promote the efficient use of judicial resources. Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 5 of 34 PageID #:1115 - 6 - C. A Stay Will Reduce The Burdens On The Parties And The Court. Absent a stay, AT&T (as well as the other parties) will face the burden of costly and duplicative discovery and motions practice in multiple jurisdictions, and this Court will be forced to expend resources presiding over that discovery and deciding those motions—which the JPML’s actions may make a wasted effort. If the cases are sent elsewhere, the Court would have wasted its time presiding over discovery and other pretrial proceedings and motions practice. And if the cases are consolidated in this District, the resulting coordinated set of cases will necessarily present a different picture to the Court than the existing litigation as it currently stands. Resolving those differences will serve only to burden this Court further. CONCLUSION This action should be stayed pending the decision by the JPML on the plaintiffs’ petition to transfer this action. Dated: August 29, 2012 Respectfully submitted, /s Archis A. Parasharami Archis A. Parasharami Kevin Ranlett (pro hac vice) Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006-1101 Tel: (202) 263-3000 Fax: (202) 263-3300 Email: aparasharami@mayerbrown.com; kranlett@mayerbrown.com Attorneys for Defendant Illinois Bell Telephone Company d/b/a AT&T Illinois Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 6 of 34 PageID #:1116 EXHIBIT A Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 7 of 34 PageID #:1117 Case Pending No. 90 Document 1 Filed 07/11/12 Page 1 of 3 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: ENHANCED RECOVERY COMPANY, LLC TELEPHONE CONSUMER PROTECTION ACT LITIGATION MDL No. MOTION OF CERTAIN PLAINTIFFS FOR TRANSFER OF ACTIONS TO THE NORTHERN DISTRICT OF ILLINOIS PURSUANT TO 28 U.S.C. § 1407 FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS Plaintiffs Teresa Soppet, Loidy Tang, Latasha Blake, and James Kubat ("Movants") by and through their undersigned attorneys, respectfully move this Panel, pursuant to 28 U.S.C. § 1407 and Rule 7.2 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, for an Order transferring the three non-Illinois putative class actions listed in the accompanying schedule of actions to the United States District Court for the Northem District of Illinois for consolidation for all pretrial proceedings with Soppet and Tang v. Enhanced Recovery Company, LLC, as successor to Enhanced Recovery Corpoi-ation, 10 CV 5469 (N.D. Ill) (Kennelly J.) ("Soppet"). In support of this Motion, Movants state as follows: 1. This motion involves four putative class actions pending in three different federal districts courts against Defendant Enhanced Recovery Company, LLC ("ERC"). 2. In each class action, the plaintiffs claim that ERC violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA"), by calling, without prior express consent, the plaintiffs' and putative class members' cellular telephones using an automatic Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 8 of 34 PageID #:1118 Case Pending No. 90 Document 1 Filed 07/11/12 Page 2 of 3 telephone dialing system or an artificial or prerecorded voice. 3. In each class action, the plaintiffs seek certification of a nationwide class. 4. In each class action, the plaintiffs seek similar types of relief, including statutory datnages, injunctive relief, and costs of suit. 5. 'The Northern District of Illinois is the most appropriate transferee district because Soppet was the first filed action and the case which has progressed the farthest. In a case of first impression, the district court's denial of ERC's motion for summary judgment was recently affirmed in an interlocutory appeal by the Seventh Circuit. Soppet v. Enhanced Recovery Company, LLC, 11-3819, 2012 U.S. App. LEXIS 10897 (7 th Cir. May 25, 2012). The Northern District of Illinois is also the most convenient location; and the plaintiffs in the Illinois and California actions, and one of the Florida actions (Blake), favor having the non-Illinois cases transferred to the Northern District of Illinois. WHEREFORE, for the foregoing reasons, and for the reasons more fully set forth in the accompanying Memorandum of Law, Movants respectfully move this Panel, pursuant to 28 U.S.C. § 1407 and Rule 7.2 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, for an Order transferring the three putative class actions listed in the accompanying schedule to the United States District Court for the Northern District of Illinois for consolidation for all pretrial proceedings with Soppet and Tang v. Enhanced Recovery Company, LLC, as successor to Enhanced Recovery Corporation, 10 CV 5469 (N.D. Ill). 2 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 9 of 34 PageID #:1119 Case Pending No. 90 Document 1 Filed 07/11/12 Page 3 of 3 Respectfully submitted, s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Cathleen M. Combs James 0. Latturner Francis R. Greene EDELMAN, COMBS, LATTURNER & GOODWIN, L.L.C. 120 S. LaSalle Street, 18th Floor Chicago, Illinois 60603 (312) 739-4200 (312) 419-0379 (FAX) courtecl@edcombs.com Counsel for Plaintiff Soppet Curtis C. Warner WARNER LAW FIRM, LLC Millenium Park Plaza 155 N. Michigan Ave., Suite 9005 Chicago, IL 60601 (312) 238-9820 (312) 638-9139 (FAX) cwarnergwarnerlawllc.com Counsel for Plaintiff Tang Joshua B. Swigart Robert L. Hyde HYDE & SWIGART 411 Camino Del Rio South, Suite 301 San Diego, CA 92108-3551 (619) 233-7770 (619) 297-1022 (FAX) joshawestcoastlitigation.com bob@westcoastlitigation.com Counsel for Plaintiff Kubat Patrick S. Sweeney SWEENEY & SWEENEY, S.C. 440 Science Drive, Suite 101 Madison, WI 53711 (608) 238-4444 (608) 238-8262 (FAX) patrick(i4sweenlaw.com Counsel for Plaintiff Blake David P. Schafer Brian J. Trenz LAW OFFICES OF DAVID SCHAFER PLLC 7800 West IH-10, Suite 830 San Antonio, TX 78230 (210) 348-0500 david@helpingtexas.com brian@helpingtexas.com Counsel for Plaintiff Blake Darrell Palmer LAW OFFICES OF DARRELL PALMER 603 North Highway 101, Suite A Solana Beach, CA 92075 - (858) 792-5600 (858) 583-8115 (FAX) darrell.palmer@palmerlegalteam.com Counsel for Plaintiff Blake Joel S. Treuhaft Kira Rubel PALM HARBOR LAW GROUP, PA 2997 Alternate 19, Suite B Palm Harbor, FL 34683 (727) 797-7799 istreuhaft@yahoo.com kirarubel@gmail.com Counsel for Plaintiff Blake 3 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 10 of 34 PageID #:1120 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 1 of 6 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: ENHANCED RECOVERY COlVfPANY, LLC TELEPHONE CONSUMER PROTECTION ACT LITIGATION MDL No. BRIEF IN SUPPORT OF CERTAIN PLAINTIFFS' MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS In further support of the motion of Plaintiffs Teresa Soppet, Loidy Tang, Latasha Blake, and James Kubat ("Movants") to transfer certain actions for consolidated pretrial proceedings, Movants state as follow: I. STANDARDS FOR TRANSFER PURSUANT TO SECTION 1407 Section 1407(a) provides in relevant part: When civil actions involving one or more conunon questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. 28 U.S.C. § 1407(a). This Panel is authorized by § 1407(a) to centralize multi-district litigation where: (1) actions involve one or more common questions of fact; (2) transfer of the actions will serve the convenience of the parties and potential witnesses; and (3) transfer will promote efficient conduct of the actions. 28 U.S.C.§ 1407(a). As set forth below, each of these factors weigh heavily in favor of transfer to the Northem District of Illinois for consolidated pretrial Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 11 of 34 PageID #:1121 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 2 of 6 proceedings. II. CONSOLIDATION IS APPROPRIATE These proceedings present the classic predicate for consolidation pursuant to 28 U.S.C. § 1407 ("Section 1407"). To date four putative class actions have been filed against Defendant Enhanced Recovery Company, LLC ("ERC") with virtually identical claims and facts: Soppet and Tang v. Enhanced Recovery Company, LLC, 10 CV 5469 (N.D. III.); Blake v. Enhanced Recovery Company, LLC, 11 CV 1178 (M.D. Fla.); Kubat v. Enhanced Recovery Company, LLC, 2012 CV 435 (S.D. Cal.); Drinning-Duffee v. Enhanced Recovery Company, LLC, 12 CV 0697 (M.D. Fla.). In each of the four cases, the plaintiffs claim that ERC violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA"), by calling, without prior express consent, the plaintiffs' and putative class members' cellular telephones using an automatic telephone dialing system or an artificial or prerecorded voice. In each case, the plaintiffs seek to represent a nationwide class and the classes significantly overlap. In each case, the plaintiffs seek similar types of relief, including statutory damages, injunctive relief, and costs of suit. In one case, Soppet, the plaintiffs are also seeking to name Illinois Bell Telephone Company d/b/a AT&T Illinois as an additional party. The four class actions pending against ERC involve common questions of fact. In each, the plaintiffs allege that ERC called his or her cellular telephone without prior express consent and that ERC placed the call using either an automatic telephone dialing system or an artificial or prerecorded voice. See Soppet Complaint im 9-48; Blake Complaint 1111-25; Kubat Complaint 7 8-20; Drinning-Duffee Complaint 711 8-15. 2 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 12 of 34 PageID #:1122 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 3 of 6 This panel recently ordered the transfer of basically identical cases for coordinated or consolidated pretrial proceedings in cases against two different defendants who, as here, were sued for violations of the TCPA resulting from calling, without prior express consent, the plaintiffs' and putative class members' cellular telephones using an automatic telephone dialing system or an artificial or prerecorded voice: In re: Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation (MDL No. 2295, Document 32) and In re: Midland Credit Management, Inc., Telephone Consumer Protection .Act Litigation (MDL No. 2286, Document 62). As in those cases, this Panel should find that all the actions involve common questions of fact. III. TRANSFER OF THE ACTIONS TO THE NORTHERN DISTRICT OF ILLINOIS IS APPROPRIATE Transfer of the three actions pending outside of Illinois to the Northern District of Illinois will promote justice and efficiency. Soppet, currently pending in the Northern District of Illinois, was the earliest filed case and has progressed the farthest. Soppet was filed on August 30, 2010. In contrast, Blake was filed almost eight months later on April 18, 2011. Kubat was filed on February 17, 2012 and Drinning-Duffee on June 15, 2012. In Soppet, ERC moved for summary judgment after the parties had completed all or virtually all merits discovery. In a case of first impression, the district court's denial of ERC's motion for summary judgment was recently affirmed in an interlocutory appeal by the Seventh Circuit. Soppet v. Enhanced Recovery Company, LLC, 11-3819, 2012 U.S. App. LEXIS 10897 (7th Cir. May 25, 2012). In contrast, in Drinning-Duffee, ERC has just recently appeared and filed an 3 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 13 of 34 PageID #:1123 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 4 of 6 answer (Civil Docket for Drinning-Duffee); and in Kubat, an answer has been filed but a Fed. R. Civ. P 16 conference has not occurred (Civil Docket for Kubat). In Blake, the parties are taking discovery and the fact discovery deadline is not until November 19, 2012. Plaintiffs class certification motion appears to be fully briefed. (Civil Docket for Blake.) In Soppet, the Seventh Circuit's holding — that the debtor's prior express consent to receive autodialed calls to his or her cell phone cannot be imputed to the current assignee of the phone number — disposed of a critical legal issue. All that remains in the case is class-related discovery, the plaintiffs' motions for class certification and summary judgment. Transfer of the three class actions to the Northern District of Illinois will serve the convenience of the parties and potential witnesses. The three plaintiffs in Blake and Drinning- Duffee are residents of Texas; the plaintiff in Kubat is a resident of California. Soppet and Tang reside in Illinois. Chicago is in the middle of the country and easily accessible by air for parties and witnesses from California, Texas, and Florida. In contrast, Jacksonville, where the Blake and Drinning-Duffee cases are pending, is far less convenient to get to for attorneys in Texas, California, and Illinois. The plaintiffs in Soppet, Blake, and Kubat all-request that the consolidated case be in the Northern District of Illinois. In Soppet and Blake, ERC is represented by the law firm of Sessions, Fishman, Nathan & Israel, LLP, a firm based in Metairie, Louisiana. James Schultz, who is in the Sessions' firm Chicago office, is representing ERC in both Soppet and Blake. III. CONCLUSION For the foregoing reasons, and those set forth in Movants' motion, Movants respectfully urge this Panel to enter an order transferring Blake, Kubat, and Drinning-Duffee to 4 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 14 of 34 PageID #:1124 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 5 of 6 the United States District Court for the Northem District of Illinois and consolidating these actions for all pretrial proceedings with Soppet and Tang v. Enhanced Recovery Company, LLC, as successor to Enhanced Recovery Corporation, 10 CV 5469 (N.D. M). Respectfully submitted, s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Cathleen M. Combs James 0. Latturner Francis R. Greene EDELMAN, COMBS, LATTURNER & GOODWIN, L.L.C. 120 S. LaSalle Street, 18th Floor Chicago, Illinois 60603 (312) 739-4200 (312) 419-0379 (FAX) courtecl@edcombs.com Counsel for Plaintiff Soppet Curtis C. Wamer WARNER LAW FIRM, LLC Millenium Park Plaza 155 N. Michigan Ave., Suite 9005 Chicago, IL 60601 (312) 238-9820 (312) 638-9139 (FAX) cwamergwarnerlawl1c.com Counsel for Plaintiff Tang Joshua B. Swigart Robert L. Hyde HYDE & SWIGART 411 Camino Del Rio South, Suite 301 San Diego, CA 92108-3551 (619) 233-7770 (619 297-1022 (FAX) iosh@westcoastlitigation.com bob(à).westcoastlitigation.com Counsel for Plaintiff Kubat Patrick S. Sweeney SWEENEY & SWEENEY, S.C. 440 Science Drive, Suite 101 Madison, WI 53711 (608) 238-4444 (608) 238-8262 (FAX) patrick(alsweenlaw.com Counsel for Plaintiff Blake David P. Schafer Brian J. Trenz LAW OFFICES OF DAVID SCHAFER PLLC 7800 West IH-10, Suite 830 San Antonio, TX 78230 (210) 348-0500 david@helpingtexas.com brian@helpingtexas.com Counsel for Plaintiff Blake Darrell Palmer LAW OFFICES OF DARRELL PALMER 603 North Highway 101, Suite A Solana Beach, CA 92075 (858) 792-5600 (858) 583-8115 (FAX) dane1l.pa1mer0)pa1merlegalteam.com Counsel for Plaintiff Blake 5 Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 15 of 34 PageID #:1125 Case Pending No. 90 Document 1-1 Filed 07/11/12 Page 6 of 6 Joel S. Treuhaft Kira Rube! PALM HARBOR LAW GROUP, PA 2997 Alternate 19, Suite B Palm Harbor, FL 34683 (727) 797-7799 jstreuhaft@yahoo.com kirarubel(4mail.com Counsel for Plaintiff Blake Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 16 of 34 PageID #:1126 EXHIBIT B Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 17 of 34 PageID #:1127 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: ENHANCED RECOVERY COMPANY, LLC TELEPHONE CONSUMER PROTECTION ACT LITIGATION ) ) ) ) MDL No. 2398 Soppet v. Enhanced Recovery Co., LLC, No. 1:10-cv-05469 (N.D. Ill.) RESPONSE BY ILLINOIS BELL TELEPHONE COMPANY d/b/a/ AT&T ILLINOIS TO MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS Pursuant to Rule 6.1(c) of the Rules of the Judicial Panel on Multidistrict Litigation (“Panel”), Defendant Illinois Bell Telephone Company d/b/a AT&T Illinois (“AT&T”) hereby submits its response to Motion of Certain Plaintiffs for Transfer of Actions to The Northern District of Illinois Pursuant to 28 U.S.C. § 1407 for Coordinated or Consolidated Pretrial Proceedings (“Motion”), filed July 11, 2012. While AT&T denies that plaintiffs properly (a) invoke the district courts’ jurisdiction with respect to AT&T,1 (b) allege common questions of fact relating to AT&T, or (c) allege proper causes of action against AT&T, AT&T does not oppose coordination or consolidation of 1 AT&T expressly reserves (a) any jurisdictional defenses that may be available to it under Rule 12 of the Federal Rules of Civil Procedure, (b) any affirmative defenses under Rule 8 of the Federal Rules of Civil Procedure and (c) any other statutory or common law defenses that may be available to it. AT&T further reserves its right to move to dismiss any action on these and any other grounds that may be available to it, at the appropriate time. Case MDL No. 2398 Document 18 Filed 08/02/12 Page 1 of 3Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 18 of 34 PageID #:1128 2 pre-trial proceedings in the actions against Enhanced Recovery Company, LLC (“ERC”)—only one of which involves AT&T as a defendant. But unlike the moving plaintiffs, AT&T agrees with ERC’s view that the Middle District of Florida is the most appropriate venue for any consolidated action. As ERC explains in its Response, four considerations counsel strongly in favor of venue in that court. First, any discovery ordered in these proceedings is likely to focus on staff and documents located in ERC’s corporate headquarters, which is located in the Middle District of Florida. Second, two of the four cases plaintiffs seek to consolidate are already pending in the Middle District of Florida. Third, of the cases sought to be consolidated, Blake v. Enhanced Recovery Company, LLC, 11- 1178 (M.D. Fla.), is the most far advanced. Fourth, the judge who is presiding over the single action in the Northern District of Illinois is comparatively overburdened with MDL proceedings—he has been assigned two MDLs already—while the judge in the Middle District of Florida who is presiding over Blake has none. Case MDL No. 2398 Document 18 Filed 08/02/12 Page 2 of 3Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 19 of 34 PageID #:1129 3 CONCLUSION The Panel should coordinate or consolidate the actions for pretrial proceedings and transfer them to the Middle District of Florida. Dated: August 2, 2012 Respectfully submitted, By: /s/ Archis A. Parasharami Evan M. Tager Archis A. Parasharami Kevin S. Ranlett Mayer Brown LLP 1999 K St. NW Washington, D.C. 20006 Phone: (202) 263-3328 Fax: (202) 263-5328 E-mail: aparasharami@mayerbrown.com Attorneys for Defendant Illinois Bell Telephone Company d/b/a AT&T Illinois Case MDL No. 2398 Document 18 Filed 08/02/12 Page 3 of 3Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 20 of 34 PageID #:1130 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 1 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 21 of 34 PageID #:1131 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 2 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 22 of 34 PageID #:1132 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 3 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 23 of 34 PageID #:1133 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 4 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 24 of 34 PageID #:1134 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 5 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 25 of 34 PageID #:1135 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 6 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 26 of 34 PageID #:1136 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 7 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 27 of 34 PageID #:1137 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 8 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 28 of 34 PageID #:1138 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 9 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 29 of 34 PageID #:1139 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 10 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 30 of 34 PageID #:1140 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 11 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 31 of 34 PageID #:1141 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 12 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 32 of 34 PageID #:1142 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 13 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 33 of 34 PageID #:1143 Case MDL No. 2398 Document 14 Filed 08/02/12 Page 14 of 14Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 34 of 34 PageID #:1144