Judge Largely Denies Vendor’s Motion to Strike TCPA Plaintiff’s Class Allegations
U.S. District Judge Brett Ludwig for Eastern Wisconsin in Milwaukee signed an order Thursday (docket 2:22-cv-01464) largely denying the motion of defendant A Marketing Resource (AMR) to strike plaintiff Jean Zoulek’s Telephone Consumer Protection Act class allegations. Zoulek alleges AMR,…
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a telemarketing vendor, hounded her with 17 phone calls between August and December to a number listed on the national do not call registry, trying to get her to resubscribe to the Milwaukee Journal Sentinel. Zoulek’s class allegations aren’t “facially defective,” said Ludwig, agreeing to strike only those allegations related to a potential Rule 23(b)(2) class. Zoulek can’t certify classes under Rule 23(b)(2) because the rule addresses only injunctive or declaratory relief, said his order. That doesn’t make it “anathema to any case where the class seeks money damages,” it said: “The question is whether the injunction is more headliner or opening act.” Zoulek’s complaint seeks both equitable and monetary relief, it said. But the monetary relief she seeks “is obviously not auxiliary to the injunction she also requests,” it said. It’s the lawsuit’s “principal aim,” it said: “On its face, then, the complaint is incapable of identifying a class that would be properly certified under Rule 23(b)(2).”