ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

[Doc. No. 17]

CATHY ANN BENCIVENGO, District Judge.

This matter comes before the court on defendant's motion for partial summary judgment. [Doc. No. 17.] Plaintiffs responded in opposition, defendant replied, and the parties filed a joint statement of undisputed facts. [Doc. Nos. 22, 26, 25.] On November 19, 2014, the court heard oral argument. For the reasons set forth below, the court grants defendant's motion.

STATEMENT OF THE CASE Plaintiffs Jennifer Andrews and Gregory Andrews sue Sallie Mae, Inc. ("defendant") for violation of California's Rosenthal Fair Debt Collection Practices Act, violation of the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and common-law intrusion. [Doc. No. 1.]

Only plaintiffs' TCPA claim is at issue here. Among other restrictions, the TCPA prohibits a person from "mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephonic dialing system or an artificial or prerecorded voice" to another's cell phone. 47 U.S.C. § 227(b)(1)(A)(iii).

In support of their TCPA claim, plaintiffs allege that, during the year prior to their filing of the complaint, defendant used an automated dialing service to call their cell phones more than 3,000 times, without their consent. [Id. ¶ 13.] Plaintiffs further allege that, to the extent defendant thought plaintiffs had once consented to the calls, plaintiffs repeatedly informed defendant that it did not have their permission to make the calls. [Id. ¶¶ 15-18.] As a remedy for the alleged TCPA violations, plaintiffs demand $1,500 in statutory damages for each phone call, plus costs and attorney's fees. [Id. at 9.]

On September 12, 2014, defendant filed its pending motion for partial summary judgment. [Doc. No. 17.] Defendant seeks dismissal of plaintiffs' TCPA claim, to the extent it arises out of phone calls placed prior to September 17, 2012, on grounds that any such claim is barred by the settlement in a prior TCPA class action, Arthur v. Sallie Mae, Inc., Case. No. 10-cv-198-JLR (W.D. Wash.) ("Arthur"). [Doc. No. 17 at 2.] Defendant also seeks a ruling from this court that, as a result of the Arthur settlement, plaintiffs "are deemed to have provided prior express consent as of September 17, 2012 to receive calls through the use of an automated dialing system and/or an artificial or prerecorded voice." [Id.]

STATEMENT OF THE UNDISPUTED FACTS

Most of the undisputed facts relevant to defendant's motion relate to the Arthur class-action settlement. On February 2, 2010, Mark Arthur filed a putative class action in the United States District Court for the Western District of Washington against SLM Corporation, d/b/a Sallie Mae, for violations of the TCPA. The named parties in Arthur signed an Amended Settlement Agreement in October 2011. [Doc. No. 17-2 at 8.] The Agreement states that "[a]ny Settlement Class Member who has not submitted or does not submit a valid and timely Revocation Request will be deemed to have provided prior express consent to the making of Calls by Sallie Mae or any other affiliate or subsidiary of SLM Corporation to any phone numbers reflected in such entities' records." [Doc. No. 17-5 at 11.] On April 3, 2012, the Arthur court issued an order preliminarily approving the class settlement and directing notice to absent class members. [Doc. No. 17-6 at 1.]

Plaintiffs are members of the Arthur settlement class. [Doc. No. 25 ¶¶ 1, 2.] On May 2, 2012, the settlement administrator mailed Jennifer Andrews a notice of the class settlement. [Doc. No. 17-2 ¶ 5 and at p. 6.] The settlement administrator also caused notice of the settlement to be published in "two separate national editions of USA Today, dated April 18, 2012 and April 25, 2012, and one national edition of the U.S. Wall Street Journal, dated April 18, 2012." [Doc. No. 17-2 ¶ 5.] Plaintiffs did not opt out of the class settlement or submit a Revocation Request. [Doc. No. 25 ¶¶ 7, 11.]

On September 17, 2012, the Arthur court entered its order and final judgment approving the settlement. [Doc. No. 17-7.] This order incorporated the provisions of the parties' Amended Settlement Agreement and defined the Settlement Class as:

[Id. ¶ 6.]

The final approval order further stated that "each Settlement Class Member . . . will be deemed to have fully released and forever discharged Sallie Mae . . . as of the date of the Final Approval Order . . ." for claims that arise out of the Telephone Consumer Protection Act. [Id. ¶ 9.]

DISCUSSION

A. Legal Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324). Inferences drawn from the underlying facts are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Analysis

Defendant asks for two types of relief in its motion for partial summary judgment. First, defendant seeks partial summary judgment on plaintiffs' TCPA claim to the extent the claim arises from calls placed prior to September 17, 2012. Second, to the extent that plaintiffs' TCPA claim arises out of calls placed after September 17, 2012, defendant asks the court to find as a matter of law that plaintiffs gave their prior express consent for defendant's automated calls to their cell phones as of September 17, 2012.

1. Plaintiffs' TCPA Claim Arising From Pre-September 17, 2012 Calls

As to defendant's first requested relief—preclusion of plaintiffs' TCPA claim to the extent it arises out of pre-September 17, 2012 calls—the court first notes that this request appears unnecessary, as plaintiffs only complain of calls that defendant made beginning a year prior to the filing of their complaint. [Doc. No. 1 ¶ 13.] Plaintiffs filed their complaint on April 2, 2014, so they complain of conduct beginning April 2, 2013. Thus, whether the Arthur class settlement would preclude plaintiffs from pursuing a TCPA claim based on pre-September 17, 2012 calls is irrelevant, because plaintiffs do not complain of conduct occurring prior to September 17, 2012.

Nonetheless, the court agrees that the Arthur Final Judgment precludes plaintiffs from asserting a TCPA claim based on calls made prior to September 17, 2012. Under the Arthur Final Judgment, all Arthur class members are "deemed to have fully released and forever discharged Sallie Mae [and its affiliates] . . . from any and all . . . claims ... as of the date of the Final Approval Order: (a) that arise out of or are related in any way to the use of an `automatic telephone dialing system' or an `artificial or prerecorded voice' to contact a cellular telephone . . . including . . . claims under or for violation of the Telephone Consumer Protection Act. . . ." [Doc. No. 17-7 ¶ 9.] Thus, if plaintiffs intend to complain of calls made prior to September 17, 2012, the Arthur Final Judgment precludes any such claim.

In their opposition, plaintiffs first argue that there is a dispute of fact as to whether Jennifer Andrews is a member of the Arthur class. Yet in the joint statement of undisputed facts, filed after plaintiffs' opposition, plaintiffs acknowledge that they are both members of the Arthur settlement class. [Doc. No. 25 ¶¶ 1, 2.] In addition, Carl Cannon, whom defendant employs as a Customer Advocate, confirms in his Declaration that defendant placed non-emergency phone calls to Jennifer Andrews's cell phone during the class period. [Doc. No. 26-1 ¶ 5.]

Plaintiffs also appear to argue that the Arthur Final Judgment cannot preclude their TCPA claim, to the extent it arises out of pre-September 17, 2012 conduct, because they "never received any notice of the class action known as Arthur v. Sallie Mae." [Doc. No. 22-2 at 2 ¶ 2, at 4 ¶ 2.] Jennifer Andrews states that she did not receive the notice that was mailed to her on May 2, 2012, and Gregory Andrews declares he did not read the notices published in USA Today on April 18, 2012 and April 25, 2012, or in The Wall Street Journal on April 18, 2012. [Id. and Doc. No. 17-2 ¶ 5.]

But Due Process does not require that a class member receive actual notice of the class settlement before being bound by it. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994). Instead, class notice satisfies Due Process when it is the "best notice practicable." Id. The Arthur court approved the program of class notice as "the best practicable notice under the circumstances," [Doc. No. 17-7 ¶ 12], and plaintiffs here do not argue that it was deficient (or explain why it was deficient).

Plaintiffs also contend that the Arthur class settlement does not preclude claims for violations of the TCPA that occurred after September 14, 2010, because the Arthur class applied only to persons who received automated calls between October 27, 2005 and September 14, 2010. Yet while the Arthur class period ended September 14, 2010, the Final Judgment in Arthur states that all class members release all TCPA claims against Sallie Mae arising as of the date of the Final Judgment, September 17, 2012. [Id. ¶ 9.]

2. Plaintiffs' TCPA Claim Arising From Post-September 17, 2012 Calls

Next, plaintiffs argue that any ruling that they are deemed to have given prior express consent to defendant's calls as of September 17, 2012 would conflict with the Federal Communications Commission's Declaratory Ruling, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008). By failing to opt out of the Arthur class settlement or to submit a Revocation Request, however, plaintiffs accepted the terms of the Arthur settlement. If plaintiffs had objections to any terms of the Arthur settlement, they could have done what the settlement notice instructed them to do: opt out or raise objections. As the United States District Court for the Southern District of Florida held in addressing a similar argument from another Arthur class member:

Fostano v. Pioneer Credit Recovery, Inc., No. 13-80511-CIV, 2014 WL 657680, at *4 (S.D. Fla. Feb. 20, 2014).

Finally, plaintiffs contend that, even if they are deemed to have given their prior express consent to defendant's automated calls to their cell phone as of September 17, 2012, they subsequently revoked their consent. Plaintiffs supports this argument with their declarations that they have "repeatedly revoked any consent [defendant] had over and over again. [They] orally revoked consent many times prior to 9/10/201 [sic], in between 9/10/2010 and 9/17/2012 and after 9/17/2012." [Doc. No. 22-2 at 2, ¶ 5 and at 4, ¶ 5] (emphasis added).

Defendant responds that the issue of whether plaintiffs revoked their consent after September 17, 2012 is not before the court. Rather, defendant only seeks partial summary judgment that plaintiffs are deemed to have given their prior express consent as of September 17, 2012. Thus, defendant acknowledges that, with respect to plaintiffs' TCPA claim, a factual issue remains as to whether plaintiffs revoked their prior express consent subsequent to September 17, 2012.

CONCLUSION

For the reasons set forth above, defendant's motion for partial summary judgment [Doc. No. 17] is GRANTED. To the extent plaintiffs assert a TCPA claim arising out of defendant's automated calls to their cell phone made prior to September 17, 2012, the claim is precluded by the Arthur judgment. In addition, plaintiffs are deemed to have given their prior express consent to defendant's automated calls as of September 17, 2012. A genuine dispute of material fact remains as to whether plaintiffs revoked their consent subsequent to September 17, 2012.

IT IS SO ORDERED.