TCPA Case Stays Related to ACA, Campbell-Ewald, and Spokeo Continue to Multiply

This article was originally published on December 30, 2015 and is reprinted with permission from Blaine C. Kimrey, shareholder at Vedder Price, PC.

Blaine Kimrey

In two federal decisions handed down on the same day (Dec. 17, 2015), federal courts in California and Georgia gave early Christmas presents to defense lawyers by granting requests to stay TCPA cases based on proceedings before the U.S. D.C. Circuit Court of Appeals and the U.S. Supreme Court.  See Fontes v. Time Warner Cable, Inc.,2015 U.S. Dist. LEXIS 169580 (C.D. Ca. Dec. 17, 2015); Luster v. Jewelers, 2015 U.S. Dist. LEXIS 169115 (N.D. Ga. Dec. 17, 2015).  These decisions highlight how TCPA cases have increasingly become simultaneous multi-front battles before district courts, courts of appeal, the Supreme Court, and the FCC and how proceedings in one or more other venues often can influence defense at the district court level (even without perfect party or claim parity among the various matters).

In Fontes, defendant Time Warner Cable argued that the ATDS and pre-recorded message putative class action should be stayed again (it had already been stayed once pending action by the FCC) because of “re-assigned number” issues addressed by the FCC in its July 10, 2015 Declaratory Ruling and Order and the subsequent appeal of that order to the D.C. Circuit.  See 2015 U.S. Dist. LEXIS 169580 at *10 (consolidated case pending as ACA Int’l, et al. v. Fed. Commncn’s Comm., No. 15-1211 (D.C. Cir. 2015)).  The court agreed and granted the stay, reasoning that “in light of the close divide amongst the FCC commissioners and the fact that at least one commissioner believes the FCC’s ruling is ‘flatly inconsistent with the TCPA,’ there is a legitimate possibility that the Court of Appeals may overturn that ruling.  Accordingly, the proper interpretation of the TCPA remains unclear.”  Id. at *12.

In Luster, defendant Sterling Jewelers argued that the ATDS putative class action should be stayed pending decisions by the U.S. Supreme Court in Campbell-Ewald and Spokeo.  See 2015 U.S. Dist. LEXIS 169115 at *1-3 (referring to Campbell-Ewald v. Gomez, No. 14-857, U.S. Sup. Ct., and Robins v. Spokeo, No. 13-1339, U.S. S. Ct.)).  Campbell-Ewald involves the question of whether an offer of full and complete relief to an individual class representative can result in resolution of his or her claim and dismissal of the class allegations without prejudice. Spokeo involves the question of whether a statute can create “injury in fact” for purposes of Article III standing under the U.S. Constitution where actual injury may not exist.

Judge Duffey granted the motion to stay in Luster, reasoning that “[b]ecause it appears that the Supreme Court’s decisions in Spokeo and Campbell-Ewald may be dispositive of this Court’s case, a stay of proceedings is warranted.”  Id. at *5.  In granting the stay, Judge Duffey noted that he was following the majority position and cited seven supporting decisions from Florida, Ohio, California, Pennsylvania, and Minnesota.  Id. at * 6 (citations omitted).  The judge elaborated that the plaintiff would not be prejudiced by a stay, which was warranted to avoid unnecessary expenditures of time and resources, because decisions by the Supreme Court in the two cases are expected in the next few months, and because of the public interest in judicial economy and efficiency.  Id.

In light of ACA International, Campbell-Ewald, and Spokeo (as well as ongoing proceedings before the FCC and D.C. Circuit Court of Appeals related to a whole host of other issues, including those related to opt-out notices on facsimiles), the vast majority of TCPA cases currently pending are subject to direct impacts from outside the district courts in which they’re pending.  In defending these cases, it thus is imperative to monitor developments across all the relevant dockets and act on any developments potentially beneficial to the defense.