Everyone in TCPAWorld is familiar with the two Reyes cases. In Good Reyes, the Second Circuit held that contractual consent cannot be revoked unilaterally. Which makes sense, because contracts are binding, and you can’t back out of contractual promises at will. But in Bad Reyes, the Southern District of Florida became one of the first courts to hold that the FCC’s 2003 and 2008 ATDS orders survived ACA International. See Reyes v. BCA Fin. Servs., Inc., 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018). So the name “Reyes” took on a whole new meaning in TCPAWorld.
Well, Bad Reyes just became not so bad after all. The court just granted a motion to stay pending FCC action on the definition of an ATDS. Reyes, No.: 1:16-cv-24077-JG, Dkt. No. 200 (S.D. Fla. July 10, 2019).
Significantly, the court addressed the “indefinite stay” argument by saying that it may revisit the stay if the FCC hasn’t acted by January 13, 2020. Although the length of a stay should not really be a factor in the primary jurisdiction analysis, it is the favorite argument of the plaintiff’s bar. Not-so-bad-anymore Reyes provides one response to that argument that we have seen other courts and arbitrators adopt: pick a reasonable date by which the court or arbitrator can re-evaluate the stay. That way, the court or arbitrator can be assured that the case will continue to move while still providing an opportunity for the agency with primary jurisdiction to define an ATDS to weigh in.
Stay tuned, folks, we have you covered on all things Reyes – good, bad, and not-so-bad-anymore.
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