Telephone Consumer Protection Act

Whittaker v All Reverse Mortgage Inc.. No. CV 20-08016-PCT-DLR, 2020 WL 28229785 (D. Ariz. May 29, 2020)

Plaintiff filed a putative class action, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, (TCPA) by placing calls and sending text messages using an Automatic Telephone Dialing System (ATDS). Defendant moved to stay the case pending a ruling by the United States Supreme Court in the case of Barr v AAPC, 140 S.Ct. 812 (Jan. 10, 2020). Plaintiff opposed the Motion, arguing that the decision in AAPC was irrelevant to the merits of the instance case and that the stay balancing test mitigated against a stay.

Rejecting Plaintiff’s argument, the Court initially stated that whether to grant a stay requires balancing the: (1) Harm a stay would cause the non-moving party, (2)  harm the moving party would suffer in the absence of a stay, and (3) interests of judicial economy. Noting that AAPC was fully briefed, telephonic oral argument was held on May 6, 2020 and a decision would likely be released in mid-June, the Court also stated that in AAPC, the Supreme Court grapples with not only issues concerning the TCPA’s government debt exception—not at issue here—but also the constitutionality of the TCPA’s general underlying automated-call restrictions and whether the entire statute should be invalidated if severance of the government debt exception is inappropriate. Thus, the Supreme Court’s decision though not doubtlessly outcome determinative, might dispose of the lawsuit, narrow Plaintiff’s class or at least provide relevant guidance to the Court.

The Court concluded, holding that the three discretionary factors favored a stay because a stay would probably last less than a month and was unlikely to cause more than negligible harm to Plaintiff. Without a stay, however, Defendant would be required to expend limited resources litigating a costly class action that might be foreclosed or limited by AAPC. In the same vein, because the decision in AAPC might limit the scope of discovery, considerations of judicial economy weighed in favor of a stay, which the Court noted would enable it to preserve resources rather than expend them litigating issues that may be mooted shortly thereafter.