In In Stoutt v. Travis Credit Union, No. 2:20-cv-01280 WBS AC, 2021 U.S. Dist. LEXIS 57392 (E.D. Cal. Mar. 24, 2021), Judge Schubb certified the Creasy TCPA issue for review by the 9th Circuit. The facts were as follows:
In this putative class action, plaintiff Shawntel Stoutt claims that defendant Travis Credit Union violated § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act of 1991 (“TCPA”), which prohibits the use of an automatic telephone dialing system (“ATDS”) to call cell phones. See 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff alleges that defendant used an ATDS to call her cell phone number at least 18 times between January 24, 2019, and February 26, 2020. (See Compl. ¶¶ 20-32 (Docket No. 1).) On October 26, 2020, defendant filed a motion for judgment on the pleadings arguing that, in light of the Supreme Court’s recent decision Barr v. American Association of Political Consultants, Inc., 140 S. Ct. 2335, 207 L. Ed. 2d 784 (2020) (“AAPC”), this court lacked subject matter jurisdiction over plaintiff’s TCPA claim. (Docket No. 12.) This court denied defendant’s motion on January 12, 2021, concluding that because the Supreme court in AAPC had expressly severed the government debt exception from the remainder of the statute, “holding the entire robocall ban to be ineffective as to calls made between 2015 and 2020 would improperly construe AAPC as having invalidated the entirety of § 227(b)(1)(A)(iii), rather than just the government-debt exception, and thus would undermine the Court’s central purpose in severing the statute.” (Docket No. 20 at 9.) Accordingly, the court concluded that it has subject matter jurisdiction over plaintiffs’ TCPA claim. (Id.) Defendant now moves to certify the court’s denial of its motion for judgment on the pleadings for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Docket No. 23.)
Judge Schubb held that the 9th Circuit ought to take a look a look at it.
All three factors are met in this case. First, a case presents a controlling question of law if the appellant’s success on appeal would result in dismissal of the case. See Omni MedSci, Inc. v. Apple Inc., No. 19-CV-05924, 2020 U.S. Dist. LEXIS 26671, 2020 WL 759514, at *1 (N.D. Cal. Feb. 14, 2020) (“Standing and subject-matter jurisdiction are controlling issues of law.”). If the Court of Appeals were to adopt defendant’s position regarding the impact of AAPC on the validity of the TCPA’s robocall ban during the time period encompassed by plaintiff’s claim, it would mandate dismissal of the entire action for lack of subject matter jurisdiction. This case therefore presents a controlling question of law. See id. Second, a substantial ground for difference of opinion exists “where ‘. . . novel and difficult questions of first impression are presented.'” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (quoting Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)). District courts across the country have split on the question of whether, in light of AAPC, the TCPA remains enforceable as to claims arising out of allegations of calls to cell phones placed between November 2015 and July 6, 2020. Compare Creasy v. Charter Commc’ns, Inc., Civil Action No. 20-1199, 2020 U.S. Dist. LEXIS 177798, 2020 WL 5761117, at *6 (E.D. La. Sep. 28, 2020) with Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-cv-0272-MCS-SP, 2020 U.S. Dist. LEXIS 239730 (C.D. Cal. Dec. 21, 2020). Because this issue concerns the proper interpretation of a Supreme Court opinion that was recently issued, and no Court of Appeals has decided the issue one way or the other, a substantial ground for difference of opinion exists. Reese, 643 F.3d at 688.