In Camacho v. Hydroponics, Inc., No. EDCV 20-980 JGB (KKx), 2020 U.S. Dist. LEXIS 174379 (C.D. Cal. Sep. 22, 2020), Judge Bernal denied a stay in a TCPA case.

The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Unfortunately, the meaning of part (A) is unclear. Some courts have read “using a random or sequential number generator” to modify only “produce,” such that a device can be classified as an ATDS if it either stores (nonrandom) numbers or randomly produces them. See, e.g., Duran v. La Boom Disco, Inc., 955 F.3d 279, 285 (2d Cir. 2020) (“‘[P]roduce’ is modified by the clause after the comma in the statute—’using a random or sequential number generator’—while ‘store’ is not. Under this approach, a dialing system can be an ATDS if it can ‘store’ numbers, even if those numbers are generated elsewhere, including by a non-random-or non-sequential-number-generator—such as a person. At the same time, a dialing system can be an ATDS if it can ‘produce’ numbers ‘using a random or sequential number generator[.]'”) By this reading, a device need not use a random number generator at all to be classified as an ATDS; it is enough to “store . . . telephone numbers to be called.” The Ninth Circuit has adopted this reading. “[T]he adverbial phrase ‘using a random or sequential number generator’ modifies only the verb ‘to produce,’ and not the preceding verb, ‘to store.’ In other words, an ATDS need not be able to use a random or sequential generator to store numbers—it suffices to merely have the capacity to ‘store numbers to be called’ and ‘to dial such numbers automatically.'” Duguid v. Facebook, Inc., 926 F.3d 1146, 1151 (9th Cir. 2019), cert. granted in part, No. 19-511, 2020 WL 3865252 (U.S. July 9, 2020) (internal citations omitted). Other courts, however, have read “using a random or sequential number generator” to modify both “store” and “produce,” such that a device must either randomly store numbers or randomly produce numbers to be an ATDS. See, e.g., Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 (7th Cir. 2020) (“The wording of the provision that we interpret today is enough to make a grammarian throw down her pen . . . We hold that ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.'”); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) (same). Under this reading, a device must use a [*7]  random number generator to be an ATDS, whether it uses that generator to store or to produce numbers. The Supreme Court is poised to resolve this circuit split. On July 9, 2020, the Supreme Court granted certiorari in Facebook to determine the following question: “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'” (Dkt. No. 21-4.) Petitioner’s brief was due September 4, 2020, and respondent’s is due by October 16, 2020. (Dkt. No. 21-3.) Under either reading of the statute, devices that use random number generators are ATDSs. Facebook concerns only that category of device that does not use a random number generator to produce phone numbers to contact. . . As explained above, Facebook concerns the ATDS status of devices that do not use a random number generator. There was no suggestion in Facebook that Facebook had used a random number generator to produce or store the plaintiff’s number; instead, the court found that Facebook somehow “acquired” it. Duguid v. Facebook, Inc., 926 F.3d at 1150 (9th Cir. 2019). Similarly, the other cases cited above did not concern randomly generated numbers. In Gadelhak, Defendant AT&T pulled numbers from a customer feedback tool and included the plaintiff because of typographical error. 950 F.3d at 461 (7th Cir. 2020). Neither defendant in Glasser “used randomly or sequentially generated numbers.” 948 F.3d at 1304-05 (11th Cir. 2020). And the defendant in Duran acquired Plaintiff’s number when plaintiff signed up for text messages. 955 F.3d at 281 (2d Cir. 2020). This is crucial because, as outlined above, a system that uses a random number generator to produce numbers to spam is an ATDS under any of the holdings cited. The ruling in Facebook will only bear upon the ATDS status of those devices which do not use random number generators at all. Plaintiff has alleged that Defendant does use a random number generator: “Defendants  . . . used equipment having the capacity to randomly or sequentially generate telephone numbers.” (Complaint at ¶48.) Defendant has not rebutted that assertion. Therefore, the Court has no suggestion before it that Defendant’s system is the type of system at issue in Facebook. And, of course, if Defendant’s system is not at issue in Facebook, the Supreme Court’s ruling in Facebook will not bear upon this litigation, and it would not be appropriate to stay this action. Plaintiff identifies at least one other court that has denied a motion to stay TCPA litigation pending the outcome of Facebook where the Defendant has been unclear about whether Facebook will apply to their technology. In Komaiko v. Baker Technologies, the Northern District of California denied a similar stay motion where the defendant was “notably evasive” on whether its technology was the type at issue in Facebook: “under Ninth Circuit precedent that is not before the Supreme Court in Duguid [v. Facebook], Baker’s technology could still be considered an ATDS . . . In sum, it is not clear that a reversal in Duguid would be dispositive in this case.” 2020 WL 5104041, at *3 (N.D. Cal. Aug. 11, 2020) (denying a stay where Defendant would not clarify whether its technology had the capacity to randomly generate numbers). See also Order Denying Stay, Becker v. Keller Williams Realty, 19-81451-CV-SINGHAL/MATHEWMAN (Dkt. No. 23-1) (denying stay in similar case where “it is unclear whether a decision in Facebook would have any bearing on Plaintiff’s claim of receiving pre-recorded voice calls.”). To be clear: Facebook will bear upon this litigation only if Defendant employed a system that does not use any type of random number generator. The Court currently has before it only Plaintiff’s contention that Defendant uses a random number generator. As such, nothing suggests that Facebook will bear on the case at hand. This omission may have been an oversight on the part of Defendant’s counsel, but the Court cannot stay this case for a year without being sure of the relevancy of the litigation for which this case would be stayed. Defendant has failed to carry its burden of proving that a stay is justified.