In Calhoun v. FLRish, Inc., No. 19-cv-08212-JCS, 2020 U.S. Dist. LEXIS 84485, at *5-7 (N.D. Cal. May 13, 2020), Judge Spero stayed a TCPA pending the outcome of the SCOTUS’ decision in Barr v. AAPC.
A number of other district courts have stayed TCPA cases claiming violations of the ATDS prohibition pending a decision in AAPC. See, e.g., Lacy v. Comcast Cable Communs., LLC, No. 3:19-CV-05007-RBL, 2020 U.S. Dist. LEXIS 74666, 2020 WL 2041755, at *2 (W.D. Wash. Apr. 28, 2020) (collecting cases). Others have not. E.g., Izor v. Abacus Data Sys., No. 19-cv-01057-HSG, 2020 U.S. Dist. LEXIS 64454 (N.D. Cal. Apr. 13, 2020). A determination in AAPC that the ATDS prohibition is unconstitutional would eliminate one of the two claims in this case, would likely substantially limit the number of putative class members, and could meaningfully limit the scope of discovery. While the Court declines to speculate as to the likely outcome of AAPC, the prejudice to all parties and non-party witnesses of pursuing potentially unnecessary discovery, as well as the harm to judicial economy of adjudicating disputes related to such discovery, outweighs the de minimis prejudice to Calhoun of a brief stay, unlikely to exceed two months, pending a decision in AAPC. The difficulty of conducting discovery during the shelter-in-place orders imposed in response to the COVID-19 public health emergency, although probably not sufficient in itself to stay the case absent agreement of the parties, further supports granting FLRish’s motion. The motion is therefore GRANTED, and the case is STAYED pending further order of the Court. The parties shall file a joint status report no later than seven days after a decision in AAPC informing this Court of such decision, addressing whether Calhoun’s ATDS claim may proceed, and stating each party’s position as to whether the stay should be lifted. Although the Court declines to stay the case further based on the mere possibility of certiorari in Duguid, FLRish may renew its motion as to that case if the Supreme Court both grants certiorari in Duguid and resolves AAPC in a manner that allows Calhoun’s ATDS claim to proceed.