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CEB Prac. Guide § 2B.09: Primary Jurisdiction Doctrine

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The procedural history in True Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-02219-HSG, 2020 U.S. Dist. LEXIS 242297 (N.D. Cal. Dec. 24, 2020) is a handful, but sets the stage for Judge Gilliam’s ruling. Defendants were ordered to identify "each type of act that Defendants believe demonstrates a recipient's express permission to receive faxes (e.g. completing a software registration), (2)… Read More

In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is. Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made… Read More

In Izor v. Abacus Data Sys., No. 19-cv-01057-HSG, 2019 U.S. Dist. LEXIS 130865, at *6-9 (N.D. Cal. Aug. 5, 2019), Judge Gilliam refused to stay a TCPA case under the Primary Jurisdiction doctrine. "The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of… Read More

SCOTUS is using a TCPA case to decide whether the Hobbs Act requires district courts to accept the FCC’s pronouncements on the TCPA in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., Docket No. 17-1705.  On November 13, 2018, the SCOTUS granted certiorari after the Court of Appeals for the Fourth Circuit vacated a district court opinion on what… Read More

In McMillion v. Rash Curtis & Associates, Case No. 16-cv-03396-YGR, 2018 WL 3023449 (N.D. Cal. Jun3 18, 2018), Judge Gonzales-Rogers declined to revisit her ruling on summary judgment (previously reported on here https://www.severson.com/consumer-finance/district-court-cal-says-defendant-used-atdss-class-period-addresses-whether-calls-many-fdcpa-rosenthal-act-says-medical-debt-consumer-credit-transaction-becau/  or to stay the case pending the outcome of the 9th Circuit’s Marks ruling.  First, the District Court declined to reconsider her ruling on summary judgment. Rash Curtis argues that because… Read More

In Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 2018 WL 1021225, at *2–4 (C.A.4 (W.Va.), 2018), the Court of Appeals for the 4th Circuit held that the Hobbs Act prevented the District Court from side-stepping the FCC's Rules. The question presented is whether and when a fax that offers a free good or service constitutes an advertisement under… Read More

In Gensel v. Performant Technologies, Inc., 2015 WL 6158072, at *2 (E.D.Wis.,2015), Judge Randa stayed a TCPA case, that was previously stayed under the Primary Jurisdiction Doctrine, because it was likely that the D.C. Circuit will overrule the FCC on the ATDS issue. Performant pins its hopes on the expectation that the appellate courts, particularly the Seventh Circuit, will overrule… Read More

In Loebenstein v. Chase Bank, 2015 WL 4478136  (D.N.J.,2015), Judge Arpert declined to stay a TCPA case filed by the Plaintiff that sought relief under the TCPA for “wrong party calls”, which  arise when a company obtains the telephone number at issue from one of its customers who, after providing the number to the company, and unbeknownst to the company, ceases use… Read More

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