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

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 Konopca v. Comcast Corp., 2016 WL 1645157, at *4 (D.N.J., 2016), Judge Arpert found that the defendant did not meet the requirements to convince the Court to stay the TCPA proceedings pending the outcome of the ACA omnibus proceedings. Third, the Court considers whether the stay would further the interest of judicial economy, and whether resolution of the appeal to… Read More

In Schwyhart v. AmSher Collection Services, Inc., 2016 WL 1620096 (N.D.Ala., 2016), Judge Ott refused to stay a TCPA case based on the pending ACA Omnibus proceedings. Having considered the parties' respective arguments for and against a stay, the court concludes that a stay is not warranted in this instance, for two primary reasons. First, AmSher's motion to stay is… 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

In Valladares v. Blackboard, Inc., 2015 WL 4466839  (N.D. Ill. July 21, 2015), Judge Der-Yeghiayan denied a request to stay a TCPA case because the petition pending before the FCC differed from the issues. in the case. Defendants request in the alternative that the court stay the instant action, pending a decision by the FCC. Defendants argue that they have petitioned… Read More

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More

In King v. Time Warner Cable, 2015 WL 4103689 (S.D.N.Y.,2015), Judge Hellerstein refused to stay a TCPA "called party" case under the Primary Jurisdiction Doctrine. “[P]rior express consent by the called party” is a safe harbor against liability under the TCPA, 47 U.S.C. § 227(b)(1)(A), and TWC claims that Luiz Perez, the prior owner of Ms. King's phone number, consented… Read More

Two articles on the TCPA authored by Severson attorneys were published today in the Consumer Finance Law Quarterly Report as part of the Conference on Consumer Finance's TCPA Symposium.  The titles and citations for the articles are Staying TCPA Cases under the Primary Jurisdiction Doctrine, 68 Con. Fin. L. Q. Rep. 312 (2015) and Certification of Class Actions under the Telephone Consumer… Read More

In Leon v. Target Corporation, 2015 WL 3738583 (M.D. Pa. 2015), Judge Caputo refused to apply the Primary Jurisdiction Doctrine to stay a TCPA action. On April 17, 2015, Target filed its Answer and Affirmative Defenses to Leon’s Complaint. (Doc. 19.) Target then filed the instant motion to stay this action (Doc. 20) because “the issue of revocation of consent… Read More

In Sook v. Nielsen Company (US), LLC, 2015 WL 3688781, at *1-2 (M.D.Fla.,2015), Judge Kovachevich stayed a TCPA case under the Primary Jurisdiction Doctrine. On February 9, 2015, Plaintiff filed its complaint, alleging that Defendant sent Plaintiff thousands of unwanted text messages in violation of 47 U.S.C. § 227, The Telephone Consumer Protection Act (“TCPA”). (Doc. 1 at 1). Specifically, Count… Read More

In Hofer v. Synchrony Bank,  2015 WL 2374696, at *2-4 (E.D. Mo.  2015), Judge Perry declined to stay a TCPA case based on the Primary Jurisdiction Doctrine.  The Court found that the question of whether an ATDS was used did not justify staying the Action. The FCC has already considered the first question proffered by Synchrony at least twice. See Prater… Read More

In Story v. Mammoth Mountain Ski Area, LLC, 2015 WL 2339437 (E.D. Cal. 2015), Judge Mendez applied the Primary Jurisdiction Doctrine to stay a TCPA class action arising out of a ski-resort purportedly leaving pre-recorded advertisements on the putative class members' cellular telephones. In 2012, the FCC issued a Report and Order entitled “In the Matter of Rules and Regulations Implementing the… Read More

In Kristensen v. Capital One Bank, N.C., 2015 WL 2151751 (C.D.Cal. 2015), Judge Gee granted a stay of a TCPA re-assigned number 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 an administrative agency. Clark v. Time Warner… Read More

In Simon v. Healthways Inc, 2015 WL 1568230 (C.D.Cal. 2015), Judge O’Connell refused to stay a TCPA blast-fax class action based on the Primary Jurisdiction Doctrine. To begin. Defendants argue that the Court should stay these proceedings in accordance with the primary jurisdiction doctrine due to the FCC’s recent clarification that solicited faxes must provide opt-out notice. The primary jurisdiction… Read More