Some Telephone Consumer Protection Act ("TCPA") cases are filed against companies with unlimited resources that can afford to throw everything at the wall and see what sticks. But the majority are filed against companies with limited resources that have to strategically pick and choose their battles. Thus, many TCPA defendants are stuck making choices like whether resources are better spent on arguing a motion to dismiss where the plaintiff will likely be given the opportunity to correct the deficiencies in his or her complaint, or arguing for bifurcated discovery to try and defeat the named plaintiff's individual claim before having to deal with the class claim and all the attendant discovery burdens that come with that. In Kennedy v. Fhia, LLC, a case in the United States District Court for the Middle District of Florida, it appears that Fhia took the throw-everything-at-the-wall approach. Unfortunately, that approach, despite Fhia's arguments having merit, seems to have failed and Fhia remains stuck in the case.
Kennedy v. Fhia, LLC. In Kennedy, the plaintiff alleged that Fhia violated the TCPA by making calls to her telephone number, which was registered on the National Do-Not-Call Registry ("NDNCR"). Fhia filed a motion to dismiss and to strike class allegations and sought to stay and bifurcate discovery. The plaintiff then filed an amended complaint, to which Fhia also filed a motion to dismiss and to strike class allegations.
Motion to Stay and Bifurcate Discovery. The district court declined to stay discovery because, based on a preliminary peek at the pending motion to dismiss and to strike class allegations, the district court did not find a clear possibility they would be granted and thus eliminate the need for discovery. The district court also noted that the general practice in the Middle District of Florida is to not bifurcate discovery, and the court did not see any circumstances that warranted deviating from that general practice. When deciding whether to seek to stay or bifurcate discovery, it is important to take a look at the relevant district court's stance on those issues. Some district courts are more amenable to staying or bifurcating discovery than others. And that battle is often best fought at the Rule 26(f) case planning stage, when the Court is inherently more focused on discovery issues rather than threshold Rule 12 issues in a case.
Motion to Dismiss. A few months later, the district court also denied Fhia's motion to dismiss. Some background on the TCPA is important to understanding why the district court did that. Under the TCPA and the Federal Communications Commission's implementing regulations, a sales call, subject to certain exceptions, cannot be made to "[a] residential telephone subscriber who has registered his or her telephone number on the" NDNCR. See 47 C.F.R. § 64.1200(c)(2). The plaintiff alleged that her now husband, at her request, registered her number on the NDNCR. Fhia moved to dismiss the plaintiff's amended complaint based on the fact that plaintiff's husband, not plaintiff, was the one who registered her number on the NDNCR. While not a bad argument, defendant may have compromised using it later in the case when it may matter more: at class certification. But the district court denied Fhia's motion to dismiss because it found that the plaintiff registering her number on the NDNCR through an agent (her husband) was sufficient, as liability through the actions of an agent (known as vicarious liability) has been held to be a viable theory of liability under the TCPA (although this is now an open question based on the U.S. Supreme Court eliminating Chevron deference).
Motion to Strike Class Allegations. Finally, the district court denied Fhia's motion to strike the plaintiff's class allegations. Fhia argued that the plaintiff's class definition should be struck because whether a person was a class member, based on the class definition, relied on an individual determination of whether that person had received a sales call. Fhia essentially argued that that individual issue contained in the plaintiff's class definition precluded class certification because, the argument goes, you'd need to know the content of each call to decide if they were a class member. The district court denied Fhia's motion because the Eleventh Circuit Court of Appeals, in an opinion that was binding on the district court, found that a class definition referring to sales calls may be appropriate. The district court also noted that the plaintiff had not yet moved for class certification and motions to strike class allegations are disfavored prior to class certification in the Eleventh Circuit.
[1] Now Fhia is facing expensive class discovery and class certification, or winning on judgment. While there was merit to Fhia's arguments, this case serves as a reminder that it is important to consider the strength of each argument, especially if you are a TCPA defendant with limited resources. Defendants, especially TCPA defendants, should discuss with their counsel which defenses and arguments are mostly likely to be worth allocating resources towards, and when. Remember: price is what you pay; value is what you get.
[1] The Eleventh Circuit consists of Alabama, Florida, and Georgia.
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