Calif. Hospital Seeks Stay As DC Circ. Mulls TCPA Suit

By Steven Trader

Law360, New York (March 16, 2017, 5:13 PM EDT) -- A San Diego-based children's hospital battling Telephone Consumer Protection Act allegations urged a California judge Wednesday to either stay the proposed class action pending an upcoming, relevant D.C. Circuit decision on the privacy statute, or else dismiss the suit completely.

Rady Children's Hospital San Diego urged U.S. District Judge William Q. Hayes to hold off for now on considering the TCPA lawsuit filed in early February by Taneesha Crooks and Anthony Brown, accusing the pediatric medical center of using an automated telephone dialing system, or ATDS, to call them about outstanding debts, even after their attorneys sent the hospital cease and desist letters revoking any prior consent they may have given to be called.

In its motion to stay, the hospital explained that key provisions of the TCPA statute, including ones immediately pertinent to the current lawsuit, have been questioned in the case of ACA International v. FCC currently pending before the D.C. Circuit and will likely be decided soon. A pause would be in everyone's best interest, "to ensure they are not conducting discovery and preparing for trial based on invalid law."

"Here, the factors weigh in favor of a stay," Rady Children's wrote. "The potential prejudice to plaintiffs of a stay is minimal. The last call received by either plaintiff was Dec. 23, 2016. There is nothing that suggests that plaintiffs are in jeopardy of receiving additional phone calls. Further, the D.C. Circuit in ACA International has already heard oral argument. Consequently, the requested stay will not be lengthy."

One of the questions before the D.C. Circuit in the ACA International case is whether a new definition of ATDS established by the FCC in 2015 is overly broad to include not only dialing systems that have the "present capacity" to generate and dial random or sequential numbers, but also systems that have the "potential" to do so. Another question is what constitutes the revocation of prior consent to receive calls.

Both those questions are immediately pertinent to the instant suit, Rady Children's argued, as it would be useful to have a set definition of an ATDS before the case is tried, and because it's not clear whether or not Crooks and Brown properly revoked consent to receive the calls.

Multiple other district courts both around the country and within the Ninth Circuit have made the decision to stay similar TCPA cases, Rady Children's pointed out.

The hospital also added that Judge Hayes should eliminate the class claims given that the issue of consent will vary from person to person. And, should he decide not to pause the lawsuit, he should instead dismiss it in its entirety for failure to state a claim or for lack of standing, Rady Children's argued.

Counsel for Crooks and Brown declined to comment on Thursday.

In a complaint filed on Feb. 9, Brown says medical practice foundation Rady Children's Specialists started calling his cellphone on or before April 11, 2016, using an automatic telephone dialing system and an artificial or prerecorded voice, trying to collect on an outstanding debt.

The Law Office of Daniel Shay then faxed and mailed cease and desist letters to the hospital's multiple locations, revoking any prior express consent Brown might have given and explaining that Brown had retained the firm to stop creditor harassment and discharge the claim through bankruptcy, the complaint says.

But the calls didn't stop, according to the complaint. On Dec. 23, Brown picked up a call from Rady and was reminded by an artificial or prerecorded message of the existence of the alleged debt, he said.

Crooks faced a similar situation, with Rady continuing to call her after Shay sent over cease and desist letters and faxes revoking any consent she might have given to those sorts of calls, the complaint alleges.

The hospital is represented by Marilyn R. Moriarty, Julie R. Dann and Stephen H. Turner of Lewis Brisbois Bisgaard & Smith LLP

Brown and Crooks are represented by Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group APC, Daniel G. Shay of the Law Office of Daniel G. Shay and Joshua B. Swigart and Yana A. Hart of Hyde & Swigart.

The suit is Taneesha Crooks et al. v. Rady Children's Hospital-San Diego, suit number 3:17-cv-00246, in the

U.S. District Court for the Southern District of California.

--Additional reporting by Shayna Posses. Editing by Pamela WIlkinson.