Call Recipients Oppose Stay In Hospital TCPA Suit

By Shayna Posses

Law360, New York (April 11, 2017, 6:16 PM EDT) -- The recipients of allegedly autodialed calls from Rady Children's Hospital-San Diego blasted the pediatric medical center's bid to pause a Telephone Consumer Protection Act suit pending an upcoming D.C. Circuit decision on the privacy statute or else to toss it entirely, arguing Monday that a stay would be prejudicial and dismissal isn't warranted.

Taneesha Crooks and Anthony Brown told a California federal judge that it isn't necessary to hold off on considering their suit until after the D.C. Circuit reaches its decision in ACA International v. FCC, saying Rady is overstating the relevance of the appeal - which questions key provisions of the TCPA - and ignoring how burdensome a stay would be for the call recipients.

"In analyzing the factors warranting a stay, defendant completely disregards the prejudice to plaintiffs, fails to establish genuine hardship to defendant if the stay is denied, and merely seeks to unnecessarily delay inevitable discovery based on speculation as to what may happen in ACA International," the consumers said. "Regardless of the outcome of the appeal in the D.C. Circuit, plaintiffs will need discovery as to the telephone systems/equipment used by defendant during the relevant period."

Rady also moved to strike the class allegations, but Crooks and Brown said the request is premature and prejudicial, calling it a "disguised" motion to preemptively deny class certification without giving them the benefit of discovery.

As for the medical center's alternative request to nix the action, Crooks and Brown said that request also comes too early, contending that they have adequately pled the use of an automatic telephone dialing system based on all the facts they have at this time.

In a February complaint, Brown said 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 he 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.

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.

Last month, Rady said it would be in everyone's best interest to stay the matter until the D.C. Circuit decides ACA International.

One of the questions before the D.C. Circuit is whether a new definition of ATDS established by the FCC in 2015 is overly broad by including 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.

Those issues are immediately pertinent to the instant suit, Rady 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 Crooks and Brown properly revoked consent to receive the calls.

But Crooks and Brown challenged those contentions Monday, saying Rady blatantly ignores how prejudicial it would be to them to have to wait to conduct discovery, as well as the fact that the matter at hand involves pre-recorded calls, which aren't part of the appeal.

That's a critical distinction because regardless of what the appeals court decides regarding the definition of an ATDS, Rady is still subject to liability for placing pre-recorded calls to individuals, Crooks and Brown argued.

A stay also isn't warranted on the revocation of consent issue, as at least one of the plaintiffs alleges that consent never existed in the first instance, they argued. Even if the D.C. Circuit holds that consent can only be revoked in writing, both of the call recipients say they did so, they contended.

In any event, any change in law based on the appeal wouldn't change Rady's burden to fork over discovery concerning the dialer used to call Crooks and Brown, they argued.

The call recipients also challenged the hospital's contention that the judge should eliminate the class claims because the issue of consent will vary from person to person, arguing that such requests are rarely granted at the pleading stage and this case doesn't rise to that level.

It's too early to toss the allegations, as well, Crooks and Brown contended, saying they've sufficiently pled their claims to survive at this stage of the litigation. Plus, despite Rady's claims to the contrary, they've adequately alleged Article III standing to sue for violation of their substantive rights under the TCPA, they argued.

A representative for Brown and Crooks declined to comment Tuesday. Representatives for the hospital didn't immediately return a request for comment.

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

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 Steven Trader. Editing by Orlando Lorenzo.