Hospital Can’t Pause TCPA Suit For Autodial Definition

By Ben Kochman

Law360, New York (October 11, 2017, 7:36 PM EDT) -- A federal judge on Tuesday nixed a California hospital's bid to pause a suit claiming it illegally robocalled debtors, calling it a stretch for the medical center to claim the case should be frozen while an appeals court defines the Telephone Consumer Protection Act's scope in cracking down on automatic telephone dialing systems.

U.S. District Judge William Q. Hayes sided with Taneesha Crooks and Anthony Brown in deciding the case against Rady Children's Hospital-San Diego should move forward, writing that the hospital must disclose the technology it used to place the alleged calls no matter how the D.C. Circuit rules in ACA International v. FCC on whether the federal agency's 2015 definition of the systems too broadly defined "autodialers." The appeals court ruling also does not directly affect the alleged prerecorded calls Crooks and Brown claim to have received, the judge said.

"Based on the record and at this early stage of the proceedings, the court cannot conclude that the outcome of ACA International would have a significant impact on the litigation in this court," Judge Hayes said.

In a February complaint filed in California's Southern District, Crooks and Brown claimed that medical practice foundation Rady Children's Specialists violated the TCPA in April and October 2016, respectively, by continuing to call them with an automatic telephone dialing system and an artificial or prerecorded voice seeking outstanding debts after their attorneys faxed and mailed cease-and-desist letters to the hospital's multiple locations.

The judge on Tuesday rejected Rady's assertion that it would suffer hardship from potentially unnecessary discovery, denied the hospital's bid to toss the case entirely and ruled that it would be "premature" to decide on the case's class status before discovery. In March, Rady urged the court to stay the case until the D.C. Circuit decides on a set definition of "autodialers" in ACA International. In that case, a coalition of businesses claimed that the FCC went too far in 2015 when it expanded its definition of robocall devices to include those with "potential" to generate and dial random or sequential numbers - which the businesses said could ensnare even cellphones and lead to a swell in TCPA litigation.

The FCC's order in question also broadened leeway to revoke consent to receive calls, which Rady argued would be relevant to the suit.

Counsel for Brown and Crooks declined to comment Wednesday. Representatives and counsel for Rady did not respond to 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, case number 3:17-cv-00246, in the

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

--Additional reporting by Allison Grande. Editing by Richard McVay and Aaron Pelc.