Warenski v. Charter Communications

Opinion

Patrick J. Reilly, Esq. Nevada Bar No. 6103 100 North City Parkway, Suite 1600 Las Vegas, NV 89106-4614 Telephone: 702.382.2101 Facsimile: 702.382.8135 preilly@bhfs.com Matthew D. Guletz, Esq. (admitted pro hac vice) Missouri Bar No. 57410 THOMPSON COBURN, LLP One U.S. Bank Plaza, Suite 2700 Saint Louis, MO 63101 Telephone: 314.552.6311 mguletz@thompsoncoburn.com Attorneys for Charter Communications, Inc. ALAN WARENSKI, individually and on CaseNo.: 2:19-cv-00101-RFB-NJK behalf of all and others similarly situated, STIPULATION AND ORDER EXTENDING Plaintiff, STAY OF PROCEEDINGS v. CHARTER COMMUNICATIONS d/b/a SPECTRUM, Defendant. Plaintiff Alan Warenski and Defendant Charter Communications, Inc., incorrectly sued as “Charter Communications d/b/a Spectrum” (“Charter”), hereby stipulate and agree as follows: 1. Plaintiff commenced this putative class action on January 17, 2019 (ECF No. 1). 2. This lawsuit arises under 47 U.S.C. § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Charter called Plaintiff using an “automatic telephone dialing system” (“ATDS”) and a prerecorded voice without Plaintiff’s prior express consent, in violation of the TCPA. 3. On June 17, 2020, presented with a stipulation from the parties, the Court stayed this action (ECF No. 55) in its entirety pending a ruling from the Supreme Court in Barr v. American Ass’n of Political Consultants, Case No. 19-631 (“AAPC”). 4. On July 6, 2020, the Supreme Court decided AAPC. See 2020 WL 3633780, at *1. The Supreme Court found that the government debt collection exception was unconstitutional, but saved 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA by severing the unconstitutional government debt collection exception from Section 227(b)(1)(A)(iii). See AAPC, 2020 WL 3633780, at *5 (“The initial First Amendment question is whether the robocall restriction, with the government-debt exception, is content-based. The answer is yes.”); see also id., at *2 (noting six Justices agree that, through the automated call ban, Congress has “impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment”). 5. Three days after the AAPC decision, the Supreme Court granted certiorari in Facebook, Inc. v. Duguid, No. 19-511 (Jan. 9, 2020) (“Duguid”), a case from the Ninth Circuit. 6. In Duguid, the Supreme Court will take up the question of “‘[w]hether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” See Question Presented, Facebook, Inc. v. Noah Duguid, No. 19-511 (S. Ct.) (emphasis added); see also Order Granting Petition for Writ of Certiorari, Facebook, Inc. v. Noah Duguid, No. 19-511 (S. Ct. July 9, 2020). 7. In Duguid, the Supreme Court is poised to issue a potentially controlling decision resolving the current circuit split on the definition of an ATDS. The circuit courts of appeals have reached divergent conclusions concerning the proper statutory definition of an ATDS. 8. Specifically, the Third, Seventh, and Eleventh Circuits have recognized that an ATDS is a device that can “(1) store telephone numbers using a random or sequential number generator and dial them or (2) produce such numbers using a random or sequential number generator and dial them.” See Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020); and Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018). 9. By contrast, the Second, Sixth, and Ninth Circuits have adopted a more expansive definition of an ATDS, concluding that it is “the capacity to ‘store’ numbers [that is] required under the TCPA to be considered ATDSs,” and that such a device must “dial numbers without human intervention.” See Duran v. La Boom Disco, Inc., 955 F.3d 279, 287 (2d Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018); Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043, 2020 WL 4345341, at *9 (6th Cir. July 29, 2020). 10. The parties believe that a definitive resolution of the controlling definition of an ATDS will issue shortly by the Supreme Court during this term, warranting a stay here pending the Duguid action. 11. The parties therefore agree that this action should be stayed in its entirety pending a ruling from the Supreme Court in the Duguid case. / / / / / / / / / / / / 12. Therefore, the parties respectfully request that the existing stay order entered on June 17, 2020 be extended pending the Supreme Court’s decision in Duguid. DATED this 11" day of August, 2020. DATED this 11" day of August, 2020. > || /s/ Miles N. Clark /s/ Patrick J. Reill Matthew I. Knepper, Esq. Patrick J. Reilly : BROWNSTEIN FARBER HYATT Miles N. Clark, Esq. KNEPPER & CLARK, LLC FARBER SCHECK, LLP , 100 N. City Parkway, Suite 1600 10040 W. Cheyenne Avenue Las Vegas, NV 89106-4614 Suite 170-179 Las Vegas, NV 89129 Matthew D. Guletz, Esq. THOMPSON COBURN, LLP George Haines, Esq. One U.S. Bank Plaza, Suite 2700 ° || FREEDOM LAW FIRM, LLC Saint Louis, MO 63101 8985 S. Eastern Ave., Suite 350 Attorneys for Charter Communications, Inc. Las Vegas, NV 89123 ] 702.880.5554 ext. 222 Efax: 702.967.6666 13 www.FreedomLegalTeam.com Attorneys for Alan Warenski 1S ORDER □□ □□ RICHARD F. BOULWARE, I UNITED STATES DISTRICT JUDGE Dated: August 12,2020, 213991311