District Judge (Fla.) in Mais v. Gulf-Coast Collection TCPA Case Certifies His Ruling for Interlocutory Appeal to the 11th Circuit

In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling (http://www.calautofinance.com/?p=4112) for interlocutory appeal to the 11th Circuit Court of Appeals.  This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed (http://www.calautofinance.com/?p=4165) – at least until the 11th Circuit accepts or rejects the interlocutory appeal.

First, the “controlling question of law” requirement is met because the key issues presented are whether this Court properly found jurisdiction under the Hobbs Act to review the 2008 FCC Ruling and, if so, whether the FCC’s pronouncements on consent and vicarious liability are entitled to deference. These questions are presented at “a high enough level of abstraction” and will have “general relevance to other cases in the same area of law.” See McFarlin, 381 F.3d at 1259. They are not fact-bound questions; the facts in this case are straightforward and largely undisputed: Plaintiff went to the hospital emergency room, his wife filled out admissions paperwork on his behalf and tendered his cell phone number to the admissions clerk, Plaintiff received treatment from Florida United, he failed to pay a $49 bill, his account was forwarded to Gulf Coast for collection, and he received 15 automated debt collection calls from Gulf Coast on his cell phone. The only things in dispute are the legal implications of these facts, particularly with respect to consent and vicarious liability. ¶  Second, the “substantial ground for difference of opinion” requirement is satisfied because other courts, including the Seventh Circuit, have ruled that district courts lack jurisdiction under the Hobbs Act to review the FCC’s orders in cases of this kind. See, e.g., CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, (7th Cir.2010); Sacco v. Bank of Am., N.A., 2012 WL 6566681, at *9 (W.D.N.C. Dec.17, 2012); Greene v. DirecTv, Inc., 2010 WL 4628734, at *3 (N.D.Ill. Nov.8, 2010); Hicks v. Client Servs., Inc., 2009 WL 2365637, at *4 (S.D.Fla. June 9, 2009) (Dimitrouleas, J.); Frausto v. IC Sys., 2011 WL 3704249, at *2 (N.D. Aug. 22, 2011); Leckler v. Cashcall, Inc., 2008 WL 5000528, at *2–*3 (N.D.Cal. Nov.21, 2008); Moore v. Firstsource Adv., LLC, 2011 WL 4345703, at *10 (W.D.N.Y. Sept.15, 2011). ¶  This Court explained in its summary judgment order that it disagrees with those decisions and does not find them persuasive in light of the statutory language. But their existence shows a “substantial ground for difference of opinion” because different courts have decided the relevant legal issues differently. See In re Pac. Forest Prods. Corp., 335 B.R. 910, 922 (S.D.Fla.2005) (Gold, J.) (“substantial difference of opinion” element may be satisfied where “at least two courts interpret the relevant legal principle differently”). Further, while the Eleventh Circuit has not ad-dressed the reach of the Hobbs Act in a TCPA case, it concededly employed a broad interpretation of the jurisdictional statute in the Self case. While this Court believes it properly interpreted the Hobbs Act and that its interpretation is consistent with Self, the Court also recognizes that the Eleventh Circuit might reach a different conclusion.  ¶  The Court also notes that this is an important area of the law, especially after Mims v. Arrow Financial Services, LLC, ––– U.S. ––––, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012), which opened the federal courthouse doors to TCPA lawsuits. Thus, a decision by the Eleventh Circuit on the reach of the Hobbs Act, the meaning of consent under the TCPA, and the extent to which the statute contemplates vicarious liability will likely have application to a great number of cases going forward and will lessen the uncertainty presently in the law.  ¶  Third, an interlocutory appeal clearly has the potential to “materially advance” this case towards its conclusion. This case is ready for class certification briefing. From a judicial and litigant economy stand-point, however, there is no sense in requiring the parties to move ahead with class certification briefing until the Eleventh Circuit has an opportunity to decide if this Court properly decided summary judgment, because the legal issues decided on summary judgment will likely have implications for class certification. Moreover, if this Court was wrong as to the legal questions at issue, then Gulf Coast will likely be entitled to summary judgment, bringing the entire case to a halt. An interlocutory decision in this case also has the potential to materially advance future cases and to conserve judicial and party resources involved with the continued litigation of these very issues going forward.