In Nussbaum v. Diversified Consultants, Inc., 2015 WL 5707147, at *3 (D.N.J.,2015), Judge Thompson declined to stay a TCPA claim merely because industry had appealed to the D.C. Circuit the FCC’s order on what constitutes an ATDS under the TCPA.
With respect to the third factor, the Court considers whether a stay would simplify the issues and the trial of the case. Defendant argues that the resolution of ACA International will settle whether Defendant’s Livevox technology constitutes an automatic telephone dialing system, a principal issue in this case, thus serving judicial economy and avoiding unnecessary discovery and motion practice. Plaintiff argues that the resolution of ACA International will not affect this case, because Defendant’s Livevox technology constitutes an automatic telephone dialing system under either the previous or the new definition of the term being litigated in ACA International. As evidence, Plaintiff points to the definition clarified by FCC orders from 2003 and 2008, which are not on appeal in ACA International, and two prior cases that Plaintiff claims collaterally estop Defendant from claiming that Livevox technology is not an automatic telephone dialing system. Given that many of the relevant issues in the case before this Court fall outside the ambit of ACA International, the resolution of ACA International seems unlikely to significantly simplify the issues before this Court or to substantially impact the outcome of the litigation. Therefore, this factor weighs against granting a stay.