CEB Prac. Guide § 2B.09: Primary Jurisdiction Doctrine

In Meyer v. Bebe Stores, Inc., 2015 WL 1223658 (N.D.Cal. 2015), Judge Rodgers declined to stay a TCPA text message class action under the Primary Jurisdiction Doctrine. Generally, plaintiff alleges she provided her cell phone number at a Bebe retail location in connection with a return/purchase transaction in December 2013– receiving no notice that it would be used for advertising purposes–and thereafter received… Read More

In Gensel v. Performant Technologies, Inc., 2015 WL 402840 (E.D.Wis. 2015), Judge Randa stayed a TCPA—wrong party case under the Primary Jurisdiction Doctrine. Lennett Gensel's cell phone provider assigned her a number that was previously assigned to a woman who defaulted on a student loan. Performant Technologies, Inc. repeatedly called that number in an attempt to collect on the debt.… Read More

In Alvarado v. Bay Area Credit Service, LLC, 2015 WL 224950 (N.D.Cal. 2015), Judge Conti denied a Motion to Stay a TCPA case. Precisely this issue was recently raised in another case in this District. In Nationstar, Judge Orrick considered whether pending FCC decisions counseled a stay of that matter. One such issue before the FCC was “whether dialing equipment… Read More

In Shehan v. Wells Fargo Bank N.A., --- F.Supp.3d ----, 2014 WL 5529365 (N.D.Ala. 2014), Judge England declined to stay a TCPA case under the Primary Jurisdiction Doctrine. The primary factors a court considers when determining whether to stay an action based on primary jurisdiction grounds are (1) whether the specialized knowledge of the FCC is needed to answer the… Read More

In Jordan v. Nationstar Mortgage LLC, 2014 WL 5359000 (N.D.Cal. 2014), Judge Orrick lifted a previous stay of a TCPA case under the Primary Jurisdiction Doctrine. On September 4, 2014, I issued an order postponing the decision on Nationstar's motion and staying the case until October 15, 2014. Dkt. No. 48. I did so to allow time for the FCC to respond… Read More

In Luna v. Shac, LLC dba Sapphire Gentlemen's Club,  2014 WL 5324291 (N.D.Cal. 2014), Judge Lloyd denied a Motion to Dismiss a TCPA claim. The facts were as follows. Plaintiff brings this proposed class action against Shac, Club Texting, and CallFire, alleging violations of the TCPA. In January 2014, Plaintiff received an unsolicited text message on his cellular telephone from… Read More

In Knapp–Ellis v. Stellar Recovery, Inc., 2014 WL 5023632 (W.D.Wash. 2014), Judge Martinez declined to stay a TCPA case under the Primary Jurisdiction Doctrine. Upon review of the relevant factors, the Court declines to apply the doctrine of primary jurisdiction at this time. First, the Court is not persuaded that the issues involved in this matter are ones outside the… Read More

In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine. Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants… Read More

In Pickens v. American Credit Acceptance, LLC,  2014 WL 4662512 (S.D.Ala. 2014), Judge Nelson stayed a TCPA case under the Primary Jurisdiction Doctrine. Primary jurisdiction doctrine applies “whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. W. Pac. R.R. Co., 352 U.S.… Read More

In Wahl v. Stellar Recovery, Inc., 2014 WL 4678043 (W.D.N.Y. 2014), Judge Geraci stayed a TCPA case under the Primary Jurisdiction Doctrine. Plaintiffs oppose the stay request, arguing that (1) the doctrine of “primary jurisdiction” assumes the issue presented one of first impression and is inapplicable in this case where on multiple occasions in the past the FCC has determined that predictive… Read More

In Prater v. Medicredit Inc., --- F.Supp.3d ----, 2014 WL 4652942 (E.D.Mo. 2014), Judge Collin refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because Swope already decided the ATDS issue. [T]o the extent Defendants argue that a stay should be granted because the pending petitions “ask[ ] the FCC to declare that predictive dialers do not fall under the TCPA's… Read More

In Holcombe v. Credit Protection Ass'n, LP, --- F.Supp.2d ----, 2014 WL 4252277 (M.D.Ga. 2014), Judge Royal refused to stay a TCPA case based on the primary jurisdiction of the FCC. Here, Defendant admits in its Answer that it uses a predictive dialer but alleges that the equipment lacks the “present capacity” to store or produce random or sequential numbers. Defendant… Read More

In Lambert v. Buth–Na–Bodhaige, Inc., 2014 WL 4187250 (E.D.Cal. 2014), Chief Judge England stayed a TCPA case under the Primary Jurisdiction Doctrine. However, as demonstrated by the Coalition of Mobile Engagement Providers' (“CMEP”) petition now pending before the FCC,  ECF No. 12–2, Exh. 5), “express consent” provided by a customer prior to October 16, 2013, could obviate the need to… Read More

In Lee v. loanDepot.com, LLC, 2014 WL 4145504 (D.Kan. 2014), Judge Humphreys stayed a TCPA case under the Primary Jurisdiction Doctrine while the FCC addresses what an ATDS is. Defendant contends that three petitions currently pending before the FCC specifically address the interpretation of “capacity” as stated in the TCPA. In all three petitions, the filing parties (Communication Innovators, YouMail,… Read More

In Lucas v. Telemarketer Calling From (407) 476-5680, 2014 WL 3845893 (S.D.Ohio 2014), Judge Siegel stayed a TCPA telemarketing case to allow the FCC to rule on Plaintiff’s novel liability theory. It is essential to understand who the current Defendants are in this litigation and their alleged relationship to one another. The Accuardi Defendants consist of three corporate entities and… Read More

In Morse v. Allied Interstate, LLC, 2014 WL 2916480 (M.D.Pa. 2014), Judge Nealon denied a Motion to Stay a TCPA under the Primary Jurisdiction Doctrine because the matters were not appropriate for submission to the FCC. Defendant requests this matter be placed on hold because the allegations of the complaint turn on two issues currently pending before the Federal Communications… Read More

In Higgingbotham v. Hollins, 2014 WL 2865730 (D.Kan. 2014), Judge James stayed another TCPA case based on the primary jurisdiction of the FCC. Plaintiff alleges that Defendant contacted her on her cellular telephone, using a prerecorded voice message, in an attempt to collect on an alleged debt from someone other than Plaintiff.  Plaintiff further alleges that she did not consent… Read More

In Trainor v. Citibank, Nat. Ass'n, 2014 WL 2574527 (D.Minn. 2014), Judge Magnuson refused to stay a TCPA case based on the Primary Jurisdiction Doctrine. Citibank seeks a stay of this action to allow the FCC to rule on several pending petitions that will determine whether Citibank's telephone equipment meets the definition of automatic telephone dialing system (“ATDS”) in the… Read More

In Murray v. Diversified Consultants, Inc., 2014 WL 2574042 (M.D.Fla. 2014), Judge Moody refused to stay a TCPA based on the Primary Jurisdiction doctrine. The first issue regarding whether the TCPA applies to non-telemarketing calls such as debt collection calls has already been addressed by the Eleventh Circuit in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014).… Read More

In Fenescey v. Diversified Consultants, Inc., 2014 WL 2526571 (M.D.Pa. 2014), Judge Conaboy refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because he believed the issues presented already had been decided by the Third Circuit Court of Appeals. Here the question of whether the TCPA applies to non-telemarketing calls made to a cellular phone has been… Read More