Autodialer cases on hold until 9th Circuit weighs in

OAKLAND -- U.S. District Judge Yvonne Gonzalez Rogers signaled that litigation concerning violations of the national Do Not Call Registry involving the use of autodialers will be on hold in her courtroom until the 9th U.S. Circuit Court of Appeals resolves a similar case.

Attorneys focused on this specific form of spam litigation, in which automated devices are used to make a massive volume of calls, will likely be watching other judges in the 9th Circuit to see if they follow suit.

The case before Gonzalez Rogers involves California Service Bureau Inc., a collection agency based in Novato accused of calling more than 1.6 million people, meaning statutory damages could reach $817 million. West v. California Service Bureau Inc., 16-CV3124 (N.D. Cal., filed June 8, 2016).

Monday's court appearance was supposed to be the final pretrial hearing, with both sides battling over last-second motions. Gonzalez Rogers heard the arguments but said the trial scheduled for this week will be postponed until a 9th Circuit panel weighs in on a pending case that could provide guidance, Marks v. Crunch San Diego LLC, 14-56834 (9th Cir., filed Nov. 20, 2014).

In recent years, courts have looked to Federal Communications Commission guidance from a June 2015 declaratory ruling that laid out the definition for an automated telephone dialing system and the rules for how those devices should be regulated.

But the D.C. Circuit Court of Appeals, which handles legal challenges to many federal regulations, ruled in March that the FCC guidance contradicted itself and therefore should be invalidated. ACA International v. FCC et al., 15-1211 (D.C. Cir., filed July 10, 2015)

This means the guiding document for many of the 9th Circuit's recent rulings that set precedent for how to handle spam-call litigation has now been erased and the appellate court's upcoming decision in Marks will chart a new path forward.

"This is a little two-day trial," Gonzalez Rogers said, "Why would I try a case only to get a decision that might mean I need to retry the thing?"

The judge added that the plaintiffs are in danger of losing 25 percent of their class if they don't provide additional information after the defense argued that MetroPCS user records are unreliable because its prepaid phone plans allow users to sign up under names such as Minnie Mouse without providing any identifying information. The other 75 percent of the class came from phone companies with more reliable user data.

Scott A. Bursor of Bursor & Fisher P.A. led the arguments for the plaintiffs. Charles R. Messer of Carlson & Messer LLP spoke for the defense.