Calhoun v. Flrish, Inc.

Background

Calhoun alleges that she received two unsolicited text messages advertising FLRISH’s cannabis business, even though her phone number was listed on the National Do Not Call Registry. She alleges that FLRISH or its agent used an automatic telephone dialing system. Her complaint asserts two Telephone Consumer Protection Act claims: one concerning use of an automatic telephone dialing system and one concerning calls to a number on the Do Not Call Registry. She seeks to represent similarly situated people in proposed classes.

FLRISH moved to stay, or pause, the case while the Supreme Court decided Barr v. American Association of Political Consultants, Inc. The Supreme Court was considering whether the government-debt exception to the Telephone Consumer Protection Act’s automated-call restriction violated the First Amendment and, if so, whether that exception should be removed from the statute rather than invalidating the restriction. FLRISH also relied on the COVID-19 public-health emergency and a pending petition for Supreme Court review concerning the definition of an automatic telephone dialing system in Duguid v. Facebook, Inc.

Calhoun opposed a stay. She argued that the Supreme Court’s decision was unlikely to eliminate the entire automated-call restriction, would not affect her Do Not Call Registry claim, and that delaying the case would prejudice the proposed class more than proceeding would prejudice FLRISH. She also argued that relying on the pending Duguid petition would be speculative.

Motion to Stay

The court applied the standard for a stay under its inherent authority. It considered the possible damage from a stay, the hardship or unfairness that proceeding might cause the party seeking the stay, and whether a stay would promote the orderly resolution of the legal and factual issues.

The court held that a stay pending the Supreme Court’s decision was warranted. If the Supreme Court found the automated-call restriction unconstitutional, the decision could eliminate Calhoun’s automated-telephone-dialing-system claim and could significantly reduce the scope of discovery. The court concluded that the possible prejudice to the parties and non-party witnesses from conducting potentially unnecessary discovery, together with the effect on judicial efficiency, outweighed the minor prejudice to Calhoun from a brief stay. The court also stated that the difficulty of conducting discovery during COVID-19 shelter-in-place orders supported the stay, although it likely would not have been sufficient by itself.

The court did not stay the case based solely on the possibility that the Supreme Court would review Duguid. It allowed FLRISH to renew its motion concerning Duguid if the Supreme Court granted review in that matter and decided the earlier case in a way that allowed Calhoun’s automated-telephone-dialing-system claim to proceed. The court granted FLRISH’s motion to stay, and stayed the case pending further order.

Motion to Quash

Because the case was stayed, the court denied non-party Springbig, Inc.’s motion to quash Calhoun’s subpoena without prejudice. The parties were directed to meet and confer after the Supreme Court issued its decision. If they could not resolve the subpoena dispute, Springbig could renotice its motion no later than seven days after the stay was lifted.

Motion to File Under Seal

Calhoun moved to file documents under seal in connection with her opposition to Springbig’s motion to quash. The court granted the motion in part as to Exhibit B. It denied the motion as to Exhibit C and ordered Calhoun to file a public version of that exhibit by May 20, 2020.

Other Directions and Disposition

The court continued the initial case-management conference from June 19, 2020, to August 7, 2020, at 2:00 p.m. The parties were ordered to file a joint case-management statement by July 31, 2020. They also had to file a joint status report within seven days after the Supreme Court issued its decision in the related case, addressing whether Calhoun’s automated-telephone-dialing-system claim could proceed and whether the stay should be lifted.

Judge Joseph C. Spero granted FLRISH’s motion to stay and stayed the case pending further order; denied Springbig’s motion to quash without prejudice; and granted in part and denied in part Calhoun’s administrative motion to file under seal.