Thompson v. Fluent, Inc.

Background

Brian Thompson and Angela Thompson brought a proposed class action against Fluent, Inc. and Reward Zone USA, LLC. They alleged that the defendants sent unsolicited automated text messages in violation of the Telephone Consumer Protection Act of 1991. The plaintiffs alleged that they had never been customers of the defendants and had never provided their cellular telephone numbers to them.

The complaint proposed two classes. The first was an Automated Telephone Dialing System, or ATDS, class involving unsolicited text messages allegedly sent without emergency purposes or the recipients’ prior written consent. The second was a Do Not Call class involving multiple unsolicited marketing text messages sent to telephone numbers registered with the National Do Not Call Registry.

The complaint asserted four federal claims under the Telephone Consumer Protection Act and one state-law claim. Two of the federal claims concerned the alleged use of an ATDS. The defendants moved to stay the entire action until the Supreme Court decided Facebook Inc. v. Duguid, which presented a question about whether a device qualifies as an ATDS when it can store and automatically dial telephone numbers but does not use a random or sequential number generator.

Analysis

The court applied five factors ordinarily used in the Southern District of New York to decide whether to stay a case: the plaintiffs’ interest in proceeding promptly and the possible prejudice from delay; the defendants’ interests and burdens; the interests of the courts; the interests of nonparties; and the public interest.

The court found that four of the five factors favored a stay. The defendants had a substantial interest in avoiding extensive discovery that might become unnecessary after the Supreme Court’s decision. That decision could affect or eliminate the need to litigate the two ATDS claims and could affect certification of the proposed ATDS class. The court also noted that neither side had identified a practical way to conduct discovery on the Do Not Call claims while postponing discovery on the ATDS claims.

The court determined that staying the case would conserve judicial resources and avoid unnecessary expense. A stay could also reduce the burden on third parties from discovery concerning the ATDS claims. Although the plaintiffs argued that documents or information might be lost during the delay, the court found that concern less significant because the Supreme Court had already scheduled oral argument and the plaintiffs had served a subpoena on what appeared to be the primary third-party witness, creating a document-preservation obligation for that entity.

Disposition

The court granted the defendants’ motion to stay. The action was stayed pending the Supreme Court’s resolution of Facebook Inc. v. Duguid, No. 19-511. The parties were directed to submit a joint status letter within seven days after that decision, attach the decision, explain their views about its effect on this action, and propose any needed changes to the case-management and scheduling orders. The clerk was directed to close the motion.

The order was signed by Barbara Moses, United States Magistrate Judge.