TCPAWorld has previously reported on the recent Telephone Consumer Protection Act (TCPA) trials, tribulations and arguable missteps of Keller Williams Realty, Inc. https://tcpaworld.com/2020/07/23/tcpa-tipping-point-keller-williams-baits-disastrous-n-c-atds-ruling-that-could-send-the-fourth-circuit-veering-toward-marks/.
In defending a separate TCPA class action lawsuit, Keller opted for an alternative strategy. It sought to stay court action based on the pending Duguid case in the Supreme Court, which focuses on the definition of an automatic telephone dialing system (ATDS) under the TCPA.
In Cody Becker v. Keller Williams Realty, Inc. et al., 2020 U.S. Dist. LEXIS 155545, Case No. 19-81451-CIV-SINGHAL/MATHEWMAN, United States District Court for the Southern District of Florida, August 27, 2020, Becker complained that “he and the putative class members received unsolicited prerecorded telemarketing calls and text messages in violation of the TCPA.” Keller Williams moved to stay the case based on the pendency of Duguid.
Judge Raag Singhal noted that as to the ATDS issue, the law in the Eleventh Circuit was already settled in the Glasser decision earlier in 2020. Indeed, the Judge noted that Keller Williams tipped its hand that, if a stay were not granted, it would file a “Motion for Summary Judgment which includes, inter alia, an argument that Plaintiff’s entire claim, as alleged and based on the discovery produced to date, must fail based on the current status of the law in the 11th Circuit on the issue of what constitutes an ATDS” (emphasis supplied).
Judge Singhal refused to take the bait. First, there was the prospect of delaying a case that “was filed in 2019, is set for trial in March 2021,” with discovery proceeding and expert disclosures almost done. On the other hand, Supreme Court briefs in Duguid “have not been filed … [,]the…Court has yet to set oral argument” and “[t]his Court cannot prognosticate when a [Supreme Court] decision …will be issued.” As a result, Judge Singhal found that the delay accompanying a stay was “unwarranted.”
But wait. There was also the matter of whether a decision in Duguid would be dispositive of Becker’s “entire claim.” Again, noting that the ATDS standard was already set in the Eleventh Circuit, the Court added that “it is unclear whether a decision in…[Duguid] would have any bearing on Plaintiff’s claim of receiving prerecorded voice calls.” Indeed, as TCPAWorld also previously reported, the “use of ‘artificial or prerecorded voices’ to contact individuals is not impacted by” Glasser.
Motion for stay denied. No temporary TCPA respite for Keller Williams. And let’s see what happens if it moves forward with its summary judgment motion.