Middle Ground: Court Stays Class Discovery But Allows Individual Merits Discovery Pending Facebook Appeal

Quick one for you this morning.

As TCPAWorld.com readers know, the vast majority of courts considering stay motions pending Duguid are now granting those stays. Nonetheless a handful refuse to stay cases-usually because the plaintiff alleges (plausibly?) that the equipment used has the capacity to dial randomly or sequentially anyway.

Well a new case out of PA gives Defendants a middle ground to keep in mind—allowing individual merits discovery on issues such as the functionalities of the equipment used to make the calls, while staying all class discovery issues.

In Ward v. Flagship Credit Acceptance, CIVIL ACTION NO. 17-2069, 2020 U.S. Dist. LEXIS 209981 (E.D. Pa. November 10, 2020) the court considered the pros and cons of staying the case pending the Duguid matter on Defendant’s request. While recognizing that letting class discovery proceed in the face of a potentially dispositive SCOTUS appeal made little sense, the court also recognized that some headway on individual matters might still be made: “Discovery shall proceed as to the specifics of Defendant’s calling systems, as very relevant to whether those systems may qualify as ATDSs. Likewise, as Plaintiff notes, there are several issues relevant to the litigation that do not concern the definition of an ATDS, such as the viability of the consent defense.”

While I don’t love this result—a complete stay is more economical—preventing class discovery in these cases saves a ton of expense so I’ll definitely take a partial Ward stay over an outright denial of a stay. Plus, as we all know, Plaintiffs in these TCPA class cases simply use class discovery as a bludgeon to force settlement. This takes away most all of their leverage in the suit.


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