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Seefeldt v. Entm't Consulting Int'l

United States District Court for the Eastern District of Missouri, Eastern Division

February 25, 2020, Decided; February 25, 2020, Filed

Case No. 4:19-cv-00188

Opinion

MEMORANDUM AND ORDER

This matter comes before the Court on defendants' motion to stay (#93), which argues a stay is appropriate in this case pending [*2]  resolution by the U.S. Supreme Court of Barr v. American Association of Political Consultants, Appeal No. 19-631. For the reasons that follow, that motion is GRANTED.

The case at hand involves a putative class action against defendants Entertainment Consulting International, LLC. ("ECI") and Outfield Brew House, LLC., d/b/a Budweiser Brew House ("Brew House"), alleging both "developed, acquired, licensed, and/or used custom, high-powered text-messaging programs ('Autodialer') that can select random, sequential, and/or store phone numbers, dial such numbers, and send thousands of unsolicited automated text messages to such numbers." ECI and Brew House purportedly "compiled thousands of cell phone numbers and used the Autodialer to bombard the individuals having such cell phone numbers with special offers, prizes, events, and happy hours via unsolicited text messages." Specifically, named plaintiff Michael Seefeldt takes issue with ECI and Brew House's use of the Autodialer program—between January 24, 2015 and January 24, 2019—to send "unsolicited text messages [to him] and the putative class members promoting specials and events at the Brew House[.]" Seefeldt says these actions are in [*3]  violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227, et seq.

The TCPA has been the subject of much appellate discourse lately. First, the government-debt exception has been struck down as unconstitutional. See .Am. Assoc. of Political Consultants, Inc. v. F.C.C., 923 F.3d 159 (4th Cir. 2019) (striking down the TCPA's government-debt exception as unconstitutional, but severing it); Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019) (striking down the TCPA's government-debt exception as unconstitutional, but severing it). Both the Fourth and Ninth Circuits found that the government-debt exception rendered the TCPA "fatally underinclusive" in that it "does not further the purpose of the automated call ban in a narrowly tailored fashion." Am. Assoc. of Political Consultants, Inc., 923 F.3d at 168; Duguid, 926 F.3d at 1155. Both courts severed the government-debt exception while leaving the remainder of the TCPA in place. Am. Assoc. of Political Consultants, Inc., 923 F.3d at 171; Duguid 926 F.3d at 1156-1157; see also 47 U.S.C. § 608. Their decisions are not without criticism, however, as made clear in the United States' intervening brief. Citing Brickman v. Facebook, Inc., 230 F.Supp.3d 1036, 1047 (N.D. Cal. 2017), the United States argues, apparently on grounds of sovereign immunity, that "[t]he TCPA does not apply to the government"—that is, the TCPA does not impose liability on the government—and thus "the government-debt exception simply acts to protect those who are collecting debts [on its behalf]." As held by the Supreme Court, congress did not waive the [*4]  government's sovereign immunity in enacting the TCPA, Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 672, 193 L. Ed. 2d 571 (2016), and a congressional act is required in order for third parties to enjoy the government's immunity by way of the derivative immunity doctrine. See Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 20 (1940). Neither the court in Duguid nor the court in Am. Assoc. of Political Consultants contemplated what effect, if any, this sovereign immunity plays in the underinclusiveness rationale. In any event, the Supreme Court will at least look at these criticisms as raised by the United States in Barr. See Petition for Writ of Certiorari, Appeal No. 19-631, at pp. 12-13.

Second, in the wake of the D.C. Circuit's decision in ACA Int'l. v. F.C.C., 885 F.3d 687, 695, 435 U.S. App. D.C. 1 (D.C. Cir. 2018), which essentially reset the TCPA's definitional landscape, appellate courts have been unable to agree on the exact definition to give to an "autodialer" that lies at the heart of the TCPA's prohibitive mandates. This is a preliminary issue to the determination of whatever possible exceptions might remain following constitutional scrutiny. The problem comes down to a proper interpretation of Section 227(a)(1)(A), which states that autodialer "equipment" must have the "capacity" to "store or produce telephone numbers to be called, using a random or sequential number generator." 47 U.S.C. § 227(a)(1)(A) (emphasis added). [*5]  The latter phrase is what has caused so much confusion. Does the phrase "using a random or sequential number generator" modify the verb "store" or "produce," or both? The Third, Seventh, and Eleventh Circuits have all concluded that it is both; an autodialer must be capable of either storing telephone numbers using a random or sequential number generator or produce such numbers using a random or sequential number generator. See Gadelhak v. AT&T Servs., Inc.,     F.3d    , 2020 WL 808270 at *8 (7th Cir. Feb. 19, 2020); Glasser v. Hilton Grand Vacations Co., LLC., 948 F.3d 1301, 1306 (11th Cir. 2020); Dominguez ex rel. Himself v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018). They admit, however, that this definition is "imperfect," Gadelhak,     F.3d    , 2020 WL 808270 at *8, and "runs into [interpretive] hurdles." Glasser, 948 F.3d at 1306. Conversely, the Ninth Circuit has concluded the phrase affects only the word produce, not store, such that an autodialer can either be equipment with the capacity to store numbers, or with the capacity to produce numbers to be called using a random or sequential number generator. Marks v. Crunch San Diego, LLC., 904 F.3d 1041, 1049 (9th Cir. 2018). Apparently, as recognized by the Seventh Circuit, there are at least two other options floated around by the district courts suggesting the definition "captures only equipment that dials randomly or sequentially generated numbers" or otherwise "describe[s] the manner in which the telephone numbers are to be called, regardless of how they are stored, produced, or generated." [*6]  Gadelhak,     F.3d    , 2020 WL 808270 at *4 (emphasis added).

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2020 U.S. Dist. LEXIS 31815 *; 2020 WL 905844

MICHAEL SEEFELDT, individually and on behalf of all others similarly situated, Plaintiff, v. ENTERTAINMENT CONSULTING INTERNATIONAL, LLC., and OUTFIELD BREW HOUSE, LLC. d/b/a BUDWEISER BREW HOUSE, Defendants.

CORE TERMS

autodialer, numbers, government-debt, sequential, generator, random, class certification, summary judgment, telephone number, severing, stored