Plaintiff Seeks to Stay TCPA Case vs. Vivek 2024, Pending 9th Circuit Appeal

Plaintiff Philip Woods moved U.S. District Judge Steven Logan for Arizona in Phoenix to stay his Telephone Consumer Protection Act (TCPA) case against Vivek 2024, Republican Vivek Ramaswamy's presidential campaign committee, pending resolution of the forthcoming 9th Circuit U.S. Court of Appeals case in the “substantially similar” Howard v. Republican National Committee (docket 2:23-cv-00993), according to his unopposed motion Tuesday (docket 2:23-cv-01958).

Logan’s Nov. 6 order granted the RNC’s motion to dismiss plaintiff Jacob Howard’s class action (see 2311070034). Howard had alleged that the RNC sent him unsolicited text messages with video files that downloaded automatically to his phone and contained artificial or prerecorded voices, in violation of the TCPA.

But Logan held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing. The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order.

Congressional concern for intrusive telemarketing doesn’t give courts “permission to define the TCPA so broadly as to find potential liability for every single video sent via text message,” according to Logan’s order. As a result, the court can’t find that the text messages had an audible component that was “thrust" on the recipient, as required under 9th Circuit precedent, it said.

Woods’ case against Vivek 2024 likewise hinges on deciding whether the video-laden text messages the committee sent him with an audible component constitutes an artificial or prerecorded voice under the TCPA. Logan’s decision in Howard “appears to be the first reported decision on this issue nationwide,” according to Woods’ motion to stay.

The first-to-file rule allows a district court to stay proceedings if a similar case with substantially similar issues and parties was previously filed in another district court, said Woods’ stay motion. Courts analyze three factors to determine whether the first-to-file rule applies, said the motion: (1) chronology of the lawsuits; (2) similarity of the parties; and (3) similarity of the issues.” Here, it said, Howard was filed first, and the court has already ruled on the defendant’s motion to dismiss.

Next, while the parties are not identical, the cases involve political defendants with the same counsel representing both plaintiffs and defendants in each matter, said the motion. Last, “the legal issues at play in each case are identical,” it said: “Substantial portions of the respective complaints are identical.”

The court has already granted the DNC’s motion to dismiss without leave to amend in Howard, and the plaintiff in that case will be appealing the judgment to the 9th Circuit, said Woods’ motion to stay. “It would waste judicial resources” for the district court “to take any further action” on Woods’ case until the forthcoming Howard appeal is resolved by the 9th Circuit, it said.