Stay Imminent?:  District Court Orders Plaintiff to Show Cause Why TCPA Class Action Shouldn’t be Stayed Pending Ninth Circuit’s Determination of Challenges to Constitutionality of the TCPA 


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Yesterday, Judge Otis Wright of the Central District of California ordered the Plaintiff in a TCPA class action to show cause why the case shouldn’t be stayed pending the outcome the First Amendment issues before the Ninth Circuit in the Gallion v. Charter Commc’ns, Inc., 287 F. Supp. 3d 920 (C.D. Cal. 2018) appeal.  See Elliot Pershes v. USA Fitness Center et al., 18-cv-7258-ODW-RAO (“Pershes”).

Remember when we said, “the Telephone Consumer Protection Act (“TCPA”) is the broadest restriction on constitutionally protected speech in our nation’s history?” Of course you do.  (Found here.)

Also, remember when we reported about a first-in-the-nation ruling out of the U.S. Central District Court of California staying the Meza v. Sirius Xm Radio, Case No.: 17-cv-2252-AJB-JMA, 2018 U.S. Dist. LEXIS 164601 (S.D. Cal. Sept. 25, 2018) TCPA case pending the outcome Gallion? Yep! (It’s right here, friends.)

A few weeks after the Meza decision, the defense in the Pershes case moved to dismiss the case on the basis that the TCPA is an unconstitutional restriction on free speech in violation of the First Amendment, and alternatively asked the Court to stay the action pending the outcome of the Gallion appeal.  Smart move.  Per Federal Rule of Civil Procedure 5.1(a), the Defendant also notified the United States Attorney General of its constitutional challenge to a federal statute.  Just a few weeks ago, the US AG’s office chimed in stating that it didn’t appear that briefing on the constitutional issue was warranted in light of the pending Gallion appeal and—under those circumstances—agreed that a stay of the case pending the outcome of the appeal was appropriate.

And it looks like the Court is also in agreement.  In a short and sweet minute order issued yesterday, the court stated it was “inclined to stay this action pending the Ninth Circuit’s decision in Gallion,” and ordered the Plaintiff to show cause why the case shouldn’t be stayed pending that decision.

With the defense, the US AG, and the Court seemingly aligned on the appropriateness of a stay here, it will be interesting to see how this all plays out.  We have our money on a stay being granted.  And the momentum is definitely building here.  If the stay is ultimately granted, this will be the second court in the Ninth Circuit to order a case stayed pending the outcome of Gallion.  But what’s even more interesting is that we now have the US AG’s office going on the record and agreeing that a stay is appropriate pending the Ninth Circuit’s determination of the constitutional issues in Gallion.

Plaintiff has until December 28, 2018 to respond to the Order to Show Cause.  TCPAland has its eye on this one, and will report further developments as they break.

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