Seefeldt v. Entm't Consulting Int'l, LLC.

• Citation: 441 F.Supp.3d 775
• Decision Date: 25 February 2020
• Docket Number: Case No. 4:19-cv-00188
• Parties: 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.
• Court: U.S. District Court — Eastern District of Missouri

441 F.Supp.3d 775

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.

Case No. 4:19-cv-00188

United States District Court, E.D. Missouri, Eastern Division.

Signed February 25, 2020

Anthony L. DeWitt, Bartimus and Frickleton, Jefferson City, MO, Edward D. Robertson, III, Kelly Clare Frickleton, Bartimus and Frickleton, Leawood, KS, Ari N. Rodopoulos, Peddicord and Townsend LLC, Kansas City, MO, for Plaintiff.

Geoffrey W. Castello, Glenn T. Graham, Pro Hac Vice, Lauri A. Mazzuchetti, Pro Hac Vice, Whitney M. Smith, Kelley and Drye, LLP, Parsippany, NJ, William James Foland, Jr., Jacqueline M. Sexton, Zachary T. Bowles, Foland Wickens, P.C., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

This matter comes before the Court on defendants' motion to stay (#93), which argues a stay is appropriate in this case pending 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 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 government's sovereign immunity in enacting the TCPA, Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 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, 60 S.Ct. 413, 84 L.Ed. 554 (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 (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). 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. , 950 F.3d 458, 460 (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 , 950 F.3d 458, 464, 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." Gadelhak , 950 F.3d 458, 464 (emphasis added).

In this case, defendants have filed a Rule 12(b)(6) motion that takes a notably scattershot approach, attacking both Section 227(b) and Section 227(c) of the TCPA under no less than the First Amendment Free Speech Clause, the "Fifth Amendment Equal Protection Clause," and the Fifth Amendment Due Process Clause. But, the government-debt exception issue is certainly front-and-center in their arguments, which now sits before the U.S. Supreme Court in Barr. The question in that case, though, is not only whether the government-debt exception is unconstitutional; more importantly, it is also whether the proper remedy was to sever the offending exception from the TCPA, leaving the remainder of the TCPA intact. See Petition for Writ of Certiorari, Appeal No. 19-631, at p. I. In their motion to stay, defendants say these issues, challenging the stability of the TCPA at its core, "risk[ ] inconsistent rulings and otherwise avoidable resources expenditures" in the event this Court decides contrary to the Supreme Court.

This Court finds even more concerning, however, the pending issue of class certification. Plaintiff sought class certification only two months after he filed his case— apparently aided by discovery efforts in substantially similar litigation in the Western District of Missouri. Notably, Judge Harpool in that case recently denied class certification and granted summary judgment to the defendants, in part, because "the platforms [used by Brew House] were not an ATDS under the TCPA." Beal v. Outfield Brew House, LLC. , 2020 WL 618839 at *5 (W.D. Mo. Feb. 10, 2020) (granting summary judgment in defendants favor, and denying class certification, because plaintiff's claims could not survive the autodialer definitional adopted by the court). Judge Harpool elected to rely on the autodialer definition of the Third Circuit (and Seventh and Eleventh Circuits), that "an [autodialer] must produce numbers to be called using a random or sequential number generator ." Id. (emphasis added) (quoting Dominquez , 894 F.3d at 121 ). He went on to explain that "[t]he platforms at issue in this case could only text individuals whose numbers had been entered into the system manually – either by importing information from a CSV file or individually typing in the number. In other words, the system did not generate telephone numbers, it merely stored them [via manual entry]." Id. (emphasis added). Thus, it was concluded, "[t]his does not constitute an [autodialer]." Id. It made no difference, he explained, that the "software can ‘randomly-select phone numbers,’ " because "that is not the same as generating them [randomly]." Id.

With Beal in mind, the problem of continuing this case is laid bare: it hinges not only on the problem of the government-debt exception, but also on the definitional problem of what constitutes an autodialer. To be sure, this Court notes plaintiff's complaint seems to specifically rely on the autodialer definition adopted by the Ninth Circuit—that is, an autodialer that can simply "store...