435 F.Supp.3d 308
D. Mass.2020Background:
- Plaintiff Douglas Rosenberg, a Massachusetts resident, alleges LoanDepot and Ascendant Marketing made repeated automated telemarketing calls to his cell phone (registered on national and Massachusetts DNC lists) in 2018, including calls from spoofed/non-working numbers.
- Rosenberg seeks certification of two nationwide classes: (1) ATDS class — calls made using an automatic telephone dialing system in violation of 47 U.S.C. § 227(b), and (2) DNC class — persons called more than once in 12 months in violation of TCPA do-not-call rules.
- LoanDepot (California) contracted Ascendant (Texas) for telemarketing; Rosenberg alleges Ascendant called him and LoanDepot later contacted him and failed to stop the calls.
- Defendants moved to stay pending FCC rulemaking/ACA Int’l fallout, to strike class allegations, to dismiss on constitutional and pleading grounds, and to dismiss non-Massachusetts putative class members for lack of personal jurisdiction (citing Bristol-Myers Squibb).
- The district court denied all motions: denied stay; denied motion to strike class allegations without prejudice; denied motion to dismiss (finding TCPA valid except debt-collection exception is unconstitutional but severable); denied motions to dismiss non-Massachusetts putative class members.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to stay pending FCC action/ACA Int'l | Rosenberg: stay unnecessary; DNC claim and existing law suffice to proceed | LoanDepot: uncertainty over ATDS definition and FCC action warrants stay under primary jurisdiction/inherent power | Denied — stay would be indefinite; court can resolve ATDS/DNC claims using existing law and precedent |
| Motion to strike class allegations | Rosenberg: premature to strike; common questions support class certification after discovery | LoanDepot: consent is individualized and fatal to class, overbroad class | Denied without prejudice — striking before discovery is premature |
| Motion to dismiss (constitutional & pleading defects) | Rosenberg: TCPA valid (or severable); pleaded ATDS use via indirect allegations; cell is residential; private right of action exists for §64.1200(d); alleged vicarious liability adequately | Defendants: TCPA (esp. debt-collection exception) content-based and unconstitutional, statute vague, plaintiff fails to plead ATDS/residential status/private right/agency | Denied — court: debt-collection exception is content-based and unconstitutional but severable; remaining TCPA is content-neutral and constitutional; statutory vagueness challenge fails; complaint plausibly pleads ATDS use, residential status, private right of action under §64.1200(d), and vicarious liability |
| Motions to dismiss non-Massachusetts putative class members (personal jurisdiction/Bristol-Myers) | Rosenberg: BMS does not extend to class actions; named plaintiff is forum resident and may represent nationwide class | Defendants: BMS requires dismissal of non-forum class members for lack of specific jurisdiction | Denied — court follows majority view that BMS (mass tort context) does not control class-action personal-jurisdiction analysis; class-action safeguards under Rule 23 differentiate the contexts |
Key Cases Cited
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacated parts of FCC's 2015 ATDS interpretation)
- Am. Ass'n of Political Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir. 2019) (found TCPA debt-collection exception content-based and unconstitutional)
- Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019) (addressed ATDS definition and First Amendment issues)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015) (content-based vs. content-neutral speech test)
- New England Legal Found. v. Mass. Port Auth., 883 F.2d 157 (1st Cir. 1989) (primary jurisdiction factors)
- Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (U.S. 2017) (limits on specific jurisdiction in mass-tort context)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard: plausible claims required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standard guidance)