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Katz v. Liberty Power Corp., LLC

United States District Court, D. Massachusetts

November 15, 2019

SAMUEL KATZ and LYNNE RHODES individually, and on behalf of all others similarly situated, Plaintiffs,
v.
LIBERTY POWER CORP., LLC AND LIBERTY POWER HOLDINGS, LLC, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO STAY AND FOR CERTIFICATION OF AN INTERLOCUTORY APPEAL

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Samuel Katz (“Katz”) and Lynn Rhodes (“Rhodes, ” and together with Katz, “Plaintiffs”), on behalf of four putative classes, allege that Liberty Power Corp., LLC and Liberty Power Holdings, LLC (together, “Liberty Power”) or their agents placed calls in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq. On September 24, 2019, the Court issued a memorandum and order denying Liberty Power's motion for summary judgment and granting in part Liberty Power's motion to dismiss (“Order”). [ECF No. 195]. The Court found the TCPA's debt-collection exception unconstitutional as a content-based restriction on speech that did not serve a compelling government interest. [Id. at 13-16]. Because the Court found “little doubt” that the debt-collection exception is severable, however, it found that the claims were unaffected by the exception's unconstitutionality. [Id. at 16-17].

         Presently before the Court are Liberty Power's motion for certification of an interlocutory appeal [ECF No. 199] and motion to stay these proceedings pending the resolution of that interlocutory appeal [ECF No. 200]. For the reasons set forth below, Liberty Power's motion for certification of an interlocutory appeal [ECF No. 199] is DENIED and its motion to stay [ECF No. 200] is DENIED as moot.

         I. BACKGROUND

         A. Procedural History

         Katz first filed his complaint on March 16, 2018. [ECF No. 1]. On June 25, 2018, Liberty Power answered and brought a third-party complaint against its vendor, Mezzi Marketing LLC. [ECF No. 28]. Plaintiffs filed the operative second amended complaint on November 14, 2018. [ECF No. 109]. On February 27, 2019, the Court bifurcated discovery and stayed class discovery pending summary judgment motions on facts specific to the named plaintiffs. [ECF No. 125].

         Liberty Power filed its motion to dismiss on January 9, 2019. [ECF No. 118]. Plaintiffs opposed on February 13, 2019, [ECF No. 124], and Liberty Power responded on March 15, 2019, [ECF No. 130]. Because Liberty Power argued that the TCPA is unconstitutional, the government intervened and filed a brief advocating for the TCPA's constitutionality on May 9, 2019. [ECF Nos. 141, 143, 144]. Liberty Power responded to the government on June 21, 2019. [ECF Nos. 166, 167].

         Liberty Power then filed its motion for summary judgment on June 21, 2019, in which it argued that Katz and Rhodes lacked standing. [ECF No. 163]. Plaintiffs opposed on July 12, 2019, [ECF No. 175], and Liberty Power responded on August 1, 2019, [ECF No. 184].

         The Court issued its Order on September 24, 2019, which denied Liberty Power's motion for summary judgment and granted its motion to dismiss in part, finding that Plaintiffs failed to state a claim under Florida's Uniform Fraudulent Transfer Act. [ECF No. 195]. Though the Court found the TCPA's debt-collection exception unconstitutional, it allowed Plaintiffs' TCPA claims to go forward because it found the debt-collection exception severable. [Id. at 13-17].

         On October 24, 2019, Liberty Power filed its motion for a certificate of appealability [ECF No. 199] and its motion to stay the proceedings pending resolution of that interlocutory appeal [ECF No. 200]. Plaintiffs opposed on October 25, 2019. [ECF No. 201]. The government likewise opposed on November 7, 2019, and argued that there is no substantial ground for difference of opinion on the debt-collection exception's severability. [ECF No. 205].

         B. September 24, 2019, Motion to Dismiss Order

         The Court presumes familiarity with the underlying facts alleged in the complaint, which were summarized in the Court's Order granting in part and denying in part Liberty Power's motion to dismiss. See [ECF No. 195 at 2-8]. Below, the Court summarizes the portions of the Order that are relevant to Liberty Power's request for an interlocutory appeal.

         The Order began by addressing Liberty Power's argument that the second amended complaint failed to state a claim. [Id. at 10-11]. The Court found that the second amended complaint adequately addressed what acts each defendant committed such that Plaintiffs were plausibly entitled to relief. [Id.]

         The Court next considered Liberty Power's argument that the TCPA was unconstitutional as a content-based restriction on speech. [Id. at 11-17]. The Court found that the TCPA is a content-based restriction on speech, because, under the TCPA, the legality of a phone call depends entirely on the call's subject matter. [Id. at 14-15]. “[A] private debt collector could make two nearly identical automated calls to the same cell phone using prohibited technology, with the sole distinction being that the first call relates to a loan guaranteed by the federal government, while the second call concerns a commercial loan with no government guarantee.” [Id. at 14 (quoting Am. Ass'n of Political Consultants, 923 F.3d 159, 166 (4th Cir. 2019))]. The Court found that the TCPA was not narrowly tailored to serve a compelling government interest. [Id. at 15-16]. Though the government argued that the debt-collection exception is ...


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