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Brickman v. Facebook, Inc.

United States District Court, N.D. California

April 27, 2017

FACEBOOK, INC., Defendant.


          THELTON E. HENDERSON United States District Judge

         On January 27, 2017, the Court denied Facebook's Motion to Dismiss because the Court concluded Brickman had sufficiently alleged a violation of the Telephone Consumer Protection Act (“TCPA”) and that the TCPA, as a content-based regulation of speech, survived strict scrutiny. ECF No. 78 (“Order”). Defendant Facebook, Inc. (“Facebook”) subsequently filed this motion to certify the Court's Order for interlocutory appeal and stay the case. ECF No. 84 (“Mot.”). In the alternative, Facebook asks the Court to stay the case pending the outcome of ACA International v. FCC, No. 15-1211, (D.C. Cir. filed Nov. 25, 2015). Brickman and the United States timely opposed Facebook's motion for interlocutory appeal, ECF Nos. 89 (“Pla.'s Opp'n”), 90 (“Gov't Opp'n”); and Facebook timely replied, ECF No. 95 (“Reply”). The Court heard oral arguments on Facebook's motion on April 24, 2017. ECF No. 98. After carefully considering the parties' written and oral arguments, the Court now GRANTS Facebook's motion, CERTIFIES its Order for interlocutory appeal, and STAYS all further proceedings pending the Ninth Circuit's decision whether to hear the appeal. If the Ninth Circuit does not hear the interlocutory appeal, then proceedings are stayed pending the District of Columbia Circuit's resolution of the appeal in ACA International.

         I. BACKGROUND

         Facebook owns and operates the online social networking service, Compl. ¶ 13. On or about December 15, 2015, Facebook, through its short code SMS number 32665033, texted Brickman's cell phone number an unsolicited Birthday Announcement Text stating “Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!'”. Id. ¶ 84. Although Brickman supplied Facebook his cell phone number, which is now associated to his Facebook page, Brickman indicated in the Notification Settings of his Facebook account that he did not want to receive any text messages from Facebook, and also did not activate text messaging for his cell phone. Id. ¶¶ 2, 36, 79-82, 85. Brickman alleged Facebook employed computer software to send “Birthday Announcement Texts” without human intervention to users. Id. ¶ 66. He alleged Facebook's computer system reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the user's Facebook friends who will receive the Birthday Text Announcement Texts for a particular user's birthday; identifies the phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user's Facebook friends, creates the Birthday Announcement Texts; compiles a list of cell phone numbers to which it will send Birthday Announcement Texts, stores those cell phone numbers in a queue, and then sends the text messages from that queue, without any human intervention. Id. ¶¶ 66-73.

         Defendants moved to dismiss the suit arguing that Plaintiffs had not sufficiently alleged a violation of the TCPA because the Birthday Announcement Text suggests “direct targeting following human intervention, ” and because Brickman provided express consent to receive the text messages from Facebook. ECF No. 50 at 8-17. Defendant also argued that even if the Court were to find Brickman sufficiently alleged a violation of the TCPA, the TCPA was unconstitutional under the First Amendment. Id. at 17-23. The Court denied Facebook's motion on January 27, 2017. ECF No. 78. In doing so, the Court found Brickman sufficiently alleged that Facebook used an automated telephone dialing system (“ATDS”) to send him a message, Order at 5:4-8:22. The Court also found the TCPA and its exceptions to constitute a content-based regulation under Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), Order at 11:9-12:24; however, the Court also determined the TCPA survived strict scrutiny because the TCPA serves a compelling interest and is narrowly tailored to achieve that interest, id. at 12:26-18:13.


         Title 28 U.S.C. § 1292(b) “provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citation omitted). Section 1292(b) states:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. . . . [A]pplication for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

         Thus, before the Court can certify a case for interlocutory appeal under § 1292(b), the Court must determine if the order being appealed meets the following three requirements: (1) there is a controlling question of law; (2) there are substantial grounds for difference of opinion; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981). The party seeking review bears the burden of showing that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, (1978).

         Even if the Order meets the criteria for certification under § 1292(b), the Court has discretion to grant or deny certification, and its decision is unreviewable. Exec. Software North Am., Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 24 F.3d 1545, 1550 (9th Cir. 2008) overruled on other grounds by Cal. Dept. of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). Once the district court issues a certification order, the Court of Appeals has discretion to grant or deny permission to appeal. Shurance v. Planning Control Int'l, Inc., 839 F.2d 1347, 1348-49 (9th Cir. 1988).


         a. There are Two Controlling Questions of Law at Issue in the Court's Order

         A question of law is controlling if its resolution on appeal “could materially affect the outcome of litigation in the district court.” In re Cement, 673 F.2d at 1026. A question may be controlling even though its resolution does not determine who will prevail on the merits. See Kuehner v. Dickinson & Co., 84 F.3d 316, 318-19 (9th Cir. 1996). However, a question is not controlling simply because its immediate resolution may promote judicial economy. See In re Cement, 673 F.2d at 1027.

         Facebook suggests the Court's Order presents two controlling questions of law: (1) the definition of an ATDS under the TCPA, and (2) whether the TCPA, as a government content-based regulation of speech, survives strict scrutiny. Mot. at 5-7. The Court agrees. Here, there is no doubt that were the Ninth Circuit to apply a different standard[1]and reverse the Court's determination on the ATDS finding, the litigation could completely end or take a decidedly different path. See Asis Internet Servs. v. Active Response Grp., No. C07 6211 TEH, 2008 WL 4279695, at *3 (N.D. Cal. Sept. 16, 2008) (finding a controlling question of law existed where reversal on the issue would end the litigation). As to the second question, neither party disputes that if the Ninth Circuit were to find the TCPA to be unconstitutional, the litigation would end. Id. Moreover, the Government concedes a controlling question exists, Gov't Opp'n at 6:5 ...

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