It has been 15 months since oral argument in the ACA’s appeal of the FCC’s 2015 Omnibus, and courts are starting to lose patience waiting for a decision by the D.C. Circuit.
Last week, two district courts in California lifted stays previously granted based on the pendency of the ACA appeal. See Adams v. Nationstar Mortg. LLC, No. CV 15-9912-DMG (KSx), 2018 U.S. Dist. LEXIS 20201 (C.D. Cal. Feb. 2, 2018) (“Adams”); Salehi v. Bluestem Brands, Inc., No. 16cv0924 DMS (BGS), 2018 U.S. Dist. LEXIS 21686 (S.D. Cal. Feb. 2, 2018) (“Salehi”). The courts in Adams and Salehi both decided that stays were no longer warranted after rebalancing the two factors courts weigh in making that determination, with ongoing delay tipping the scales.
Both courts held that the first factor – prejudice to the parties – now weighed against a stay. The courts determined that the delay caused by the stay (19 months in Adams, and 17 months in Salehi) accentuated the danger that “witnesses’ memories will fade and that other key evidence will be lost.” The court in Adams also found the fact that plaintiff was held back from pursuing other credit reporting claims he had asserted weighed against a stay, because plaintiff was prejudiced every month the alleged misstatements remained on his record.
The second factor – judicial economy – was also found by the courts to weigh against a stay. Things came down to delay again for the Adams court, which reasoned that the lengthy delay outweighed whatever benefit could come from waiting around for the appeal. It noted that the delay in resolution of the ACA appeal was almost triple that of the D.C. Circuit’s median delay between oral argument and resolution of appeal. The Salehi court determined this factor was neutral, and dismissed the potential for the appeal to simplify legal issues over the definition of “autodialer” and “called party,” because the litigants could just “reevaluate their positions and change tactics” if the law were to change.
As we reported here last October, the trend amongst courts has been to deny stays pending the outcome of the ACA appeal. We’re now seeing that trend magnify as courts originally sympathetic to the defense arguments are starting to reverse course as the appeal drags on. It looks like courts are starting to hit their limit after a year and a half of waiting around.