Nunes v. Twitter, Inc.

Filing 61

Order by Hon. Vince Chhabria granting 60 Stipulation Regarding Stay of Proceedings and Case Schedule.(knm, COURT STAFF) (Filed on 9/10/2015)

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JOHN G. JACOBS (PRO HAC VICE)
BRYAN G. KOLTON (PRO HAC VICE)
JACOBS KOLTON, CHTD.
55 West Monroe Street, Suite 2970
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Beverly Nunes

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DAVID H. KRAMER, State Bar No. 168452
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendant Twitter, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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BEVERLY NUNES, individually and on behalf
of a class of similarly situated individuals,
Plaintiff,

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v.

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TWITTER, INC.,

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Defendant.

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STIPULATION AND [PROPOSED] ORDER
REGARDING STAY OF PROCEEDINGS
AND CASE SCHEDULE
CASE NO.: 14-CV-02843-VC

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CASE NO.: 14-cv-02843-VC
STIPULATION AND
[PROPOSED]
ORDER REGARDING STAY OF
PROCEEDINGS AND CASE
SCHEDULE

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Plaintiff Beverly Nunes (“Plaintiff”) and Defendant Twitter, Inc. (“Twitter”) (collective-

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ly, “the Parties”) hereby request an amendment to the Stipulated Order Continuing Stay of Pro-

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ceedings and Modifying Case Schedule entered by the Court on July 10, 2015 (Dkt. 58) (the “Ju-

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ly 10 Stipulation and Order”). In support of that request, the parties agree as follows:

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1.

The July 10 Stipulation and Order was based in part on the pendency of multiple

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petitions before the FCC seeking rulings on issues pertaining to the Telephone Consumer Protec-

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tion Act (“TCPA”) – the statute at issue in this action. The FCC voted on those petitions on June

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18, 2015, and the FCC released its written Declaratory Ruling and Order, FCC 15-72, on July 10,

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2015 (the “FCC Order”). Among other rulings pertinent to this action, the FCC interpreted the

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terms “automatic telephone dialing system,” and “prior express consent of the called party.”

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Those and other aspects of the FCC Order are the subject of multiple appeals that have been con-

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solidated in the U.S. Court of Appeals for the District of Columbia. See ACA Int’l v. FCC, No.

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15-1211 (D.C. Cir.) (consolidated with Nos. 15-1214, 1218, 1244, 1278).

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2.

The FCC Order also discusses the issue of who can be deemed to have made calls

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within the meaning of the TCPA so as to face potential TCPA liability for those text messages.

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Twitter believes that, based on the FCC Order, it cannot be deemed to have made text message

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calls within the meaning of the TCPA and is therefore absolved of liability in this case. Twitter

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also contends that it is immune from liability as an interactive computer service provider under

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the Communications Decency Act (“CDA”), 47 U.S.C. §230(c)(1). Plaintiff disagrees and be-

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lieves that under the FCC Order and existing law Twitter is liable for making text message calls

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within the meaning of the TCPA. The Parties do agree, however, that whether Twitter made the

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text message calls within the meaning of the FCC’s Order and the TCPA, and whether §230(c)

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affords immunity to Twitter, are questions that can be brought before the Court on summary

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judgment motions with what they anticipate will be minimal discovery and/or stipulated facts.

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3.

Given the potentially dispositive nature of these issues, and in light of the uncer-

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tainty created by the pending appeals of the FCC Order on other issues in the case, the Parties

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agree that the case should proceed at this time only with respect to the maker-of-the call and

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STIPULATION AND [PROPOSED] ORDER
REGARDING STAY OF PROCEEDINGS
AND CASE SCHEDULE
CASE NO.: 14-CV-02843-VC

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§230(c) issues. With respect to issues involving an “automatic telephone dialing system,” and

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“prior express consent of the called party,” the case should be stayed pending the FCC Order ap-

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peals.

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THE PARTIES THEREFORE STIPULATE to amend the July 10 Stipulation and Order
through their undersigned counsel, subject to the Court’s approval, as follows:
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The Parties shall proceed with discovery limited to the issues of whether Twitter

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made the text message calls within the meaning of the FCC’s Order and the TCPA and the as-

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serted immunity under §230(c) based on the existing case schedule entered on July 10, 2015:

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Discovery on these issues shall be completed by January 13, 2016; Initial Expert Witness state-

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ments shall be submitted by January 29, 2016; Rebuttal Expert Witness statements shall be sub-

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mitted by February 12, 2016; Motions for Summary Judgment on issue of whether Twitter made

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text message calls shall be heard on June 2, 2016 at 10:00 a.m. The Parties shall work in good

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faith to stipulate to the facts pertinent to these motions.

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2.

The stay of proceedings in the matter otherwise shall remain in place pending the

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FCC Order appeal. Should the case continue following resolution of the contemplated summary

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judgment motions, the Parties will meet and confer regarding an appropriate schedule.

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DATE: September 8, 2015

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David H. Kramer
WILSON SONSINI GOODRICH & ROSATI

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Attorneys for Defendant Twitter, Inc.

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/s/ David H. Kramer

DATE: September 8, 2015

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/s/ John G. Jacobs
John G. Jacobs (PRO HAC VICE)
JACOBS KOLTON, CHTD
Jeffrey F. Keller
KELLER GROVER, LLP

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Attorneys for Plaintiff Beverly Nunes

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STIPULATION AND [PROPOSED] ORDER
REGARDING STAY OF PROCEEDINGS
AND CASE SCHEDULE
CASE NO.: 14-CV-02843-VC

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PURSUANT TO STIPULATION, AND GOOD CAUSE APPEARING, IT IS SO ORDERED.

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10th
SIGNED this ____ day of September, 2015.

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__________________________________
VINCE CHHABRIA
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER
REGARDING STAY OF PROCEEDINGS
AND CASE SCHEDULE
CASE NO.: 14-CV-02843-VC

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CERTIFICATION
I, David H. Kramer, am the ECF User whose identification and password are being used

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to file this STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PRO-

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CEEDINGS AND CASE SCHEDULE. In compliance with Civil Local Rule 5-1(i), I hereby

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attest that John G. Jacobs has concurred in this filing.

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DATE: September 8, 2015

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/s/ David H. Kramer

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David H. Kramer
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]

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Attorney for Defendant Twitter, Inc.

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CERTIFICATION
CASE NO.: 14-CV-02843-VC