Sager v. Bank of America Corporation et al

Filing 42

STIPULATION AND ORDER 41 to Stay Case. Case Stayed. Signed by Judge Ronald M. Whyte on 8/8/12. (jg, COURT STAFF) (Filed on 8/8/2012)

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COOLEY LLP
MICHAEL G. RHODES (116127) ([e-mail])
MAZDA K. ANTIA (214963) ([e-mail])
101 California Street
5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
SoundBite Communications, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RON SAGER, individually and on behalf of a
class of similarly situated individuals,

Case No. 12-CV-00197-RMW

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STIPULATION TO STAY CASE
Plaintiff,

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Judge: Hon. Ronald Whyte
Date: n/a
Time: n/a
Courtroom: 6
Trial Date: Not yet set

v.
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BANK OF AMERICA CORPORATION, a
Delaware corporation, SOUNDBITE
COMMUNICATIONS, INC., a Delaware
corporation,

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Defendants.

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Plaintiff Ron Sager (“Plaintiff”) and Defendants Bank of America Corporation (“Bank of

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America”) and SoundBite Communications, Inc. (“SoundBite”) (collectively, “Defendants”)

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pursuant to Federal Rule of Civil Procedure 7 and Civil Local Rule 7-12, hereby stipulate as

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follows:

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WHEREAS, SoundBite has filed a petition with the Federal Communications

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Commission (“FCC”) seeking a declaratory ruling that when a subscriber sends a text message

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choosing to opt-out of receiving future text messages, and a one-time immediate reply is sent

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back via text message confirming the opt-out request, that confirmation message is not a violation

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of the Telephone Consumer Protection Action (“TCPA”) because (1) it falls within a grace period

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for acknowledging opt-out requests, and (2) it is not sent using an “automatic telephone dialing

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATION TO STAY
12-CV-00197-RMW

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system” (“SoundBite Petition”);
WHEREAS, Defendants have filed motions to stay this action pending the FCC’s ruling
on the SoundBite Petition (Dkt. Nos. 27, 28);

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WHEREAS, another case involving similar claims under the TCPA was stayed on July

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31, 2012 pending the FCC's ruling on the SoundBite Petition. See Karayan v. GameStop Corp.,

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et al., No. 3:12-cv-01555 (N.D. Tex.);

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WHEREAS, the parties agree that an FCC ruling on the SoundBite Petition may resolve
legal issues relevant to this action or at least reduce the scope of litigation;

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WHEREAS, the parties agree that it will serve the just, speedy, and inexpensive

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determination of this matter, see Fed. R. Civ. P. 1, to stay this action until such time as the FCC

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has issued a ruling on the SoundBite Petition.

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NOW, THEREFORE, the parties hereby stipulate and agree as follows:

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1. This action will be stayed until such time as the FCC has issued a ruling on the

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SoundBite Petition;

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2. Within fifteen (15) days of the FCC’s ruling on the SoundBite Petition, the parties will

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inform the Court of the FCC’s ruling and, if necessary, propose a new schedule for the

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filing of any amended complaint and response deadlines to the same;

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3. Should the Court (1) enter an order denying this stipulation, or (2) not enter an order

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on this stipulation prior to August 8, 2012, the parties agree that Defendants shall not

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be required, and shall not waive any rights, arguments, or defenses by waiting to file

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their reply briefs in support of their motions to stay until fifteen (15) days after the

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Court enters an order ruling on this stipulation.

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IT IS SO STIPULATED.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

STIPULATION TO STAY
12-CV-00197-RMW

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Dated: August 3, 2012

EDELSON MCGUIRE, LLP
SEAN P. REIS

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/s/ Sean P. Reis
Sean P. Reis
Attorneys for Plaintiff
Ron Sager

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Dated: August 3, 2012

REED SMITH LLP
FELICIA YU

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/s/ Janet M. Lee
Janet M. Lee
Attorneys for Defendant
Bank of America Corporation

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Dated: August 3, 2012

COOLEY LLP
MICHAEL G. RHODES
MAZDA K. ANTIA

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/s/ Mazda K. Antia
Mazda K. Antia
Attorneys for Defendant
SoundBite Communications, Inc.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

STIPULATION TO STAY
12-CV-00197-RMW

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I hereby attest that concurrence in the filing of the document has been obtained from each
of the other signatories.

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Dated: August 3, 2012

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COOLEY LLP
MICHAEL G. RHODES
MAZDA K. ANTIA

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/s/ Mazda K. Antia
Mazda K. Antia
Attorneys for Defendant
SoundBite Communications, Inc.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: August __, 2012

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Hon. Ronald M. Whyte
United States District Judge

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

STIPULATION TO STAY
12-CV-00197-RMW