Curious little case for you this morning TCPAWorld.

Setting the stage, as most folks know an appeal is generally only available after a case is over. Setting aside certain unusual procedural settings, the only time a Defendant gets to ask an Appellate Court a question is after it has already suffered a judgment being entered against it. That makes early-case losses famously tough to account for.

It also makes it difficult to pin down specific, binding, criteria that must be followed at the pleadings stage of a case. And while Supreme Court authority counsels that the allegations presented at the pleadings stage must be “plausible” and not “threadbare,” what that means in the context of, say, establishing a Defendant’s liability for conduct in a complaint is far from clear.

For instance, is it sufficient for a Plaintiff to allege that a Defendant, or its agents, engaged in misconduct–or must specific facts demonstrating direct or vicarious liability be alleged?

Well we may be getting an answer out of the Sixth Circuit Court of Appeals on this issue through a little used procedure–a question being “certified” for interlocutory appeal (i.e. an appeal taken before judgment), and its pretty interesting.

In Delgado v. Emortgage Funding Llc, Civil Action No. 21-CV-11401, 2022 U.S. Dist. LEXIS 13780 (E.D. Mich. January 25, 2022) the district court certified the question of TCPA pleading standards to the Sixth Circuit Court of Appeal.

The Delgado court had earlier held that no specific facts relate to the Defendant’s direct or vicarious liability needed to be pleaded. In the Court’s view a mere assertion of involvement in the challenged calls was sufficient.

The Defendant took issue with this ruling–seeking reconsideration–arguing that other courts have required more to establish a claim.

When reconsideration was denied, Defendant kept pushing and asked the Court to certify the issue to the appellate court. The Court agreed to do so. Concluding that the issue was one of controlling law and that reasonable minds might differ on the answer the Court elected to stay the case to see if the Sixth Circuit would answer the question for it.

Interestingly, the plaintiff pointed out in opposition that “[a] Lexis Nexis search for the terms ‘TCPA’ and ‘vicarious liability’ returns over 500 results, including more than 75 opinions from the Sixth Circuit.” While that certainly goes to show just how many TCPA cases there are floating around out there, it also seems to highlight the need for clear standards that must be applied-and tested–at the pleadings stage.

It is important to note that the Sixth Circuit is not required to take the appeal just because the district court certified the question. We shall see what happens next.