The latest chapter in Donald J. Trump For President, Inc.’s (Trump Campaign) effort to extricate itself from the grasp of the Telephone Consumer Protection Act (TCPA) unfolded on Sunday, July 26. The effort fell short once again.

As TCPAWorld previously reported, in early June the Chief Judge of the United States District Court for the District of Minnesota rejected the Trump Campaign’s motion to dismiss a TCPA class action brought by three Minnesotans who alleged that they received unsolicited text messages on their cellphones. The Court also denied a motion to compel arbitration against the lead plaintiff. So, for the moment at least, it seemed to set the stage for the case to proceed.

However, the Trump Campaign, declining to take Chief Judge John R. Tunheim’s “no” for an answer at this stage, asked the him to certify an interlocutory appeal of elements of his decision to Federal appellate court governing his District, the United States Court of Appeals for the Eighth Circuit. In addition, the Campaign moved to stay the case.

In Pederson et al. v. Donald J. Trump For President, Inc., 2020 U.S. Dist. 131935, Civil No. 19-2735 (JRT/HB) United States District Court for the District of Minnesota, July 26, 2020, the Court denied the Trump Campaign’s request on all counts.

For starters, Judge Tunheim noted that “it is the ‘policy of the courts to discourage piece-meal appeals,’ and ‘[p]ermission to allow interlocutory appeals should thus be granted sparingly and with discrimination.’” The statute authorizing such appeals (28 U.S.C. 1292(b)) requires a showing that the issue involves: “(1) a controlling question of law as to which there is (2) a substantial ground for difference of opinion and upon which (3) a decision will materially advance the ultimate outcome of the litigation.” The Trump Campaign asserted two grounds for certification of an appeal: “whether an unsolicited text message confers standing under the TCPA and whether Plaintiffs’ have sufficiently alleged the use of the autodialer.”

The Trump Campaign argued that there was a “substantial difference of opinion” as to whether a single text afforded standing to bring a TCPA case, citing Salcedo v. Hanna, an Eleventh Circuit decision that answered “no” to that question. It also cited the fact that the Eighth Circuit had not decided the issue.

However, the Court noted that three other Federal circuits had ruled that “‘unsolicited text messages present the same nuisance and privacy invasion envisioned by Congress when it enacted the TCPA’” and another District Court decision in Minnesota had agreed.  After describing Salcedo as “one outlier circuit opinion” and noting that the lack of Eighth Circuit action was not determinative, Judge Tunheim ruled that  “the limited authority cited by the Trump Campaign…[did not] constitute a ‘sufficient number of conflicting and contradictory opinions’ so as to meet the criterion of substantial ground for difference of opinion.” Strike one.

As for the sufficiency of the autodialer allegations, the Trump Campaign argued that a controlling issue of law – what is an automatic telephone dialing system (ATDS)? –  was raised by the plaintiff’s assertion that the system used by the Campaign dialed numbers from a list. The Eleventh Circuit had found that such a system was not an autodialer. Moreover, the Supreme Court had just accepted a case on this very issue.

The Court was willing to concede that these opinions might indicate a “controlling issue of law on which there was a substantial difference of opinion.” But Judge Tunheim noted that the plaintiffs had made two allegations in their complaint – “that the Trump Campaign’s system used uploaded lists of numbers, but also that it had the capacity to produce and dial (and text) random numbers.” So despite what the Supreme Court (or the Eighth Circuit) might decide about and ATDS and dialing numbers from a list, “at the Motion to Dismiss stage in the litigation, Plaintiffs alternative allegations would be sufficient to survive dismissal.” No appeal. Strike two.

Finally, the Court completed the trifecta by summarily finding that that the “Trump Campaign has not carried its burden to demonstrate that this case would be so complex or expensive or protracted so as to be the sort of case appropriate for interlocutory review.” Strike three.

As to the request for stay, having disposed of the request to appeal, a motion to stay based on that process became moot. However, the Trump Campaign also asked the Court to stay the case pending resolution of its appeal of Judge Tunheim’s prior refusal to compel arbitration of the dispute.  The Campaign asserted that such a stay was mandatory because that appeal had deprived the Court of jurisdiction. If not mandatory, then the Court should exercise its discretionary authority to grant a stay.

Judge Tunheim agreed that there was a division of judicial opinion on “whether a stay pending appeal of denial of a motion to compel arbitration divests the Court of jurisdiction” and that he was “‘prohibited from relitigating the literal question on appeal.’”

However, absent controlling authority from the Eighth Circuit, he distinguished “arbitration clauses—matters of private contract” from weightier issues which would have deprived the Court of jurisdiction. So no mandatory stay required.

Further, two key factors warranting the Court’s exercise of its discretion to stay the case were missing – likelihood of success on the merits and irreparable harm. First, the Trump Campaign failed to demonstrate a likelihood of its success on its appeal because it had failed to demonstrate that there was an agreement to arbitrate in the first place. “No meeting of the minds, no contract, no arbitration agreement.” As for irreparable harm, the “only real harm claimed by the Trump Campaign is having to spend time and money to litigate its issues.” However, “‘cost, inefficiency, and inconvenience do not amount to the ‘certain and great’ harm that must justify a stay.’”

Latest lesson on interlocutory appeals and TCPA cases in TCPAWorld. What’s next for Judge Tunheim and the Trump Campaign is anybody’s guess.