Plaintiff in Facebook v. Duguid Files Supreme Court Brief Supporting Broad Interpretation of ATDS Definition

The Plaintiff in Facebook, Inc. v. Duguid—the case that promises to resolve the growing circuit split over the TCPA’s definition of an ATDS—has filed his merits brief in the Supreme Court.

Recall that the TCPA defines an ATDS as equipment that has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  47 U.S.C. § 227(a)(1).  With help from noted grammarian Bryan Garner, who signed the brief as his new co-counsel, Duguid argues that the language of the statute and the canons of construction make clear that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store.”  For example, he argues that the “distributive-phrasing canon” requires that modifying phrases apply only to words “which, by context, they seem most properly to relate.”  Brief at 20.  Because the verb “to store” does not in his view relate to the phrase “using a random or sequential number generator,” he argues that the Court need not interpret the phrase as modifying “to store.”  Id.; see also id. at 15 (calling this outcome a “semantic mismatch between a modifier and a verb”).  He similarly argues that the “last-antecedent canon”—which provides that a modifying phrase “should ordinarily be read as modifying only the [verb] that it immediately follows”—counsels in favor of construing the adverbial phrase as modifying only the adjacent verb “to produce” and not the other verb “to store.”  Id. at 20-21.

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First-of-its-Kind Decision Rejects Liability for Calls Made Before Supreme Court Cured TCPA’s Unconstitutionality by Invalidating Debt-Collection Exception

Charter Communications may have just helped literally thousands of TCPA defendants snatch victory from the jaws of defeat.

As our regular readers know, the Supreme Court recently held in Barr v. AAPC that a recent addition to the TCPA—specifically, an exemption for calls to collect federal debts—was a content-based regulation of speech that violated the First Amendment. It then severed that exception from the rest of the statute, and in doing so dashed the hopes of defendants that had advocated for invalidating all of the statute’s restrictions on automated telephone equipment.

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Supreme Court To Hear Facebook ATDS Argument on December 8th

On September 16, the U.S. Supreme Court announced that it will conduct a telephonic oral argument for the Facebook, Inc. v. Duguid matter on December 8, 2020. As regular readers of our blog know, the Supreme Court granted Facebook, Inc.’s petition for certiorari in July and agreed to review the Ninth Circuit’s decision to reverse the dismissal of TCPA claims related to Facebook’s automated security text messages. The case promises to resolve the growing circuit split regarding the definition of an ATDS. We will provide continuing coverage of the Facebook case as it moves towards oral argument.

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Businesses, Trade Associations, and Public Policy Groups Flood Supreme Court with Amicus Briefs Supporting Narrow Reading of ATDS Definition

Late last week, numerous trade associations and public policy institutions filed amicus briefs supporting the narrow interpretation of the ATDS definition for which Facebook and the United States had advocated in briefs filed the week before. The case, Facebook, Inc. v. Duguid, arises from an automated security-alert text message to an individual who had never consented to receive such messages. See Facebook Brief at 15. The amicus briefs seek to help the Supreme Court resolve the growing circuit split over what constitutes an ATDS.

The following amici (and others joining with them) filed briefs in support of Facebook: Lyft, Quicken Loans, Home Depot, Salesforce.com, Aetna, Midland Credit Management, Credit Union National Association, Portfolio Recovery Associates, the Retail Litigation Center, the Life Insurance Direct Marketing Association, the Washington Legal Foundation, the Professional Association for Customer Engagement, and the U.S. Chamber of Commerce. The briefs (and previous filings in the case) can be found here.

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Facebook and U.S. Government File Supreme Court Briefs Supporting Narrow Interpretation of ATDS Definition

Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.

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Court Finds that Debt Collection Makes Use Of Random or Sequential Number Generation Implausible

In a victory for debt collectors, the Central District of Illinois recently found that a plaintiff’s bare-bones allegations regarding use of an ATDS were particularly implausible because “the business of the defendant is such that it would not need a machine with random or sequential number generation capacities.” Mosley v. Gen. Revenue Corp., No. 20-01012, 2020 WL 4060767, at *3 (C.D. Ill. July 20, 2020).

In Mosley v. General Revenue Corp., the plaintiff alleged that a debt collection company used an ATDS and prerecorded messages to call her cellular telephone without her consent. Id. at *1. She claimed the calls concerned debts that were not hers, and some calls started with short pauses and “dead air.” Id.

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The Sixth Circuit Adopts Expansive Interpretation of ATDS

In Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit weighed in on the definition of an ATDS, joining the Second and Ninth Circuits in reading it expansively.  The opinion was issued twenty days after the Supreme Court agreed to review this issue, following a growing split among the circuit courts. (Click these links for our previous blogposts about decisions from the Second, Seventh, Eleventh, Ninth, Third, and D.C. Circuits.)

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Court Applies the Seventh Circuit’s Gadelhak Decision and Grants Summary Judgment Against Certified Class

The Southern District of Indiana recently entered summary judgment against a certified class of TCPA plaintiffs because it concluded that defendants’ SoundBite platform did not qualify as an ATDS under the standard the Seventh Circuit recently established in Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020).  Lanteri v. Credit Prot. Ass’n, L.P., No. 13-cv-01501, 2020 WL 3200076, *8 (S.D. Ind. June 15, 2020).  Our previous coverage of Gadelhak can be found here.  The Lanteri v. Credit Protection Association, L.P. decision illustrates that Gadelhak provides defendants facing TCPA claims in the Seventh Circuit with strong defenses to ATDS allegations.

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Supreme Court Agrees To Review ATDS Definition

Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s restrictions on automated telephone equipment.

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Supreme Court Strikes Government-Debt Exception But Saves Other Restrictions on Automated Telephone Equipment

On July 6, 2020, the Supreme Court issued a highly anticipated—and highly fractured—ruling in Barr v. American Association of Political Consultants. The nine Justices produced four opinions, none of which commanded a majority. But six of the Justices agreed that the TCPA’s government-debt exception violated the First Amendment, and seven agreed that it could be severed from the rest of the TCPA. The result, then, is that the exception was stricken but the restrictions on automated telephone equipment were saved.

Writing for the plurality, Justice Kavanaugh made quick work of the government’s argument that the exception was content-neutral: “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.” Because the exception was content-based, the plurality applied strict scrutiny—a standard that the government had conceded it could not satisfy.

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