Well, its official
Former Judge Amy Coney Barrett– previously of the Seventh Circuit Court of Appeals– is now Justice Amy Coney Barrett of the US Supreme Court.
Whatever you may think of the GOP moving forward with this nomination in the shadow of the election, this is a great day for callers and advocates of a narrow TCPA read.
You already know the headline: in her previous role on the Seventh Circuit Court of Appeals, then-Judge Barrett had written a critical opinion addressing the TCPA’s ATDS definition and determined that the TCPA only applies to random or sequential number dialers, thus legalizing the vast majority of so-called “robocalls” in the Seventh Circuit footprint and freeing callers from one of the worst-written statute in American history.
Now as a Supreme Court Justice, one of Barrett’s first challenges will be to decipher the precise same portion of the precise same statute as part of Facebook’s huge SCOTUS appeal of the TCPA’s ATDS definition.
At issue, of course, is whether the TCPA applies to any call made “automatically” from a list of stored numbers or only those dialers that have the capacity to dial randomly or sequentially. As I have explained recently, this is a classic “pathos vs logos” situation-– the statute plainly seems to require random or sequential number generation, yet the near universal disdain for robocalls might lead to a results-based analysis (of the sort the Supremes just engaged in to save this same statute a mere three months ago)
In our latest episode of the insanely popular Unprecedented [VIDEO] Podcast I had the opportunity to ask Plaintiff’s lead counsel- Sergei Lemberg–how he felt about arguing this critical issue back to the exact same Judge who ruled on this very issue in Gadelhak. You’ll get to hear his answer TOMORROW right here.
The ascension of Justice Barrett is just the latest in a string of seesaw developments in the TCPA ATDS saga, with momentum swinging wildly in favor of one side or the other these last three months. The latest big development was the arrival of Bryan Garner– co-author with Justice Scalia (Justice Barrett’s mentor) of Reading Law, one of the most persuasive works on statutory interpretation– onto the consumer lawyer’s team urging an expansive read of the TCPA. And, of course, just last week nearly 40 state AGs likewise joined the fray in favor of an expansive TCPA read.
But with Justice Barrett arriving on the bench is Facebook now playing with a stacked deck? Certainly Justice Barrett–having already spoken on this issue–has a clear and obvious lean. Yet the trendy Beltway mistrust for “Big Tech” coupled with the fact that the Conservative wing of the Court (now its majority) previously split on whether to keep the TCPA on the books, suggest that this result might not yet be baked.
It all adds up to high drama in the high stakes TCPAWorld ATDS battle.