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Well, it's official. Former Judge Amy Coney Barrett—previously of the Seventh Circuit Court of Appeals—is now Justice Amy Coney Barrett of the U.S. Supreme Court.
You already know the headline: in her previous role on the Seventh Circuit Court of Appeals, then-Judge Barrett wrote a critical opinion addressing the TCPA’s ATDS definition and determined that the TCPA only applies to random or sequential number dialers. This legalized the vast majority of so-called “robocalls” in the Seventh Circuit's footprint and freed callers from the poorly-drafted statute.
Now, as a Supreme Court Justice, one of Barrett’s first challenges will be to decipher precisely the same portion of the statute as part of Facebook’s huge SCOTUS appeal of the TCPA’s ATDS definition.
At issue 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 recently explained, 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 (like the one the Supreme Court recently engaged in to save the TCPA a mere three months ago when they reviewed the government debt exemption).
In our latest episode of the 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 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 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, suggests that this result might not yet be baked.
It all adds up to high drama in the high stakes TCPAWorld ATDS battle.