January 19, 2021

Volume XI, Number 19


January 18, 2021

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Breaking: SCOTUS Will Decide ATDS Definition in Facebook, Inc. v. Duguid et al.

Only days after the Supreme Court’s decision in Barr v. AAPC, the High Court granted certiorari in another TCPA case, Facebook, Inc. v. Duguid et al., No. 19-511 (cert. granted July 9, 2020). Though an overhaul of TCPA litigation was a possibility in AAPC, it’s now a near certainty in Facebook. Facebook has asked the Court to address a question at the heart of a nationwide circuit split: “Whether the definition of [an automatic telephone dialing system] . . .  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.’”

Currently, the Third, Seventh, and Eleventh Circuit Courts of Appeal require number generation in order for technology to qualify as an ATDS. See Gadelhak v. AT&T Services, 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations, Case No., 948 F.3d 1301 (11th Cir. 2020); Dominguez v. Yahoo, 894 F.3d 116 (3d Cir. 2018). The Second and Ninth Circuit Courts of Appeal, in contrast, have liberally construed the statutory text and do not require number generation. Duran v. La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020); Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018).  

After Monday’s decision in AAPC, keeping the statute’s ATDS provisions intact, the possibility of a game-changing defendant-friendly setback has sent pending (and would be) plaintiffs reeling. The petition opens the door for the Court to plainly read the Statute and side with the Third, Seventh, and Eleventh Circuits – effectively gutting the value of many pending and future class actions.  Given the potential impact on pending litigation, defendants are wise to consider motions to stay while the Court decides the issue. 

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 192



About this Author

Joshua Briones Litigation Lawyer Mintz
Member / Managing Member, Los Angeles Office

Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach and specializes in high-stakes, bet-the-company litigation. He represents clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education. He frequently publishes and lectures before national and local bar and industry...

E. Crystal Lopez Associate Class Action TCPA & Consumer Calling Complex Commercial Litigation

Crystal focuses her practice on class action defense, with an emphasis on consumer fraud, data privacy, marketing and compliance issues claims. Crystal has extensive experience successfully defending against class action claims brought under the Telephone Consumer Protection Act, California Unfair Competition Law, False Advertising Law, the Fair Credit Reporting Act, the Hobby Protection Act and Auto-Renewal Law in both state and federal courts.

She has defended corporate clients against class actions at all stages of litigation, including...

Esteban Morales, Mintz, Class Action Defense Lawyer, financial services litigation

Esteban is an experienced litigator whose practice is principally focused on class action defense and financial services litigation. Esteban has successfully defended both small and large corporate clients targeted in class action suits alleging violations of the Telephone Consumer Protection Act, California’s Unfair Competition Law, and California’s Invasion of Privacy Act. Results include dismissals at the pleading stage and without any discovery following aggressive defense strategies. In addition to defending class actions, Esteban has represented clients in real...

Matthew Novian Complex Commercial Litigation Attorney

Matt focuses his practice on complex commercial litigation, including consumer protection matters. He has experience in drafting briefs and letters to opposing parties and in conducting depositions. In addition, Matt maintains an active pro bono practice, in which he counsels clients in matters related to immigration and domestic violence. He was a Law Clerk at Mintz in 2017. 

While attending law school, Matt was a summer associate at a Los Angeles-based law firm, where he worked on matters involving closely held corporations, commercial real estate disputes, and trademark licensing...