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HUBRIS: Turns Out TCPA Defendant in Disastrous Sixth Circuit ATDS Ruling Actually Affirmatively OPPOSED Stay Pending Supreme Court Review

Thanks to a reader for this tip.

This is just too rich.

As I wrote earlier today, the Sixth Circuit Court of Appeals just issued a massive decision turning the TCPAWorld’ ATDS paradigm on its head. The new majority position at the COA level–thanks to the Sixth Circuit’s huge and awful (for TCPA defendants) Allan decision–is that the TCPA applies to all automatic dialers, even those that do not use a random or sequential number generator. Disaster.

Notably the ruling comes at a TERRIBLE time for all of us, since the Supreme Court is set to rule on the TCPA’s ATDS definition next year. Now, instead of the Circuits being evenly split on the issue, the bad guys have the lead– 3-2 in favor of Marks.

It didn’t have to be this way.

With the Supreme Court’s ATDS review pending I am urging everyone to stay ATDS cases. There is simply no reason not to–save money litigating the case and wait to see what the rule of law actually is before you waste time litigating the wrong standard. Plus you avoid taking unnecessary risks of creating bad case law by staying cases.

But not only did Defendant in Allan not move to stay the case pending the SCOTUS Facebook review–as prudence surely dictated–the Defendant actually affirmatively opposed a stay requested by the Plaintiff!

Don’t believe me? Check it out:

Opposition to Stay

Absolute hubris.

And talk about getting your just desserts. The Court of Appeals panel (gleefully?) denied the stay– at Defendant’s behest–and then absolutely hammered it in a ruling that reversed the lower court’s judgment in its favor and sends it back to litigate a case with potential existential exposure.

Remarkably the Defendant appeared fully aware that the outcome of Allan might hurt TCPAWorld’s chances before the Supremes in the Facebook appeal but they opposed the stay anyway:

This Court’s opinion will further the analysis of the issue [before the Supreme Court] regardless of the outcome. Further, for the next year the courts in this Circuit can benefit from direction on the meaning of what is an automatic telephone dialing system for purposes of the Telephone Consumer Protection Act, 47 U.S.C. § 227(a)(1), in pending and future cases.

Nice tactical choice. Thanks so much for that guys. We really appreciate it.

-TCPA Plaintiff’s lawyers.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 211

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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