May 26, 2020

Ninth Circuit Denies En Banc Re-Hearing of Facebook First Amendment Challenge—TCPA Constitutionality Fight Headed to the Supremes?

Following the Ninth Circuit’s recent ruling severing portions of the TCPA to convert the statute to a content-neutral restriction in a bid to save it from a robust First Amendment challenge, if Facebook plans to challenge the constitutionality of the TCPA to the highest court in all the land it first had to request an en banc re-hearing by the Ninth Circuit Court of Appeals.

Well, that box is checked.

Yesterday the Ninth Circuit court of appeal issued a characteristically brief denial of Facebook’s request for an en banc reconsideration of the Court’s decision in Dugid. The en banc denial reads, in its entirety:

Judge McKeown votes to deny the petition for rehearing en banc, and Judges Wallace and Siler so recommend. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are denied.

You can read the ruling here:  Duguid Rehearing Denial

We’ll keep an eye out for the cert petition and report when we see it. The fate of the free world may depend on it. More to come TCPAWorld.

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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...