September 20, 2021

Volume XI, Number 263

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September 17, 2021

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Quick Update—When Will the Supreme Court Rule in Facebook's TCPA ATDS Challenge?

I have noticed a ton of traffic on TCPAWorld.com being driven by search terms related to the Facebook SCOTUS appeal recently, with a lot of you (and randos on google) asking “when will the Supreme Court decide Facebook?” or “when will the Supreme Court rule on the TCPA ATDS definition?”

So we previously mapped out potential timelines, but the bottom line is that no one knows for sure when SCOTUS will rule. There is a 99% chance it will rule before the term, which ends in early June, 2021. And, more likely than not, the Supremes will rule earlier rather than later since the case as argued in December and—let’s face it—the TCPA’s ATDS definition isn’t the most critical thing the Court has going on.

The Supremes usually take longer to decide cases that are argued later in the term (no surprise there) and that are weightier from a policy perspective (they need to think stuff over.) The Facebook TCPA appeal was argued early in the term and is pretty straightforward—essentially SCOTUS just needs to decide which analytic framework they want to apply to the statute. Once they resolve how to approach their analysis, the conclusion is going to flow rapidly. So I am definitely banking on an “early” ruling here.

So what is “early”?

Well theoretically the Supremes could decide Facebook any day now. But that is unlikely. In the first place the Supreme Court calendar currently lists zero decision days in either February or March so certainly no ruling is imminent. Now SCOTUS can add a decision day to its calendar any time it wants so things can certainly change. Nonetheless, anyone banking on a February or March ruling is probably off base. But it could happen.

In April things get interesting. Historically the Supremes start handing down a good volume of decisions in April. Again, these tend to be cases argued early in the term that have straightforward issues. The Facebook appeal certainly seems to check those boxes. Anytime from around April 8, onward then is “in play” in terms of a ruling.

If we make it to May without a ruling then TCPAWorld should really be on high alert. The Supremes will hand down rulings at a rigorous clip all through May and my money is certainly on a decision before mid-May. If it slips into late May or June I would be very surprised.

Bringing it altogether, while there is a chance (tiny) that the Supremes might decide Facebook in February, March or June the smart money is on the mid-April to mid-May timeframe. TCPAWorld.com will start paying very close attention to the Supreme Court’s opinion calendar starting April 1 and you can count on us to break the news of the big Facebook ruling—just like we did for AAPC last year.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 40
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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...

213-689-6510
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