October 27, 2020

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October 27, 2020

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October 26, 2020

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TCPA Litigation Update — The US Government Sides with Facebook — This Should Make Things Easy for SCOTUS

Earlier this month, Facebook filed its brief in Facebook, Inc. v. Duguid. As we previously reported, in Duguid, the US Supreme Court will finally consider the question of “[w]hether the definition of ATDS in the TCPA 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’” (Facebook Brief at i) — a question that has long plagued defendants and caused growing circuit splits.

Facebook argues that the text of the TCPA and policy reasons support a finding that, to qualify as an ATDS, the equipment must do more than store numbers to be dialed at a later point. Facebook also argues that the Ninth Circuit incorrectly concluded that Congress had implicitly adopted a 2015 FCC Order, which was still under review at the time of its supposed adoption and eventually overruled. Facebook Brief at 42.

A number of other organizations have filed amicus briefs supporting Facebook’s narrow reading of the TCPA. Most interestingly — and likely outcome determinative — however, is the fact that the US government filed an amicus brief supporting Facebook’s position.

While the US government is not the authority on the reading of the TCPA in this setting — it is now in SCOTUS’s hands — the US government’s position will, no doubt, have a noteworthy impact on SCOTUS’s deliberations.

Both the US government’s and Facebook’s briefs can be found here: FacebookUS government.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 262
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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...

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Nicole Ozeran Associate, Class Action, TCPA & Consumer Calling. Product Liability & Complex Tort, Complex Commercial Litigation
Associate

Nicole’s practice focuses on complex corporate litigation, with an emphasis on consumer fraud, online and telephone marketing, false advertising, and regulatory and statutory compliance issues. Nicole regularly advises clients in all stages of litigation, from pre-litigation counseling and investigation through discovery, dispositive motion practice, trial, and appeals. She has extensive experience successfully taking and defending depositions, arguing motions, and resolving matters through mediation and arbitration.

Nicole’s clients regard her as strategic and creative; they trust her common sense approach to problem-solving and appreciate her professional dedication and zealous advocacy of their interests.

310-226-7851
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