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Volume XI, Number 134

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What Will Appellate Courts Do With Facebook?: New SCOTUS Remands Put the ATDS Ball Back in Familiar Courts

My buddy Sara Mereken–great reporter–broke the news today that the Supreme Court has remanded the LaBoom Disco and Allan cases back to the Second and Sixth Circuit Courts of Appeal, respectively. The results in these cases–along with the remand of Facebook itself–will have a huge impact on ATDS cases moving forward.

The Facebook appellate proceeding will likely be anticlimactic. The Supreme Court essentially held that Facebook‘s system lacked the capacity to store or dial using an RSN&G. So there doesn’t seem to be much the Ninth Circuit can play around with. Facebook’s system is not an ATDS, and it follows that one-to-one alert messages and P2P and interactive text technology is likely outside the scope of the statute.

But as I have explained in our big Facebook webinar and in our Post-Facebook masterclass, there is still uncertainty over the extent of Facebook’s application to blast text systems and traditional predictive/autodialers.

That’s where the remands in LaBoom and Allan might become interesting. I say “might” because it is not yet clear precisely what the Appellate Courts will do in light of the remand and whether the Plaintiffs in those cases may simply fold up shop rather than fight such an uphill battle.

But assuming the Appellate Courts seek additional briefing and the respective Plaintiffs elect to fight on, TCPAWorld might get more clarity around Facebook in fairly short order.

The LaBoom case involves a system that may or may not have the capacity to blast text. (Not completely clear from the docket but it seems like it may.) That may allow some form of random number generator usage in connection with number selection–but, again, I am speculating. How the Court approaches these lingering factual issues–if there are any–will be very informative. In other words if LaBoom simply reviews the record and closes up shop that will be useful, but if LaBoom remands for further trial court proceeding and specifies what standard the lower court should apply that would be very interesting.

The situation in Allan is similar. There the debt collector defendant used a commonly-leveraged predictive dialer platform. It will be very interesting to see whether the Appellate Court simply accepts that the application of Facebook per se dooms the claim or allows additional trial court proceedings in light of Facebook. If the latter, what proceedings does the appellate court allow?

We’ll keep a close eye on these developments and call for amicus support if it becomes valuable.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 109
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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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