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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: Facebook, US government.


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Joshua Briones

Member / Managing Member, Los Angeles Office

Joshua Briones is a commercial litigator who defends consumer class actions for Mintz. He's represented clients in a wide range of industries, including financial services, life sciences, manufacturing, and retail, in cases involving false advertising, unfair trade practices, and other claims.