The request for discretionary review of the Eleventh Circuit panel’s decision could signal a step toward a request for U.S. Supreme Court review, but the en banc petition itself is unlikely to move forward. Editor’s note: This article is available for members only.
2/21/2020 12:30
One of the plaintiffs in Glasser v. Hilton Grand Vacations Co., LLC, a decision focused on the definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act, has filed a petition for an en banc review in the U.S. Court of Appeals for the 11th Circuit.
The 11th Circuit’s ruling in the case rejected the rationale of the 9th Circuit’s decision in Marks v. Crunch San Diego, LLC, and held that an ATDS must use random or sequentially generated numbers, as recently reported in ACA’s Members Attorney Program series by attorney member Mike Barnhill, partner with Michael Best & Friedrich LLP.
ACA’s Corporate Counsel Colin Winkler believes that the en banc review may signal a procedural windup to a petition for certiorari before the U.S. Supreme Court. He adds, however, that the en banc petition itself will likely be denied because it fails to meet the criteria for en banc review set forth in Rule 35 of the Federal Rules of Appellate Procedure, let alone the additional high standard set forth in the 11th Circuit’s local rules.
“The 11th Circuit’s local rule on en banc petitions imposes an incredibly high standard on these petitions. In the case of en banc consideration upon rehearing, the petition must ‘bring to the attention of the entire court a panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of [the 11th Circuit],’" Winkler said. “That’s simply not the case here, where the question of what constitutes an ATDS under the Act remains an open one in courts across the country, including at the Supreme Court.”
Winkler adds that the “exceptional statutory analysis performed by the 11th Circuit in Glasser, coupled with the corroborating logic of Gadelhak—decided in the 7th Circuit earlier this month—make it even less likely that the en banc petition will be granted.”
In the petition for en banc rehearing, the Glasser plaintiff has sought review of the following issues:
“Whether the Telephone Consumer Protection Act (TCPA)’s restrictions on auto-dialed telephone calls apply to list-based autodialers, as held by Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) and the dissenting panel
opinion, or whether those restrictions apply only to autodialers that generate random or sequential telephone numbers, as held by the panel majority”; and “Whether a computer in Kentucky that dials telephone numbers automatically is nevertheless not an autodialer because it required a human in Florida to forward the list of numbers to the computer.”
ACA will continue to follow the status of the request for en banc review.
Members can read more information on the case here:
Eleventh Circuit Sticks to the Statute, Holds “ATDS” Requires Random or Sequential Number Generation
Eleventh Circuit’s Latest TCPA Decision is a Master Class in Statutory Interpretation