Barrett, as a judge in the U.S. Court of Appeals for the 7th Circuit, has issued industry-favorable decisions on the TCPA and FDCPA. ACA International and members weigh in on the potential impact if her U.S. Supreme Court nomination is confirmed. Editor’s note: This article is available for members only.
As the accounts receivable management (ARM) industry awaits oral arguments in Facebook v. Duguid Dec. 8—a Telephone Consumer Protection Act case with several moving pieces—another piece was recently added to the puzzle with the pending confirmation of Amy Coney Barrett, a judge in the U.S. Court of Appeals for the 7th Circuit.
Front and center for ACA International and the ARM industry is Barrett’s narrow reading of the TCPA in past 7th Circuit cases, including Gadelhak v. AT&T Services Inc., which paints a favorable picture for the Facebook v. Duguid outcome if she is confirmed to serve on the U.S. Supreme Court.
Barrett’s confirmation would also mean a vacancy of her seat on the 7th Circuit that likely would not be filled by the president until 2021. Given the important TCPA rulings out of the 7th Circuit, Barrett’s potential replacement will be one to watch and followed by ACA.
The Supreme Court has started its October term with eight justices and the Senate Judiciary Committee is slated to begin Barrett’s confirmation hearings Oct. 12. Her confirmation would result in a Republican majority on the court.
Senate Majority Leader Mitch McConnell, R-Ky., previously said he favors voting on the confirmation of Trump’s nominee before the Nov. 3 election, as has U.S. Sen. Mitt Romney, R-Utah. However, McConnell also said on Friday that the Senate will be out until Oct. 19 after President Donald Trump, U.S. Sens. Mike Lee, R-Utah and Thom Tillis, R-N.C., and several others were diagnosed with COVID-19, according to Roll Call. Lee and Tillis serve on the Senate Judiciary Committee. According to the Roll Call report, McConnell said the confirmation hearings for Barrett are expected to continue as scheduled and members will participate in the hearings virtually if needed.
The nomination and confirmation process for Barrett could impact the timing of the decision in the Facebook v. Duguid case.
The Republicans need a majority vote to confirm the nominee, which is close with their 53-47 majority in the U.S. Senate. Vice President Mike Pence would vote in the event there is a 50-50 tie.
If there were any delay in the confirmation and it does not occur before Dec. 8, the oral arguments in Facebook v. Duguid may be delayed as well.
The arguments would be scheduled for the Supreme Court’s next term if they are not held in December. If they move forward as planned, and unless the case needs to be re-argued, there could be a decision in the case in March or April.
Politics and timing aside, Barrett’s case record on industry statutes, including the TCPA and Fair Debt Collection Practices Act, proves to be in line with industry priorities on modernizing the laws and compliance guidelines for businesses to meet consumers’ expectations for technology and communication while ensuring protections are in place.
For example, Barrett’s 2019 opinion on the definition of an automatic telephone dialing system (ATDS) in the TCPA in Gadelhak reads, “The wording of the provision that we interpret today is enough to make a grammarian throw down her pen. The Telephone Consumer Protection Act bars certain uses of an ‘automatic telephone dialing system,’ which it defines as equipment with the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ as well as the capacity to dial those numbers. We must decide an issue that has split the circuits: what the phrase ‘using a random or sequential number generator’ modifies. We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.’ The system at issue in this case, AT&T’s ‘Customer Rules Feedback Tool,’ neither stores nor produces numbers using a random or sequential number generator; instead, it exclusively dials numbers stored in a customer database. Thus, it is not an ‘automatic telephone dialing system’ as defined by the act—which means that AT&T did not violate the act when it sent unwanted automated text messages to Ali Gadelhak.”
Circuit courts remain split on the issue and the Facebook v. Duguid case could settle the outcome.
Here are a few thoughts from ACA members on the case and Barrett’s nomination:
David Anthony, partner, Troutman Pepper
“Judge Barrett is already on record regarding the appropriate definition of ATDS, having written the opinion for the 7th Circuit in Gadelhak. The narrow statutory interpretation of ATDS set forth in that opinion lines up squarely with the 11th circuit’s recent decision in Glasser as well as the 3rd Circuit’s Dominguez decision.
Judge Barrett, a Scalia protégé, has also earned a reputation as a textualist while on the bench. Gadelhak, like Glasser, is a textualist decision. This judicial philosophy, most notably exemplified by Justice Scalia, means that Judge Barrett will likely be less susceptible to the anti-robocall drumbeat and may well prove an effective advocate in conference for a textual analysis of ATDS at the Supreme Court level.
As a result, we would expect the chances of a narrow interpretation of ATDS will increase if Judge Barrett is confirmed before Facebook is argued. This undoubtedly will impact the tidal wave of TCPA litigation we have seen in years past. The TCPA, which proved wildly successful, has all but eliminated the random or sequential dialing it was meant to address. As Facebook, the U.S. and a number of amici have pointed out, regulation of the newer technologies that replaced such dialing is a task for Congress, not the courts.”
John Ryan, partner, Hinshaw & Culbertson LLP
“She is smart, thoughtful and well-prepared. Her rulings in consumer cases have often focused on the plain language of the statutory text. An example of her interpreting the FDCPA and the FCRA can be found in Walton v. EOS CCA, 885 F.3d 1024 (7th Cir. 2018). Barrett applying the plain language of the TCPA should prove helpful to Facebook’s position on what constitutes an ATDS.”
Josh Stevens, senior attorney, Mac Murray & Shuster LLP
“Judge Barrett has demonstrated that she is a textualist and originalist akin to the late Justice Antonin Scalia. In fact, during comments following her nomination, she reiterated her philosophy that ‘A judge must apply the law as written.’ Her opinion in Gadelhak demonstrates this philosophy. She rooted her decision in the construction of the ATDS definition, relying heavily on grammatical concepts, and on the capabilities of dialing technology at the time the TCPA was enacted.
The Facebook v. Duguid case rests squarely on deciding the circuit split between the 9th, 2nd and 6th circuits’ broad interpretation of the ATDS definition and the 7th, 11th, and arguably 3rd circuits’ narrow interpretation. Judge Barrett’s decision in Gadelhak has been repeatedly cited in support of the narrow interpretation and amici for Facebook, such as the Professional Association for Customer Engagement and Noble Systems Corporation, have argued that the justices should adhere to a textualist reading of the statute.
Based on the expedited confirmation schedule set out by Senate Republicans, with confirmation hearings starting in two weeks, it is possible Judge Barrett will be seated on the court in time for the oral arguments in Facebook on Dec. 8. Given her opinion in Gadelhak, Judge Barrett almost certainly would agree with the narrow ATDS definition and may serve as an influential voice with the other justices. However, Judge Barret may also decide that given Gadelhak’s centrality to Facebook, and her role in authoring the opinion in Gadelhak, she should recuse herself. Should this happen, or she not be confirmed in time, Facebook’s arguments will likely be directed to Justice Neil Gorsuch and others who are inclined to take a text-focused approach.”
Nicole Strickler, president, Messer Strickler Ltd.
“Judge Barrett’s decisions thus far have been overwhelmingly positive for the credit and collection industry. Of most note are her opinions in Casillas v. Madison Avenue Associates and Abdollahzadeh v. Mandarich Law Group LLP. Casillas constitutes one of the most helpful opinions on standing under the FDCPA rendered to date, confirming that even technical violations of the FDCPA still require an actual injury to be actionable. Abdollahzadeh similarly constitutes a very friendly opinion on the FDCPA to collectors, applying the bona fide error defense on an out of statute collection lawsuit.
As to the TCPA, Barrett wrote the 7th Circuit’s opinion in Gadelhak v. AT&T, which held that an dialing system must both store and produce numbers using a random or sequential number generator in order to constitute an automatic telephone dialing system under the act. Since the equipment at issue in Gadelhak exclusively dialed from a list of numbers stored in a customer database, she concluded that it did not implicate the TCPA. Other circuits, in contrast, have taken a broader approach to the definition of ‘automatic telephone dialing system’ finding that ‘random or sequential’ number generation is not required. Barrett recognized the practical implications of such rulings, noting these interpretations ‘would create liability for every text message sent from an iPhone.’ The Supreme Court is set to decide the circuit split shortly in Facebook v. Duguid this fall. Should Barrett join the court before arguments are held, it is very likely that she would rule consistent with her rationale in Gadelhak and side with a narrow definition of ‘automatic telephone dialing system.’”
ACA expects Barrett’s confirmation hearings to continue for a week to 10 days with a vote by Oct. 30. On this timeline, Barrett would be a part of the oral arguments in Facebook v. Duguid on Dec. 8.
Meanwhile, ACA and industry trade groups are supporting Facebook’s appeal in the case, which could have significant impact on defining what is considered an ATDS under the TCPA. This is a key point of contention that drives TCPA litigation. ACA is advocating for the Supreme Court to take action to resolve this issue, and thereby limit frivolous litigation in this area for ACA members going forward.
A total of 13 groups filed briefs supporting Facebook’s appeal in the case.
Duguid’s response to the briefs is due Oct. 16, and amicus briefs in support of Duguid are due Oct. 23.
For more insights on Barrett’s nomination and a preview of the oral arguments in Facebook v. Duguid, ACA members may listen to the ACA Huddle with Leah Dempsey, ACA’s vice president and senior counsel of federal advocacy, Tara Morrissey, deputy chief counsel at the U.S. Chamber of Commerce Litigation Center and Jeffrey R Johnson, a partner at Jones Day’s Issues and Appeals practice.
ACA also recently reported on the possible impacts of the nomination and changes at the U.S. Supreme Court in an article for members, Breaking Down What’s Next for the TCPA.