September 24, 2020

Mike Daly Discusses Potential Impact of Justice Ginsburg's Successor on Upcoming TCPA Case

Law360 reports Justice Ruth Bader Ginsburg's absence on the U.S. Supreme Court could swing a heated dispute over what qualifies as an autodialer under the Telephone Consumer Protection Act (TCPA), especially if she is succeeded by Amy Coney Barrett, a Seventh Circuit judge who has emerged as a top candidate for the high court and who authored a key opinion on the issue. Judge Barrett's ruling in Gadelhak v. AT&T Services Inc. that addressed the question regarding the scope of the disputed autodialer term is before the Supreme Court in Facebook v. Duguid and is scheduled to be heard on Dec. 8.

The legal industry publication turned to litigation partner Mike Daly for insight on how efforts to fill Justice Ginsberg's seat may impact the Facebook TCPA autodialer case.

Daly called Facebook's arguments in favor of narrowing the autodialer definition — a stance that has also won support from the federal government — "particularly persuasive."

"I expect that they will resonate with many of the justices, and may well have resonated with Justice Ginsburg," Daly said. He added that it would "be hard to see" how Judge Barrett, if confirmed, would rule against the narrow reading that Facebook and the government are advocating for, given "how exhaustive her analysis was" in the AT&T case earlier this year. 

Daly added that the suggestion that Justice Ginsburg's death will usher in a more "pro-business" court and the end of class actions "is unfair and unhelpful."

"The justices approach issues from different perspectives, to be sure," Daly said. "But it is wrong to suggest that their opinions are driven by whether the result will favor a business or a consumer."

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