REPUBLISHED: My Latest “Expert Analysis” for Law360: Ginsburg’s Passing Could Usher In A Narrower TCPA

Editor’s Note: I was honored to have been selected to write this “Expert Analysis” piece for Law360 that ran today. The article is republished here with the publication’s permission.

*Editor’s Other Note: Trump’s apparent top choice for nominee to replace the late Justice Ginsburg is the Hon. Amy Conen Barrett who penned the important TCPA ATDS decision in Gadelhak for the Seventh Circuit Court of Appeals. I do not address this issue in this article, but Barrett’s appointment would be a huge swing in favor of TCPA Defendants at the High Court, as the Archduke will analyze tomorrow. 

The loss of U.S. Supreme Court Justice Ruth Bader Ginsburg will have a profound impact on the legal world as a whole, but her several and meaningful contributions to the current state of consumer class litigation should not be overlooked.

With regard to the Telephone Consumer Protection Act, in particular, Justice Ginsburg had an outsize impact on the development of critical case law — having herself penned two major Supreme Court TCPA decisions. But, perhaps unsurprisingly given her reputation in popular culture, her work in a number of dissents showed her deep dedication to the consumer class action vehicle and underscores why the loss of her voice on the court might spell a sudden end for the consumer class action vehicle as a whole.

Justice Ginsburg’s first brush with the TCPA came in 2012 when she penned the majority opinion for the Supreme Court in Mims v. Arrow Financial Services LLC.[1] At issue in that case was the TCPA’s remarkably unusual private right of action that seemingly only authorized private suit in state court, and even then only when a state had specifically provided a remedy. But Justice Ginsburg’s opinion read the statute differently and broadly interpreted the TCPA so as to afford a private right of action to every American to sue for unwanted robocalls directly in federal court. Although the court could have found that such suits were permitted only in a handful of states that specifically provided a separate cause of action, Justice Ginsburg reasoned — with the weight of a united court behind her — that the right to sue was automatic under the language of the statute.

The following year Justice Ginsburg found herself dissenting in a pair of cases that seemed destined to limit the reach of the class action vehicle in the consumer litigation context. First, in Genesis Healthcare Corp. v. Symczyk,[2] Justice Ginsburg dissented in a landmark Supreme Court ruling that determined a class representative in an Fair Labor Standards Act representative action must maintain standing at all times to pursue a claim on behalf of a putative class. Joining a fiery dissent by Justice Elena Kagan — that characterized the majority’s view as “wrong, wrong, and wrong again” and advised other circuit courts of appeal not to “try this at home” — Justice Ginsburg favored an approach that would have found that unaccepted Rule 68 offers do not moot a claim to begin with — a position that ultimately serve as foundation for the Campbell-Ewald decision she would pen a few years later.

That same year, Justice Ginsburg dissented in the critical ruling of American Express Co. v. Italian Colors Restaurant[3] that upheld class action waivers in arbitration provisions and handed a huge weapon to consumer class action defendants. In that dissent — once again penned by Justice Kagan — Justice Ginsburg took the position that the court’s majority was trying to dismantle the entire class action vehicle — “to a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”

Three years later, Justice Ginsburg was back in the driver’s seat, however, penning the majority position in Gomez v. Campbell-Ewald Co.[4] There the Supreme Court held that a TCPA class action cannot be mooted by an offer of judgment alone. A rejected Rule 68 offer, it was held, simply could not be used to moot a case. Justice Ginsburg reasoned — in a call back to the dissent in Genesis — that the federal rules clearly specify the limited effect of an offer upon rejection. The Gomez ruling — although seemingly hypertechnical — was a critical win for proponents of the Rule 23 class action vehicle in the consumer context; without it class action payments could be picked off with payments designed to moot their case before the action advanced to the class certification stage.

Demonstrating Justice Ginsburg’s nuanced views on class litigation, however, she agreed with much of the majority opinion of the court in Spokeo Inc. v. Robins[5] — a decision that foreclosed class action litigation under consumer protection statutes for violations that did not cause true concrete or real-world harm. Under Justice Ginsburg’s tightly worded dissent, however, she concluded that the plaintiff in Spokeo had demonstrated concrete harm because the defendant had allegedly damaged his reputation in a concrete way. Still, after Spokeo, no longer would a putative class representative be permitted to file suit for a sterile statutory violation that did not cause any actual harm; a class action could only be filed and pursued where the defendant’s conduct had actually hurt somebody in real life.

Justice Ginsburg’s dedication to consumer protection does not appear to have faded with time. Just this last year in Barr v. American Association of Political Consultants Inc.,[6] Justice Ginsburg joined a dissent by Justice Stephen Breyer that suggested only intermediate scrutiny should be applied to the TCPA’s content-specific exemptions and ultimately sided with the majority in determining a challenged provision was severable so as to save the TCPA as a whole.

Reviewing her handiwork in these cases, Justice Ginsburg seemingly viewed consumer class actions as an essential vehicle enabling civil justice, at least where class members had suffered real harm at the hands of a defendant. She appeared to favor a broadly applicable and privately enforceable TCPA, and felt the statute was subject to only intermediate scrutiny where it laid down content-specific exemptions.

While we will never know for sure, it seems probable that Justice Ginsburg would have favored a broader reading of the TCPA’s automatic telephone dialing system definition in the pending Facebook Inc. v. Duguid, to assure the statute applied more broadly to prevent unwanted robocalls. Indeed, there are many similarities between the text-based arguments made and accepted by Justice Ginsburg in Mims back in 2012 and those advanced by the plaintiffs in the Facebook challenge.

Given the Trump administration’s recent position in a brief to the Supreme Court on the subject, a Trump appointee is more likely to adopt a narrower reading of the TCPA’s automatic telephone dialing system definition and require the statutorily referenced capability of random or sequential number generation.*  Still, the conservative wing fractured in AAPC — with two conservative justices lauding the TCPA as a popular and valuable statute — underscoring the uncertainty of predicting any particular outcome.

Whatever may happen in Facebook, however, the appointment of a conservative to replace Justice Ginsburg is likely to see a new era in which the current era of rampant consumer class action litigation is largely reined in.

Justice Ginsburg worked for many years to preserve and protect the Rule 23 class vehicle she felt was critical to protect consumers from suffering real-world harm at the hands of unscrupulous companies.  But in the wake of Justice Ginsburg’s passing — and with a Trump appointee unlikely to share her broad commitment to the class action vehicle — we can expect a continuing shift toward the narrower application of consumer protection statutes and Rule 23 by the Supreme Court, and the likely impact on the TCPA’s automatic telephone dialing system definition in Facebook will be just the beginning.

[1] Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012).

[2] Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013).

[3] American Exp. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013).

[4] Gomez v. Campbell-Ewald. 136 S.Ct. 663 (2016).

[5] Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

[6] Barr v. AAPC, 140 S. Ct. 2335 (2020).


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