Ever talked to a lead counsel in a Supreme Court appeal 45 days ahead of oral argument and asked him pointed questions about his position?
Well, buckle up–literally–because here’s your shot.
Sergei Lemberg– lead counsel for the Plaintiff Duguid in the ENORMOUS Facebook TCPA ATDS appeal pending before the Supreme Court— joined the Unprecedented podcast team today, while driving a moving vehicle, to discuss the appeal and his preparations for oral argument. And while the interview wasn’t the literal car wreck it could have been, it certainly delivered its stunning moments.
Sergei is a great sport–in addition to being a true TCPAWorld legend– and tolerated my asking him extremely direct and pointed questions about his client’s position on appeal. (Watch as I stump him on one critical statutory interpretation question in particular– “You have to be better prepared than that” I quip.) And he is extremely candid–admitting limitations in their position at times and conceding that the linguistic arguments may not ultimately carry the day, while always defending Plaintiff’s position with a telling smile.
I ask him repeatedly about the pressure of having the fate of the entire TCPAWorld resting on his shoulders (at least from a plaintiff’s perspective) and he boldly assured me that the consumer lawyers will not lose its golden goose on his watch: “I’m going to win, you’re going to lose.”
Still, it was his frank discussion about Bryan Garner’s involvement in writing the brief that will drive most viewers–and for good reason. We talk about how Sergei dreamed up the idea of approaching Bryan to join the brief and how the engagement process worked. But the biggest exchange surrounds legacy: this is the first time Bryan Garner has ever joined a Supreme Court brief and a loss here could really impact his chances of induction into the totally-not-made-up Lexicography Hall of Fame.
I ask Sergei directly whether Bryan is concerned that losing this appeal might tarnish his legacy–and Sergei’s insightful answer took me by surprise.
From his feelings on the government supporting Facebook’s petition, to his belief that “Big Tech” really will exploit a ruling adverse to his client to crush Americans with robocalls–a position I deem a “conspiracy theory” in the interview– this one has it all. You cannot miss it.
Plus, I ask him the ultimate question– with the ATDS case law suddenly developing in his client’s favor, if the court seems to be going against him on December 8, 2020 does he plan to just dismiss the case to avoid an adverse ruling?
You won’t believe his answer.
Its all part of Episode 18 of the Squire Patton Boggs Unprecedented podcast that will be available RIGHT HERE early next week.
And IN CASE YOU MISSED IT: Episode 17– where the team breaks down the huge SCOTUS TCPA ruling in AAPC–is up and available on the Unprecedented home page. Check it out now to hold you over until next week.