Returning Fire: Facebook Files its Reply Brief in SCOTUS Battle and it is Simply Devastating

We’ve been covering the huge ATDS battle at the Supreme Court through the seesaw swings in momentum.

First we saw a number of new decisions adopting the Marks rationale at the worst possible time, greatly enhancing the Plaintiff’s position that the ATDS definition should be read broadly. But then the U.S. Government stepped into the battle on Facebook’s behalf and shortly thereafter Justice Barret–a conservative who has already interpreted the TCPA narrowly— ascended to SCOTUS. But just when it looked like Facebook was playing with a stacked deck, the Plaintiff’s bar pulled off a massive coup and added Bryan Garner–co-author of Reading Law with the late Antonin Scalia–to Duguid’s team. (And my latest intel is that Bryan himself will be arguing this thing.)

We talked to Sergei Lemberg–lead counsel for Duguid– on Unprecedented a couple weeks back about this wild roller coaster ride, and people just cannot stop talking about it.

Well in an effort to decisively seize back the momentum headed into oral argument next month (December 8, 2020) both the government and Facebook have filed their reply briefs to day and man, they held nothing back. (I’ll discuss Facebook’s brief here and the government’s brief in a separate post a bit later in the day.)

Just 3 pages in, Facebook’s reply destroys the primary grammatical argument underlying Plaintiff’s position:

[Plaintiff] essentially concedes that the “syntax” (by which he appears to mean the text and ordinary rules of grammar) is against him, and that he can prevail only based on the application of “synesis” (a term that has not yet graced a single page of the U.S. Reports).

That is just brutal.

But Facebook isn’t gilding the lily here. As we reported previously, Duguid’s argument really does boil down to “the regular rules that a grammarian would regularly apply, shouldn’t apply to the TCPA because… come on, we all hate robocalls, am I right?” Facebook’s reply brief strips the Appellee’s position down and exposes the weaknesses here and it does it FAST.

And then…This.

Respondent’s need to resort to such novel modes of interpretation is understandable.

Before going on to masterfully explain why the TCPA’s ATDS definition plainly requires random and sequential number generation.

I mean, the reply brief basically pats Garner on the head and tells him thanks for playing.

Facebook also discusses all the crowd pleasing canons of statutory construction as if it were pointing out all of the popular kids coming to its birthday party. The “directly applicable” cannon will be there. The “punctuation canon” loves me and won’t miss it.  The “whole text canon” will be there too, he’s bringing the punch.

On the other hand, Duguid’s party is full of weirdos. I mean the “last antecedent
canon”– who wants to hang out with that guy? (Plus he said he might be coming to our party anyway since “using a random or sequential number generator,” immediately follows “numbers to be called” and not “produce.”) Oh, and don’t even get me started on the “distributive-phrasing canon,” he still plays with pogs. That just leaves “canon against superfluity” and we all know he can’t be trusted.

And then we get to the meat:

Here, there is nothing nonsensical, let alone “linguistically impossible,” about a dialing system “using a random or sequential number generator” “to store” numbers.

That’s the second javelin to the heart.

See how they did it?

Step 1: demonstrate plaintiff’s position lacks any support in the rules of grammar

Step 2: demonstrate that plaintiff’s hail mary “synesis” argument doesn’t apply since there is nothing “nonsensical” about Facebook’s reading to begin with.

Simple. Yet very very effective.

And now, to really really step on them to make sure they don’t try to get back up:

At bottom, respondent would parlay a perceived natural affinity between “to produce” and “using a random and sequential number generator” to read both words out of the statute as a practical matter. That would truly make nonsense of the statute.

Wow. What are the kids saying on Twitter these days?

“9-1-1? I’d like to report a murder.”

This is so good it makes my merciful heart hurt and becomes bad again.

Plus, Facebook cites to a legal nerd piece written by some guy named Brett Kavanaugh. Hmmmm. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2161-62 (2016).  And Facebook also introduces a somewhat new argument– emphasizing that the TCPA’s draconian penalties are “strong medicine” that are simply inappropriate as applied to the use of a “regular” dialer.

Anyway, in my opinion Facebook’s brief absolutely wrecks the Plaintiff’s position but it remains to be seen what the nine justices on SCOTUS think. We’ll know more on December 8, 2020.

In the meantime you can check out the Facebook brief here: Facebook Reply Brief In Duguid

I’ll review the Government’s brief a bit later in the day.




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