Really interesting one for you.
A court in Texas has used footnotes to invite further briefing about footnotes, and I saw what it did there. But beyond being clever, the further briefing allowed by the Court may soon result in a critical first-in-the-nation reading of Facebook’s fabled footnote 7.
In Bell v. Portfolio Recovery Assocs., Civil Action No. 5:18-cv-00243-OLG 2021 U.S. Dist. LEXIS 75096 (W.D. Tex. April 13, 2021) the court issued a brief order permitting further briefing and limited discovery on the capabilities of a popular predictive dialer suite (which will remain nameless.)
It used numerous footnotes—that exceeded the length of the order— to explain its rationale.
In footnote 4 of Bell the court explained: “For instance, it appears that the parties may now dispute the proper interpretation and scope of certain language in footnote 7 of the Facebook opinion, insofar as language in footnote 7 of the Facebook opinion might, according to Plaintiff-mean that certain devices constitute restricted autodialers under the TCPA if they “use a random generator to determine the order in which to pick phone numbers from a preproduced list.” See 2021 WL 1215717, at *6 n.7. That issue was not the primary focus of the parties’ prior briefing in this case, and the parties are welcome to brief the issue in their revised briefing.”
In footnote 5 of Bell the court further explains: “To be clear, the fact that the Court is permitting additional discovery regarding the capabilities of the [predictive dialer] should not be interpreted as a signal that the Court has adopted Plaintiff’s position regarding the proper interpretation of footnote 7 of the Facebook opinion. See generally docket no. 52. Indeed, it may be the case that Plaintiff has read too much into a single sentence in a footnote of an opinion that seemingly adopted the narrower of two proposed interpretations regarding the definition of a restricted autodialer under the TCPA. However, the Court believes that any resolution of dispositive motions in this case will almost certainly involve some analysis regarding the capabilities of the device in question, and thus, the Court believes that limited additional discovery regarding the extent to which the [dialer] uses a “random or sequential number generator” may be helpful irrespective of this Court’s ultimate conclusion regarding the appropriate interpretation of any disputed language in the Facebook opinion.”
See the important language there—the court is interested in whether the dialer uses a random or sequential number generator for any purpose –not just to generate phone numbers to be called. That’s the power of footnote 7.
In footnote 6 the Bell court invites further briefing on other issues: “To the extent any other courts address the scope of the Facebook opinion in the coming months, the parties are welcome to provide such precedent for the Court in their dispositive motion briefing.”
The Bell decision does not contain a footnote 7. (He says with a knowing smile.)
We’ll keep an eye on this.