More to the Story: Navient’s Counsel Explains A bit More On the Background Leading up to the Recent Franklin Decision

So the good folks over at Stradley reached out to me today to provide a bit more context on the procedural posture and background on the Franklin case we’ve been covering.

I always love it when we hear from the folks involved in the litigation stories we’re following so I wanted to share their direct perspective. Here’s what they told me:

Navient moved for summary judgment on several bases, including that it did not use an ATDS to place calls to Franklin’s cell phone, and Navient has reiterated this ATDS argument many times during the case.  Nevertheless, in granting Navient summary judgment, the court determined that it need not decide Navient’s ATDS argument because it instead found that the calls were exempted from the TCPA by the government-debt exception. Franklin moved for reconsideration but the case was then stayed while AAPC was decided.  The case was then reassigned to Judge Bibas sitting by designation from the Third Circuit. Once AAPC was decided, Franklin renewed his motion, and Navient opposed by arguing that the AAPC decision cannot apply retroactively, but if the court were to find that it did, the court would then need to consider Navient’s ATDS arguments which were never ruled on previously on summary judgment.  Navient also moved for a stay pending the Supreme Court’s review in Duguid. The court then appointed counsel to Franklin to brief and argue the effect of AAPC, resulting in further briefing, including Navient’s argument that the ATDS issue must be decided if the court declines to apply the government-debt exception.

In its April 19, 2021 Opinion and Order, the court held that the government-debt exception did not apply, but the court did not address our alternative argument that Franklin’s claims are barred or limited by the lack an of ATDS. Consequently, Navient filed its motion for reconsideration asking the court to find either that Franklin conceded that he was abandoning his ATDS claim, or to rule on the merits of our ATDS argument. The court only addressed the waiver issue (whether Franklin abandoned his ATDS claim) and did not address the merits of Navient’s ATDS argument, instead apparently acting under a misunderstanding that Navient had not previously raised the ATDS argument. Navient therefore intends to file a renewed motion for reconsideration that makes the procedural history clear. At bottom, Navient has consistently pressed an ATDS argument, but to date it has never been considered by the court despite the foregoing filings.

So there you go. We’ll keep an eye on this one and—we’re rooting for the good guys here.


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