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

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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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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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  1. Pingback: Redemption?: Navient Walks Away With ATDS Win After All – TCPAWorld

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