BIG ATDS RULING UNDER REVIEW?: Plaintiff Seeks En Banc Review of Recent Solimon TCPA Ruling by Second Circuit

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So a couple weeks back TCPAWorld broke the news of a massive ruling in the Second Circuit Court of Appeals limiting the reach of the TCPA by narrowly interpreting the statute’s critical automated telephone dialing system (ATDS) definition:

HUGE TCPA ATDS WIN: Second Circuit Joins Ninth in Concluding Only Systems That Randomly Generate Telephone Numbers Trigger TCPA Definition

While the ruling seemed to cement the “only dialers that randomly create telephone numbers are ATDS” line of cases as the predominant line nationwide, it could not be overlooked that the reasoning seems to contradict the language of the U.S. Supreme Court ruling in Facebook.

Well the Plaintiff in that suit has filed a brief seeking en banc review–that’s basically like an appeal of an appellate ruling to all of the judges in the circuit. It is a step before seeking Supreme Court review.

Remains to be seen if leave here is granted. Although rare, en banc review seems to happen quite a bit in TCPAWorld. The stakes are so high that courts often reluctantly review these matters.

This one is a real close call so it will be interesting to see what the Second Circuit does here.

The brief seeking review is here: En Banc Brief

Chat soon.

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Published by Eric "Czar" 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.

2 Comments

  1. Finally, a cogent, well-written and compelling brief, instead of the crude word vomit I’ve seen before…maybe there’s hope this time, fingers crossed.

    Reply

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