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Facebook, Inc. v. Noah Duguid, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 17-15320 · judgment June 13, 2019

Decided · April 1, 2021
Pre-decision estimate: 15% cert probability (95% interval 11%–19%)

Before the decision, about 3.5× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a circuit split argued in the petition.

Questions presented

Congress enacted the Telephone Consumer Protection Act of 1991 ("TCP A") to prohibit calls made to a cell phone without consent using an "automatic telephone dialing system" ("ATDS"). That prohibition exempts calls made "to collect a debt owed to or guaranteed by the United States" or "made for emergency purposes." 47 U.S. §227 (b)(l )(A)(iii). Here, Petitioner was sued for violating this prohibition and defended on the ground, inter alia, that the prohibition unconstitutionally discriminated on the basis of content and that the text messages at issue here did not involve an ATDS. The Ninth Circuit agreed that the TCPA was unconstitutional, but denied Petitioner any relief by taking the extra ordinary step of rewriting the TCPA to prohibit more speech by eliminating the government-debt-collection exception. To make matters worse, the Ninth Circuit adopted a counter-textual and expansive definition of an ATDS that encompasses any device that can store and automatically dial telephone numbers - even if that device cannot store or produce them “using a random or sequential number generator," as the statutory definition requires, id. §227(b)(1)(A). That holding- which conflicts with the Third and D.C. Circuits - sweeps into the TCPA's prohibition almost any call or text made from any modern smartphone. The questions presented are:

  1. Whether the TCPA's prohibition on calls made using an ATDS is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech.

  2. Whether the definition of ATDS in the TCPA encompasses any device that can "store" and "automatically dial" telephone numbers, even if the device does not "us[e] a random or sequential number generator." LIMITED TO QUESTION 2 PRESENTED BY THE PETITION.

Counsel of record

For petitioner
Paul D. Clement
Clement & Murphy, PLLC

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 3 conferences

Amicus briefs
5 cert-stage · 20 merits
(13 supporting pet./neither, 7 respondent)

Argument & decision

Argued December 8, 2020 — Paul D. Clement · Jonathan Y. Ellis · Bryan A. Garner. Audio and transcript

Decided April 1, 2021. Opinion by Sotomayor.

Proceedings

  1. May 03 2021
    JUDGMENT ISSUED.
  2. Apr 01 2021
    Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., filed an opinion concurring in the judgment.
  3. Dec 08 2020
    Argued. For petitioner: Paul D. Clement, Washington, D. C. For respondent United States in support of petitioner: Jonathan Y. Ellis, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent Noah Duguid: Bryan A. Garner, Dallas, Tex.
  4. Nov 16 2020
    Reply of petitioner Facebook, Inc. filed. (Distributed)
  5. Nov 16 2020
    Reply of respondent United States in support of petitioner filed. (Distributed)
  6. Nov 09 2020
    Motion for divided argument filed by petitioner GRANTED.
  7. Oct 27 2020
    CIRCULATED
  8. Oct 23 2020
    Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
  9. Oct 23 2020
    Brief amici curiae of 21 Members of Congress filed. (Distributed)
  10. Oct 23 2020
    Brief amici curiae of State of North Carolina, et al. filed. (Distributed)
  11. Oct 23 2020
    Brief amicus curiae of Main Street Alliance filed. (Distributed)
  12. Oct 23 2020
    Brief amici curiae of John McCurley and Dan Deforest filed. (Distributed)
  13. Oct 23 2020
    Motion for divided argument filed by petitioner Facebook, Inc.
  14. Oct 23 2020
    Brief amicus curiae of Dr. Henning Schulzrinne filed. (Distributed)
  15. Oct 23 2020
    Brief amici curiae of National Consumer Law Center, et al. filed. (Distributed)
  16. Oct 16 2020
    Brief of respondent Noah Duguid filed.
  17. Oct 08 2020
    Record requested from the U.S.C.A. 9th Circuit.
  18. Oct 08 2020
    Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
  19. Sep 16 2020
    SET FOR ARGUMENT on Tuesday, December 8, 2020.
  20. Sep 11 2020
    Brief amicus curiae of Home Depot, Inc. filed.
  21. Sep 11 2020
    Brief amicus curiae of Salesforce.com, Inc. filed.
  22. Sep 11 2020
    Brief amicus curiae of Midland Credit Management, Inc. filed.
  23. Sep 11 2020
    Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
  24. Sep 11 2020
    Brief amicus curiae of Credit Union National Association, Inc. filed.
  25. Sep 11 2020
    Brief amicus curiae of Portfolio Recovery Associates, LLC filed.
  26. Sep 11 2020
    Brief amicus curiae of Quicken Loans, LLC filed.
  27. Sep 11 2020
    Brief amici curiae of “On-Demand” Technology Platforms filed.
  28. Sep 11 2020
    Brief amici curiae of Retail Litigation Center, Inc., et al. filed.
  29. Sep 11 2020
    Brief amici curiae of Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association filed.
  30. Sep 11 2020
    Brief amici curiae of Healthcare Companies filed.
  31. Sep 10 2020
    Brief amicus curiae of Washington Legal Foundation filed.
  32. Sep 10 2020
    Brief amici curiae of Professional Association for Customer Engagement and Noble Systems Corporation filed.
  33. Sep 04 2020
    Brief of respondent United States in support filed.
  34. Sep 04 2020
    Joint appendix filed.
  35. Sep 04 2020
    Brief of petitioner Facebook, Inc. filed.
  36. Jul 24 2020
    Motion for an extension of time filed.
  37. Jul 24 2020
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 4, 2020. The time to file respondents' brief on the merits is extended to and including October 16, 2020.
  38. Jul 09 2020
    Petition GRANTED limited to Question 2 presented by the petition.
  39. Jul 08 2020
    DISTRIBUTED for Conference of 7/8/2020.
  40. Jul 08 2020
    Supplemental brief of respondent Noah Duguid filed.
  41. Jul 07 2020
    Supplemental brief of petitioner Facebook, Inc. filed. (Distributed)
  42. Jan 10 2020
    Reply of petitioner Facebook, Inc. filed. (Distributed)
  43. Jan 08 2020
    DISTRIBUTED for Conference of 1/24/2020.
  44. Jan 06 2020
    Letter waiving the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed.
  45. Jan 03 2020
    Brief of respondent Noah Duguid in opposition filed.
  46. Dec 04 2019
    Response Requested. (Due January 3, 2020)
  47. Dec 02 2019
    Reply of petitioner Facebook, Inc. filed. (Distributed)
  48. Nov 26 2019
    DISTRIBUTED for Conference of 12/13/2019.
  49. Nov 25 2019
    Waiver of the 14-day waiting period under Rule 15.5 filed.
  50. Nov 20 2019
    Brief amicus curiae of Credit Union National Association, Inc. filed.
  51. Nov 20 2019
    Brief of respondent United States filed.
  52. Nov 20 2019
    Brief amici curiae of Midland Credit Management, Inc. and Encore Capital Group, Inc. filed.
  53. Nov 20 2019
    Brief amici curiae of Chamber of Commerce of the United States of America and Business Roundtable filed.
  54. Nov 20 2019
    Brief amicus curiae of ACA International, Inc. filed.
  55. Nov 20 2019
    Brief amicus curiae of Retail Litigation Center, Inc. filed.
  56. Nov 18 2019
    Waiver of right of respondent Noah Duguid to respond filed.
  57. Nov 07 2019
    Blanket Consent filed by Petitioner, Facebook, Inc.
  58. Oct 17 2019
    Petition for a writ of certiorari filed. (Response due November 20, 2019)