Does Another ATDS Loss (and Dissent) at the Second Circuit Tee Up Certiorari?
Happy (rainy) Friday, everyone!
Today the Second Circuit issued their published opinion in Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. The long and short of this tremendous loss for consumers is that, like in the Third, Eighth, and Ninth circuits, an ATDS (or rather confusingly, in the Second Circuit’s shorthand, an ATSD) must randomly or sequentially generate telephone numbers, not just randomly pick numbers from a list. Essentially, nothing is an ATDS now. Scalia is surely rolling in his grave as a result of the contorted interpretation of the statutory text in the face of the plain technical language the Second Circuit undertook.
Largely the same reasoning as for my loss at the Third Circuit, which I wrote about here.
The interesting thing about this nugget of a case is that we have a dissent by Judge Nardacci, sitting by designation. The dissent is incredibly well-reasoned. In sum, she felt the majority got it wrong for five reasons:
First, the majority reads “random or sequential number generator,” a term with a precise technical meaning, to mean “random or sequential telephone number generator,” contrary to the Supreme Court’s interpretation of technical terms in Van Buren v. United States, 593 U.S. 374, 388 (2021).
Second, the reading renders the use of storage in the statute superfluous. If an ATDS must produce a telephone number randomly or sequentially, why also permit a plaintiff to prove ATDS usage by demonstrating storage?
Third, the reading renders the prior express written consent requirement superfluous. It’s impossible to get prior express written consent to randomly generate a telephone number.
Fourth, Facebook’s Footnote 7 supports the conclusion that an ATDS can store telephone numbers, a la the second reason, supra. Footnote 7, when viewed in light of the “storage” language, articulated a system that stored telephone numbers randomly or sequentially and thus was an ATDS. The dicta merely addressed the other half of the coin not before the Court.
Fifth, interpreting “random or sequential number generator” as an ordinary language term, and not a technical term, when interpreting a technical statute, simply makes no sense and fails to account for the differences in trigger-based and non trigger-based dialers.
Could it be that Judge Nardacci is outlining a five-point framework for getting this anti-consumer decision reversed en banc or having cert granted? Only time will tell. But for now, the best path forward for consumers seems to be Rep. Pallone’s Do Not Disturb Act which clearly rectifies this ridiculous contortion of statutory text. In the meanwhile, I might read Reading Law again over the weekend. There’s simply no excuse for sloppy statutory interpretation. The Second Circuit would be wise to do likewise.