On The Case

Lexicographer (and Scalia co-author) joins plaintiffs’ team in Facebook TCPA case at SCOTUS

(Reuters) - Can a lexicographer fend off the combined forces of Facebook, the Justice Department and the entire U.S. business lobby at the U.S. Supreme Court?

What if said lexicographer is also the co-author, with Justice Antonin Scalia, of a landmark book about textualism that is cited multiple times in the other side’s briefs?

Bryan Garner – the Black’s Law Dictionary editor, legal writing consultant and, with Justice Scalia, author of Reading Law – has joined the Supreme Court team of Noah Duguid, a Montana man who sued Facebook in 2015 for violating the Telephone Consumer Protection Act. And though he’s only been working with Duguid’s other lawyers for a matter of weeks, Garner’s influence on Duguid’s just-filed merits brief is unmistakable. Who else could so boldly assert that the TCPA’s meaning depends on whether the statute’s “adverbial modifier” applies to just one or both “disjunctive verbs” with a “common object”?

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Duguid’s longtime lawyer Sergei Lemberg of Lemberg Law told me he got the idea to contact Garner when he was reading Facebook’s merits brief in September. Facebook’s lawyers at Kirkland & Ellis and O’Melveny & Myers cited Garner and Scalia’s Reading Law three times in their discussion of how to interpret the text of the TCPA. Lemberg, who said he keeps a copy of the book on his desk, told me he figured he’d take a chance and see if Garner agreed with Facebook’s assessment. “This falls into the category of fortuity and spontaneity,” Lemberg said.

Garner told me he had not been following the Facebook case nor the broader debate over the TCPA’s definition of an automated dialing system. For those of you who also fall into the category: The TCPA statute prohibits nonconsensual calls from dialing systems with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” and “to dial such number.” When the law was passed in 1991, phone number generators were commonly used by robocalling marketers. But as random number generators have become obsolete, TCPA litigation now more often focuses on automated calls or texts from companies’ databases of stored phone numbers. (Those numbers are typically supplied by consumers but are sometimes sent in error when phone numbers are reassigned or have been entered incorrectly.) So the question is whether the statutory phrase “using a random or sequential number generator” applies only to the verb “produce” or also to the verb “store.”

The federal circuits are divided on the question. The 9th U.S. Circuit Court of Appeals ruled in Duguid’s case that Facebook’s system automatically dials stored phone numbers, so the company can be held liable under the TCPA for the unauthorized texts it sent to Duguid, who did not even have a Facebook account and never gave the company permission to contact him. (Facebook said Duguid’s phone number was probably once owned by a Facebook user who authorized the text alerts.) The 2nd and 6th Circuits have also concluded that statute’s definition of an automated dialing system does not require that stored phone numbers be randomly or sequentially generated. But the 7th and 11th Circuits have reached the contrary conclusion that the statute only bars calls to “random or sequential” numbers, whether they’re stored or produced. As Judge Amy Coney Barrett wrote in the 7th Circuit’s ruling this year in Gadelhak v. AT&T, “We hold that ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.’”

A debate only a hardcore linguist and grammarian could love, right? But Garner is … a hardcore linguist and grammarian. So after he received Lemberg’s email, he said, he spent an hour or so reading Facebook’s brief, the Justice Department brief backing Facebook and the appellate case law. His conclusion: The federal circuits’ analyses of the statute were not linguistically rigorous – and the positions espoused by Facebook and DOJ “seemed wrong,” said Garner, who told me that although he has previously consulted on appellate and Supreme Court briefs, the Facebook case is the first U.S. Supreme Court brief with his name on it.

Lemberg, Garner and Scott Nelson of Public Citizen, who worked with Lemberg on Duguid’s brief opposing Facebook’s petition for Supreme Court review, closely collaborated on the filing, said Lemberg. Garner said he was pleased that the final brief was rigorous not just in its linguistic and grammatical analysis but also in its discussion of the policy underlying the statute. Nevertheless, the brief does cite Garner’s books – not just his collaboration with Scalia but four other books as well, including his 2011 Dictionary of Legal Usage and 2015 Guidelines for Drafting and Editing Legislation – dozens of times.

Oral argument in the Facebook case is scheduled for Dec. 8, by phone. Lemberg said his team hasn’t yet decided whether he, Garner or Nelson will present arguments for Duguid; Nelson is a Supreme Court veteran, Lemberg argued the Duguid case at the 9th Circuit and Garner, who argued successfully at the Texas Supreme Court last year on behalf of a former Texas Chamber of Commerce official who sued a Corpus Christi newspaper for defamation.

Duguid may have a leading legal lexicographer and textualist scholar on his side, but Facebook has amicus backing from a wide swath of corporate America, beginning with a brief from the U.S. Chamber of Commerce, the Business Roundtable, the Internet Association and more than a half-dozen other trade groups worried about expanding TCPA liability. The case will be an interesting challenge for a Supreme Court that prides itself on textualism but is regarded as generally pro-business.

Facebook’s counsel of record in the Duguid case, Paul Clement of Kirkland, did not respond to an email request for comment on Duguid’s brief and Garner’s involvement.