Well folks, we can likely count district courts within the Eighth Circuit Court of Appeals within the Marks camp for the foreseeable future now that the Trump Campaign unsuccessfully tried to convince a Clinton-appointee to bless its pro-Trump robotexts.

*smh*

Lots is being made of Pederson v. Donald J. Trump for President, Civil No. 19-2735 (JRT/HB), 2020 U.S. Dist. LEXIS 99974 (D. Minn. June 8, 2020). I mean Trump + robocalls= news, fake or otherwise. But–as so often happens in TCPAWorld–the most important piece of the case is being almost entirely overlooked. (Obviously the Baron’s review of the decision is an outstanding read–but this blog focuses solely on the ATDS issue and the litigation tactics leading up to the ruling).

Before we get there, let’s be fair to the Trump Campaign. This is not a hit piece. Many many political campaigns have been hammered with TCPA lawsuits. Indeed, suing candidates of the opposite political persuasion for purportedly illegal robocalls is something of a pastime here in America. Obama’s campaign faced a similar lawsuit. As did Beto O’Rourke’s. Heck, even Mike Bloomberg’s doomed campaign was hit with a TCPA class action recently–talk about adding insult to injury. So Trump’s campaign wasn’t doing anything that lots of other campaigns hadn’t done before–but that also doesn’t make what it was doing legal either.

It is notable, however, that this is actually Trump’s second go round with a high-profile TCPA class action targeting his campaign calls– his campaign faced a similar lawsuit back in 2016 which (as I understand it from hearsay and innuendo) may have settled for a pretty penny.  So maybe the campaign should have known better… I’m not here to judge that.

But what I have to judge is the litigation strategy that landed all of us where we now are–with the D. Minn flipping from one of the friendliest districts to litigate a TCPA class action for defendants to one of the most dangerous. And that is exactly what Pederson does–when the Chief Judge of the most influential district in the entire Circuit rules that Marks is the law, its going to end up being the law until the Eighth Circuit Court of Appeals says otherwise. That could be a while. And it just didn’t have to happen this way.

Stated simply, the Campaign’s lawyers should have known better than to raise an ATDS challenge at the pleadings stage in a putative nationwide class action in the first place (IMO).  This is especially true in a politically-charged case like this one where the outcome was far from pre-ordained. Not only did the move risk highlighting (indeed resolving) a critical classwide issue in favor of the class before an evidentiary record could be properly developed, it also risked creating (and ultimately did create) disastrously bad law for TCPA defendants.

To be sure, the fight had to happen at some point. No one knows for sure what technology the TCPA applies to. In certain circuits it only governs random-fire dialers. In others, it governs any dialer that can call from a list of numbers without human intervention. While this confusion almost certainly renders the TCPA void for vagueness, the Courts have refused to dismiss TCPA cases on that ground. Courts have also refused to stay TCPA cases while the FCC sorts it out. So like it or not TCPA defendants are stuck litigating the issue.

But in a TCPA class action the issue of whether an ATDS was used should rarely be raised at the pleadings stage because it risks highlighting (indeed resolving) a critical common issue in favor of class certification. Most experienced TCPA class action practitioners, therefore, bring such challenges only after certification has been resolved or: i) when you’re dealing with a sure thing at the pleadings stage; or ii) in settings where the ruling won’t apply across the class.

In Pederson, however, the Trump Campaign was not facing a sure thing and was facing a classwide issue. But they took their shot anyway. The Eighth Circuit Court of Appeals–where the D. Minn. was located–had not yet ruled on the issue of what constitutes an ATDS. And while one judge of the D. Minn. had ruled on the issue–rejecting Marks and requiring random or sequential number generation–that was by no means binding on the Chief Judge of the District who was set to decide Pederson. 

Nonetheless, the Trump Campaign took its ATDS shot early. Rather than wait until an evidentiary record would be available at the MSJ phase–or after defeating certification or winnowing down the class– the Campaign argued that the complaint had to be dismissed because it did not allege random or sequential number generation as to any texts to any class member. Daring.

This argument might have carried the day in some courts–depending on the facts and the judge–but when you’re arguing to a Clinton-appointee that unsolicited Trump campaign texts urging recipients to, inter alia, oppose the impeachment proceeding, are perfectly legal you have to know you’re facing an uphill climb. Perhaps unsurprisingly, therefore, the Pederson Court rejected the Trump Campaign’s argument that its robotexts were perfectly legal at the pleadings stage–but it didn’t just stop there, it created a new paradigm that is likely to carry the day in the Eighth Circuit until a Court of Appeals ruling can be handed down.

In the words of the Pederson court:

the Court finds the logic of the Second and Ninth Circuits to be more persuasive. Under the Trump Campaign’s theory (and Eleventh Circuit precedent) software that could dial a number at random from a phonebook (imagining that there were still such things as phonebooks) would not constitute an autodialer, because a phonebook is nothing more than a list of numbers compiled by humans. The Court sees no reason why software must generate numbers itself, and will not read such a limitation into the text of the statute.

*Insert Hindenburg meme here*

Avoidable disaster.

It probably didn’t help that the Trump campaign also asked the court to dismiss for lack of standing–essentially arguing that even if illegal robocalls were made they didn’t hurt anybody. I mean, come on, what’s the harm if we receive a message like this:

Enough hearings. Enough investigations. Let Rep. Craig know you stand with
President Trump right now at 202-831-3386

Hmmm.

Interestingly, this suit has a color of being a “false lead” case of the sort Anthony Paronich and I just discussed on Unprecedented. Specifically, the President’s campaign claimed that “someone” went onto a Trump campaign website and supplied the Plaintiff’s personal information, requesting updates from the President. And that is why the messages were sent to begin with.

Now that is a great piece of evidence to use to defeat certification–how can a case be certified when consent may have been provided by some class members but you can’t figure out who? Which means, of course, the ATDS issue–again which is a common issue–might never have needed to be resolved at all since certification should almost certainly be denied here. All the more reason to keep the ATDS argument in the chamber at the pleadings stage.

And one last thing to keep in mind: Plaintiff’s counsel on this one is our “pal” Alexis Wood–she’s about as sharp as they come on the consumer lawyer side. When I’m contemplating taking a run at an esoteric or iffy argument I often take into account the skill of my opponent. If I saw Ms. Wood on the other side that would certainly not encourage me to try something shaky.

You put all of this together and it feels like Pederson is a disaster that just didn’t have to happen. As I’ve said many times, TCPA litigation is not for the faint of heart or the green of horn. Feel free to reach out with questions folks.