High Court Adds Four New Cases to Fall Docket

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — After wrapping up its term with a blockbuster pair of opinions on access to President Donald Trump’s financial records, the Supreme Court agreed Thursday to hear four new cases, including a dispute involving Facebook over the scope of a federal robocall law.

The end-of-term orders list adds cases to the court’s docket when it reconvenes later this year following the court’s traditional summer break.

Among the newly granted cases is a challenge brought by Facebook seeking to clarify what types of devices qualify as automatic dialers under a federal law that prohibits robocalls made to cellphones. The grant comes days after the Supreme Court struck down an exception to the general robocall ban that allowed for calls made to collect government debts.

The appeal comes to the high court as part of a class action lawsuit brought against Facebook claiming the social media giant violated the Telephone Consumer Protection Act through text messages meant to warn a user that someone accessed their profile from an unfamiliar browser or device.

A federal judge dismissed the case after finding Facebook did not use an auto-dialer to send the notifications, but the Ninth Circuit reversed based in part on a previous case that held auto-dialers include any device that has the ability to automatically dial stored phone numbers. In a move similar to what the high court did earlier this week, the Ninth Circuit also found the government debts exception unconstitutional, but severed it from the rest of the TCPA.

Facebook sought to have the Supreme Court review both that decision and the Ninth Circuit’s interpretation of what devices qualify as auto-dialers. Having recently ruled on the government debts exception, the justices only agreed to decide the auto-dialer question.

In its petition asking the court to take up the case, Facebook said the Ninth Circuit’s interpretation of an auto-dialer is so broad that it would include virtually any smartphone.

“The statutory question has enormous practical consequences, as Americans deserve to know whether they have been inadvertently toting [auto-dialers] around in their pockets and purses and risking $1,500-a-call fines,” Facebook’s petition states.

The class disagrees with Facebook’s characterization of the Ninth Circuit’s ruling, saying it comports with how modern robocalls are made. Facebook’s interpretation, the class argues, would limit the reach of the TCPA to only “obsolete technologies.”

“Facebook’s reading of the statute would negate Congress’ handiwork and open the floodgates to permit all but a few of the robocalls targeted by the TCPA and the new legislation enacted to strengthen it,” the plaintiffs’ brief states.

Sergei Lemberg, a Connecticut attorney who represents the class suing Facebook, said he believes the “spirit” of the decision in the earlier robocalls case will “carry forward.”

“In a nutshell, Facebook seeks to use its robotexting technology to send out millions of text messages to consumers, whether they consented to them or not,” Lemberg said in a statement. “We don’t think the Supreme Court will bless that reading of the statute.”

The court also agreed to take up a challenge to the structure of the Federal Housing Finance Agency, an independent agency that oversees Fannie Mae, Freddie Mac and other institutions that are part of the federal housing finance system.

Unlike most other federal independent agencies, which have multiple members, the FHFA is led by a single director who can only be fired for cause. The structure is similar to that of the Consumer Financial Protection Bureau, which the court found unconstitutional last month.

A group of shareholders in Fannie Mae and Freddie Mac filed suit after the FHFA required the companies to transfer their net worth to the Treasury Department under a 2008 agreement on how the companies would reimburse the agency for billions given to them during the housing crisis.

The Fifth Circuit held the agency’s structure unconstitutional, but declined to disturb the rule the shareholders challenged.

In their brief urging the high court to take up the case, the shareholders say the structure of the FHFA improperly insulates a highly important and powerful regulatory agency from the political process, including by saddling presidents with directors of the opposite party.

“Whether this arrangement offends the separation of powers — and who ultimately sets housing finance policy for the executive branch — is an enormously important question,” the shareholders’ brief states.

David Thompson, an attorney with the firm Cooper & Kirk representing the shareholders, praised the court for taking up the case.

“We are delighted that the United States Supreme Court has taken up this important issue,” Thompson said in a statement. “We have always been confident that the judiciary would not allow the nationalization of Fannie Mae and Freddie Mac to stand.”

The court also agreed to review a challenge to a Georgia Gwinnett College’s use of a free speech zone and resolve a circuit split over whether the Federal Trade Commission can seek monetary relief like restitution in unfair competition and deceptive trade practices cases.

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