Risk Update

Trillion Dollar DQ Motion — Judicial Conflict Allegation in TCPA Suit (Robocaller Revolt)

Defendant in Critical TCPA Appeal Seeks to Disqualify Judge Based On Family’s TCPA Work–Will it Pay Off?” —

  • “The Defendant/Appellee in the huge Lindenbaum appeal to the Sixth Circuit Court of Appeals is seeking recusal of one of the three judges assigned to the panel overseeing the appeal.”
  • “According to the motion Judge Stranch–who vocally advocated against Defendant’s position during oral argument— is married to an attorney who works at a firm that brings TCPA [Telephone Consumer Protection Act] cases within the Sixth Circuit. Apparently the judge’s son and daughter also work at same firm.”
  • “While it is unclear from the filing whether Judge Stranch’s relatives directly work on such cases the appearance that Judge Stranch might be profiting through TCPA revenue while determining the fate of the TCPA is sufficient that disqualification of the Judge is ‘mandatory’ in the Defendant’s view.”
  • “Seeking recusal of an empaneled appellate judge is always a risky enterprise–and doing so after oral argument is almost unheard of (at least, I’ve never heard of it.) Indeed Defendant’s counsel notes that no one in their entire law firm had ever filed such a motion before. And the fact that Defendant is taking aim at Judge Stranch after she seemingly tipped her hand at oral argument is.. [insert word for ‘seems crazy but might be brilliant but you really can’t tell’ here].”
  • “So I get it, I guess. But this still this feels like quite the gamble… To be sure, if any case justifies extra special care it is this one. Again, this case will literally impact trillions of dollars in statutory damages and critically important First Amendment rights (from a certain perspective it will determine whether the First Amendment is even still a thing anymore.)”
  • “So that makes the Defendant’s request for disqualification among the highest stakes bets in the highest stakes game of poker you can imagine. Will it pay off? We’ll have to wait and see.”

More backstory, as I was curious too, with clear commentary from one side on the matter: “ORAL ARGUMENT HELD IN LINDENBAUM: Free Speech Hangs in the TCPA Balance (Again)” —

  • “As I’ve explained a few times now, the Creasy argument–that the TCPA is unenforceable from November, 2015 to July 6, 2020–is the single BIGGEST AND MOST IMPORTANT legal ruling in American History–at least as judged based upon the the financial impact of the ruling.”
  • “Literally TRILLIONS of potential TCPA statutory exposure was wiped off the books as a result of the determination that the TCPA was unconstitutional–and therefore could not be enforced–to robocallers during the HEIGHT of the robocall epidemic.”