Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we hear the case for why SCOTUS shouldn't pick up Facebook's TCPA cert petition. And hacked Ring security users seek retribution. Plus, California courts grapple with when employers have to pay for workers' time. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

Is Facebook Trying to 'Hamstring the TCPA'?

As Facebook and its Kirkland & Ellis and Latham & Watkins attorneys try to convince the U.S. Supreme Court why the justices should review an appeals court decision reviving a proposed class action claiming it violated the Telephone Consumer Protection Act with unwanted texts, the respondent in the case and his counsel, Sergei Lemberg, argue the company is trying to narrow the scope of the law to outmoded forms of technology.

Lemberg, of Lemberg Law in Wilton, Connecticut, is known for repping a high volume of TCPA complaints. In November, he regained his status as WebRecon's top filer of TCPA complaints after about a year hiatus from the leading spot. He is representing Noah Duguid, the lead plaintiff in the putative class action who reportedly received Facebook security alerts despite not having an account.

In an opposition brief Friday asking SCOTUS to leave the U.S. Court of Appeals for the Ninth Circuit's ruling in tact, Duguid and Lemberg told the court they ought to leave the defining of an automated dialing system (ATDS), one of two questions presented in Facebook's cert petition, up to pending Federal Communications Commission proceedings instead of indulging the company's request to "hamstring the TCPA."

The tech giant's petition asks the high court to decide whether a system that dials stored numbers automatically but does not generate them randomly or sequentially is an ATDS.

"Facebook concededly seeks to limit the TCPA to a 'small universe' of calls made with obsolete technologies, leaving the flood of robocalls that besiege consumers' cell phones unchecked—a result contrary to congressional intent, expressed in legislation signed into law on December 30, 2019, that the TCPA's robocall protections be strengthened," wrote Duguid's attorneys, which also includes counsel from consumer rights advocacy group Public Citizen.

The second question Facebook raised in its petition was whether the TCPA's restriction on ATDS calls constitutes an unconstitutional restriction of speech. The Ninth Circuit agreed with a prior Fourth Circuit opinion that a 2015 TCPA exemption for debt collectors seeking to recover government-owed funds violated the First Amendment. Instead of declaring the whole statute unconstitutional, however, the court dubbed the issue severable from the TCPA claims. In its reply brief, Facebook's counsel led by Kirkland's Paul Clement and Latham's Andrew Clubok wrote "the Ninth Circuit's bizarre invocation of 'severability' principles to deny a successful First Amendment litigant any relief by rewriting a statute to abridge more speech is anathema to the First Amendment and is contrary to this Court's jurisprudence as well as decisions from other courts of appeals."

Duguid argues Facebook's constitutional arguments are moot given the fact that the unwanted text messages were sent in 2014.

"But the provision Facebook says is content-based was not enacted until November 2015, after Facebook sent the text messages that are the subject of this case," the respondent wrote. "The constitutionality of the statute as amended has no bearing on Facebook's liability for conduct predating the amendment, and Facebook thus lacks standing to seek review of the Ninth Circuit's judgment based on its constitutional arguments."

On Monday, Clement waived Facebook's 14-day waiting period after the opposition brief and asked that the petition be set for distribution on Wednesday, Jan. 8.

Ring Rang in New Year with Class Actions

In a couple of lawsuits that read more like "Black Mirror" scripts than complaints, consumers are suing Ring LLC for selling its security devices without setting up the infrastructure to keep bad actors out.

In a complaint filed Friday in the U.S. District Court for the Central District of California, a Mississippi couple whose story made headlines after a hacker breached their Ring security device and called their 8-year-old daughter racial slurs has filed a class action complaint against the Amazon subsidiary.

Ashley Lemay and Dylan Blakeley filed the lawsuit alongside a Texas couple, Tania Amador and Todd Craig, who were threatened with "termination" by a person who hacked into their Ring system if they did not pay a 50 bitcoin ransom.

The plaintiffs allege that the proposed class action comes in the midst of widespread reports of Ring's security vulnerabilities

"Even as its customers are repeatedly hacked, spied on, and harassed by unauthorized third parties, Ring has made the non-credible assertions that it has not suffered any data breaches and that there are no problems with the privacy and security of its devices," write plaintiffs counsel from Tycko & Zavareei and Stueve Siegel Hanson in the complaint.

The suit follows another complaint filed Dec. 26, in the Central District of California. On behalf of a class of Ring users, John Baker Orange sued the company for negligence, invasion of privacy, breach of implied warranty, breach of implied contract, unjust enrichment and violation of the unfair competition law.

Baker Orange's children were playing basketball when an unknown voice came through the Ring commenting on their game and encouraging them to come closer to the device. The Alabama man is represented in the suit by Francis "Casey" Flynn Jr. from the Law Office of Francis J. Flynn and Morgan & Morgan's John A. Yanchunis.

Both complaints contend the company has failed to set up basic privacy protections, such as two-factor authentication, protections from repeated attempts to log in to a device, or automatic alerts when someone logs in from an unfamiliar IP address.

Borrowed Time

Recent challenges to worker classification in the gig economy falls under a broader category of suits where California courts are trying to determine what constitutes as employer "control" and when does that control mean workers ought to be paid for their time.

On Monday, a ruling from the U.S. Court of Appeals for the Ninth Circuit came after more than a decade of litigation over allegations Walmart violated professional drivers' state meal and rest break laws.

In the appeal, Gibson, Dunn & Crutcher's Ted Boutrous had argued the district court erred in granting partial summary judgment to plaintiffs, because they did not provide evidence that the company applied policies in a way that actually controlled employee's movements.

Plaintiffs argued that during layovers, 10-hour rest periods between shifts, drivers were under the retailer's control. And the court agreed.

"What constitutes control in California is not so clear, but caselaw provides underlying principles," wrote Sixth Circuit Judge Eugene Siler, sitting by designation at the Ninth Circuit. "Although an employer may place some constraints on an employee's movement during breaks, control exists if the employer goes too far."

In this case, the court ruled that "too far" was requiring workers to get manager approval to spend layovers at home instead of on the road, an act that disqualified them from receiving a $42 inconvenience payment.

"The courts are really struggling to determine what constitutes compensable work and, where work is compensable, who is responsible for paying it?" said Altshuler Berzon's Michael Rubin, who represented the drivers.

Rubin also represented labor unions in the California Supreme Court's Dynamex case, which adopted a new test for worker classification. He said that landmark decision and California's Assembly Bill 5 raised similar issues for when an employer controls a worker's time.

The question was also raised in Frlekin v. Apple in front of the California Supreme Court last month. In that case, Boutrous defends claims that Apple should pay retail employees for the time it takes for their bags to be inspected at the end of shifts. And later this week, Rubin will once again argue in front of the Ninth Circuit in a lawsuit over whether funeral homes are on the hook for wages to contractors who are on call 24 hours and dispatched to pick up the deceased.

On the Radar

Nintendo Smashes Gaming Pirate Nintendo of America's Haynes and Boone counsel convinced a federal judge to enjoin a California man from selling tricked out Nintendo Switch consoles. The man's modifications expanded the number of preloaded games on the system from 30 to more than 800. Some of the games had not even been released yet in North America. Read more from Scott Graham here.

China's New Privacy Policies China rang in the New Year with a new set of guidelines around app privacy. On Dec. 31, the country rolled out protocols requiring Chinese companies to notify users which data the app collects and how and why it will use the information. The policies align with disclosure requirements in Europe and California. "I think if you have a global perspective for your game or app, I think it will have an impact," said solo practitioner Zachary Strebeck, who specializes in gaming companies. "But I think if you're complying with other laws, you will be 90% there." Read more from Victoria Hudgins here.

AI in 2020 Lawyers and technologists alike foresee growth for AI applications in the legal field in 2020, according to reporting from LegalTech News. While some experts predict that attorneys will begin to seamlessly incorporate artificial intelligence in their everyday workflow, others expect some hurdles involved with the acceleration of the technology. Patrick Basinski, counsel for Davis Wright Tremaine, anticipates "challenges to commercial adoption of emerging AI solutions focused on deeper analysis that require more time and effort to deliver impact." Read more from Zach Warren here.

Thanks for reading. We will be back next week with more What's Next.