We’ve been here before.

No I am not referring to the recent failed bid of the Plaintiff in Salcedo to obtain a re-hearing or the Plaintiff in Glasser’s soon-to-be-failed (I hope) bid for a re-hearing. I am referring to the awkward grammatical arguments advanced using sentences that are improperly phrased to prove an improbable definition of ATDS was intended by Congress.

When we last addressed the issue, you’ll recall Gadelhak’s counsel was urging the Seventh Circuit to rule in its favor because:

if a chef tells her prep-cook to “boil or dice the potatoes[,] using a knife,” the cook knows he is not supposed to use a knife to boil the potatoes.

As I explained previously, however, that analogy actually worked the opposite way the Plaintiff intended. As I noted before the Gadelhak ruling:

The second big argument Plaintiff advances is that the word “store” is superfluous in the TCPA if the statutory definition is applied. In his view, “it does no work whatsoever because the hypothetical system already qualifies as an ATDS, given that it (A) produces numbers using a random or sequential number generator and (B) automatically dials those numbers.” And the law hates statutory interpretations that make words superfluous. Again, there is an easy response—but let’s focus on the tricky stuff. Let’s use the potato example again.

In the potato example the chef tells the cook to take his pick—he can boil the potato or he can dice it. But if he dices it, he must use a knife.

Pause.

How else can you dice a potato?

While the chef’s instructions are grammatically incorrect for the reasons identified earlier, they also contain an unnecessary element—why include the word “with a knife” in the instruction at all? There is no other way to dice a potato.

The phrase “with a knife,” therefore, is actually superfluous if we are focusing solely on dicing potatoes—there is no other way to do it. So the knife component of the instruction must –if we are interpreting the instruction like a statute—modify the “boil” component of the instruction. That is, the chef’s instruction is literally that the cook must use a knife regardless of whether he is boiling or dicing the potato. Otherwise not only is the comma in the wrong place, the reference to the knife is wholly superfluous.

So the Plaintiff’s big grammatical argument in Gadelhak actually backfires and compels a determination that the TCPA’s ATDS definition requires random or sequential number generation regardless of whether the numbers are subsequently stored, or merely dialed immediately after being produced. Unsurprisingly that is just what the Seventh Circuit panel found.

But the Gadelhak Plaintiff is now, predictably, seeking a re-hearing of that ruling. Amusingly enough, featuring prominently in the petition are more poorly-constructed sentences that no one would ever actually say designed, apparently, to convince the Seventh Circuit to overturn one of the finest grammar-based appellate court decisions since Learned Hand. Read the petition–found here Rehearing petition — to enjoy such classic gibberish as:

  • “The surgeon sterilized and incised my elbow, using a scalpel.”
  • “Baseball is a sport in which players throw or hit a ball, using a bat.”
  • “This company manufactures and ships widgets, using the U.S. postal service.”
  • “I have deduced that Mrs. Peacock either shot or bludgeoned Colonel Mustard in the Billiard Room, using the Candlestick.”

The Clue version is particularly appealing to this child of the 80s who can vividly recall solving motiveless haphazard murders enabled by a short deck of cards and a needlessly small manila envelope. Kind of dark actually.

Given the reliance on these tortured exemplars I’m not sure this re-hearing bid has much of a shot. But stranger things have happened. We’ll keep an eye on things for you.

For what its worth, Judge Hand once wrote:

There is no surer way to misread any document than to read it literally. … As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.

Make of it what you will.