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Facebook used to send messages didn’t “We thought some of the more liberal
use a “random or sequential number judges like [Elena] Kagan, [Sonia] So-
generator” as federal law dictates. tomayor and [Stephen] Breyer would
Lemberg, who said he did everything go our way. We then thought we could
on the case except give oral arguments peel off two or three conservative jus-
in front of the country’s highest court, tices,” Lemberg said. “We thought the
said some people might be surprised to consequences of their decision would
learn he wasn’t nervous in having his be to hurt consumers and we thought
case heard in front of that court. the liberal judges would be unlikely to
“I spent a lot of time thinking about support that. We were wrong.”
this case. Everything got a lot more As it turned out Justice Amy Coney
care than it normally would have. Barrett was involved with a similar is-
But I wasn’t particularly nervous at Connecticut attorney sue when she was on the U.S. Court of
all. Nervousness comes from a lack of Sergei Lemberg. Appeals for the Seventh Circuit. The
preparation. We were very prepared,” Facebook case came out of the Ninth Cir-
Photo: Vince Perrone

said Lemberg, who employs five attorneys at his cuit. Lemberg said he thinks her addition to the bench
small firm. might have had some pull among her fellow jurists.
Unlike in some other court settings, Lemberg said he “By the time we argued the case, she was on the
and his co-counsel Bryan Garner of Garner & Garner U.S. Supreme Court,” Lemberg said. “I think she had
in Texas and Scott Nelson of Public Citizen Litigation some sway with the others because she knew the
Group in Washington, D.C., knew who the nine jus- topic well.”
tices were and what questions they might ask. Garner, Lemberg said the end result of the high court’s
who co-authored several books on grammar and the ruling is that “Robocalls that don’t use automated
law with the late U.S. Supreme Court Justice Antonin messages are now allowed at the federal level. There
Scalia, conducted oral arguments in December. is no prohibition.”
Representing Facebook in oral arguments was Lemberg said he agreed that Garner was the best
Kirkland & Ellis partner Paul Clement, a former so- person to give oral arguments in the matter for his
licitor general of the United States who, according to side. Lemberg noted that many of the arguments
his biography, has argued more than 100 cases be- made dealt with grammar and punctuation, an area
fore the U.S. Supreme Court. Garner is an expert in.
Lemberg noted the case was split in the lower “I don’t think, in this case, the U.S. Supreme Court
courts with three ruling in favor of similar cases to would benefit from a Russian immigrant arguing on
the Facebook one and three ruling against. Lemberg English grammar,” he said.
said in those cases who the judges were was often Lemberg said he and his co-counsel spent upward
not known until a few days before arguments. of 500 hours over four years on the case.
Having a case before the U.S. Supreme Court “I’m proud of the case we made. I don’t think
means you know who the judges are and can, in anyone out there could have written a better brief
some cases, fashion questions a certain way because than we did. I’m disappointed with the result, but we
certain judges are hearing a case. left all we had on the field,” Lemberg said. “There is
“I think the main difference for us was to be able nothing I would have done differently. There is not
to customize our arguments to what we thought dif- one thing we could have done better.”
ferent justices might be receptive to,” Lemberg said. ¦

“We knew their philosophies and how they looked Robert Storace covers legal trends, lawsuits and
at things.” analysis for the Connecticut Law Tribune. Follow
Lemberg thought he had a chance to prevail be- him on Twitter @RobertSCTLaw or reach him at
fore the high court. 203-437-5950.

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