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In the Supreme Court of Texas ______ FILED 18-0426 10/31/2018 11:19 AM tex-28690099 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 18-0426 In the Supreme Court of Texas ____________________ WILLIAM A. BREWER III, Petitioner, v. LENNOX HEARTH PRODUCTS, LLC; TURNER & WITT PLUMBING, INC.; STRONG CUSTOM BUILDERS, LLC; THERMO DYNAMIC INSULATION, LLC; STATE FARM LLOYDS INSURANCE COMPANY; KEN AND BECKY TEEL; ROSS AND MEG RUSHING, ____________________Respondents . On Appeal from the Seventh Court of Appeals at Amarillo, Texas No. 07-16-00121-CV BRIEF OF THE INSIGHTS ASSOCIATION AS AMICICUS CURIAE IN SUPPORT OF PETITIONER Patrick J. Neligan, Jr. Texas Bar No. 14866000 John D. Gaither Texas Bar No. 24055516 NELIGAN LLP 325 N. St. Paul St., Suite 3600 Dallas, Texas 75201 Telephone: (214) 840-5300 Facsimile: (214) 840-5301 [email protected] [email protected] ATTORNEYS FOR AMICUS CURIAE INSIGHTS ASSOCIATION TABLE OF CONTENTS INTEREST OF AMICI CURIAE AND DISCLOSURES REQUIRED BY TEX. R. APP. P. 11 .............................................................................................1 PROCEDURAL HISTORY ..........................................................................................2 INTRODUCTION .......................................................................................................3 OVERVIEW OF THE RESEARCH AND POLLING INDUSTRY .....................................5 A. What is Bona Fide Research? ...............................................................5 B. What is “Push Poll”? .............................................................................6 C. Discerning Bona Fide Research From “Push Polls” .............................8 THE RESEARCH STUDY IN DISPUTE IN THE INSTANT CASE IS A BONA FIDE RESEARCH STUDY AND NOT A “PUSH POLL” ..................................10 A. Length of the Calls and the Questions Asked ......................................10 B. The Number of People Called, The Random Sampling, And the Intended Number of Respondents ..........................................11 C. The Survey Tested Positive, Negative, and Neutral Messages ............12 D. Identification of the Research Company Conducting the Survey .............................................................................................13 E. Standards and Practices Governing the Contact of Cell Phone Users ...........................................................................................14 AFFIRMING THE LOWER COURTS’ DECISIONS WOULD EFFECTIVELY PROHIBIT ETHICAL, VALIDLY CONDUCTED SCIENTIFIC RESEARCH ......................15 CONCLUSION ..........................................................................................................17 PRAYER ...................................................................................................................18 CERTIFICATE OF COMPLIANCE ...............................................................................19 CERTIFICATE OF SERVICE .......................................................................................19 TABLE OF AUTHORITIES Page(s) Cases Brewer v. Lennox Hearth Prods., LLC, 546 S.W.3d 866 (Tex. App—Amarillo 2018, pet. filed) .............................passim Statutes N.H. REV. STAT. ANN. § 664:2 (2014) ....................................................................... 6 RESEARCH FAIRNESS ACT OF 2012, H.R. 5915, 112th ............................................... 6 TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ................................... 14 Rules Tex. R. App. P. 11 ...................................................................................................... 1 Tex. R. App. P. 9.4(e) .............................................................................................. 19 Tex. R. App. P. 9.4(i) ............................................................................................... 19 Tex. R. App. P. 9.5(b)(1) ......................................................................................... 19 Other Authorities Jonathan S. Fox, Push Polling: The Art of Political Persuasion, 49 Fla. L. Rev. 563 (1997) ............................................................................... 7, 9-13 Evan Gerstmann and Matthew J. Streb, Putting an End to Push Polling: Why it Should Be Banned and Why the First Amendment Lets Congress Ban It, 3 Election L.J. 37 (2004) ............................................. 6-11 Marjorie Connelly, Push Polls, Defined, New York Times, June 18, 2014, available at https://www.nytimes.com/2014/06/19/upshot/push-polls- defined.html .................................................................................................. 12, 13 Stuart Rothenberg, For the Thousandth Time, Don’t Call Them “Push Polls,” Roll Call, March 8, 2007, available at https://www.rollcall.com/news/-17368-1.html ..................................................... 7 “AAPOR Statements on ‘Push’ Polls,” available at http://www.aapor.org/Standards-Ethics/Resources/AAPOR- Statements-on-Push-Polls.aspx ............................................................................. 8 “Calling Cell Phones: The TCPA and Ethical Best Practices for Researchers,” available at https://www.insightsassociation.org/issues-policies/best- practice/calling-cell-phones-tcpa-and-ethical-best-practices- researchers; ......................................................................................................... 14 “Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling,” available at https://www.insightsassociation.org/issues- policies/best-practice/push-polls-deceptive-advocacypersuasion- under-guise-legitimate-polling ......................................................................... 7, 9 “Cell Phone Task Force Report,” available at http://www.aapor.org/Education-Resources/Reports/Cell-Phone- Task-Force-Report.aspx ...................................................................................... 14 “Cell Phone Task Force Report 2008,” available at https://www.aapor.org/Education-Resources/Reports/Cell-Phone- Task-Force-Report-2008.aspx ............................................................................ 14 “Insights Association Code of Standards and Ethics for Market Research and Data Analytics,” available at https://www.insightsassociation.org/issues-policies/insights- association-code-standards-and-ethics-market-research-and-data- analytics-0 ............................................................................................................. 6 “Order Bias,” available at https://www.insightsassociation.org/issues- policies/glossary/order-bias ................................................................................ 13 INTEREST OF AMICI CURIAE AND DISCLOSURES REQUIRED BY TEX. R. APP. P. 11 Marketing research and data analytics is a multi-billion-dollar, worldwide business, comprised of individuals and organizations working in, or on behalf of, every sector of industry, including pollsters and government, public opinion, academic and goods and services research, and analytics professionals. The organizations that utilize market research and data analytics services range from large multinational corporations and small businesses to academic institutes, non- profit organizations and government agencies. The Insights Association (the “Association”) was founded in 2017 from the merger of two organizations with long, respected histories of servicing the marketing research and analytics industry: (1) the Council of American Survey Research Organizations (“CASRO”); and (2) Marketing Research Association (“MRA”). The Association strives to improve research and analytics science, methods, accountability, and quality. The Association further prioritizes maintaining goodwill with the public by working to enhance respondent confidentiality, accurately reporting opinions, and respecting respondents’ privacy, time, and right to decline. The Association has an interest in protecting and preserving the public image and integrity of bona fide survey, opinion and marketing research and in educating the public about the distinction between bona fide research and push 1 polling, advertising, marketing, and other advocacy. The Association files this brief to defend bona fide research activities, to assist the Court in distinguishing between legitimate research activity and push polling, and to request that the Court not make any ruling that could hamper future legitimate research efforts related to legal work, both in Texas and throughout the country. No fee was paid in connection with the preparation and filing of this brief. Public Opinion Strategies and Survey Sampling International, LLC,1 two of the research organizations involved in the dispute underlying this appeal, are members of the Association but do not have a direct pecuniary interest in the outcome of this appeal. PROCEDURAL HISTORY This appeal stems from a sanctions order imposed by the 72nd Judicial District Court, which the Amarillo Court of Appeals affirmed on March 26, 2018.2 A Petition for Review was filed with the Court on May 10, 2018, and the Court requested briefing on the merits on August 31, 2018. The Court granted Petitioner a thirty-day extension to file his supporting brief on the merits, requiring it to be filed no later than October 31, 2018. Respondent’s brief on the merits is currently due November 20, 2018, and Petitioner’s reply brief is currently due December 5, 2018. 1 Survey Sampling International, LLC is now known as Research Now. 2 Brewer v. Lennox Hearth Prods., LLC, 546 S.W.3d 866 (Tex.
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