Granting 12(b)(6) Motion to Dismiss
Davis v. Rockloans Marketplace, LLC, 2023 WL 6378067 (S.D. Cal. Sept. 28, 2023)
Chief Judge Dana M. Sabraw, U.S. District Court, Southern District of California, granted the defendant’s motion to dismiss TCPA claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
The plaintiff alleged that she received more than 150 calls requesting payment on a loan she obtained from the defendant and that all of those calls were made with an ATDS and/or a prerecorded voice. The Court determined that the defendant did not use an ATDS within the meaning of the TCPA because the plaintiff did not “deny that she gave Defendant her cellular telephone number when she applied for and received her loan from Defendant,” and thus, the plaintiff’s telephone number was not randomly generated. 2023 WL 6378067, at *2.
To read the full opinion in Davis, please click here.
Granting Motion to Dismiss in Part
Perrong v. Bradford, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023)
Judge Joshua D. Wolson, U.S. District Court, Eastern District of Pennsylvania, granted defendant Cleo Communications, LLC’s motion to dismiss the plaintiff’s ATDS claim, holding that the plaintiff did not sufficiently allege that Cleo used an ATDS to make the alleged calls.
In Perrong, the plaintiff alleged that he received calls from Pennsylvania State Representative Matt Bradford (via Cleo Communications) using a pre-recorded voice and an ATDS. To determine whether Cleo indeed used an ATDS, Judge Wolson analyzed the meaning of “random or sequential number generator” in the TCPA. Stating that Congress did not define the term “number” in the TCPA, Judge Wolson concluded that “all three uses of the word ‘number’ in the definition of ATDS refer to a telephone number,” and therefore, in order to constitute an ATDS, the system must generate telephone numbers. 2023 WL 6119281, at *3. The Court held that because the plaintiff alleged that the defendant’s system “randomly or sequentially called the numbers from [a] list,” this did not meet the statutory definition of an ATDS. Id. at *4.
To read the full opinion in Perrong, please click here.
Affirming Motion for Summary Judgment in Part
Guthrie v. PHH Mortg. Corp., --- F. 4th ----, 2023 WL 5312885 (4th Cir. Aug. 18, 2023)
The U.S. Court of Appeals, Fourth Circuit, in a wide-ranging ruling spanning a number of legal claims, had occasion to address the issue of what evidence a consumer must present to refute a defendant’s denial that they used an autodialer.
In Guthrie, plaintiff debtor had his debt discharged but continued to receive collection calls on the discharged debt. Plaintiff brought a number of claims including claims under the Telephone Consumer Protection Act of 1991 (TCPA) for defendant’s alleged use of an autodialer.
At summary judgment, defendant submitted a declaration stating that it “never used a random or sequential number generator to generate and then dial a telephone number when calling Plaintiff or any other individual in connection with the Loan.” Plaintiff then submitted a declaration testifying that defendant’s employees told him during the solicitation calls that they used an “auto dialer” to contact him.
The Court determined that Plaintiff’s declaration did not create a dispute of fact, holding that it was unclear whether the “auto dialer” referenced by defendant’s employees referred to an automatic telephone dialing system (ATDS) as defined by the TCPA and, in any event, was not sufficient to controvert defendant’s flat denial of employing such a system.
To read the full opinion in Guthrie, click here.
Affirming Granting of Motion to Dismiss
Trim v. Reward Zone USA LLC, --- F. 4th ----, 2023 WL 5025264 (9th Cir. Aug. 8, 2023)
The U.S. Court of Appeals, Ninth Circuit affirmed District Judge Stephen V. Wilson’s order granting defendant’s motion to dismiss plaintiff’s claims for violating the prerecorded voice provisions of the TCPA.
Plaintiff advanced the novel theory that text messages constituted prerecorded messages under the TCPA. The Ninth Circuit disagreed, holding that they “did not use prerecorded voices under the TCPA, because they did not include audible components.”
In reaching this conclusion, the court found that Congress intended “voice” to mean “only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound.”
Plaintiff resisted this conclusion by arguing that the Federal Communications Commission (FCC) had previously interpreted the word “calls” to encompass voice and text calls. The panel found it unnecessary to reach the agency’s interpretation of “call” because the statutory text with respect to the word “voice” was unambiguous.
To read the full opinion in Trim, click here.
Granting Motion for Summary Judgment
Smith v. USAA Federal Savings Bank, 2023 WL 5564706 (D. Colo. July 11, 2023)
Judge Daniel D. Domenico, U.S. District Court, District of Colorado, granted defendant’s motion for summary judgment on the issue of whether its dialing system constituted an ATDS under the TCPA.
Plaintiff argued that while Defendant’s dialer did not automatically produce numbers to be called, it could nonetheless be an ATDS if it selected numbers to be called from a preproduced list in random or sequential order, which the Supreme Court discussed in footnote 7 of the Facebook opinion. Defendant disagreed and argued that “Facebook only prohibits that equipment that makes ‘indiscriminate calls to the public’ rather than devices that make ‘targeted calls linked to specific accounts,’ even if those devices randomly select the order in which to make calls.”
The Court agreed with Defendant, finding that the weight of authority analyzing Footnote 7 found that it “merely addressed how an autodialer could both ‘store’ and ‘produce’ telephone numbers without rendering those two terms superfluous .... Nothing in the opinion suggests that the Court intended to define an autodialer to include the generation of any random or sequential number.”
To read the full opinion in Smith, click here.
Granting Motion for Summary Judgment
In re Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 2023 WL 4355347, at *2 (S.D. Cal. July 5, 2023)
District Judge John A. Houston granted the defendant’s motion for summary judgment on the plaintiffs’ automated telephone dialing system (ATDS) claims.
The plaintiffs had alleged their numbers were obtained from skip-tracing services. Given this allegation, the court found the plaintiffs “provide[d] no evidence that the numbers called were randomly or sequentially generated and, in fact, acknowledge[d] they were not.” Consequently, the court found the undisputed evidence demonstrated that the defendant did not utilize an ATDS.
To read the full opinion in In re Portfolio Recovery Assocs., LLC, click here.
Granting Motion to Dismiss
Perrong v. Montgomery County Democratic Comm., 2023 WL 4600423, at *2 (E.D. Pa. July 18, 2023)
District Judge Mitchell Goldberg granted a motion to dismiss serial Telephone Consumer Protection Act (TCPA) plaintiff Andrew Perrong’s claim arising under the statute’s ATDS provision.
The plaintiff alleged that the defendant placed calls to a list of stored phone numbers (such as a list of registered voters) in a random or sequential order.
The court held that calling phone numbers on a previously compiled list in a random or sequential order does not violate the TCPA, so long as the numbers in the list were not themselves generated randomly or sequentially.
To read the full opinion in Perrong v. Montgomery County Democratic Comm., click here.
Denying Motion to Dismiss
Scherrer v. FPT Operating Co., LLC, 2023 WL 4660089, at *3 (D. Colo. July 20, 2023)
Magistrate Judge S. Kato Crews denied the defendant’s motion to dismiss the plaintiff’s TCPA claims arising out of the statute’s ATDS provision.
The plaintiff alleged the defendant used a device that could generate random or sequential numbers and store the numbers in a database to indicate the order in which to dial leads.
Relying on the Supreme Court’s dicta in Footnote 7 of Facebook v. Duguid,the court held that “an autodialer that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA.”
In the court’s view, to hold otherwise would contravene the Supreme Court’s express words.
To read the full opinion in Scherrer v. FPT Operating Co., LLC, click here.
Granting Motion to Dismiss in Part
Shoemaker v. Zeitlin, 2023 WL 3826460 (M.D. Pa. June 5, 2023)
District Judge Christopher C. Conner granted in part the defendants’ motion to dismiss the plaintiffs’ Telephone Consumer Protection Act (TCPA) claims arising out of the statute’s prerecorded voice provision.
The plaintiffs alleged that the defendants initiated robocalls to their cell phones without their prior consent and that these calls solicited donations on behalf of a political action committee (PAC).
As a preliminary matter, the court dismissed three of the five named plaintiffs’ claims for lack of personal jurisdiction because these plaintiffs were not residents of Pennsylvania and the alleged conduct affecting these three plaintiffs was not directed at the Commonwealth of Pennsylvania. As for the remaining claims, the court first addressed the “defendants’ threshold assertion that the TCPA’s prohibition on robocalls was unenforceable during part of the time period relevant to plaintiffs’ claims,” rejecting that argument and denying the defendants’ motion to dismiss as to calls initiated during that time period.
The court also denied the remaining plaintiffs’ claims on the grounds that the plaintiffs pled sufficient facts supporting traceability of the calls to the defendants.
To read the full opinion in Shoemaker v. Zeitlin, click here.
Denying Motion to Dismiss
Pavelka v. Paul Moss Ins. Agency, 2023 WL 3584695 (N.D. Ohio May 22, 2023)
District Judge Donald C. Nugent denied the defendant’s motion to dismiss the plaintiffs’ TCPA claims arising out of the statute’s ATDS and prerecorded voice provisions.
The plaintiffs alleged that the defendant made calls to them using an ATDS and using a prerecorded voice without plaintiffs’ consent. The court found that granting the defendant’s motion to dismiss would be premature because the motion raised a number of factual issues and both parties presented matters outside of the pleadings.
To read the full opinion in Pavelka v. Paul Moss Ins. Agency, click here.
Denying Motion to Dismiss
Champion v. The Credit Pros Int’l Corp., et al., No. CV2110814JXNJBC, 2023 WL 3452354 (D.N.J. May 15, 2023)
District Judge Julien X. Neals denied defendant’s motion to dismiss plaintiff’s TCPA claims arising out of the statute’s ATDS and DNC provisions.
Plaintiff alleged that he received 56 messages from defendant over a 12-month period. The court found that plaintiff adequately stated an ATDS claim based on the allegations that the messages he received were addressed to someone with a different name, that he received a high volume of text messages, that each text message was sent from a different telephone number, that each text message contained the same spelling errors, and that the messages continued to be sent even though he never interacted with or responded to any of the messages in any way.
The court further found that the allegations easily supported a DNC claim. Plaintiff alleged that he registered his number on the DNC list in June 2019 and that he received the text messages between October 2020 and January 2021. Moreover, the court denied the motion to dismiss given that the complaint adequately stated that the messages plaintiff received did not “disclose the name of the person sending the text messages or the name of the entity on whose behalf the text messages were sent.”
To read the full opinion in Champion v. The Credit Pros Int’l Corp., et al., click here.
Granting Motion to Dismiss in Part
Betz v. Synchrony Bank, No. CV 22-2235 (JEB), 2023 WL 3303669 (D.D.C. May 8, 2023)
Chief Judge James E. Boasberg granted defendant’s motion to dismiss a pro se plaintiff’s TCPA complaint alleging violations of the TCPA’s ATDS and prerecorded voice provisions in part.
Plaintiff alleged that defendant placed more than 80 calls using an ATDS or prerecorded voice. Defendant challenged the adequacy of the ATDS pleading, and the court agreed. The court began with stating the well-settled proposition that, post-Facebook, an ATDS is defined as “equipment that ‘has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.’”
The court further opined that “[w]here the called party is the intended recipient of a message, an ATDS theory normally will not apply. An automatic telephone dialing system uses a random or sequential number generator, and a caller would not use such technology to contact a specific person without a showing to the contrary.” Plaintiff did not, and could not, dispute that defendant specifically called him to collect on a debt and that the messages stated the exact balance that plaintiff had outstanding to defendant. Under these facts, the court found it implausible that a message specifically targeted at plaintiff could have been sent to a number that was randomly or sequentially generated. The court did, however, allow plaintiff’s theory that the calls violated the TCPA for using a prerecorded or artificial voice to proceed on these same facts.
Lastly, the court dismissed plaintiff’s claims that the calls constituted an invasion of privacy. The court noted that in the District of Columbia, “courts have found calls to constitute an invasion of privacy only ‘when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff that becomes a substantial burden to his existence.’” The court found significant that the “calls included no threats or personal attacks, and at no point does Betz allege that Synchrony called him to the point of ‘hounding.’” Given that the calls did not constitute a “substantial burden to [plaintiff’s] existence,” the invasion of privacy claim was dismissed.
To read the full opinion in Betz v. Synchrony Bank, click here.
Granting Motion to Dismiss in Part
Horton v. Texas Fed’n for Child. PAC, Inc., No. 3:22-CV-2736-D, 2023 WL 3136422 (N.D. Tex. Apr. 27, 2023)
Senior District Judge Sidney A. Fitzwater granted defendant’s motion to dismiss plaintiff’s TCPA claims in part.
The complaint alleged violations of several provisions of the TCPA and its implementing regulations. These included purported contacts in violation of the DNC regulations, internal DNC provisions, as well as the ATDS requirements.
The court first addressed plaintiff’s DNC claims. Defendant argued that it was exempt from liability under the DNC regulations because, as a political institution engaged in sending political messages, it was categorically exempt from the DNC regulations given that its communications did not constitute telemarketing. The court agreed and dismissed the claim on that basis.
The court also dismissed plaintiff’s claims that defendant violated 47 C.F.R. §§ 64.1200(d)(1) and (d)(4), which prohibits telemarketers from sending solicitations without written telemarketing policies, and for not providing the name and contact information of the calling entity during the call, respectively. As with the DNC claim, the court dismissed these claims both on the basis that the calls at issue were political in nature and did not constitute telemarketing and on the grounds that defendant was exempt from these provisions as a nonprofit.
The court, however, denied defendant’s motion to dismiss the ATDS claim. Defendant challenged the claim on the basis that the complaint failed to adequately allege either that defendant placed the calls or that defendant utilized an ATDS to place the calls. On the first argument, the court determined that the complaint adequately alleged that defendant was responsible for sending the messages because “the link included in the messages led to TFC’s website.” The court held that “it is reasonable for the court to draw the inference that a text message soliciting donations to a particular organization and linking directly to the website of that organization would have been sent either by the organization or by someone acting on its behalf.”
On the ATDS issue, the court noted that, as a pro se litigant, plaintiff’s allegations were entitled to a liberal construction. Therefore, the court found the following allegations relevant in finding that the complaint adequately pled an ATDS claim: (1) he received multiple generic messages that were not addressed to him personally, (2) the cadence and frequency of which he received messages, (3) the lack of any preexisting relationship with the defendant, (4) the fact that plaintiff was not a registered Republican, and (5) the numbers from which the calls originated were not capable of receiving messages from consumers. Construing these allegations liberally, the court found the ATDS allegations were adequately pled.
To read the full opinion in Horton v. Texas Fed’n for Child. PAC, Inc., click here.
Denying Motion to Dismiss
Callier v. Turning Point USA, Inc., 2023 WL 2668010 (W.D. Tex. Mar. 28, 2023)
District Judge David C. Guaderrama denied Turning Point USA’s motion to dismiss the plaintiff’s ATDS claim under the TCPA.
Defendant argued that it was immune from suit as a “tax exempt nonprofit corporation.” The court noted that calls made from a nonprofit are exempt from the definitions of “telephone solicitations” under the DNC provisions of the TCPA’s implementing regulations. The court stated that Section 227(b)(1)(A) of the TCPA, which contains the ATDS prohibitions, does not require that a call placed with an ATDS be a telephone solicitation for liability to attach.
The Court also found it irrelevant that the plaintiff failed to allege he was a residential telephone subscriber, finding that this was only required under Section 227(b)(1)(B), which regulates calls placed by artificial or prerecorded voice, which was not alleged in the complaint.
To read the full opinion in Callier v. Turning Point USA, Inc., click here.
Granting Defendant’s Motion for Summary Judgment in Part
Foster v. National Recovery Agency, 2023 WL 2612496 (W.D.N.Y. Mar. 23, 2023)
District Judge Lawrence J. Vilardo granted the defendant’s motion for summary judgment in part with respect to its placement of calls to the plaintiff’s cell phone to collect on a medical debt.
In the first instance, the Court found that the defendant was entitled to summary judgment on the grounds that the plaintiff failed to establish that defendant utilized an ATDS as defined by the Facebook decision. The Court did, however, allow the prerecorded voice claims to survive given that there was a “disputed issue of fact as to whether—and, if so, how many of—NRA’s messages were prerecorded.”
Second, the Court declined to grant summary judgment on the issue of whether the defendant had the plaintiff’s express consent to contact him. Defendant submitted an intake form from when he purportedly provided his consent during his hospital stay. The Court noted, however, that “nothing on that nearly illegible form indicates it was filled out by, or includes information provided only by, Foster. In other words, this document merely demonstrates that whenever the document was typed, Eastern Niagara Hospital had Foster’s phone number from some source. And because mere possession of a plaintiff’s phone number fails to establish the affirmative defense of express consent at the summary judgment stage[.]”
To read the full opinion in Foster v. National Recovery Agency, click here.
Denying Motion to Compel Arbitration and Motion to Dismiss
Richard Daschbach, et al. v. Rocket Mortg., LLC, No. 22-CV-346-JL, 2023 WL 2599955 (D.N.H. Mar. 22, 2023)
District Judge Joseph A. Laplante denied defendant Rocket Mortgage’s motion to compel arbitration and, in the alternative, motion to dismiss.
Defendant’s motion to compel arbitration was denied on the grounds that the disclosure of the arbitration terms was not reasonably conspicuous: “the size and color of the fine print ultimately render the key text insufficiently conspicuous to provide notice. As reproduced above, the text is almost indecipherable to the naked eye. For a user accessing the Website on an iPad, it is likely that the font of the fine print is smaller and even more difficult to read than the screen shots and video offered by Rocket Mortgage. The small size and gray font of the text set against a lighter gray background make it particularly challenging to read. The text is also objectively much smaller than the font and data fields above it, some of which are shown in black font.”
The more interesting discussion, however, is found in the Court’s holding on the motion to dismiss. In addressing defendant’s motion to dismiss the ATDS claims brought under the TCPA, the Court found Facebook’s “footnote 7” persuasive in finding the claim adequately pled. The court opined that the plaintiff’s allegations that the dialing system at issue had “the capacity to use a random or sequential number generator in the process of storing numbers from a pre-produced list for texting and calling at a later date” was not “inconsistent with the Supreme Court’s holding in Duguid that ‘a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.’ Id.; see also id. at 1172 n.7 (‘For instance, an [ATDS] might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time.’).”
The Court also denied the motion to dismiss the complaint’s DNC violations and claims brought under the New Hampshire telemarketing statute, finding them adequately pled at the motion to dismiss stage.
To read the full opinion in Daschbach v. Rocket Mortgage, LLC, click here.
Denying Motion for Class Certification and Dismissing Case
Smith v. Vision Solar LLC, No. CV 20-2185, 2023 WL 2539017 (E.D. Pa. Mar. 16, 2023)
District Judge Michael M. Baylson issued an order denying plaintiff’s motion for class certification.
Shortly after oral argument on plaintiff’s motion for class certification, the parties notified the court that they had reached a settlement between the individual plaintiff and defendant, with no consideration for the putative class.
The Court requested briefing on whether a case could be settled with the individual plaintiff without consideration for the putative class. Upon review of these materials, the court came to the conclusion that “counsel have the ability to settle the case with individual plaintiffs without regard to a class, prior to any decision on class certification.”
The Court then evaluated whether the case should be dismissed, noting the general proposition that “when the claims of the named plaintiffs become moot before certification, dismissal of the action is required.” The Court evaluated whether an exception to this general proposition applied, first addressing the “relation back” exception: “when a Rule 68 offer could moot the claim, the Court should relate the certification motion back to the filing of the initial complaint, observing that ‘in certain circumstances, to give effect to the purposes of Rule 23, it is necessary to conceive of the named plaintiff as part of an indivisible class and not merely a single adverse party even before the class certification has been decided.’” This exception was found to not apply on the basis of Third Circuit and Supreme Court precedent holding that “the ‘relation back’ doctrine ‘has invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strategy.’”
Under this same authority, the concerns of “picking off” plaintiffs to moot an action were not present,; noting that “the mootness exception should only apply in situations where mooting of the individual claim occurred at so early a point in litigation that the named plaintiff could not have been expected to file a class certification motion.”
Since no exception applied, the Court dismissed the entire action on the grounds that Plaintiff’s claims were mooted prior to a ruling on the class certification.
To read the full opinion in Smith v. Vision Solar LLC, click here.
Denying Motion to Dismiss
Bank v. Digital Media Sols., Inc., No. 22-CV-293(EK)(LB), 2023 WL 1766210 (E.D.N.Y. Feb. 3, 2023)
District Judge Eric Komitee denied a Defendant’s motion to dismiss Telephone Consumer Protection Act (TCPA) claims brought by a pro se Plaintiff.
In doing so, the Court held that Plaintiff sufficiently alleged that the Defendant utilized an automatic telephone dialing system (ATDS) to send five communications to his phone. The Court held that “The five text messages that Bank challenges here likewise give rise to a reasonable inference that DMS used an ATDS to contact him. For one, the five text messages were all sent from the same ‘short code’ phone number owned by DMS. Further, four of the text messages included links to websites owned by DMS, while the fifth message instructed Mr. Bank to dial a phone number owned by DMS. Finally, the content of the messages is generic, impersonal, and sales-oriented. Together, these facts afford Bank’s claim adequate support to survive a motion to dismiss.”
The Court further held that the ATDS issue was more appropriate for determination at summary judgment. In a last attempt to avoid liability, Defendant argued that the ATDS claims should be dismissed because there was an alternative explanation for how Plaintiff received the messages: “Bank could have received the text messages not because DMS used an ATDS but because a previous owner of Bank’s cell phone number had consensually provided the number to DMS.” The Court dispensed with this argument, finding that the standard on a motion to dismiss merely required plausibility, not probability.
To read the full opinion in Bank v. Digital Media Sols., Inc., click here.
Adopting in Part Recommendation That Motion to Dismiss be Granted in Part
Horton v. Nat’l Republican Senatorial Comm., No. 3:22-CV-1000-G-BK, 2023 WL 372066 (N.D. Tex. Jan. 23, 2023)
District Judge A. Joe Fish adopted in part and denied in part the report and recommendation of a magistrate judge on a motion to dismiss addressing claims arising out of the TCPA and the Texas Business and Commerce Code. The District Court ultimately granted the motion to dismiss as to all causes of action.
First, the Court dismissed Plaintiff’s ATDS claims since Plaintiff’s only allegations concerning the type of system used to transmit messages by Defendant were conclusory, holding: “Horton has failed to provide enough facts demonstrating a plausible contention that the NRSC (or WinRed, on behalf of the NRSC) sent him a message using an ATDS. Horton does not attach to his first amended complaint the message that he avers the NRSC or WinRed sent him nor the website soliciting donations for the NRSC.”
Second, the Court was also not convinced that the National Republican Senatorial Committee (NRSC) could be liable on a vicarious liability theory for the actions of WinRed, as the Complaint alleged “no information as to what WinRed is, why Horton believes WinRed might have sent him a message, and how WinRed is the NRSC’s proxy.”
This case is helpful in confirming that Plaintiffs must support vicarious liability theories with more than just bare speculation, and is particularly helpful given that the Court opined that WinRed sending messages seeking fundraising for the NRSC was not sufficient for vicarious liability to attach with respect to the NRSC.
To read the full opinion in Horton v. Nat’l Republican Senatorial Comm., click here.
Affirming Summary Judgment
Robert W. Mauthe MD PC v. Millennium Health LLC, 58 F.4th 93 (3d Cir. 2023)
The Third Circuit affirmed summary judgment in favor of a defendant on Plaintiff’s claims that certain faxes sent to his office violated the TCPA.
Plaintiff, a physician in Pennsylvania, received a fax message from a laboratory informing him of a free educational seminar addressing trends in opioid misuse. The Court noted that “the fax did not mention that specific service or its availability from Millennium Health. Nor did the fax provide any pricing information, discounts, coupons, or product images. Like the fax itself, the seminar, which was broadcast live three weeks later, did not promote any goods, services, or property for sale.”
With these facts in mind, the Court granted summary judgment on the grounds that “no reasonable recipient of Millennium Health’s unsolicited free-seminar fax could view it as promoting the purchase or sale of goods, services, or property.” Plaintiff sought to avoid this result by arguing that the free seminar was merely a “pretext” for a transaction at a later seminar. The Court was unpersuaded, holding that there was nothing about the communication at issue that contemplated a transaction.
To read the full opinion in Robert W. Mauthe MD PC v. Millennium Health LLC, click here.
Order Granting Summary Judgment and Imposing Pre-Filing Injunction
Betz v. Howard Univ. Hosp., No. CV 22-1578 (JEB), 2023 WL 130734 (D.D.C. Jan. 9, 2023)
District Judge James E. Boasberg granted Defendant summary judgment on the TCPA claims stated by a pro se litigant, and entered an order requiring the litigant to seek court approval prior to filing any new TCPA complaints.
Plaintiff filed suit against Howard University Hospital alleging that he received three calls from an autodialer without his consent. Plaintiff previously filed more than 20 pro se complaints alleging violations of the TCPA in the past ten years. The dispute arose when a patient used a pseudonym and provided a contact number that “just so happens to be Plaintiff’s self-identified cell-phone number.”
The Court granted summary judgment on the grounds that the communications Plaintiff received were not telephone solicitations. Rather, they were calls asking if Plaintiff had insurance or if he needed assistance enrolling in Medicare. The undisputed facts showed that Howard University Hospital did not offer insurance.
The Court also entered a prefiling injunction, albeit a narrow one. After finding that the Plaintiff had filed more than 20 meritless and frivolous TCPA cases, three of which were filed against Howard University Hospital, the Court imposed a prefiling injunction only impacting Plaintiff’s ability to file further TCPA suits against Howard University Hospital.
To read the full opinion in Betz v. Howard Univ. Hosp., click here.
Order Affirming Grant of Motion to Dismiss
Brickman v. United States, 56 F.4th 688 (9th Cir. 2022)
The Ninth Circuit was asked, yet again, to weigh in on the definition of an ATDS after Facebook.
Plaintiff alleged that Facebook utilized an ATDS to send its users messages wishing them a happy birthday. Plaintiff did “not argue that the RSNG [Random or Sequential Number Generator] actually generated the consumers’ phone numbers (consumers provided them directly to Facebook), but that the RSNG was used to determine the order in which the phone numbers were stored and dialed, an activity that he argues implicates the TCPA.”
The Ninth Circuit quickly rejected this interpretation, finding that it had previously resolved this issue in Borden. The Brickman court found Borden analogous, as there plaintiff contended that the definition of an ATDS was implicated “merely generate some random or sequential number during its dialing process (for example, to figure out the order to call a list of phone numbers), and is not limited to generating telephone numbers.” The Borden court disagreed, finding that the Facebook decision and statutory text made clear “that an autodialer must randomly or sequentially generate telephone numbers, not just any number.”
Under this precedent, the Brickman court found that plaintiff’s claims failed given that he did not argue that a telephone number was randomly generated, only that the order in which calls were placed from a preselected list of numbers was randomly generated.
To read the full opinion in Brickman v. United States, click here.
Recommendation That Motion to Dismiss Be Denied in Part
Escano v. RCI LLC, No. CV 22-360 DHU/GJF, 2022 WL 17251273 (D.N.M. Nov. 28, 2022)
Magistrate Judge Gregory J. Fouratt recently found that a plaintiff adequately alleged a violation of the TCPA’s autodialer provisions—a claim that has been increasingly rare since Facebook was decided.
Defendant argued that Plaintiff failed to plausibly allege a violation of the ATDS provisions, but the court was not convinced. The court reached this conclusion after an evaluation of the complaint, which he found contained allegations beyond the “bare conclusion that an ATDS was used.” Specifically, the court found that allegations that the calls began with similar prerecorded messages appeared on his phone to be coming from spoofed numbers, and that his do-not-call requests were not honored on multiple of these calls plausibly suggested that the defendant utilized an ATDS.
The court also found significant Plaintiff’s allegations that he had no prior business relationship with Defendant, and that his number was placed on the Do Not Call Registry, as “if Plaintiff lacked any business relationship with Defendants—and was a Do Not Call registrant who specifically asked Defendants to stop calling—it is plausible that Defendants used the alleged ATDS (as opposed to a pre-produced list that could, for example, be filtered through the Do Not Call Registry or a separate list of callers who expressly asked for the calls to stop) to produce or store Plaintiff’s number in connection with their telemarketing efforts.”
While pure ATDS claims are increasingly uncommon, this decision shows that there are still ways to plead a viable claim. However, this decision does not take into account whether the plaintiff’s number was “generated” in any way, which many other courts have found to be the touchstone of an ATDS after Facebook—i.e., that the ATDS has to actually generate the number.
To read the full opinion in Escano v. RCI LLC, click here.
Motion to Dismiss Affirmed by Ninth Circuit
Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022)
The U.S. Court of Appeals for the Ninth Circuit recently dealt a major blow to automatic telephone dialing system (ATDS) claims, holding that a system that uses a random or sequential number generator to determine the order in which to dial numbers from a stored database is not an ATDS.
The plaintiff argued that an ATDS “must merely generate some random or sequential number during its dialing process (for example, to figure out the order [in which] to call a list of phone numbers), and is not limited to generating telephone numbers.” The defendant argued that an ATDS must actually generate random or sequential telephone numbers to dial.
The Ninth Circuit sided with the defendant, holding that “the text and context of the statute make clear that an autodialer must be able to generate and dial random or sequential number phone numbers, not just any number.” And because the defendant’s system merely dialed numbers from a stored database, the Ninth Circuit affirmed the district court’s dismissal.
The Ninth Circuit went on to hold that the Supreme Court’s decision in Facebook “underscores that an autodialer must randomly or sequentially generate and dial a telephone number” (emphasis added). “Using a random or sequential number generator to select from a pool of customer-provided phone numbers would not cause the harms contemplated by Congress,” the court said. “The Court’s discussion of these risks would make no sense if the autodialer definition were not tailored to equipment capable of sequential or random generation of telephone numbers.”
The Ninth Circuit’s decision marks perhaps the most notable rejection of the “footnote 7” argument routinely employed by plaintiffs in the wake of the Facebook decision.
To read the full opinion in Borden v. eFinancial, LLC, click here.
Motion for Summary Judgment Granted
Laccinole v. Rausch, Sturm, Israel, Enerson & Hornik LLP, No. 120CV00312MSMLDA, 2022 WL 16948612, at *3 (D.R.I. Nov. 15, 2022)
U.S. District Judge Mary S. McElroy granted the defendant’s motion for summary judgment, finding that LiveVox HCI was not an ATDS as a matter of law.
Serial plaintiff Christopher Laccinole filed a TCPA claim against the defendant after he received debt collection calls apparently intended for a third party.
The defendant moved for summary judgment on the basis that, under Facebook, its calling platform could not be an ATDS as a matter of law given that HCI lacked the capacity to produce or store numbers to be called using a random or sequential number generator or to generate random ten-digit phone numbers and then to dial them. The defendant took this argument one step further, stating that HCI “does not use a random or sequential number generator to perform any function whatsoever.”
The court agreed with the defendant, finding persuasive the reasoning of several other courts that have considered the LiveVox HCI system and determined that it was not an ATDS.
To read the full opinion in Laccinole v. Rausch, Sturm, Israel, Enerson & Hornik LLP, click here.
Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2022 WL 4611924 (S.D.N.Y. Sept. 30, 2022)
Chief District Judge Laura T. Swain granted defendants’ motion for summary judgment in its entirety. The complaint at issue raised claims under the TCPA.
The complaint brought claims under the ATDS provisions of the TCPA. The motion for summary judgment was decided in a unique procedural posture. The court previously granted plaintiff’s motion for summary judgment, finding, pre-Facebook, that the LiveVox platform constituted an ATDS. Defendants appealed to the Second Circuit, but prior to the Second Circuit issuing its decision, Facebook was decided, causing the Second Circuit to remand the case to the district court for proceedings consistent with the Supreme Court’s opinion.
In applying the newly articulated definition of an ATDS from Facebook, the court granted defendants’ renewed motion for summary judgment on that issue. Plaintiff made two main arguments that Facebook should not apply: (1) Facebook involved text messages, not phone calls; and (2) Facebook did not involve predictive dialers, and, as such, the court should defer to the FCC’s guidance on predictive dialers rather than Facebook’s general ATDS test.
Judge Swain dispensed with the first argument quickly, stating that “[t]he Court does not find this to be a dispositive difference, because unwanted text messages are as much within the ambit of the TCPA as unwanted phone calls are.”
On the predictive dialer issue, the court found that it was bound by the Supreme Court’s holding in Facebook, noting that “[p]laintiff’s argument that the Court should look to the agency’s opinion, which was not based on the text of the statute, is unpersuasive.”
Lastly, the court looked to Third Circuit authority discussing the relevant inquiry in finding that a platform constitutes an ATDS to be whether it has the “capacity” to operate as an ATDS or that it is actually being “used” as an ATDS. The court found that the proper question was whether the ATDS actually employed the ATDS’ capability to use a random or sequential number generator when placing calls. With this in mind, the court ruled that “even if Defendant’s LiveVox system theoretically had the capacity to store or produce lists of random or sequential phone numbers to be called, there is no evidence showing that Defendants made the subject calls to Plaintiff’s cell phone number using such a technique. Instead, the undisputed evidence shows that Defendants only placed phone calls sourced from a curated, pre-approved list of customers.”
Judge Swain therefore granted defendants’ motion for summary judgment in its entirety.
To read the full opinion in Jiminez v. Credit One Bank, N.A., click here.
Motion for Summary Judgment Denied
Franklin v. Hollis Cobb Assocs., Inc., No. 1:21-CV-02075-SDG, 2022 WL 4587849 (N.D. Ga. Sept. 29, 2022)
District Judge Steven D. Grimberg denied defendant’s motion for summary judgment. The complaint at issue raised claims under the TCPA.
Defendant moved for summary judgment on the basis that, under Facebook, its calling platform could not be an ATDS as a matter of law given that the system did not randomly or sequentially generate numbers and then dial them. Plaintiff countered by arguing that the platform is a predictive dialer, and, as such, the FCC’s rules interpreting predictive dialer requirements take precedence over the Supreme Court’s holding in Facebook.
Here, the court agreed with defendant, holding that predictive dialers do not satisfy the criteria of an ATDS. The court ultimately denied summary judgment, however, on the separate basis that the TCPA separately prohibits calls using artificial and prerecorded voice. Given that defendant did not refute that it made prerecorded calls to plaintiff, summary judgment was denied for want of undisputed material facts.
To read the full opinion in Franklin v. Hollis Cobb Assocs., Inc., click here.
Motion to Dismiss Granted
Allison v. Wells Fargo Bank, N.A., No. 22-CV-0510-BAS-AHG, 2022 WL 10756885 (S.D. Cal. Oct. 18, 2022)
U.S. District Judge Cynthia Bashant granted defendant’s motion to dismiss while providing Plaintiff leave to further amend the complaint. The complaint at issue raised claims under the TCPA and California’s Rosenthal Fair Debt Collection Practices Act. The court granted the motion on the grounds that (1) Plaintiff failed to adequately allege that defendant employed an ATDS and (2) Plaintiff failed to adequately allege that the at-issue calls employed a prerecorded voice.
First, the court weighed competing allegations in the complaint regarding how the messages were transmitted. On the one hand, the court credited Plaintiff’s allegations that he received more than 100 calls and that the frequency and the repetitiveness of the calls suggested that Defendant was using an ATDS. On the other hand, however, the complaint alleged that “‘agents for WELLS FARGO called Plaintiff multiple times and requested payment’ after Plaintiff went into default on his Wells Fargo credit accounts. (Compl. ¶ 26.) These allegations strongly indicate that Defendant obtained Plaintiff’s phone number through their prior dealings with him and not through a random or sequential number generator.” The court joined another California court in finding that “plaintiff’s connection to the defendant as a debtor heavily weighed against the plausibility of the defendant using an ATDS” as “it is implausible that Defendant would use a randomly or sequentially generated phone number list to attempt to reach their debtors.”
Second, the court found the prerecorded voice allegations to be entirely conclusory, as they simply parroted the language in the statute by alleging “that Defendant used ‘an automated or prerecorded voice as that term is defined in 47 U.S.C. § 227(b)(1)(A).’” Given the lack of non-conclusory allegations, the court dismissed the prerecorded voice claim.
To read the full opinion in Allison v. Wells Fargo Bank, N.A., click here.
Frater v. Lend Smart Mortg., LLC, No. 22-22168-CIV, 2022 WL 4483753 (S.D. Fla. Sept. 27, 2022)
District Judge Robert N. Scola granted defendant’s motion to dismiss in its entirety. The complaint at issue raised claims under the Florida Telephone Solicitation Act (FTSA).
Defendant moved to dismiss for lack of standing under FRCP 12(b)(1) and on the merits under 12(b)(6), but the court focused its analysis on the standing issue. The court held that under Eleventh Circuit authority, Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019), receipt of a text message—a facial violation of the FTSA—was not sufficient to demonstrate an injury-in-fact under Article III.
Plaintiff argued that Facebook overruled Salcedo, but the court disagreed, holding that “At best, Duguid can be read for the implication that the Supreme Court was satisfied that that plaintiff had standing to bring his claims under those particular facts. Certainly, nothing in Duguid retreats from the standing analysis the Supreme Court developed in Lujan and Spokeo, Inc. v. Robins—indeed, Duguid does not address the issue of standing at all” (internal citations omitted).
Under Salcedo, the court found that bar allegations that a plaintiff received two text messages in violation of the FTSA, coupled with general allegations of “invasion of privacy” and “wasted time,” were not sufficient as “[t]he complaint does not further elaborate how the text messages caused those harms to the Plaintiff or what specific injuries the Plaintiff suffered as a result.”
In conclusion, the court held that “[t]he test to determine whether an injury is concrete is qualitative, not quantitative. The Plaintiff’s allegations that she received two text messages, or even that she was ‘bombard[ed]’ with more, do not alone suffice to clear the jurisdictional bar. The fact that the Plaintiff cannot identify a single specific harm she allegedly suffered, beyond offering a conclusory recitation of harms like ‘annoyance,’ ‘aggravation,’ and ‘wasted time,’ means that she has still failed to clear the qualitative floor for a concrete injury and, therefore, she (and the putative class) lacks standing to bring a claim under FTSA” (internal citations omitted).
To read the full opinion in Frater v. Lend Smart Mortg., LLC, click here.
Report and Recommendation on Motion for Summary Judgment Adopted in Part and Modified in Part
Gentner v. Navient Solutions, Inc., No. 20-CV-747-LJV-JJM, 2022 WL 3334269 (W.D.N.Y. Aug. 12, 2022)
District Judge Lawrence J. Vilardo affirmed in part and modified in part a report and recommendation granting defendant’s motion for summary judgment.
First, the court granted defendant’s motion on the automatic telephone dialing system (ATDS) claim on procedural grounds. While the magistrate judge engaged in an analysis of the merits of the claim, plaintiff’s objection to the order was that the magistrate judge should have waited for the district judge to rule on plaintiff’s discovery objections prior to ruling on the motion for summary judgment. Given that the court ultimately rejected plaintiff’s argument that the discovery deadline should be extended, the court found that the objections to the report and recommendation on this basis were moot and therefore adopted the recommendation that judgment be entered on the ATDS claim in favor of defendant.
The court, however, modified the magistrate judge’s ruling on plaintiff’s prerecorded voice claim but otherwise adopted the ultimate ruling that the motion for summary judgment be rejected as to the prerecorded voice claim. Defendant argued that plaintiff should be limited to the prerecorded voice calls alleged in her initial disclosures, and the magistrate judge agreed, limiting her damages to the calls identified in the initial disclosures.
The court disagreed with this interpretation, finding instead that plaintiff was not obligated to precisely calculate her total damages or the number of calls at the time the summary judgment motion was granted, as the duty to supplement the disclosures was not triggered while her objection to the magistrate judge’s order denying her request to extend the discovery deadline was pending.
To read the full opinion in Gentner v. Navient Solutions, Inc., click here.
Motion for Judgment on the Pleadings Granted in Part and Denied in Part
Laccinole v. Students for Life Action Inc., No. CV 21-252 WES, 2022 WL 3099211 (D.R.I. Aug. 4, 2022)
District Court Judge William E. Smith granted defendant’s motion for judgment on the pleadings on the issue of whether calls received by plaintiff constituted telephone solicitations under the TCPA’s statutory definition, as well as on plaintiff’s claims brought under Rhode Island’s Right to Privacy statute.
On the solicitation issue, Judge Smith found that the communications were “not solicitous because the messages (1) involve political discourse and (2) do not encourage Plaintiff to visit a website encouraging the purchase or rental of property, goods, or services.” Instead, the messages informed plaintiff how he could get involved in the pro-life movement and invited him to watch media relating to this political discourse.
The court, however, denied the motion on the ATDS issue. Defendant moved to dismiss on the ground that the ATDS allegations were inadequately pled, but the court held that “considering Plaintiff’s pro se status and the relaxed standard for TCPA claims, Plaintiff’s allegation that S4L used an ATDS clears the plausibility hurdle.” Defendant attempted to argue that even if the ATDS claims were adequately pled, they should still be denied on the ground that the communications sent via the technology were not solicitous. The court disagreed, holding that the “ATDS provisions apply more broadly than solicitor-specific provisions; the relevant TCPA sections read ‘it shall be unlawful for any person,’ 47 U.S.C. § 227 (b)(1)(A), and ‘no person or entity may ... initiate any telephone call ... using an automated telephone dialing system.’ 47 C.F.R. § 64.1200(a)(1) (emphasis in original). Contrast these with other TCPA provisions, all of which contain specific language about ‘telephone solicitors.’ Thus, because Plaintiff plausibly pleads that Defendants used an ATDS, and because the provisions are not specific to solicitation, the Court denies Defendants’ Motion for Judgment on the Pleadings.”
To read the full opinion in Laccinole v. Students for Life Action Inc., click here.
Motion for Reconsideration Denied
Barnett v. First Nat'l Bank of Omaha, No. 3:20-CV-337-CHB, 2022 WL 2111966 (W.D. Ky. June 10, 2022)
U.S. District Judge Claria H. Boom denied plaintiff’s motion for reconsideration on the issue of whether his ATDS claim was properly dismissed. Plaintiff argued that the court did not properly consider whether the dialing systems used by defendant, TWX and LiveVox, together could constitute an ATDS since “LiveVox can, and does, store numbers randomly or sequentially generated by TWX daily.”
The court disagreed, finding that “LiveVox is not an ATDS simply because it stores a randomly or sequentially generated list of numbers from TWX on a daily basis.” The court held that because LiveVox, the system actually used to call plaintiff, does not have the capability to store or produce numbers to be called using a random or sequential number generator, it cannot qualify as an ATDS.
Further, the court held that “LiveVox is not an ATDS simply because it has a cooperative link to TWX.” Judge Boom analyzed the function of the TWX system and its interaction with LiveVox, and found that the TWX system simply generated files with the contact information of customers who had past-due balances on their account and transferred the file to LiveVox so that defendant can determine what outreach is appropriate for each individual customer. The court noted that “to hold that LiveVox is an ATDS due to its tie with TWX would virtually subject a non-ATDS system/program to the TCPA because of its mere association with another, separate system/program. The Court declines to support such a broad expansion of the TCPA.”
To read the opinion in Barnett v. First Nat’l Bank of Omaha, click here.
Motion to Dismiss Granted in Part
Underwood v. IFA Holdings, LLC, 1:21-CV-00830-ACA, 2022 WL 2307738 (N.D. Ala. June 27, 2022)
U.S. District Judge Annemarie Carney Axon granted in part and denied in part defendant’s motion to dismiss. Plaintiff alleged that defendant violated the TCPA by using an ATDS to send him unsolicited robotexts soliciting a survey response. Plaintiff also alleged violations of the TCPA’s do-not-call rule and the Alabama Telephone Solicitation Act (ATSA).
Judge Axon denied the motion to dismiss on defendant’s standing arguments. The court found that although defendant presented evidence that it does not use a random or sequential number generator as required under Duguid to qualify as an ATDS, plaintiff adequately alleged facts that support standing at the pleading stage. Assuming plaintiff’s allegation that defendant used an ATDS is correct, the court found plaintiff’s harm traceable to defendant’s conduct.
Judge Axon granted defendant’s motion to dismiss the ATSA and the TCPA’s do-not-call claims, but denied its motion on the ATDS TCPA claim. Plaintiff alleged that he received two text messages from a number with which he had no connection and that the content of the texts was not specific to plaintiff. The court found that these allegations were “sufficient to support a plausible inference that [defendant] used an [ATDS].”
To read the full opinion in Underwood v. IFA Holdings, LLC, click here.
Escano v. Symmetry Fin. Grp. of N. Carolina, LLC, No. 2:21-CV-0884 RB-GBW, 2022 WL 2072875 (D.N.M. June 9, 2022)
Senior U.S. District Robert C. Brack granted defendant’s motion to dismiss on the issue of whether the complaint stated a claim for direct liability, but otherwise denied the motion as to the other claims in the complaint, including use of an ATDS and prerecorded voice. Judge Brack held that the complaint stated a plausible ATDS claim on the basis that it “include[d] factual allegations regarding the general content of the phone calls, the phone numbers from which they came, and the fact that [plaintiff] did not have a relationship with the defendants[,]” in addition to allegations that the calls began with an artificial or prerecorded voice, were initiated with a digital beeping sound, and/or began with a few seconds of silence before a representative came on the line. The court then held that while a direct liability claim could not be made against one of the defendants since there were no allegations in the complaint that the defendant placed the calls at issue, it could nonetheless be held liable under the vicarious liability theory alleged in the complaint.
To read the opinion in Escano v. Symmetry Fin. Grp. of N. Carolina, LLC, click here.
Motion to Certify Interlocutory Appeal Granted in Part
McEwen v. Nat'l Rifle Ass'n of Am., No. 2:20-CV-00153-LEW, 2022 WL 2073354 (D. Me. June 9, 2022)
U.S. District Judge Lance E. Walker certified an interlocutory appeal of his denial of the NRA’s Motion for Judgment on the Pleadings on the issue of whether it used an ATDS in violation of the TCPA. Judge Walker denied the motion on the grounds that “a device that calls phone numbers from a ‘preproduced list’ may still be an ATDS, so long as it ‘use[s] a random [or sequential] number generator to determine the order in which to pick’ the numbers from the list or otherwise stores the list of numbers using a random or sequential number generator.” The court found that the primary factors of whether to certify an interlocutory appeal, whether (1) the order being appealed involved a controlling question of law, and (2) there are substantial differences of opinion on the controlling question of law, were all met.
In the first instance, the court found that the issues involved controlling questions of law on the grounds that “if the TCPA applies only to systems that generate phone numbers randomly in the first instance, [the ATDS] Counts of Plaintiff’s Second Amended Class Action Complaint should be dismissed.”
The court also found that there was substantial disagreement between courts post-Facebook for what is sufficient to state a viable ATDS claim under the TCPA.
To read the opinion in McEwen v. National Rifle Association of America, click here.
Motion for Leave to Amend Denied
Escano v. Concord Auto Protect, Inc., No. CV 21-223 MV/CG, 2022 WL 1239968 (D.N.M. Apr. 27, 2022)
Magistrate Judge Carmen E. Garza issued findings and recommended denying a pro se plaintiff’s motion for leave to amend his complaint to maintain a viable post-Facebook ATDS claim. Plaintiff moved for leave to amend to allege that defendants violated the TCPA by using an ATDS. In opposition, defendants argued that the complaint failed to state a claim under Facebook and that the proposed amended complaint failed to allege direct or vicarious liability claims. In reply, plaintiff argued that an ATDS claim is sufficiently pled where the complaint simply alleges that “calls began with a digital beep or noticeable silence, or even the bare allegation of ATDS use by itself[.]” Judge Garza disagreed and recommended denying plaintiff’s motion because plaintiff failed to allege any facts tying defendants to physically placing the calls. Judge Garza also determined that plaintiff’s agency allegations were too conclusory and without substantiation.
To read the opinion in Escano v. Concord Auto Protect, Inc., click here.
Motion to Strike Expert Testimony Denied
Smith v. Vision Solar LLC, No. CV 20-2185, 2022 WL 1172985 (E.D. Pa. Apr. 20, 2022)
U.S. District Judge Michael M. Baylson denied defendant’s motion to strike the declaration of plaintiff’s ATDS expert witness that was submitted in connection with a motion for class certification. Plaintiff’s expert opined that defendant’s system constituted a predictive dialer that had the ability to act as a random or sequential number generator. The expert would not, however, opine on whether a predictive dialer with random or sequential number generator capabilities would qualify as an ATDS under Facebook. Judge Baylson declined to strike the declaration, finding that the testimony of plaintiff’s expert “albeit not as thorough or definitive as it could have been—was sufficient to allow him to proceed as an expert in support of Plaintiffs’ Motion for Class Certification, at least on the issue of whether the alleged dialer at issue was an ATDS under the TCPA.”
To read the opinion in Smith v. Vision Solar LLC, click here.
Courts Granting or Affirming Summary Judgement
Basham v. Midland Funding, LLC, No. 4:15 CV 30 CDP, 2022 WL 1125500 (E.D. Mo. Apr. 15, 2022)
U.S. District Judge Catherine D. Perry granted defendants’ motion for summary judgment. Plaintiff alleged that defendants violated the TCPA by using both an ATDS and an artificial or prerecorded voice. Judge Perry disagreed. First, Judge Perry granted defendant Gamache’s summary judgment on the ATDS issue because plaintiff admitted in discovery that Gamache never contacted her using an artificial or prerecorded voice or an ATDS. Judge Perry also granted the remaining defendants’ summary judgment motions, based on Facebook, reasoning that where the “system in question [did] not use a random or sequential generator to either store or produce phone numbers to be called, it [was] not an ATDS under the TCPA.” The court found that defendants offered “admissible evidence that they never contacted plaintiff using telephone dialing equipment that uses random or sequential number generators.”
To read the opinion in Basham v. Midland Funding, LLC, click here.
Beal v. Outfield Brew House, LLC, No. 20-1962, 2022 WL 868697 (8th Cir. Mar. 24, 2022)
Circuit Judge L. Steven Grasz of the Eighth Circuit Court of Appeals affirmed the district court’s grant of summary judgment for the defendant and held that a system that “merely stores and dials phone numbers,” even when it “randomly select[s] from non-random phone numbers,” does not meet the statutory definition of an ATDS. Txt Live, the system in question, is used to store a database of customer contact information. It can be used by the sender to filter contacts by a variety of demographic factors, and the system then randomly assigns the “send” order. Importantly for the court’s analysis, the system “is not capable of randomly or sequentially generating” the phone numbers themselves. The court found that this system “is exactly the kind of equipment Facebook excluded” from its ATDS definition.
To read the opinion in Beal v. Outfield Brew House, LLC, click here.
Guthrie v. PHH Mortg. Corp., No. 7:20-CV-43-BO, 2022 WL 706923 (E.D.N.C. Mar. 4, 2022)
U.S. District Judge Terrence W. Boyle granted defendant’s motion for summary judgment on a TCPA claim where plaintiff alleged that defendant used an ATDS to contact him. In support of its motion, defendant offered evidence showing that it “did not use a random or sequential number generator to store or produce plaintiff’s cell phone number before contacting him.” Judge Boyle found that plaintiff failed to provide any evidence showing that the device used by defendant was an ATDS under the definition articulated by the Supreme Court in Facebook.
To read the opinion in Guthrie v. PHH Mortg. Corp., click here.
Barnett v. First National Bank of Omaha, No. 3:20-CV-337-CHB, 2022 WL 627028 (W.D. Ky. Mar. 3, 2022)
U.S. District Judge Claria Horn Boom granted Defendant’s motion for summary judgment on the ATDS claim. Plaintiff alleged that the system in question, LiveVox, was an ATDS because (1) “it may use a random or sequential number generator to determine the order in which to dial phone numbers contained in a preproduced list,” and (2) “it has the capacity to store telephone numbers using a random or sequential number generator.” The court rejected arguments based on footnote 7, stating that “a system violates the TCPA when it uses a random or sequential number generator to contact customers, not simply because it has the potential to store telephone numbers using a random or sequential number generator.” Because Defendant showed that it did not use the system to store or produce telephone numbers using a random or sequential number generator, the court found it did not use an ATDS to contact Plaintiff.
To read the opinion in Barnett v. First National Bank of Omaha, click here.
Meier v. Allied Interstate LLC, No. 20-55286, 2022 WL 171933 (9th Cir. Jan. 19, 2022)
A three-judge panel affirmed the district court’s grant of summary judgment for the defendant, finding that a system that merely “stores pre-produced lists of telephone numbers in the order in which they are uploaded” does not qualify as an ATDS. The court rejected the Plaintiff’s argument that LiveVox HCI stores telephone numbers using a sequential number generator because it uploads a customer’s list of numbers and produces them to be dialed in the same order they were provided, i.e., sequentially. The court noted that under this interpretation, “virtually any system that stores a pre-produced list of telephone numbers would qualify as an ATDS (if it could also autodial the stored numbers),” and stated that “this is precisely the outcome the Supreme Court rejected” in Facebook.
To read the opinion in Meier v. Allied Interstate LLC, click here.
Cole v. Sierra Pac. Mortg. Co., Inc., No. 18-CV-01692-JCS, 2021 WL 5919845 (N.D. Cal. Dec. 15, 2021)
Magistrate Judge Joseph C. Spero granted the defendant’s motion for summary judgment, finding “the use of random or sequential number generators to select an order for storing or dialing telephone numbers entered by other means on a list does not satisfy the TCPA’s definition of an ATDS.” The Plaintiff alleged that he received multiple calls on his cell phone from the defendant, and offered as evidence of the ATDS that “each call was preceded by clicking sounds and a delay before he heard a voice from the caller’s end of the line.” It was undisputed that the system did not have the capacity to randomly or sequentially generate phone numbers, and the court found that the capability merely to select the storage or dialing order randomly or sequentially does not qualify the system as an ATDS.
To read the opinion in Cole v. Sierra Pac. Mortg. Co., Inc., click here.
Pascal v. Concentra, Inc., No. 19-CV-02559-JCS, 2021 WL 5906055 (N.D. Cal. Dec. 14, 2021)
Magistrate Judge Joseph C. Spero granted the defendant’s motion for summary judgment, holding that “a platform that merely targets telephone numbers that were obtained in a non-random way is not an autodialer for the purposes of the TCPA.” The Plaintiff alleged that the system the defendant used to send recruitment text messages stored phone numbers in its MySQL database “in descending order by the value of the ‘id’ field,” meaning that internal identification numbers were assigned to the phone numbers as they were uploaded or manually input into the system. It was undisputed that the system did not change the order of the telephone numbers or determine when any number would be called. The court found that as a matter of law, the system did not qualify as an ATDS.
To read the opinion in Pascal v. Concentra, Inc., click here.
LaGuardia v. Designer Brands Inc., No. 2:20-CV-2311, 2021 WL 4125471 (S.D. Ohio Sept. 9, 2021)
U.S. District Judge Sarah D. Morrison denied the Plaintiff’s motion for summary judgment, finding that a dialing system’s ability to randomly generate “message identification” numbers does not qualify as an ATDS. The Plaintiff alleged he received texts from retailer DSW without his consent, and alleged the defendant’s system was an ATDS because it issues a sequential identification number for every message it sends and then uses the ID number to track responses. The court rejected that argument, finding the focus is on the generation of phone numbers, not ID numbers. The court also rejected the Plaintiff’s Footnote 7 argument, citing the majority of cases that likewise have found such allegations inadequate under Facebook.
To read the opinion in LaGuardia v. Designer Brands Inc., click here.
Affirming Grant of Summary Judgment on Alternative Grounds
Panzarella v. Navient Sols., Inc., No. 20-2371, 2022 WL 2127220 (3d Cir. June 14, 2022)
The Third Circuit affirmed a District Court order granting a defendant’s Motion to Dismiss plaintiff’s ATDS claim under the TCPA, but not on the rationale used by the District Court. The District Court granted summary judgment on the grounds that defendant’s dialing technology did not constitute an ATDS. The Third Circuit found that the District Court “erred by failing to consider whether Navient’s dialing ‘equipment’ as a whole qualified as an ATDS,” but nonetheless affirmed the District Court’s holding after determining defendant did not use an ATDS when it called plaintiff.
The dialer at issue was the “Interaction Dialer,” developed by Interactive Intelligence Group, Inc. (the “ININ System”). In conjunction with the ININ System, defendant used a Microsoft SQL Server (1) to store numbers of student loan accounts based on certain attributes (e.g., stage of delinquency) and (2) to relay these stored numbers to the ININ System so that the ININ System could dial the numbers. The SQL Server had the functionality to “generate 10-digit random and sequential numbers in a ContactList table,” but defendant did not use this functionality, and instead only pulled numbers associated with delinquent student loan accounts.
The Third Circuit took issue with the District Court finding that the SQL Server was distinct from the ININ System, as the TCPA and FCC interpret the term “equipment” in the statutory definition of an ATDS to “include several devices that when combined have the capacity to store or produce telephone numbers using a random or sequential number generator and to dial those numbers.” Specifically, the Third Circuit reasoned that the ININ System manual stated that it could not function without a database server like the SQL Server used by defendant. However, the court ultimately determined that under the statute “to use an ATDS as an autodialer, one must use its defining feature—its ability to produce or store telephone numbers through random- or sequential-number generation.” (emphasis in original). The Third Circuit therefore affirmed summary judgment on behalf of Navient on the grounds that “[e]ven if we assume that the ININ System, through the SQL Server, had the capacity to generate lists of random or sequential telephone numbers and was thus an ATDS, Navient did not use the ININ System in this way. Instead, it selected a dialing campaign’s potential targets from ‘specific, curated borrower lists.’ These lists contained contact information drawn from Navient’s internal database of account information rather than computer-generated number tables. Consequently, the lists that served as the basis for its calling campaigns contained ‘specific numbers associated with [Navient’s] student loan accounts.’”
In reaching its holding, the Third Circuit also opined on Facebook, noting that the Supreme Court said “nothing about whether an ATDS must use a random or sequential number generator or have the capacity to use a random or sequential number generator. Indeed, this issue was not even before the Court. Id. at 1168 (viewing the issue before it as limited to resolving the circuit split regarding whether ‘using a random or sequential number generator’ modified ‘produce’ but not ‘store’). Rather, the Court employed this language to explain that ‘using a random or sequential number generator’ modifies ‘store’ and ‘produce.’ That was the issue before it.” (emphasis in original). The proper test for determining whether equipment constitutes an ATDS, in the Third Circuit’s view, was articulated in its prior holding in Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), in that the equipment need only “have the ‘present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.’” This interpretation drew a strong concurrence from Circuit Judge Joseph A. Greenway, Jr., who concurred in the result but took issue with how the Third Circuit interpreted what he believed to be a clear directive from the Supreme Court on the definition of an ATDS.
To read the opinion in Panzarella v. Navient Sols., Inc., click here.
Courts Granting Motions to Dismiss
Demarattes v. Enhanced Recovery Co., LLC, No. 20-CV-4722(KAM)(LB), 2022 WL 4121217 (E.D.N.Y. Sept. 9, 2022)
District Judge Kiyo A. Matsumoto granted defendant’s motion to dismiss in its entirety. The complaint at issue raised claims under the Fair Credit Reporting Act, TCPA and Fair Debt Collection Practices Act.
The complaint brought claims under the ATDS provisions of the TCPA. The allegations, however, were entirely conclusory and only provided that defendant “violated the TCPA, without alleging that it used an ATDS or ‘an artificial or prerecorded voice’[.]” The court also took issue with the fact that the complaint did “not contain factual allegations that would allow the inference that an ATDS or an ‘artificial or prerecorded voice’ was used by [defendant] to make the ‘over 200 calls’ to Plaintiff ‘in an attempt to collect the alleged debt.’” The complaint only identified calls as coming from four different phone numbers, and made no mention of the calls being placed with an ATDS or containing a message delivered via prerecorded voice.
Judge Matsumoto therefore dismissed the complaint for these pleading deficiencies.
To read the full opinion in Demarattes v. Enhanced Recovery Co., LLC, click here.
Champion v. Credit Pros Int’l Corp., No. CV2110814JXNJBC, 2022 WL 3152657 (D.N.J. Aug. 5, 2022)
District Court Judge Julien X. Neals granted motions to dismiss a two-count complaint alleging violations of the TCPA’s ATDS and for willful and knowing violations of the TCPA.
Plaintiff argued that defendant utilized an ATDS, as evidenced by the fact that they used technology to send text messages to numbers from preloaded lists. Defendant argued that the ATDS allegations were insufficiently pled, and the court agreed. The court found that the allegations that (1) “[Defendant] uses ATDS hardware or software to send text messages. The hardware and/or software has the capacity to store or produce cellular telephone numbers to be called, using a random or sequential number generator, and/or to send text messages to numbers from pre-loaded lists”; (2) “[Defendant] uses the autodialing system Five9. Five9 provides users with [a] predictive autodialer feature that features automated dialing services and a predictive mathematical algorithm to increase agent efficiency”; (3) “[Defendant] has been sued numerous times for sending telemarketing messages using an ATDS”; and (4) “Numerous consumers have posted online complaints regarding receiving unwanted text messages from [defendant]” to collectively be inadequate to allege defendant’s use of an ATDS. In addition, the court held that software that merely selects numbers to be called from a preloaded list was not an ATDS as a matter of law under Facebook.
To read the full opinion in Champion v. Credit Pros Int’l Corp., click here.
Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., 3:19-CV-592 (JAM), 2022 WL 2802347 (D. Conn. July 18, 2022)
District Court Judge Jeffrey Alker Meyer granted defendant’s motion to dismiss on the issue of whether plaintiff plausibly stated a claim for relief. Plaintiff received promotional text messages from defendant Subway offering a free bag of chips. The pleadings alleged that defendant violated the TCPA by using a random or sequential number generator to generate “index numbers,” which in turn selected the numbers to text from a stored list. Defendant also argued that the text messages used an “artificial or prerecorded voice” within the meaning of the TCPA, even though they did not include audio.
The court rejected this broad construction of the term “voice,” finding that the modifier “prerecorded” comports with the “sound sense of ‘voice,’ but not with the metaphorical one.” Therefore, in order to run afoul of the TCPA’s ban, a text message must also have “an audio component.” The court also rejected plaintiff’s argument that an ATDS was used to send the texts and, in doing so, explicitly addressed footnote 7. Judge Meyer wrote that the dicta in footnote 7 mentioning a hypothetical autodialer was ambiguous because “the [Supreme Court] left open whether the telephone numbers on the ‘preproduced list’ were themselves generated randomly or sequentially.” In the Court’s view, to qualify as an ATDS, a system must not merely decide which numbers to dial but also must generate the numbers themselves.
To read the full opinion in Soliman v. Subway Franchise Advert. Fund Tr., Ltd., click here.
Mina v. Red Robin Int'l, Inc., No. 20-CV-00612-RM-NYW, 2022 WL 2105897 (D. Colo. June 10, 2022)
Magistrate Judge Nina Y. Wang issued findings and recommended granting a motion to dismiss ATDS claims arising from texts received in conjunction with defendant’s customer rewards program. Plaintiff admitted that the numbers being called were not randomly or sequentially generated, but argued that the dialing platform (Twilio) “use[d] an algorithm whereby a random or sequential number generator ... selects which number to dial from the stored list of numbers, and sequences those numbers in order to automatically dial the numbers and send out text messages en masse.”
The court disagreed, finding that “a device’s capacity to randomly or sequentially select, from a prepopulated list, which number to communicate with does not render it an autodialer under the TCPA.” Moreover, the court rejected plaintiff’s “footnote 7” argument, as the list referred to by the PACE amicus brief referenced in the footnote was “itself created through a random or sequential number generator” and was not simply a list of non-random and existing customer numbers stored for later calling. The court also rejected plaintiff’s contention that he should be entitled to take discovery on the ATDS issue, and that dismissal at the pleadings stage was premature, finding that discovery is only appropriate in those instances where it is unclear from the pleadings whether defendant used an ATDS, and not in situations like the one before the court where “[p]laintiff’s own allegations demonstrate that ‘the phone numbers to be called are stored in a list and [are] not themselves randomly or sequentially generated[.]’”
Lastly, the court dismissed plaintiff’s artificial and prerecorded voice claims on the grounds that the only calls at issue were text messages, finding that these provisions only apply to telephonic voice calls, not texts.
To read the opinion in Mina v. Red Robin Int’l, Inc., click here.
DeMesa v. Treasure Island, LLC, No. 218CV02007JADNJK, 2022 WL 1813858, (D. Nev. June 1, 2022)
U.S. District Judge Jennifer A. Dorsey granted a motion to dismiss ATDS and prerecorded voice claims arising under the TCPA. Plaintiff provided her cellphone number to a hotel and subsequently received texts from the hotel’s virtual concierge after checking in. Plaintiff arguedthat she could allege a viable ATDS claim post-Facebook since “‘produce’ doesn’t necessarily mean ‘create,’ arguing that her allegations that a system assigns an identifying sequentially generated number to a prepopulated list of existing phone numbers and then calls them are sufficient to state a claim under the statute.” Judge Dorsey found this to be a “distinction without a difference,” holding that “[a] system that calls a list of phone numbers created in ‘non-random, non-sequential way’ would thus not suddenly become an autodialer if it merely indexed or called those numbers in a random or sequential way.” The court also dismissed the prerecorded voice claims, finding that text messages did not have a “voice” as contemplated by the TCPA.
To read the opinion in DeMesa v. Treasure Island, LLC, click here.
Anderson v. Wells Fargo Bank, National Association, No. 3:20-CV-0738-YY, 2021 WL 7186811, at *4 (D. Or. Dec. 10, 2021), report and recommendation adopted sub nom. Anderson v. Wells Fargo Bank, N.A., No. 3:20-CV-738-YY, 2022 WL 595736 (D. Or. Feb. 28, 2022)
Magistrate Judge Youlee Yim You issued findings and recommended granting Defendant’s motion to dismiss Plaintiff’s ATDS claim. Plaintiff received calls attempting to collect a debt and acknowledged a preexisting relationship with the Defendant, but also alleged she heard a “telltale” pause on one call between when she answered and when the agent began speaking. The court found that although a “telltale pause” can weigh in Plaintiff’s favor on a motion to dismiss when no preexisting relationship has been alleged, in this case a single instance of a pause was insufficient to infer Defendant used an ATDS. Additionally, the court found that when the calls were for the purpose of collecting an existing debt, it was “wildly implausible for Defendant to randomly or sequentially generate phone numbers in the hopes of reaching the Plaintiff-debtor.” Judge You’s recommendation was later adopted, and the motion to dismiss the ATDS claim was granted, by District Judge Michael H. Simon.
To read the opinion in Anderson v. Wells Fargo Bank, National Association, click here.
Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-CV-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022)
U.S. District Judge Sidney A. Fitzwater granted Defendant’s motion to dismiss the ATDS claim. Plaintiff received targeted text messages from a long code after he spoke with Defendant several times about purchasing the Defendant’s real property. The court found that the “direct and personal nature of the text messages” weighed against the inference that an ATDS was used to randomly or sequentially generate the numbers to be called.
To read the opinion in Hunsinger v. Alpha Cash Buyers, LLC, click here.
Cross v. State Farm Mutual Automobile Ins., 2022 WL 193016 (W.D. Ark. Jan. 20, 2022)
U.S. District Judge Susan O. Hickey granted the defendant’s motion to dismiss, finding that a platform that “produces a set of phone numbers from an established, non-random database of phone numbers, or specifically targets numbers in that non-random database” does not qualify as an ATDS. The Plaintiff alleged that State Farm utilized an ATDS when it sent her a targeted text message about her active insurance claim, because the system randomly or sequentially generated a list of numbers from its database of phone numbers, which included the Plaintiff’s, and then sent a text message to those numbers generated. The court rejected this argument, finding that the number itself was not randomly or sequentially generated, and that instead State Farm selected the number from its “established dataset of phone numbers” and then sent the text specifically regarding the outstanding insurance claim.
To read the opinion in Cross v. State Farm Mutual Automobile Ins., click here.
Austria v. Alorica, Inc., No. 220CV05019ODWPVCX, 2021 WL 5968404 (C.D. Cal. Dec. 16, 2021)
Judge Otis D. Wright II for the U.S. District Court, Central District of California, granted the defendant’s motion to dismiss the TCPA claim after finding that “a system that selects phone numbers from a prepopulated list does not constitute an autodialer.” The court considered that because the calls at issue were made in connection with collection of an alleged debt, it was not plausible that the number itself was generated randomly. The court found that the Plaintiff “allege[d] at most that EGS used a random or sequential number generator in selecting or dialing his number from a prepopulated list; he d[id] not allege that his name was on that prepopulated list due to the work of a random or sequential number generator.”
To read the opinion in Austria v. Alorica, Inc., click here.
Camunas v. Nat’l Republican Senatorial Comm., No. 21-1005, 2021 WL 5143321 (E.D. Pa. Nov. 4, 2021)
U.S. District Judge Eduardo C. Robreno granted defendant’s motion to dismiss Plaintiff’s second amended complaint, in which Plaintiff alleged that the defendant sent him unsolicited text messages from a list and that these texts were intended for someone else. The court found that Plaintiff did not allege that “a random or sequential number generator produced or stored the numbers, but instead allege[d] that the phone numbers were already stored on the device prior to the messages being sent.” The court held that “[t]his is precisely the type of allegation rejected by the Supreme Court in Facebook.” The court also rejected Plaintiff’s Footnote 7 argument, finding that “if the preproduced list was not created through a random or sequential number generator, it does not meet the Facebook standard of an ATDS.”
To read the opinion in Camunas v. National Republican Senatorial Committee, click here.
Deleo v. National Republican Senatorial Committee, No.2:21-CV-03807, 2021 WL 5083831 (E.D. Pa. Nov. 4, 2021)
U.S. District Judge Brian R. Martinotti granted defendant’s motion to dismiss, finding that the recent Facebook decision “undermines any reasonable inference that [defendant] used an ATDS.” Plaintiff alleged that defendant used “dialing technology, which calls phone numbers from a stored list using a random or sequential number generator to call those phone numbers.” The court held that Plaintiff’s “allegation of a ‘stored list’ [was] the exact characterization of an ATDS that the Supreme Court rejected in [Facebook].” The court also held that defendant’s dialing system could not “qualify as a ATDS device that stores or produces a ‘telephone number using a random or sequential number generator’” because Plaintiff alleged that he provided the phone number at issue to defendant.
To read the opinion in Deleo v. National Republican Senatorial Committee, click here.
Wilson v. Rater8, LLC, No. 20-CV-1515, 2021 WL 4865930 (S.D. Cal. Oct. 18, 2021)
U.S. District Judge Dana M. Sabraw granted defendant’s motion to dismiss on the grounds that pleadings indicated the text message at issue was targeted, rather than random or sequential. Plaintiff alleged that he received a single text message “minutes” after visiting his doctor for a medical examination. The text message prompted Plaintiff to rate his experience with the doctor. The court stated that “[t]he nature of this solitary text and the relationship between the parties indicate the text was not sent using an ATDS. Rather than bolstering the allegation that Defendant used an ATDS, these facts belie the notion that Defendant sent the text message using random or sequential number generation. Instead, the allegations indicate that Plaintiff was targeted with the text message.”
To read the opinion in Wilson v. Rater8, LLC, click here.
Courts Granting Motions on the Pleadings
DeClements v. Americana Holdings LLC, No. CV-20-00166, 2021 WL 5138279 (D. Ariz. Nov. 4, 2021)
U.S. District Judge Douglas L. Rayes granted defendant’s motion for judgment on the pleadings. Plaintiff alleged that he “believe[d] the text message was autodialed due to the unsolicited, commercial, and generic nature of the text message, and because replying ‘Stop’ to [the message] results in an immediate automated response.” The court rejected this argument, noting that “not all unsolicited and commercial texts are autodialed” and “merely receiving an automated response does not go to whether the digits of the phone number themselves were randomly or sequentially generated.” Further, the court found that the fact that the text was targeted suggested it was not sent using an ATDS.
To read the opinion in DeClements v. Americana Holdings LLC, click here.
Jovanovic v. SRP Invs. LLC, No. CV-21-00393-PHX-JJT, 2021 WL 4198163 (D. Ariz. Sept. 15, 2021)
U.S. District Judge John J. Tuchi granted the defendant’s motion to dismiss, finding that the Plaintiff’s allegations of receipt of a single, personalized text message sent from a ten-digit “long code” phone number were insufficient to plausibly infer use of an ATDS standing alone (and actually cut against such an inference), despite other allegations that the text contained “Reply STOP” language and the Plaintiff never provided consent to the defendant. Notably, however, the court relied primarily on various pre-Facebook authorities to reach this conclusion, and did not discuss use of a random or sequential number generator.
To read the opinion in Jovanovic v. SRP Invs. LLC, click here.
Borden v. eFinancial, LLC, No. C19-1430JLR, 2021 WL 3602479 (W.D. Wash. Aug. 13, 2021)
U.S. District Court Judge James L. Ropart dismissed the complaint with prejudice, finding that the Plaintiff’s allegations that he provided his phone number to the defendant meant the text messages at issue “necessarily were not sent through an ATDS.” While the Plaintiff alleged that defendant’s system used a sequential number generator to select which stored phone numbers to dial and to populate a “LeadID field” to identify numbers in the defendant’s database, the court found this insufficient; the court concluded that the Plaintiff did not allege that the defendant’s system “‘generate[s] random or sequential phone numbers’ to be dialed” (emphasis added). The court also reasoned that the Plaintiff’s provision of his phone number to the defendant “simply does not implicate the problems caused by autodialing of random or sequential blocks of numbers that Congress sought to address when it passed the TCPA.”
To read the opinion in Borden v. eFinancial, LLC, click here.
Guglielmo v. CVS Pharmacy, Inc., Civil No. 3:20cv1560, 2021 WL 3291532 (D. Conn. Aug. 2, 2021)
Judge Janet Bond Arterton of the U.S. District Court, Connecticut ruled that the Plaintiff’s ATDS allegations were inadequate after applying “Facebook’s strict reading of the TCPA” and dismissed the case. The Plaintiff alleged that he “received multiple calls in the form of text messages, on the same day, on several occasions” that “indicated they were automatically dialed” because “there was no way to respond to anyone directly to communicate concerning the message[,]” and despite his “attempt[s] to opt out using the instructions, [ ] he continued to receive messages.” “However, he neither allege[d] that his number was stored or produced with a random or sequential number generator, nor d[id] he claim that the calls he received used an artificial or prerecorded voice.”
To read the opinion in Guglielmo v. CVS Pharmacy, Inc., click here.
Stewart v. Network Capital Funding Corp., No. CV 21-368-MWF, 2021 WL 3088011 (C.D. Cal. Jul. 16, 2021)
Citing to the U.S. District Court, Colorado’s post-Facebook decision in Montanez v. Future Vision Brain Bank, LLC, No. 20-cv-02959, 2021 WL 1697928 (D. Colo. Apr. 29, 2021) discussed in our previous roundup, which notably was the first federal district court to apply Facebook, Judge Michael W. Fitzgerald of the U.S. District Court, Central District of California dismissed the Plaintiff’s complaint on a Rule 12(b)(6) motion. Fitzgerald found that the Plaintiff failed to allege any facts to plausibly establish that the defendant used an ATDS, such as, for example, showing the identical, repetitive or impersonal nature of the calls, let alone any facts plausibly showing that the defendant’s dialing equipment employed or used a random or sequential number generator in placing the complained-of calls.
To read the opinion in Stewart v. Network Capital Funding Corp., click here.
Barry v. Ally Financial, Inc., No. 20-12378, 2021 WL 2936636 (E.D. Mich. Jul. 13, 2021)
Relying on several similar post-Facebook decisions, like Watts and Hufnus, among others, Judge Paul Borman for the U.S. District Court, Eastern District of Michigan dismissed the complaint with prejudice. The Plaintiff alleged the defendant called her cell phone (using an ATDS, without her consent) in an attempt to reach her brother, and that the defendant continued to call her after she requested not to be called. The court granted the defendant’s motion to dismiss (MTD) because the Plaintiff did not allege that the defendant used a random or sequential number generator to make the calls. The court also noted that “because the calls Plaintiff complains about were directed to Plaintiff specifically and purposefully, related to her brother’s account with Defendant, the Court can only conclude that the technology that called her used a stored list containing the names and numbers of persons to be contacted; had the technology stored or produced Plaintiff’s number at random or in sequence, it would have no way of knowing that it was contacting someone associated with a specific account holder.”
To read the opinion in Barry v. Ally Financial, Inc., click here.
Courts Denying Summary Judgment
Jackson v. First Nat’l Bank of Omaha, No. CV 20-1295 DSF, 2022 WL 423440 (C.D. Cal. Jan. 18, 2022)
U.S. District Judge Dale S. Fischer of the Central District of California denied the Plaintiff’s motion for summary judgment relating to claims that the defendant used an autodialer. The defendant preprogrammed numbers into the system, which dialed numbers based on the campaign criteria previously entered; this means that the numbers were dialed not in the order in which they appeared on the preprogrammed file, but rather according to the specific calling campaign parameters (e.g., looking at particular area codes/ZIP codes to determine whether it was an appropriate time to call). The court found that the LiveVox system did not use a sequential number generator, because while the system uses predetermined criteria to automatically generate a sequence of phone numbers to call, it obtained those phone numbers from a customer list that was not generated through a random or sequential number generator.
To read the opinion in Jackson v. First Nat’l Bank of Omaha, click here.
Courts Denying Motions to Dismiss
Pariseau v. Built USA, LLC, No. 8:21-CV-2902-SDM-JSS, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022)
District Judge Steven D. Merryday denied a defendant’s motion to dismiss plaintiff’s Telephone Consumer Protection Act (TCPA) claims based on violations of the statute’s do not call (DNC) provisions, as well rejecting defendant’s challenges to the Florida Telephone Solicitation Act (FTSA).
Defendant challenged the DNC claims on the grounds that the TCPA’s implementing regulations purportedly only permit a plaintiff to bring a claim if they have received “telephone calls,” and plaintiff in this case allegedly received only text messages. The court rejected this out of hand, finding that “the FCC interprets ‘call’ and ‘telephone call’ in Section 227(b) to include both a voice call and a text message.”
To avoid this result, defendant also argued that the Supreme Court’s decision in Facebook “vacates—by implication and in a footnote—any interpretation of the TCPA that defines ‘telephone call’ to include a text message.” The court disagreed, finding that this argument warranted “swift rejection,” as even if the language quoted by defendant in Facebook’s footnote 2 could be read to state that the question of whether calls include text messages, the footnote “failed to negate” the FCC’s “conclusion that a text message equals a ‘telephone call’ under the TCPA.”
Next, the court rejected defendant’s argument that the FTSA should be found unconstitutional. The court determined that “[b]ecause the FTSA’s regulation of ‘telephonic sales calls’ targets commercial speech only, the statute warrants intermediate scrutiny, not strict scrutiny.” While there are numerous arguments to be made that the Supreme Court’s decision in Barr supports the proposition that content-based restrictions on commercial speech are subject to a higher standard of scrutiny, the court did not find these persuasive and instead found that “Barr reiterates the uncontroversial rule that a content-based restriction on noncommercial speech normally warrants strict scrutiny[,]” and that the result advocated for by defendant would only be appropriate if Barr explicitly overturned Central Hudson.
Lastly, the court rejected defendant’s argument that the FTSA’s failure to define the phrase “an automated system for the selection or dialing of telephone numbers” renders the statute unconstitutionally vague. The court found, rather, that the phrase “convey[ed] a sufficiently definite warning” as to the regulated methods for transmitting sales calls.
To read the full opinion in Pariseau v. Built USA, LLC, click here.
Laccinole v. Rocket Mortg., LLC, 1:21-CV-00830-ACA, 2022 WL 2355430 (D.R.I. June 30, 2022)
District Court Judge John J. McConnell Jr. denied plaintiff’s motion to dismiss plaintiff’s TCPA claim. Plaintiff alleged that defendant violated the TCPA by calling him with an ATDS in order to pitch a financial product.
Plaintiff alleged that defendant repeatedly called his cellphone, that the calls used a prerecorded voice, that he never asked for defendant to call him and that the calls continued after he requested via certified mail that they stop. The court noted that some of plaintiff’s allegations were “borderline ‘threadbare recitations’ of the TCPA elements.” Nonetheless, Judge McConnell “accept[ed] them at [the pleading] stage” because of plaintiff’s pro se status and because “claims based on alleged violations of the TCPA do not require the usual level of particularity.”
To read the full opinion in Laccinole v. Rocket Mortg., LLC, click here.
Renford v. Cap. One Auto Fin., No. 1:21-CV-02382 (RC), 2022 WL 1211193 (D.D.C. Apr. 25, 2022)
U.S. District Judge Rudolph Contreras granted defendant’s motion to dismiss a pro se plaintiff’s ATDS claim with prejudice. After plaintiff defaulted on a secured automobile loan from Capital One, Capital One sought to collect on the debt. This prompted plaintiff to file suit against Capital One alleging FDCPA, FCRA, TILA and TCPA violations. The court found that plaintiff did not allege any of the necessary elements to state a viable TCPA claim, including that defendant’s system had “the capacity to use a random or sequential number generator to either store or produced phone numbers to be called,” as set forth by Facebook. Plaintiff simply alleged that she received communications from Capital One after she provided Capital One with a cease and desist letter. Since plaintiff’s complaint did not allege whether Capital One used an ATDS to send these messages, Judge Contreras found that plaintiff’s “conclusory allegations fall far short of stating a plausible TCPA claim.”
To read the opinion in Renford v. Cap. One Auto Fin., click here.
Laccinole v. Navient Solutions, LLC, No. 1:21-CV-00045-MSM-PAS, 2022 WL 656167 (D.R.I. Mar. 4, 2022)
U.S. District Judge Mary S. McElroy denied in part Defendant’s motion to dismiss relating to claims involving the use of an ATDS. Plaintiff alleged that Defendant made calls using an ATDS because some calls “involved an audible click followed by a pause before an operator joined the call” or involved the use of a prerecorded message. Defendant argued that the calls were specifically targeted to someone other than Plaintiff regarding the servicing of an existing debt and therefore the calls did not meet the definition of having been made using an ATDS. The court rejected this argument because Plaintiff alleged that he received other calls in which no live person would respond to his answering the call or in which he heard only ringing. The court found that these allegations “could indicate a system where several calls were placed by a sequential generator, and not enough operators were available to respond to those who answer the phone.”
To read the opinion in Laccinole v. Navient Solutions, LLC, click here.
Stewart v. Network Cap. Funding Corp., No. CV 21-368-MWF, 2021 WL 6618544 (C.D. Cal. Dec. 9, 2021)
U.S. District Judge Michael W. Fitzgerald of the Central District of California denied the defendant’s motion to dismiss and found that the Plaintiff’s allegations regarding the use of a predictive dialer were sufficient at the pleadings stage where there was “no indication here that Plaintiff provided Defendant with his phone number, supporting the inference that his phone number was randomly or sequentially generated.” In support of his claim that the defendant used an ATDS, the Plaintiff first argued that predictive dialers have historically been treated as ATDSs under the TCPA. The Plaintiff alleged that when he answered the call, “he heard a pause after saying ‘hello,’ after which Defendant’s representative began speaking”; that this “momentary delay prior to a live representative answering is a hallmark of predictive dialers”; and that “the dialing system used by Defendant to place the calls also has the capacity to, and does, dial telephone numbers stored as a list or in a database without human intervention.” The court found that the Plaintiff’s allegations were sufficient to entitle him to discovery on whether the predictive dialer is an ATDS, because he alleged he did not provide his number to the defendant and therefore the number could have been randomly or sequentially generated.
To read the opinion in Stewart v. Network Cap. Funding Corp., click here.
MacDonald v. Brian Gubernick PLLC, No. CV-20-00138, WL 5203107 (D. Ariz. Nov. 9, 2021)
U.S. District Judge Susan M. Brnovich denied defendant’s motion to dismiss and granted Plaintiff’s motion for leave to amend the complaint for a second time. Defendant argued that its dialing system could not be an ATDS after Facebook because it did not use a random or sequential number generator. In opposition, Plaintiff requested leave to amend to add allegations that defendant’s dialer could “import lists of leads, with associated phone numbers” and “then generate sequential numbers and store these sequential numbers in a database, to indicate the automatic dialing order for leads.” The court held that the allegations were “sufficient to state a cause of action under the TCPA, even after [Facebook].”
To read the opinion in MacDonald v. Brian Gubernick PLLC, click here.
Smith v. Direct Building Supplies, LLC, No. CV 20-3583, 2021 WL 4623275 (E.D. Pa. Oct. 7, 2021)
U.S. District Judge Berle M. Schiller denied the defendant’s motion to dismiss with respect to the ATDS allegations, finding that the Plaintiff sufficiently alleged the use of an ATDS by alleging a “noticeable pause and delay before Defendant came on the line” during each of the five alleged offending calls, as well as that the Plaintiff had no prior relationship with the defendant prior to the first call. The court’s analysis of the ATDS issue on this front is arguably perfunctory and does not have any discussion of post-Facebook authority (including courts that have rejected similar allegations). However, the court ultimately dismissed the entire case without prejudice on other grounds, specifically that the Plaintiff did not plead sufficient facts supporting direct or vicarious TCPA liability.
To read the opinion in Smith v. Direct Building Supplies, LLC, click here.
Garner v. Allstate Ins. Co., No. 20 C 4693, 2021 WL 3857786 (N.D. Ill. Aug. 30, 2021)
Judge John Zee of the U.S. District Court, Northern District of Illinois held that the Plaintiffs’ allegations that they received numerous unsolicited calls from the defendant using spoofed numbers within a span of six months were sufficient to allow a reasonable inference that the defendant used an ATDS. The Plaintiffs alleged that the defendant’s system “had the capacity to store or produce telephone numbers using a random or sequential number generator, to receive and store lists of phone numbers, and to dial such numbers, en masse, without human intervention.” The court found that this description was consistent with the Seventh Circuit’s ruling in Gadelhak and the Supreme Court’s ruling in Facebook, despite the Plaintiffs’ description of the dialing system as a “predictive dialer.”
To read the opinion in Garner v. Allstate Ins. Co., click here.
Jance v. Homerun Offer LLC, et al., No. CV-20-00482-TUC-JGZ, 2021 WL 3270318 (D. Ariz. Jul. 30, 2021)
Judge Jennifer G. Zipps of the U.S. District Court, Arizona ruled that the pro se Plaintiff had plausibly alleged the defendants used an ATDS despite only alleging circumstantial and indirect allegations of ATDS use, such as the content of the calls and the context and manner in which they were made. The court stated that the system need only have the capacity to call randomly or sequentially generated phone numbers (rather than actually use such a generator) and suggested that the issue was not properly resolved without discovery. Among other things, the Plaintiff alleged he had no business relationship with the defendants, did not give the defendants his contact information and did not consent to be called. He further alleged he heard a pause before a person began speaking, the calls were generic in nature and never referenced the Plaintiff specifically, and the numbers were spoofed. He also claimed to have received numerous calls after requesting to be placed on the defendant’s internal “Do Not Call” list.
To read the opinion in Jance v. Homerun Offer LLC, et al., click here.
Libby v. Nat’l Republican Senatorial Committee, No. 5:21-cv-197-DAE, 2021 WL 4025798 (W.D. Tex. Jul. 27, 2021)
Declining to dismiss, Judge David Alan Ezra of the U.S. District Court, Western District of Texas held that the Plaintiff’s allegations that she received “generic and obviously prewritten” text messages which she alleged were sent using a dialing system that “calls phone numbers from a stored list using a random or sequential number generator to select those phone numbers” were sufficient to state a plausible claim under the TCPA. The court found that these allegations were sufficient to allow the Plaintiff to proceed with discovery because “no plaintiff will have personal knowledge of the defendant’s telephone system at the pleadings stage.”
To read the opinion in Libby v. Nat’l Republican Senatorial Committee, click here.
Miles v. Medicredit, Inc., No. 4:20-CV-01186 JAR, 2021 WL 2949565 (E.D. Mo. Jul. 14, 2021)
Declining to dismiss, Judge John A. Ross for the U.S. District Court, Eastern District of Missouri held that the ATDS issue is more appropriate for resolution at the summary judgment stage. There, the Plaintiff alleged the defendant made numerous calls to the Plaintiff’s cell phone using an ATDS and an artificial prerecorded voice, without consent, in an effort to collect a debt owed by someone named Amy. The court refused to follow Timms, which the defendant cited to argue that the Plaintiff’s allegation that it uploads numbers to be called is incompatible with the Facebook ATDS definition, because Timms was decided on a motion for summary judgment and not an MTD. Citing Callier, the court also rejected the argument that because the calls were made to a specific individual, they could not be randomly or sequentially generated.
To read the opinion in Miles v. Medicredit, Inc., click here.
Key takeaway: While Facebook sets the current standard for finding whether a system is an ATDS with respect to the use of a random and sequential number generator, some courts may elect to examine factors considered determinative pre-Facebook and may follow pre-Facebook authority.
Courts Denying Motions for Leave to Conduct Additional Discovery
In Re Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation, No. 11MD02295, 2021 WL 5203299 (S.D. Cal. Nov. 9, 2021)
U.S. District Judge John A. Houston denied Plaintiffs’ application to conduct discovery to establish that defendant’s calling system was an ATDS, based on their flawed interpretation of Footnote 7 asserting “that a device would qualify as an autodialer if it used a random number generator to determine the order in which to pick phone numbers from a preproduced list and stored the numbers to be dialed at a later time.” The court rejected Plaintiffs’ argument, citing the majority of cases that have found that the phone numbers contained in a “preproduced list” must themselves be created through a random or sequential number generator. Since Plaintiffs did not allege that the list of phone numbers at issue was produced in a random or sequential way, Plaintiffs’ “request to conduct discovery to support a rejected theory [was] futile.”
To read the opinion in In Re Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation, click here.
Random or Sequential Number Generator: Use Versus Capacity
Several cases post-Facebook examine whether a system must actually use a random or sequential number generator to make the calls or if the system’s mere capacity to use a random or sequential number generator is sufficient for the system to qualify as an ATDS. It has been only a matter of months, but courts in different circuits have already come out on opposite sides of this issue.
Grome v. USAA Sav. Bank, No. 4:19-CV-3080, 2021 WL 3883713 (D. Neb. Aug. 31, 2021)
On summary judgment, the U.S. District Court, District of Nebraska found that the Aspect Unified IP predictive dialer is not an ATDS as a matter of law because it “does not randomly or sequentially generate numbers from whole cloth and is not capable of dialing telephone numbers beyond those stored in the campaign lists uploaded by the defendant.” Plaintiff argued that the system qualified as an ATDS because it can automatically re-sequence numbers on the campaign list. The court rejected this argument, stating that Plaintiff was taking footnote 7 of the Facebook opinion out of context. The court also rejected Plaintiff’s argument that the Aspect Unified IP predictive dialer had the “capacity” to function as an autodialer because it could potentially be reprogrammed to use randomly or sequentially generated lists of numbers, noting that the term “capacity” meant “present capacity” and the Aspect Unified IP lacked the present capacity “to use a random or sequential number generator to produce or store telephone numbers.”
To read the opinion in Grome v. USAA Sav. Bank, click here.
Barnett v. Bank of America, N.A., No. 3:20-cv-272, 2021 WL 2187950 (W.D.N.C. May 28, 2021)
The U.S. District Court, Western District of North Carolina found, on summary judgment, that Avaya Proactive Contact, which merely selects numbers from a preexisting list, is not an ATDS. Plaintiff David Barnett argued that the system qualified as an ATDS because it used a random or sequential number generator, but he failed to produce any affirmative evidence to support this contention. Bank of America countered that the system merely selected numbers from a preexisting list created based on criteria provided by administrators, and that the system did not use a random or sequential number generator. The court considered both Barnett’s lack of evidence that the system used a random or sequential number generator and Bank of America’s affirmative evidence that the system did not use such a number generator. Accordingly, applying the definition of an ATDS from Facebook, the court concluded that Bank of America’s system was not an ATDS as a matter of law and granted summary judgment in favor of Bank of America.
To read the opinion in Barnett v. Bank of America, N.A., click here.
We provide further coverage on the Barnett opinion here.
Montanez v. Future Vision Brain Bank, LLC, No. 20-cv-02959, 2021 WL 1697928 (D. Colo. Apr. 29, 2021)
The U.S. District Court, District of Colorado adopted the magistrate’s recommendation denying the defendant’s motion to dismiss on the grounds that the Plaintiff plausibly alleged that the system in question used a random or sequential number generator. Plaintiff Jessica Montanez brought suit on account of telemarketing text messages she allegedly received from a cannabis dispensary. In the complaint, Montanez alleged that the messaging platform had the ability to store telephone numbers, generate sequential numbers and dial numbers in a sequential order. Specifically, Montanez alleged that the system “automatically retrieved each telephone number from a list of numbers in a sequential order, generated each number in the sequential order listed, combined each number with the specific content of Defendant’s message to create individual ‘packets,’ and transmitted each packet in a sequential order.” Similar to the court in McEwen, the court here focused on the distinction between random or sequential number generator use versus capability, concluding that to support a TCPA claim “it is critical that a random or sequential number generator be utilized to constitute an ATDS”; but the Montanez court came to the opposite conclusion in applying this rule. Taking the allegations as true, the court found that Montanez sufficiently alleged that the system was an ATDS and denied Future Vision Brain Bank’s motion to dismiss.
To read the opinion in Montanez v. Future Vision Brain Bank, LLC, click here.
McEwen v. National Rifle Association of America, et al., No. 2:20-cv-00153, 2021 WL 1414273 (D. Me. Apr. 14, 2021)
At the pleadings stage, the U.S. District Court, District of Maine found that a plaintiff must allege that the system in question actually used a random or sequential number generator rather than simply alleging that the system has the capacity to do so. Plaintiff Travis McEwen alleged receipt of numerous calls from an NRA telemarketing campaign conducted by InfoCision, even after asking that his number be taken off the list. McEwen alleged that the calls were made using a dialing system with the capacity to store or produce telephone numbers to be called using a random or sequential number generator. Importantly, however, McEwen’s allegations did not state that the system actually used a random or sequential number generator to place its calls. The court focused on the difference between the system having the capacity to use a random or sequential number generator and the actual use of that random or sequential number generator to make the calls in question. The court stated: “After the [Facebook] opinion, the ATDS portion of the claim requires an allegation that InfoCision used a random or sequential number generator to place a call to Plaintiff’s cell phone, not merely a claim that its dialing system has that capability … . Plaintiff’s allegations do not state that InfoCision used a random or sequential number generator to place its calls to Plaintiff.”
To read the opinion in McEwen v. National Rifle Association of America, et al., click here.
Key takeaway: Courts are still grappling with the use versus capacity issue—whether it is enough for the system to have the capacity to use a random or sequential number generator, as in Atkinson, or if the actual use of a random or sequential number generator in making the calls is required, as in McEwen and Montanez.
Random or Sequential Number Generator: Selection of Numbers From a Preproduced List
Several other cases examine systems that use a random or sequential number generator to select the order in which numbers are to be dialed from a preproduced list. While three cases found that these systems are not ATDSs within the meaning defined in Facebook, two other courts found that this functionality may be sufficient to demonstrate that the system was an ATDS.
McEwen v. Nat’l Rifle Ass’n of Am., No. 2:20-CV-00153-LEW, 2021 WL 5999274 (D. Me. Dec. 20, 2021)
U.S. District Judge Lance E. Walker granted the Plaintiff’s motion for leave to file a second amended complaint in light of the standard articulated in Facebook. The Plaintiff alleged that the defendant’s system was, or was similar to, an “automated predictive dialing service” that calls “a list of people according to a prescribed list of rules.” The Plaintiff further alleged that the system maintains one or more lists of phone numbers, which are automatically plucked from the list using an algorithm and robotically dialed in the order in which they are picked. The court found that “a device that calls phones [sic] numbers from a ‘preproduced list’ may still be an ATDS, so long as it ‘use[s] a random [or sequential] number generator to determine the order in which to pick’ the numbers from the list or otherwise stores the list of numbers using a random or sequential number generator.”
To read the opinion in McEwen v. Nat’l Rifle Ass’n of Am., click here.
Tehrani v. Joie De Vivre Hospitality, LLC, No. 19-CV-08168-EMC, 2021 WL 3886043 (N.D. Cal. Aug. 31, 2021)
Judge Edward Chen of the U.S. District Court, Northern District of California denied a motion for leave to file a third amended complaint, finding Plaintiff’s proposed allegations that defendant’s system “uses a list of preexisting phone numbers,” “generates an index number” using either a random or sequential number generator, and then “assigns the generated numbers to phone numbers from the list” before selecting which numbers to automatically dial, were not sufficient to state a plausible claim under the TCPA. The court rejected the Plaintiff’s argument that a number generator “does not actually have to generate phone numbers,” citing Hufnus, Watts, Barry, Borden and Timms with approval.
To read the opinion in Tehrani v. Joie De Vivre Hospitality, LLC, click here.
Watts v. Emergency Twenty Four, Inc., No. 20-cv-1820, 2021 WL 2529613 (N.D. Ill. June 21, 2021)
The U.S. District Court, Northern District of Illinois granted a motion to dismiss, finding allegations that the system was capable of contacting thousands of people per day were insufficient to show that it was an ATDS under Facebook, particularly when the calls were made to numbers on a preproduced list. Emergency Twenty Four (EMERgency24) provides burglar and fire alarm monitoring. Its system is programmed to call stored telephone numbers to notify a customer when the company receives a signal from that customer’s alarm. Plaintiff Preston Watts’ cell phone number was listed on the account for his former employer, and Watts received calls from EMERgency24 in connection with alarms tripped at his former employer’s business. While Watts alleged that the system was “capable of contacting thousands of people a day,” the court focused on the fact that Watts did not allege that the system actually used a random or sequential number generator. The court found that “instead of randomly or sequentially generating Watts’[] number, EMERgency24’s equipment stored Watts’[] number in a database and dialed that stored number.” The court found that Watts’ allegations were insufficient under Facebook to show that the system was an ATDS and granted EMERgency24’s motion to dismiss.
To read the opinion in Watts v. Emergency Twenty Four, Inc., click here.
Carl v. First National Bank of Omaha, No. 2:19-cv-00504, 2021 WL 2444162 (D. Me. June 15, 2021)
The U.S. District Court, District of Maine found that a system that chooses phone numbers from a preproduced list might fall within the Facebook definition of an ATDS. When Plaintiff David Carl became past due on his First National Bank of Omaha (FNBO) credit card, FNBO used a LiveVox Voice Portal Dialing System to place between one and six calls per day to Carl’s cell phone. The court found that there was a “trialworthy question” as to whether the Voice Portal system had the capacity to store a telephone number using a random or sequential generator. However, the court also questioned whether the call campaigns FNBO loaded into the system actually involved the use of the random or sequential number generator. Unlike the courts in Hufnus, Timms and Watts, this court interpreted Facebook to say that a system could potentially qualify as an ATDS if it used a random number generator to determine the order in which to pick phone numbers from a preproduced list and stored those numbers to be dialed at a later time. The court ultimately granted FNBO’s motion for summary judgment, but on grounds not related to the ATDS argument.
To read the opinion in Carl v. First National Bank of Omaha, click here.
Hufnus v. DoNotPay, Inc., No. 20-cv-08701, 2021 WL 2585488 (N.D. Cal. June 14, 2021)
The U.S. District Court, Northern District of California granted the defendant’s motion to dismiss on ATDS grounds, finding that a platform that selects and contacts phone numbers provided by customers from a preproduced list is not an ATDS. DoNotPay argued that the platform it used to contact the Plaintiff, Mathew Hufnus, “merely processes” phone numbers supplied by consumers while signing up for DoNotPay’s services. Although Hufnus alleged that the system (1) stores those numbers in a random and/or sequential way, (2) uses a random and/or sequential generator to pull from the list of numbers to send targeted text messages, and (3) uses a random and/or sequential generator to determine the sequence in which to send messages, the court rejected his argument that these features show that the system is an ATDS. Rather, the court focused on the fact that “the platform only contacts phone numbers specifically provided by consumers during DoNotPay’s registration process and not phone numbers identified in a random or sequential fashion.” Because the list itself was created in a way that was nonrandom and nonsequential, the court found that the system did not meet the TCPA’s definition of an ATDS, even if the system then randomly or sequentially dialed numbers from that preproduced list.
To read the opinion in Hufnus v. DoNotPay, Inc., click here.
Timms v. USAA Federal Savings Bank, No. 3:18-cv-01495, 2021 WL 2354931 (D.S.C. June 9, 2021)
The U.S. District Court, District of South Carolina granted a motion for summary judgment, finding that Aspect Unified IP (Aspect UIP) and Aspect Agent Initiated Contact (Aspect AIC) are not ATDSs under the Facebook definition. USAA Federal Savings Bank argued that Aspect UIP and Aspect AIC were not ATDSs because neither stored or produced telephone numbers using a random or sequential number generator. Instead, both dial numbers from a preproduced list provided to them. Plaintiff Margueritte Timms argued that, under Facebook, a system need only have the capacity to store or produce numbers using a random or sequential generator to be an ATDS, and she also argued that the system’s ability to use a random number generator to determine the order in which numbers are dialed from a preproduced list qualifies it as an ATDS. The court rejected both of Timms’ arguments, finding that even though “the automatic dialing capability alone is not enough to qualify a system as an ATDS,” Timms had introduced no evidence that the systems even had the capability to use a random or sequential number generator. Rather, the court found that both systems were “capable of making telephone calls only to specific telephone numbers from dialing lists created and loaded by” USAA, and that the systems “cannot store or produce telephone numbers using a random or sequential number generator.” The court further found that Aspect UIP’s use of a predictive dialer mode is not evidence that the system is an ATDS. Thus, using the Facebook definition, the court found that both systems were not ATDSs and granted USAA’s motion for summary judgment.
To read the opinion in Timms v. USAA Federal Savings Bank, click here.
Key takeaway: Courts have not yet reached consensus about whether a system that randomly or sequentially chooses numbers from a preproduced list falls within the Facebook definition of an ATDS, although the majority of the early case law weighs in favor of finding that such systems are not ATDSs.
Other ATDS Cases Acknowledging the Supreme Court’s Interpretation
Two additional recent post-Facebook cases discuss the Supreme Court’s reading of the ATDS definition but do not apply that definition to determine whether any particular system qualifies as an ATDS.
Barton v. Temescal Wellness, LLC, No. 20-40114, 2021 WL 2143553 (D. Mass. May 26, 2021)
In March 2021, before the Supreme Court decided Facebook, a Massachusetts district court decided Barton v. Temescal Wellness (Barton I). The court found that texts can be considered “calls” within the meaning of the TCPA, and it used pre-Facebook standards to conclude that the system in question could be considered an ATDS. In May 2021, after the Facebook decision, Temescal Wellness petitioned the court to reconsider its March decision in light of Facebook. On reconsideration, the court did not assess whether the system before it might constitute an ATDS under the new Facebook decision. Rather, in its second opinion, Barton v. Temescal Wellness (Barton II), the court found that the Facebook decision did not examine whether the TCPA regulated text messages, and reiterated its earlier holding that “text messages fall within the ambit of the TCPA.”
To read the opinion in Barton v. Temescal Wellness, LLC, click here.
Camunas v. National Republican Senatorial Committee, No. 21-1005, 2021 WL 2144671 (E.D. Pa. May 26, 2021)
Although this case was decided post-Facebook and cited Facebook for its definition of an ATDS as equipment with the “capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers,” the U.S. District Court, Eastern District of Pennsylvania did not examine whether the system in question used a random or sequential number generator. Rather, at the pleadings stage, the court relied on pre-Facebook factors, including the absence of a relationship between the parties, the nature of the message, the length of the sending number (i.e., short vs. long codes) and the number of messages for its ATDS assessment. Ultimately, the court found that the system in question was not an ATDS based on those pre-Facebook elements and granted a motion to dismiss the TCPA claim.
To read the opinion in Camunas v. National Republican Senatorial Committee, click here.