Manatt’s Continuing Coverage on Significant Post-ACA International Developments

TCPA Connect

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The uncertainty surrounding the proper definition of an automatic telephone dialing system (ATDS) remains as courts continue to issue differing opinions on the issue. Nearly two years after the D.C. Circuit’s landmark decision in ACA International (ACA) striking down the Federal Communications Commission’s (FCC) overly expansive 2015 definition, courts continue to debate whether ACA left prior FCC guidance intact, resulting in varying interpretations across the country of what constitutes an ATDS.

The Second, Third and Ninth Circuits remain the only appellate courts weighing in significantly to date, and the FCC has not issued any new guidance to help clear up the debate. At the district court level, the courts in the Ninth Circuit continue to follow the Ninth Circuit’s plaintiff-friendly decisions in Marks v. Crunch San Diego and Duguid v. Facebook, which reaffirmed Marks, and others follow either Marks or, to a slightly greater extent, the Second Circuit’s opinion in King v. Time Warner Cable and/or the Third Circuit’s opinion in Dominguez v. Yahoo, both of which arguably favor defendants.

Since our last update, we have observed no significant shift in how the district courts are interpreting ACA or defining an ATDS—i.e., still a little over half of the district court cases we have reported on have found when applying ACA that there was an ATDS (though plaintiffs seem to be surviving dismissal slightly more often than in previous months); a little over a third have held that ACA invalidated all prior FCC orders defining an ATDS (though many have declined to discuss this issue at all); and about one-fifth have found that human intervention was a deciding factor as opposed to just the 2015 order discussed in ACA. The Second Circuit continues to lead the way with the highest number of post-ACA district-level decisions, followed closely by the district courts of the Ninth, Eleventh and Seventh Circuits. Only one significant district-level opinion has been issued in the past month, and it is from the Eighth Circuit, which has yet to weigh in heavily on the issue.

As part of our continuing coverage in this area, Manatt’s TCPA team monitors and reports on significant developments at the FCC and on noteworthy (i.e., dispositive or class certification-related) federal district- and appellate-level decisions interpreting, applying or otherwise evaluating ACA in ways that may impact our readers. To read all our previous articles on post-ACA developments, please click here. The past month has seen few decisions involving disputes over the definition of an ATDS. A summary of the most significant opinion is provided below.

Yashtinsky v. Walmart, Inc., No. 5:19-cv-5105, 2019 WL 5986708 (W.D. Ark. Nov. 12, 2019)

On Walmart’s motion to dismiss, U.S. District Judge Timothy L. Brooks held that even under the Second and Third Circuits’ narrower definition of ATDS, the plaintiff sufficiently alleged that Walmart contacted him using an ATDS. The court began by outlining the circuit split that has arisen between the Second, Third and Ninth Circuits, and noted that “[t]he Eighth Circuit has not had an opportunity to opine on this issue.” With these “battling interpretations” in mind, the court held that “Mr. Yashtinsky’s Complaint plausibly alleges the use of an auto-dialer with the present capacity to randomly generate telephone numbers to be called, which comports with the narrower interpretation of an ATDS as adopted by the Second and Third Circuits.” The court continued that at the pleading stage, given the lack of discovery, “it would be improper to require a plaintiff to plead technical particulars of an ATDS.” Even still, the court found that the plaintiff pleaded sufficient additional facts to support the inference that “an auto-dialer with the present capacity to randomly generate telephone numbers was used to send the offending text messages.” These facts included that the text messages were sent from a short code number, contained general content and were sent “en masse.” The court did not expressly adopt the Second and Third Circuits’ approach, instead qualifying its decision by stating that the plaintiff’s complaint would survive even if that were the applicable standard. The court concluded by commenting that “[w]hether these allegations can be proven is a question to be decided at the summary judgment stage.”

To read the full opinion in Yashtinsky v. Walmart, Inc., click here.

A Numerical Overview of Post-ACA International Cases

At the time of publication of this edition of TCPA Connect, the overall landscape of post-ACA International case law breaks down as follows (changes reflected in bold):

Case Law by FCC Order Validity

  • 17 cases say all FCC orders invalidated
  • 34 cases say only some/part of FCC orders invalidated

Case Law by Circuit

  • 2 cases from the First Circuit district courts
  • 19 cases from the Second Circuit district courts and 1 from the Second Circuit
  • 9 cases from the Third Circuit district courts and 1 from the Third Circuit
  • 2 cases from the Fourth Circuit district courts
  • 1 case from the Fifth Circuit district courts
  • 6 cases from the Sixth Circuit district courts
  • 12 cases from the Seventh Circuit district courts
  • 3 cases from the Eighth Circuit district courts
  • 14 cases from the Ninth Circuit district courts and 2 from the Ninth Circuit
  • 3 cases from the Tenth Circuit district courts
  • 13 cases from the Eleventh Circuit district courts

Case Law by Appellate Level

  • 4 appellate-level cases (Second, Third and Ninth Circuits)

Case Law by Autodialer Decision

  • 40 cases where autodialer was found
  • 31 cases where autodialer was not found
  • 13 cases where human intervention was a deciding factor in determining that the system was not an ATDS

To read all our previous articles on post-ACA International developments, please click here.