Post-Facebook v. Duguid Litigation Roundup

TCPA Connect

As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable district-level decisions since our last roundup. However, while the results remain mixed, defendants have generally continued to fare well under the new ATDS standard. Courts also continue to reject what some have called the “Footnote 7” argument—referring to footnote 7 in the Facebook decision, where the Supreme Court suggested in dicta that randomly or sequentially selecting numbers from a predetermined list might qualify as an ATDS—with judges focusing on the generation, not the selection, of numbers.

Key takeaway: While Facebook gives 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.

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.

Motion to Dismiss Granted

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.

Motion for Summary Judgment Granted

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.

Motion for Summary Judgment Granted

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.

 

Motion to Dismiss Granted

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.

Motion for Summary Judgment Granted

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.

Motion to Dismiss Denied

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.

Courts Granting or Affirming Summary Judgement 

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.

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.

Courts Granting Motions to Dismiss 

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 

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 HufnusWattsBarryBorden 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 HufnusTimms 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.

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