In Komaiko v. Baker Techs., No. 19-cv-03795-DMR, 2020 U.S. Dist. LEXIS 143953 (N.D. Cal. Aug. 11, 2020), Magistrate Judge Ryu denied a stay in a TCPA case pending SCOTUS review of the Duguid case.
At issue in Duguid is the definition of ATDS in the TCPA, and specifically whether that definition “encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'”2 Sup. Ct. Docket No. 19-511, Petition for a Writ of Certiorari, at ii (Oct. 17, 2019). The Third, Seventh, and Eleventh and have read the TCPA to apply only to devices with the capacity to “generat[e] random or sequential telephone numbers and dial[] those numbers.” Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018); see also Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461 (7th Cir. 2020) (holding that the TCPA did not apply to a system that dialed numbers from “an existing database of customers rather than randomly generating them”); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306-10 (11th Cir. 2020) (finding that a system with the capacity to automatically dial a stored list of telephone numbers was not an ATDS). By contrast, the Ninth and Second Circuits have held that “the statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator, but also includes devices with the capacity to dial stored numbers automatically.” Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018); see also Duran v. La Boom Disco, Inc., 955 F.3d 279, 287 (2d Cir. 2020) (“[W]e hold that an ATDS may call numbers from stored lists, such as those generated, initially, by humans.”). According to Baker, the issue before the Supreme Court in Duguid is dispositive in this case. It points out that Plaintiffs’ allegations only accuse its software of sending texts from lists of customer data, not randomly generating numbers. While these allegations are currently sufficient to impose TCPA liability in the Ninth Circuit, Baker asserts that a reversal by the Supreme Court would eliminate Plaintiffs’ case. However, Baker is notably evasive on a key fact: whether its software has the capacity to generate random numbers and call them, regardless of whether it used that capacity in sending the texts at issue. The Ninth Circuit has definitively held that a system “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield, 569 F.3d at 951; see also King v. Time Warner Cable Inc., 894 F.3d 473, 480 (2d Cir. 2018) (“[T]he TCPA applies to calls from a device that can perform the functions of an autodialer, regardless of whether it has actually done so in a particular case.”). This is a separate question than the one before the Supreme Court in Duguid. Even if the Ninth Circuit is incorrect that a device that can store and automatically dial numbers is an ATDS, such a conclusion would not necessarily invalidate its interpretation of the term “capacity.” In other words, under Ninth Circuit precedent that is not before the Supreme Court in Duguid, Baker’s technology could still be considered an ATDS under Ninth Circuit law if it has the capacity to store or produce numbers “using a random or sequential number generator,” regardless of whether it was being used for that purpose when it sent texts to the dispensaries’ customers. Notably, the Eleventh Circuit, which split from the Ninth Circuit on the random generation issue, still recognized that the TCPA “applies to devices that have the ‘capacity’ to identify randomly generated numbers; it does not require that capacity to be used in every covered call.” Glasser, 948 F.3d at 1312. In sum, it is not clear that a reversal in Duguid would be dispositive in this case. This consideration is highly relevant to whether a stay is warranted.