In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found “use” of an ATDS adequately pleaded.
In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at 1052. The court reasoned that Congress clearly intended to target equipment with the capacity to automatically dial, rather than equipment that without any human oversight or control, when referring to the device as an “automatic telephone dialing system.” Ibid. (Citing 47 U.S.C. § 227(a)(1); (see citing ACA Int’l, 885 F.3d at 703); (emphasis in original). Ultimately, the Ninth Circuit held “the term [ATDS] means equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person)[.]” Under Marks, the SAC clearly alleges that an ATDS was used in this case. The SAC alleges that Twilio customers, like Lyft, access the platform in order to: (1) create message content or portions of content, (2) upload and store content and/or telephone numbers, and (3) automatically send text messages to the stored list of cellular telephone numbers. Id. at ¶¶24-25, 29. Additionally, it is alleged that Lyft uses the Twilio text messaging platform to send notifications en masse to a stored list of cellular telephone numbers without the need of individuals to dial the numbers. Id. at ¶¶ 18-22. As such, the Court finds that the Twilio platform has the capacity to meet each hallmark of an ATDS. Accordingly, the Court DENIES Lyft’s motion to dismiss for failure to sufficiently allege use of an ATDS.