In Strauss v. CBE Group, (Case No. 15-62026), here, Judge Cohn granted summary judgment to a debt collector on the basis that it’s point-and-click telephony software and hardware system did not constitute an ATDS under the TCPA.
Plaintiff has failed to create a material dispute regarding CBE’s use of an ATDS after April 15, 2014. The evidence clearly establishes that CBE made 24 calls using the MCA. And there appears to be no disagreement that the MCA, by itself, lacks the capability to dial predictively. At issue is whether the Noble equipment that the MCA utilized to connect calls was a predictive dialer or was otherwise classified as an ATDS when paired with the MCA. The overwhelming weight of the evidence indicates that it was not. Johnson testified that although CBE used a Noble Systems Predictive Dialer to call landlines, the MCA that CBE used to dial cell phones was not connected to a predictive dialer. DE 49-16 at 21:25–22:16, 61:7–12. Instead, after a CBE representative clicked to initiate a call, the MCA utilized Noble connecting devices called Corphost1 and Corpost2, which “only allow for pass-throughs particularly coming from the MCA application” and are “incapable of doing any type of automatic outbound dialing.” Id. at 110:6–15, 112: 9–16. According to Johnson, Corphost1 and Corpost2 are “completely independent and separate from the Noble predictive dialer,” and such equipment “cannot dial predictively, does not use a random or sequential number generator, and does not have the capacity to store, produce, or dial numbers using a random or sequential number generator.” DE 100-1 ¶¶ 27–28. Because CBE has presented substantial evidence that human intervention is essential at the point and time that the number is dialed using the MCA and that the Noble equipment used does not have the functionalities required to classify it as a predictive dialer, Defendants have made a prima facie showing that they are not liable as a matter of law for the calls made after April 15, 2014. Plaintiff primarily relies on the Report of its expert, Jeffrey A. Hansen, to establish that the Noble equipment used to place the calls to Plaintiff was in fact the Noble Systems Predictive Dialer. Hansen’s Report carefully details the capacities of the MCA and the Noble Systems Predictive Dialer that he believes CBE used. However, Hansen does not address the capabilities of Corphost1 and Corpost2, the Noble equipment that CBE claims to have actually used with the MCA. Nor does he explain why he does not believe that CBE used Corphost1 and Corpost2 to place the calls to Plaintiff. Instead,the Report merely assumes that CBE was using the same Noble dialing equipment to make all calls to Plaintiff and switching that equipment between “predictive and manual mode.” See DE 49 at 20. Thus, Hansen’s Report is insufficient to create a genuine issue of material fact regarding the dialing service that CBE used. Plaintiff also attempts to use Johnson’s testimony to show that a predictive dialer was used after April 15, but the excerpts Plaintiff cites do little more than establish that CBE uses a Noble Systems Predictive Dialer to call landlines, which is not directly relevant. Because Plaintiff has failed to create a material dispute over whether CBE placed calls to his cell phone using an ATDS for the 24 calls after April 15, 2014, his TCPA claims based on those calls fail as a matter of law. Summary judgment will be entered in favor of Defendants as to those claims.