District Court (Ill.) Finds TCPA Class/Use of ATDS Adequately Pleaded

In Sojka v. DirectBuy, Inc., 2014 WL 1304234 (N.D.Ill. 2014), Judge Feinerman found a TCPA class action adequately pleaded.  The facts were as follows:

In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by making telemarketing calls and sending text messages to Plaintiffs and other persons without their prior consent. Docs. 54, 103. Count I of the operative complaint alleges that DirectBuy made unsolicited telephone calls to the Sojkas, Hartowicz, Gilliam, and other members of the putative “RoboCall class” using an artificial or pre-recorded voice, in violation of §§ 227(b)(1)(A)(iii) and (b)(1)(B). Doc. 103 at ¶¶ 52–58. Count II alleges that DirectBuy sent unsolicited text messages to Gilliam and other members of the puta-tive “Text Message class” using an automated dialing system, in violation of § 227(b)(1)(A)(iii). Id. at ¶¶ 59–65. Count III alleges that DirectBuy made more than one call within a twelve-month period to the Sojkas and other members of the putative “Do Not Call class” who had registered their phone numbers on the federal “do-not-call” registry, in violation of § 227(c)(5). Id. at ¶¶ 66–77.  DirectBuy moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts I and II. Doc. 69.

The District Court, acknowledging a split of authority on the standard, found that the Plaintiff had adequately pleaded the use of an ATDS.

As Plaintiffs observe in response, and as Direct-Buy itself recognizes, Doc. 82 at 6, there is a conflicting line of cases holding that “merely reciting the statutory definition of an ATDS or alleging that a defendant used an artificial or prerecorded voice suffices at the pleading stage.” Doc. 92 at 6; see Blair v. CBE Grp. Inc., 2013 WL 2029155, at *4 (S.D.Cal. May 13, 2013) (holding that the plaintiff stated a TCPA claim where the complaint alleged that “Defendant used an automatic telephone dialing system which had the capacity to produce or store and dial numbers randomly or sequentially, to place telephone calls to Plaintiff’s cellular telephone and/or used an artificial or pre-recorded voice message system, to place telephone calls to Plaintiff’s cellular telephone”) (collecting cases); Torres v. Nat’l Enter. Sys., Inc., 2012 WL 3245520, at *3 (N.D.Ill. Aug. 7, 2012) (same, where the plaintiff “expressly alleges repeatedly in her amended complaint that [the defendant] used an automatic telephone dialing system,” and rejecting the defendant’s argument that “the amended complaint lacks sufficient details to plausibly suggest that [the defendant] used an automatic telephone dialing system,” reasoning that the defendant “is seeking to address evidentiary issues that are premature at this juncture” and that it would not “even be reasonable to hold plaintiffs in TCPA cases to the standard proposed by [the defendant] since it would be virtually impossible, absent discovery, for any plaintiff to gather sufficient evidence regarding the type of machine used for a communication left on a plaintiff’s voicemail”); In re Jiffy Lube Int’l, Inc., 847 F.Supp.2d 1253, 1260 (S.D.Cal.2012) (same, where the plaintiffs “have stated that they received a text message from an SMS short code and that the message was sent by a machine with the capacity to store or produce random telephone numbers,” explaining that “[w]hile additional factual details about the machines might be helpful, further facts are not required to move beyond the pleading stage”); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1010–11 (N.D.Ill.2010) (same, where the plaintiff “specifically alleges that Defendants used ‘equipment with the capacity to store or produce telephone numbers to be called, using a random or sequential number genera-tor’ ”). ¶  There is no need to choose sides between the conflicting lines of authority in this case because Plaintiffs satisfy the stricter pleading standard urged by DirectBuy. As Johansen puts it, under that standard, “a TCPA plaintiff could describe … anything … about the circumstances of a call or message contributing to his belief it was pre-recorded or delivered via an ATDS.” 2012 WL 6590551, at *3. In arguing that Plaintiffs “have merely parroted the language of the TCPA” and stated “conclusory allegations that DirectBuy, Inc. utilized a prerecorded voice in calling them or used an ATDS in sending the alleged text messages,” Doc. 82 at 6–7, Defendants fail to account for Plaintiffs’ non-conclusory factual allegations that satisfy the stricter standard. ¶  With respect to Count I, each plaintiff has alleged facts giving rise to the reasonable inference that Di-rectBuy made unsolicited telephone calls using an artificial or pre-recorded voice, in violation of §§ 227(b)(1)(A)(iii) and (b)(1)(B). The complaint de-scribes in detail five voicemails left for the Sojkas by DirectBuy from August 2012 to November 2012. Doc. 103 at ¶¶ 24–3 1.

The District Court then found that the Plaintiff had adequately pleaded the substance of the calls as well:

This court respectfully disagrees with Abbas and, to the extent (if any) it mirrors Abbas, Hanley. Rule 8(a)(2) does not require a TCPA plaintiff to plead every detail about every text message or telephone call placed. See Strickler, 2012 WL 5386089, at *2 (expressing “disagree[ment] with the Abbas court to the extent that it concludes that notice pleading requires a plaintiff alleging a TCPA violation to plead details about every text message allegedly sent,” and holding that allegations regarding the date and content of sixteen of fifty messages between September 2009 and May 2011 were sufficient). The court agrees with Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165 (N.D.Cal.2010), which rejected the defendant’s argument that “[t]here is no way to tell, what involvement, if any, [the defendant] had in the dissemination of the remaining eight text messages” not detailed in the complaint, reasoning as follows: [T]his misses the crux of [the plaintiff’s] putative class action under the TCPA. The core of the com-plaint is that Defendants each played a role in sending en masse unsolicited text messages to [the plaintiff] and possibly thousands of other individu-als. The Court finds persuasive [the plaintiff’s] argument that, because the TCPA is designed to combat mass unsolicited commercial telemarketing, at times involving thousands of calls or text messages, notice pleading standards do not require a plaintiff to allege details at the pleading stage about the time and context of every text message.  Id.at 1172. On that understanding of what is necessary to plead a TCPA claim, which this court adopts, DirectBuy’s second ground for dismissal fails.