CEB Prac. Guide § 2B.23: ATDS

In Brickman v. Facebook, Inc., No. 16-cv-00751-WHO, 2021 U.S. Dist. LEXIS 175700, at *10-12 (N.D. Cal. Sep. 15, 2021), Judge Orrick dismissed a TCPA case at the pleadings stage. I recognize that some courts have considered the determination of whether a plaintiff has plausibly shown the use of an ATDS covered by Duguid to be more appropriately resolved on summary… Read More

In Borden v. Efinancial, LLC, No. C19-1430JLR, 2021 U.S. Dist. LEXIS 153086, at *13-16 (W.D. Wash. Aug. 13, 2021), Judge Robart dismissed a TCPA case based on Duguid.   In this context, Mr. Borden's allegations are insufficient to establish that eFinancial's system is an ATDS. He alleges that eFinancial's system uses a sequential number generator to select which stored phone numbers to… Read More

In Loyhayem v. Fraser Fin. & Ins. Servs., No. 20-56014, 2021 U.S. App. LEXIS 23660, at *2-8 (9th Cir. Aug. 10, 2021), the Court of Appeals for the 9th Circuit held that a TCPA plaintiff adequately pleaded a claim for relief for a call that left a pre-recorded message. The plaintiff in this case, Jonathan Loyhayem, filed this action under the… Read More

In Hufnus v. Donotpay, Inc., No. 20-cv-08701-VC, 2021 U.S. Dist. LEXIS 118325, at *1-5 (N.D. Cal. June 24, 2021), Judge Chhabria dismissed a TCPA claim on the basis that defendant did not call using an ATDS. DoNotPay's motion to dismiss is granted. To state a claim under the Telephone Consumer Protection Act (TCPA), Hufnus must allege that DoNotPay sent messages using… Read More

In Timms v. Usaa Fed. Sav. Bank, No. 3:18-cv-01495-SAL, 2021 U.S. Dist. LEXIS 108083, at *8 (D.S.C. June 9, 2021), Judge Lydon ruled against a TCPA plaintiff on whether an aspect dialer was an ATDS after Duguid.  Defendant's Motion submits that it is entitled to judgment as a matter of law on the TCPA claim because it did not use an ATDS… Read More

In Facebook, Inc. v. Duguid (No. 19-511) (2021), the Supreme Court of the United States ruled that The question before the Court is whether that definition encompasses equipment that can “store” and dial telephone numbers, even if the device does not “us[e] a random or sequential number generator.” It does not. To qualify as an “automatic telephone dialing system,” a device… Read More

In In Stoutt v. Travis Credit Union, No. 2:20-cv-01280 WBS AC, 2021 U.S. Dist. LEXIS 57392 (E.D. Cal. Mar. 24, 2021), Judge Schubb certified the Creasy TCPA issue for review by the 9th Circuit.  The facts were as follows: In this putative class action, plaintiff Shawntel Stoutt claims that defendant Travis Credit Union violated § 227(b)(1)(A)(iii) of the Telephone Consumer Protection… Read More

In Ewing v. Freedom Forever Ltd. Liab. Co., No. 20-cv-880-JLS (AHG), 2021 U.S. Dist. LEXIS 53561 (S.D. Cal. Mar. 22, 2021), Judge Sammartino dismissed part of a TCPA claim, but let the balance proceed.   Judge Sammartino held that some of the calls were barred by the statute of limitations, but still remained relevant. Defendants argue that "most of Plaintiff's… Read More

In Akselrod v. Marketpro Homebuyers LLC, No. CCB-20-2966, 2021 U.S. Dist. LEXIS 5253 (D. Md. Jan. 11, 2021), Judge Blake denied staying a TCPA case when the case did not turn of the definition of an ATDS. In order to succeed on its autodialing claim, Akselrod must prove that the communications he received were made using an automated telephone dialing… Read More

In Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-cv-02072-MCS-SP, 2020 U.S. Dist. LEXIS 239730 (C.D. Cal. Dec. 21, 2020), Judge Scarsi rejected the argument that Barr created a finite period of constitutional infirmity for the TCPA. Defendant does not present any authority deeming a statute ineffective, in whole or in part, where the statute suffered a finite period of constitutional infirmity… Read More