CEB Prac. Guide § 2B.23: ATDS

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… Read More

In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043, 2020 U.S. App. LEXIS 23935 (6th Cir. July 29, 2020), the Court of Appeals for the Sixth Circuit followed Mark’s interpretation of the TCPA as to what constitutes an auto dialer. Here, again, we agree with the Second and Ninth Circuits [*15]  that the structure and context of the autodialer ban support… Read More

In Ruiz v. Hunt & Henriques, No. D075286, 2020 Cal. App. Unpub. LEXIS 4847 (July 29, 2020), in the context of an anti-SLAPP motion brought by the debt collection law firm, the Court of Appeal found that a debtor need not dispute the debt to challenge the amount of the debt stated. Hunt alternatively argues that Ruiz cannot recover under… Read More

In Panzarella v. Solutions, No. 18-3735, 2020 U.S. Dist. LEXIS 104746 (E.D. Pa. June 15, 2020), Judge Tucker granted summary judgment to a TCPA defendant on the basis that no ATDS was used under the TCPA. Plaintiffs, in arguing that the ININ system is an ATDS, point to the ININ user manual and a declaration from an expert, Randall Snyder.… Read More

In N. L. v. Credit One Bank, N.A., Nos. 19-15399, 19-15938, 2020 U.S. App. LEXIS 17434 (9th Cir. June 3, 2020), the Court of Appeals for the 9th Circuit followed Soppet and Osorio decisions regarding calls to recycled to cellular telephones. Credit One also attempts to draw support from certain orders of the FCC, which has authority to promulgate regulations implementing… Read More

In Calhoun v. FLRish, Inc., No. 19-cv-08212-JCS, 2020 U.S. Dist. LEXIS 84485, at *5-7 (N.D. Cal. May 13, 2020), Judge Spero stayed a TCPA pending the outcome of the SCOTUS' decision in Barr v. AAPC.  A number of other district courts have stayed TCPA cases claiming violations of the ATDS prohibition pending a decision in AAPC. See, e.g., Lacy v.… Read More

In Thompson v. Portfolio Recovery Assocs., No. 19-cv-62220-SINGHAL/Valle, 2020 U.S. Dist. LEXIS 72971, at *4-6 (S.D. Fla. Apr. 25, 2020), the District Court granted summary judgment to a debt collector in a TCPA case. A. The "Called Party".  From what can be gathered, it appears case law on the undefined term "called party" is rather thin. Nevertheless, PRA insists Plaintiff… Read More

In Duran v. La Boom Disco, Inc., No. 19-600-cv, 2020 U.S. App. LEXIS 10861, at *16-22 (2d Cir. Apr. 7, 2020), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Marks. The next question is whether the ExpressText and EZ Texting programs also have the second capacity required by the statute to be ATDSs—the "capacity… Read More

In DeCapua v. Metro. Prop. & Cas. Ins. Co., No. 18-590 WES, 2020 U.S. Dist. LEXIS 47695 (D.R.I. Mar. 18, 2020), Judge Smith granted a TCPA defendant’s motion to dismiss. The Court accepts the R&R's reasoning. See Glasser, 948 F.3d at 1312 ("Far from automatically dialing phone numbers, this system requires a human's involvement to do everything except press the… Read More

In Hagood v. Portfolio Recovery Assocs., LLC, No. 3:18-CV-1510-NJR, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. Mar. 19, 2020), Judge Rosenstengel followed the Gadelhak decision and granted summary judgment to a TCPA defendant, finding that no ATDS was used under the TCPA. Hagood argues that this definition of an ATDS should be construed to cover any device that automatically dials… Read More