CEB Prac. Guide § 2B.23: ATDS

In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More

In DeNova v. Ocwen Loan Servicing, LLC, No. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fla. Sep. 24, 2019), Judge Merryday overruled the Magistrate’s ruling that an Aspect dialing system was an ATDS. Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova's delinquent mortgage, used an "Aspect predictive dialing system"… Read More

In Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sep. 9, 2019), Judge Alonso found that no ATDS was used to send text messages and granted summary judgment against a TCPA Plaintiff. While this Court might quibble with the grammatical analysis of Pinkus in some particulars, it agrees with its central insight that… Read More

In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls. Ocwen contends summary judgment on the Browns' TCPA claims is warranted because its Aspect dialer is not… Read More

In Morgan v. On Deck Capital, No. 3:17-CV-00045, 2019 U.S. Dist. LEXIS 147757, at *3-4 (W.D. Va. Aug. 29, 2019), Judge Moon denied summary judgment to a TCPA defendant who argued that 'manual mode' of a dialer system disqualified the system from being an ATDS.  The facts were as follows: Defendant On Deck Capital is an online lender that offers financing… Read More

In Gentleman v. Massachussetts Higher Educ. Assistance Corp., No. 16-cv-03096, 2019 U.S. Dist. LEXIS 135684 (N.D. Ill. Aug. 12, 2019), Judge Coleman granted summary judgment against a TCPA plaintiff because calls were not placed using an ATDS. Delta contends that summary judgment in their favor is warranted because there is no evidence to establish that Delta used an automatic telephone… Read More

In Smith v. Navient Sols., LLC, No. 3:17-191, 2019 U.S. Dist. LEXIS 131231 (W.D. Pa. Aug. 4, 2019), Judge Gibson granted summary judgment against a TCPA plaintiff. The Court agrees with the reasoning in these cases. Predictive dialers do not necessarily qualify as ATDSs under the plain language of the statute or the Third Circuit's guidance in Dominguez. To reiterate,… Read More

In Snow v. Ge, No. 5:18-CV-511-FL, 2019 U.S. Dist. LEXIS 99760 (E.D.N.C. June 14, 2019), Judge Flanagan dismissed a TCPA text message case. Although the Fourth Circuit and courts within this circuit have not addressed the split between these courts and Marks, the court finds the Dominguez approach better comports with the plain language of the statue. The statute unambiguously… Read More

In Duguid v. Facebook, Inc., No. 17-15320, 2019 U.S. App. LEXIS 17675 (9th Cir. June 13, 2019), the Court of Appeals for the Ninth Circuit again addressed its prior decision in Marks on the subject of what constitutes use of an ATDS under the TCPA.  Ruling on an appeal from a motion to dismiss, the Ninth Circuit Court of Appeals… Read More

In Espejo v. Santander Consumer United States, No. 11 C 8987, 2019 U.S. Dist. LEXIS 98445 (N.D. Ill. June 12, 2019), Judge Kocoras denied an automobile finance company’s summary judgment on whether they used an ATDS.  The facts were as follows: The underlying facts in this case are detailed in our prior opinion,1 and the Court provides only a brief… Read More