In Gadelhak v. AT&T, here, the Court of Appeals for the Seventh Circuit disagreed with the Ninth Circuit’s decision in Marks, finding that an ATDS requires that a system store or produce numbers using a random or sequential number generator. We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that “using a random… Read More
In Ewing v. Pollard, No. 19-CV-855-CAB-BGS, 2020 U.S. Dist. LEXIS 22659 (S.D. Cal. Feb. 10, 2020), Judge Bencivengo dismissed a TCPA case due to calls being manually dialed. This section of the TCPA prohibits "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing… Read More
In Beal v. Outfield Brew House, No. 2:18-cv-4028-MDH, 2020 U.S. Dist. LEXIS 22487 (W.D. Mo. Feb. 10, 2020), Judge Harpol granted summary judgment to a TCPA defendant, rejecting the 9th Cir.’s decision in Marks. Plaintiff urges the Court to follow the Ninth Circuit's opinion, which found the statutory definition of an ATDS ambiguous and interpreted an ATDS to include devices… Read More
In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is. Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made… Read More
In Glasser v. Hilton Grand Vacations Company, LLC, (No. 18-14499), the Court of Appeals for the Eleventh Circuit held that the Court of Appeals for the Ninth Circuit got it wrong in Marks. After they each received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, Melanie Glasser and Tabitha Evans sued the… Read More
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
