In Brickman v. Meta (9th Cir. No. 21-16785), the Court of Appeals for the 9th Circuit is poised to rule on efforts to evade the SCOTUS' ruling in Duguid. According to the Respondent's Brief, the issue is framed as: This appeal involves an effort to evade the consequences of binding Supreme Court precedent that squarely forecloses Plaintiff’s claim. The Telephone Consumer Protection… Read More
In In re Portfolio Recovery Assocs., LLC, Consumer Act Litig., 2022 U.S. Dist. LEXIS 141028, at *30-34 (S.D. Cal. Aug. 8, 2022), Judge Houston stayed a TCPA case based on an ATDS issue currently pending before the 9th Circuit in Brinkman. Plaintiffs seek a stay of this action pending the resolution of Brickman v. Facebook, Inc., currently before the Ninth… Read More
In Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., No. 3:19-cv-592 (JAM), 2022 U.S. Dist. LEXIS 126468, at *6-8 (D. Conn. July 18, 2022), Judge Meyer disposed of the argument that Subway's text message software was an ATDS. And under Soliman's reading, the Act would probably cover much more than mass dialing. As she admits, sequential number generation is "an… Read More
In Panzarella v. Navient Sols., Inc., No. 20-2371, 2022 U.S. App. LEXIS 16324, at *11-12 (3d Cir. June 14, 2022), the Court of Appeals for the 3rd Circuit held that Navient's dialer was an ATDS, but it's ATDS-capacity was not "used" to call . As to the ATDS question, the Court of Appeals held: Applying this construction here, we find… Read More
In Mina v. Red Robin Int'l, Inc., Civil Action No. 20-cv-00612-RM-NYW, 2022 U.S. Dist. LEXIS 104423, at *10-16 (D. Colo. June 10, 2022), Judge Wang dismissed a TCPA case at the pleadings stage for absence of an ATDS under Duguid. [Defendant] maintains that Duguid does not foreclose a conclusion that the text messaging program used by Defendants constitutes an autodialer under… Read More
In Barnett v. First Nat'l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 104029, at *5-8 (W.D. Ky. June 10, 2022), Judge Boom denied a motion to reconsider a finding that the TCPA defendant's LiveVox system was not an ATDS. In his Motion, Barnett claims that the Court failed to consider FNBO's use of the TWX system in… Read More
In Demesa v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK, 2022 U.S. Dist. LEXIS 98511, at *8-9 (D. Nev. June 1, 2022), Judge Dorsey rejected a TCPA Plaintiff's attempted end-around Duguid, where the Plaintiff argued that a standard text message fell within section 47 U.S.C. § 227(b)(1)(B)'s prohibition against using "artificial or prerecorded voice" without consent. DeMesa's alternative theory of liability fares no better.… Read More
In Eggleston v. Reward Zone USA LLC, No. 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928, at *11-14 (C.D. Cal. Jan. 28, 2022), Judge Wilson dismissed a TCPA "pre-recorded voice" case premised on the theory that the standard text messages that she received did not constitute a "voice" under the TCPA. Plaintiff also alleges that Defendant's text messages violated § 227(b) because… Read More
In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2021 U.S. Dist. LEXIS 239583, at *23-30 (N.D. Cal. Dec. 14, 2021), Judge Spero granted summary judgment to a TCPA defendant on the basis that no ATDS was used. Based on the undisputed facts relating to Textedly's functionality, Plaintiff does not dispute that the text messages at issue in this case were not… Read More
In Raphael Aus. v. Alorica, Inc., No. 2:20-cv-05019-ODW (PVCx), 2021 U.S. Dist. LEXIS 240677, at *5-6 (C.D. Cal. Dec. 16, 2021), Judge Wright dismissed a TCPA claim but allowed a Rosenthal Act claim to proceed. As to the TCPA claim, Judge Wright held: The parties dispute whether alleging that a system calls a prepopulated list of customers or clients is… Read More
In In re Portfolio Recovery Assocs., LLC, No. 11md02295 JAH - BGS, 2021 U.S. Dist. LEXIS 216747, at *32-34 (S.D. Cal. Nov. 9, 2021), Judge Houston denied TCPA plaintiffs' request for further discovery from the dialer manufacturer on whether its product was an ATDS. On May 27, 2021, this Court granted Plaintiffs' motion seeking to reopen discovery for the limited… Read More
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
