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CEB Prac. Guide § 2B.23: ATDS

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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 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

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