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
In Northrup v. Innovative Health Ins., No. 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851, at *12-21 (M.D. Fla. Feb. 25, 2020), Judge Honeywell granted summary judgment to a TCPA defendant. The Eleventh Circuit's holding that a device qualifies as an ATDS only if it uses a random or sequential number generator resolved a large part of the consolidated appeals. One of… Read More
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
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
In Melvin v. Ocwen Loan Servicing LLC, No. 8:18-cv-1911-T-36SPF, 2019 U.S. Dist. LEXIS 74995, at *12-14 (M.D. Fla. May 3, 2019), Judge Honeywell found that a TCPA Plaintiff had adequately pleaded use of an ATDS. The Court is persuaded by the reasoning in Gonzalez and Adams and concludes that the portion of the 2003 FCC Order pronouncing that the TCPA… Read More
In Gadelhak v. At&T Servs., No. 17-cv-01559, 2019 U.S. Dist. LEXIS 55200 (N.D. Ill. Mar. 29, 2019), Judge Chang dismissed a TCPA claim for absence of use of an ATDS. Because ACA International invalidated the Commission's prior orders defining the term ATDS—and also declined to articulate their own definition of the term—the Court moves on to interpreting the TCPA unburdened… Read More
In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096 (S.D.N.Y. Mar. 28, 2019), Judge Swain found that a LiveVox system constituted an ATDS under the TCPA. The Court next turns to the question of whether the LiveVox system at issue in this case is a predictive dialer within the meaning of the FCC's… Read More
