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 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 Hildre v. Heavy Hammer, No. 3:20-cv-00236-L-LL, 2021 U.S. Dist. LEXIS 35294 (S.D. Cal. Feb. 24, 2021), Judge Lorenz dismissed a TCPA claim. Here, Plaintiff received two calls from Defendants. (Compl. ¶¶ 15-16). The first call occurred on June 15, 2019. (Id. at ¶ 15). The second call occurred on December [*4] 3, 2019. (Id. at ¶ 16). Plaintiff alleges there… Read More
In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More
In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found "use" of an ATDS adequately pleaded. In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at… 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 Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l. Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it… Read More
In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International. Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to… Read More
In Lord v. Kisling, Nestico & Redick, LLC, 2018 WL 3391941, at *3 (N.D.Ohio, 2018), Judge Nugent found that a TCPA Plaintiff did not plead sufficient facts demonstrating that an ATDS was used under the standard set forth by the D.C. Circuit's decision in ACA International. For the telephone system KNR allegedly uses to constitute a violation of the TCPA,… Read More
In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int'l. Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC's rulings with regard to definitions of an ATDS were vacated and, thus,… Read More
In Rhinehart v. Diversified Central, Inc., 2018 WL 372312, at *10 (N.D.Ala., 2018), Judge Hopkins dismissed a TCPA claim and found that an FDCPA claim failed to state facts sufficient to constitute a cause of action. Note that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any… Read More
In Abante Rooter & Plumbing v. Farmers Group, Inc., 2018 WL 288055, at *6 (N.D.Cal., 2018), Judge Hamilton found that a TCPA Plaintiff had adequately pleaded use of an ATDS used by an alleged Farmers representative in a telemarketing campaign, but found that the Plaintiff had failed to plead enough facts to demonstrate that Farmers should be responsible for the alleged… Read More
In Flores v. Adir International, LLC, 2017 WL 1101103, at *1 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said that a TCPA Plaintiff pleaded enough to show the use of an ATDS. Flores alleged facts sufficient to permit the district court to reasonably infer that Adir used an ATDS, as the TCPA defines that term, to… Read More
In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer. Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More
In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff's First Amended Complaint attempting to plead use of an ATDS. Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone… Read More
In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More
In Smith v. Aitima Medical Equipment, Inc., here, Judge Birotte dismissed a TCPA claim based on lack of Art. III standing. In Szumilas v. CBE Group, LLC., here, however, Judge Birotte found Art. III standing in a TCPA case. The difference between the two outcomes seemed to be the volume of the calls. Read More
In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More
In Weisberg v. Stripe, Inc., 2016 WL 3971296, at *4–5 (N.D.Cal., 2016), Judge Tigar dismissed a TCPA case at the pleadings stage for wont of pleading an ATDS. Plaintiff further relies on the case of Harnish v. Frankly Co., in which the court held that allegations claiming that text messages were sent “en masse,” had “generic” and “impersonal” content, and… Read More
In Izsak v. Draftkings, Inc., 2016 WL 3227299, at *3-5 (N.D.Ill., 2016), Judge Wood found that a TCPA Plaintiff pleaded enough to get past the pleadings stage. This Court agrees with the view that where a fact—here, use of an ATDS—is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details.”… Read More
