In Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264, at *3–4 (9th Cir. Aug. 8, 2023), the Court of Appeals for the 9th Circuit held that to be a prerecorded voice message under the TCPA, the message must be audible. Prerecorded text messages which have no sound component are not voice messages within the statute's meaning even… Read More
In Scherrer v. FPT Operating Co., LLC, No. 19-CV-03703-SKC, 2023 WL 4660089, at *2–4 (D. Colo. July 20, 2023), Magistrate Crews denied a motion to dismiss a TCPA case addressing whether the Five9 system was an ATDS. The Supreme Court then continued in Footnote 7 to reject Duguid's argument that the patent cited by the Amici Curiae brief (and thus… Read More
In Pascal v. Concentra, Inc., No. 22-15033, 2023 U.S. App. LEXIS 8858, at *2 (9th Cir. Apr. 13, 2023), the 9th Circuit Court of Appeals summarily affirmed a TCPA dismissal. Pascal's argument that Concentra violated the TCPA when it messaged him using Textedly, an online text-messaging service, is foreclosed by our decision in Borden v. eFinancial, LLC, 53 F.4th 1230… Read More
In Brickman v. United States, No. 21-16785, 2022 U.S. App. LEXIS 35286, at *4-6 (9th Cir. Dec. 21, 2022), the Court of Appeals found no ATDS was used, and found no basis to distinguish its Borden decision. This case arises from the district court's dismissal with prejudice of Colin R. Brickman's class-action claim under the Telephone Consumer Protection Act (TCPA), 47 U.S.C.… Read More
In Weisbein v. Allergan, Inc., No. 8:20-cv-00801-SSS-ADSx, 2022 U.S. Dist. LEXIS 217844, at *4-7 (C.D. Cal. Dec. 2, 2022), Judge Sykes granted summary judgment to a TCPA defendant in text message class action. The crux of Plaintiff's claims is that Defendants sent automated text messages that violated the TCPA, specifically § 227(b)(1)(A) of the TCPA, which prohibits calls made using… Read More
In Risher v. Adecco Inc., No. 19-cv-05602-RS, 2022 U.S. Dist. LEXIS 209676 (N.D. Cal. Nov. 18, 2022), Judge Seaborg dismissed an evolving theory that text messages can be a pre-recorded voice under the TCPA. In the absence of express consent, section 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and its implementing regulations at 47 CFR § 64.1200(a)(2), prohibit non-emergency calls… Read More
In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list… Read More
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
