human intervention

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In Duran v. La Boom Disco, Inc., No. 19-600-cv, 2020 U.S. App. LEXIS 10861, at *16-22 (2d Cir. Apr. 7, 2020), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Marks. The next question is whether the ExpressText and EZ Texting programs also have the second capacity required by the statute to be ATDSs—the "capacity… 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 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 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 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 Duran v. La Boom Disco, Inc., No. 17-cv-6331 (ARR) (CLP), 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y. Feb. 25, 2019), Judge Duran sua sponte granted summary judgment to a TCPA defendant based on its absence of use of a ATDS. The Second Circuit, however, only analyzed the meaning of "capacity" under "the statutory language itself." As discussed earlier, the court… Read More

In Hatuey v. IC System, Inc., Civ. No. 1:16-CV-12542-DPW, 2018 WL 5982020 (D.Mass. Nov. 14, 2018), Judge Woodlock granted summary judgment to a debt collector on FDCPA and TCPA claims. On the FDCPA claim, the Court held that a cease and desist with respect to one account did not operate with respect to a second account. Although both the calls in… Read More

In Glasser v. Hilton Grand Vacations Company, LLC., 2018 WL 4565751, at *5–7 (M.D.Fla., 2018), Judge Whittemore granted summary judgment to a TCPA defendant on the basis that no ATDS was used. According to Sponsler, “human intervention in this case is the human intervention step to dial.” (Id. at 101:9-10, 102:11-12). He identified three components which demonstrate that Defendant’s system is… Read More

In Gary v. TrueBlue, Inc., 2018 WL 3647046, at *6–8 (E.D.Mich., 2018), Judge Drain denied a TCPA Plaintiff's Motion for Summary Judgment on the basis that he had failed to prove that the text messages that he received were sent by means of an ATDS. Plaintiff argues that WorkAlert is an ATDS because WorkAlert can both (1) dial numbers from… Read More

In Dominguez v. Yahoo!, Inc., -- F.3d ---- (3rd Cir. 2018), the Court of Appeals for the Third Circuit found that Yahoo! did not use an ATDS to send text messages, as the Court of Appeals interpreted the ACA Int’l decision. The decision in ACA International has narrowed the scope of this appeal.16 In light of the D.C. Circuit’s holding, we… Read More

In Maddox v. CBE Group, Inc., Case No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018), Judge Jones followed the ACA Int’l decision with respect to the issue of what constitutes an ATDS under the TCPA. Ordinarily, statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States,… Read More

In Ferrer v. Bayview Loan Servicing, LLC., 2018 WL 582584, at *6 (S.D.Fla., 2018), Judge Scola granted summary judgment on a TCPA claim where the calls were manually dialed, despite the fact that the caller owned and used a dialer elsewhere. In his declaration, Gutierrez asserts that the forty-four remaining (44) calls that Bayview placed to Ferrer's cell phone during the… Read More

In Arora v. Transworld Systems, Inc., 2017 WL 3620742, at *1 (N.D.Ill., 2017), Judge Kokoras held that a point-and-click calling system was not an ATDS due to the human intervention involved. The facts were as follows: In contrast, TSI claims that from August 25, 2014 through November 17, 2014, it placed a total of 13 calls to Arora. When calling… Read More

In Wick v. Twilio, Inc., 2017 WL 2964855, at *4 (W.D.Wash., 2017), Judge Laznik found that Twilio might have used an ATDS, if it was Twilio who placed the call. Contrary to Twilio's argument, the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content. Rather, the totality of the facts and… Read More

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