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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

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