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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

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