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human intervention

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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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