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human intervention

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In Schlusselberg v. Receivables Performance Management, LLC., 2017 WL 2812884, at *3–4 (D.N.J., 2017), Judge Wolfson granted summary judgment to a debt collector by means of LiveVox's HCI. Here, Defendant argues that LiveVox's HCI system is not by definition an ATDS under the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the system does not possess the automated… Read More

In Snyder v. Ocwen Loan Servicing, LLC,  2017 WL 2798387, at *6 (N.D.Ill., 2017), Judge Kennelly certified a TCPA skip-trace class, but only for injunctive relief purposes.  The Court reserved the issue whether a liability class was fatally fail-safe. Ocwen also argues that part of plaintiffs' proposed class definition creates an impermissible ‘fail-safe‘ class and therefore that the Court should deny… Read More

In Ung v. Universal Acceptance Corporation, 2017 WL 1288378, at *1 (D.Minn., 2017), Judge Kyle granted summary judgment to an automobile finance company who manually dialed calls, "refusing to go down the rabbit hole".  The Court explained: But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and… Read More

In Smith v. Stellar Recovery, Inc. 2017 WL 955128, at *3 (E.D.Mich., 2017), Judge Murphy granted summary judgment to a TCPA defendant based on the fact that its dialer system required human intervention. II. Predictive Dialer Objection.  In her next objection, Smith argues that Stark admitted that the automated call distributor (ACD) system had ‘predictive dialer functionality‘ which makes the… Read More

In Brickman v. Facebook, Inc., 2017 WL 386238, at *3–4 (N.D.Cal., 2017), Judge Henderson found that Facebook's "Happy Birthday" texts survived a motion to dismiss.  Judge Henderson also found that the TCPA survived a constitutional challenge as violating free speech. Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016),… Read More

In Frisch v. AllianceOne Receivables Management, LLC, 2017 WL 25471 (E.D. Wis. 2017), Judge Pepper granted summary judgment to a debt collection agency who manually dialed calls, even though the caller "had" an ATDS. The court agrees that there are evidentiary problems with the evidence the plaintiff has presented. Even if the documents were admissible, however, the plaintiff still would… Read More

In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More

In Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *12 (N.D.Ill. 2016), Judge Kocoras found that an automobile finance company's calls to a TCPA class action plaintiff through its Aspect dialer used an ATDS under the TCPA. Santander's alternative ground for summary judgment asserts, not the consent of the called parties, but the equipment it used to call them. Santander… Read More

In Pozo v. Stellar Recovery Collection Agency, Inc., here, Judge Porcelli granted summary judgment to a debt collector under the TCPA who argued that no ATDS was used. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls. See Jenkins v.… Read More

In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More

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