In Johansen v. Vivant, Inc., 2012 WL 6590551 (N.D.Ill. 2012), Judge Aspen found that Iqbal/Twombly require a TCPA plaintiff to plead at least something more under the TCPA than that an ATDS was used.
The cases fall within three general categories. The first set of cases hold that reciting the statutory definition of an ATDS in the complaint suffices and that the validity of that claim is an evidentiary matter premature for a motion to dismiss. See, e.g., Torres v. Nat’l Enter. Sys., Inc., No. 12C2267, 2012 U.S. Dist. LEXIS 110514, at *10 (N.D.Ill. Aug.7, 2012) (“[I]t would be virtually impossible, absent discovery, for any plaintiff to gather evidence regarding the type of machine used for a communication left on a plaintiff’s voicemail.”); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1010 (N.D.Ill.2010). The second set of cases denied a defendant’s motion to dismiss on the basis of the plaintiff’s recitation of the statutory language plus additional allegations indicating the reasons for the plaintiff’s belief, without deciding explicitly whether solely repeating the language of the statute would suffice. See, e.g. Vance v. Bureau of Collection Recovery, LLC, No. 10C6324, 2011 U.S. Dist. LEXIS 24908, at *2 (N.D.Ill. Mar. 11, 2011) (holding in favor of plaintiff when her allegations included that she heard a “pre-recorded voice” that “told her to hold for assistance” and that defendant’s website stated it had a “top of the line … predictive dialing system”); see also Strickler v. Bijora, Inc., No. 11C3468, 2012 U.S. Dist. LEXIS 156830, at *7–8 (N.D.Ill. Oct. 30, 2012) (holding in favor of plain-tiff by inferring that a text message was sent en masse due to its generic content); Martin v. Leading Edge Recovery Solutions, LLC, No. 11C5886, 2012 U.S. Dist. LEXIS 112795, *16 (N.D.Ill. Aug.10, 2012) (holding in favor of plaintiff when his allegations included that defendant called him using an ATDS with numbers “pre-loaded in batches” and an exhibit of defendant’s application to register an “automatic dial announcing device”). The third set of cases stated expressly that repeating the language of the statute, without any ac-companying factual allegations, would not suffice. See, e.g., Abbas v. Selling Source, LLC, No. 09C3413, 2009 U.S. Dist. LEXIS 116697, *13 (N.D.Ill.Dec. 14, 2009); see also Kramer v. Auto-bytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D.Cal.2010) (“As an isolated assertion, it is conclusory to allege that messages were sent using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” (internal quotation omitted)). Cases in the last category have found complaints facially plausible based on the ad-ditional factual allegations made by plaintiffs. See, e.g., Connelly v. Hilton Grand Vacations Co., LLC, No. 12C599, 2012 U.S. Dist LEXIS 81332, at *13 (S.D. Cal. June 11, 2012) (holding that alleging there was “a delay prior to a live person speaking to Plain-tiffs or [no] transfer to a live person” gives rise to a reasonable inference that defendant used an ATDS, even though recitation of the statutory language alone might not have done so). On the contrary, a plaintiff must supply enough additional, independent facts “to raise a reasonable expectation that discovery will reveal evidence” of the alleged misconduct. Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. For example, a TCPA plaintiff could describe the robotic sound of the voice on the other line, the lack of human response when he at-tempted to have a conversation with the “person” calling him, the generic content of the message he received, or anything else about the circumstances of a call or message contributing to his belief it was pre-recorded or delivered via an ATDS. Plaintiff does not do so in the present case and may not rely on the dis-covery process to cure such deficiencies in his com-plaint. See id. at 559, 127 S.Ct. at 1967. We agree that it is unreasonable to require a plaintiff in a TCPA complaint, without the benefit of discovery, to elaborate on the specific technical details of a defendant’s alleged ATDS, such as what type of machines were used to make a call or how those machines functioned. See Torres, 2012 U.S. Dist. LEXIS 110514, at *10. It is not unreasonable, however, to require a plaintiff to describe the phone messages he received in laymen’s terms or provide the circumstances surrounding them to establish his belief that the messages were pre-recorded or delivered via the ATDS. See, e.g., Vance, 2011 U.S. Dist. LEXIS 24908, at *2, 7. This approach does not burden plaintiffs unduly by requiring pleading of technical details impossible to uncover without discovery, rather it necessitates that they plead only facts easily available to them on the basis of personal knowledge and experience. At the same time, it gives fair notice to defendants by “distinguish[ing] the particular case that is before the court from every other hypotheti-cally possible case” under TCPA, Swanson v. Citibank, 614 F.3d 400, 404 (7th Cir.2010), and avoids the potential abuse of the discovery process to pres-sure defendants into settling weak cases. See Twombly, 550 U.S. at 559, 127 S.Ct. at 1967; Swanson, 614 F.3d at 405. This approach balances the requirements of liberal pleading for plaintiffs and fair notice to defendants underpinning our legal system.