In Raphael Aus. v. Alorica, Inc., No. 2:20-cv-05019-ODW (PVCx), 2021 U.S. Dist. LEXIS 240677, at *5-6 (C.D. Cal. Dec. 16, 2021), Judge Wright dismissed a TCPA claim but allowed a Rosenthal Act claim to proceed.  As to the TCPA claim, Judge Wright held:

The parties dispute whether alleging that a system calls a prepopulated list of customers or clients is still sufficient to state a TCPA claim in light of the Supreme Court’s recent opinion in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 209 L. Ed. 2d 272 (2021). . . Accordingly, this Court concludes that interpretation (2) is proper, which requires dismissal of Austria’s TCPA claim. This conclusion is in accord with district courts in the Ninth Circuit who, following Facebook, have dismissed very similar TCPA claims at the pleading stage. One district court in the Ninth Circuit found that a platform was not an autodialer because “the platform only contacts phone numbers specifically provided by consumers during [the defendant’s] registration process, and not phone numbers identified in a random or sequential fashion.” Hufnus, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, at *1. Another court found the same, noting that the “preproduced list” in Facebook footnote 7 “is one that is ‘sequentially generated and stored'” and requiring the same of a TCPA defendant’s system. Barry, 2021 U.S. Dist. LEXIS 129573, 2021 WL 2936636, at *6; see also In re Portfolio Recovery Assocs., LLC, 2021 U.S. Dist. LEXIS 216747, 2021 WL 5203299, at *4; Timms, 2021 WL 2354391, at *7. This Court joins these courts in finding that a system that selects phone numbers from a prepopulated list does not constitute an autodialer where the prepopulated list was not itself generated using a random or sequential number generator, even if the phone number selection process itself involves a random or sequential number generator. Here, Austria alleges at most that EGS used a random or sequential number generator in selecting or dialing his number from a prepopulated list; he does not allege that his name was on that prepopulated list due to the work of a random or sequential number generator. For these reasons, the Court GRANTS EGS’s Motion to Dismiss Plaintiff’s claim for violations of the TCPA. As Plaintiff’s claim is fundamentally grounded on the allegations that EGS, a debt collector, obtained Austria’s number from Credit One Bank and not by using a random or sequential number generator, any further amendment of this claim would be futile.

Judge Wright allowed the Rosenthal Act claim to proceed, however.

The Rosenthal Act’s definition of a “debt collector” is broader and more inclusive than the FDCPA’s, Robinson v. Managed Accts. Receivables Corp., 654 F. Supp. 2d 1051, 1060 n.8 (C.D. Cal. 2009), and includes “any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection,” Cal. Civ. Code § 1788.2(c).  First, Austria sufficiently alleges that EGS is a debt collector under the FDCPA “principal purpose” definition. The question is simply whether it is plausible that debt collection is EGS’s “dominant, or principal, objective.” McAdory, 952 F.3d at 1093. The answer is yes: Austria alleges that EGS had a business relationship with Credit One Bank under which Credit One compensated EGS for collecting debts. Austria also alleges that EGS used a complex automated telephone system to collect those debts and that EGS, in its calls, expressly represented that they were calling to collect that debt. Moreover, in contacting Austria, EGS obscured the difference between EGS and Credit One, the entity to whom Austria purportedly owed debt. Under these facts, it is plausible that EGS’s principal purpose was debt collection. Austria also sufficiently alleges that EGS is a debt collector under the FDCPA “regularly collects” definition. As alleged, EGS had a vendor agreement with Credit One Bank, and was hired by Credit One to make collection calls on behalf of Credit One. Over the course of several months, Austria received hundred of calls on his cell phone from EGS representatives stating their intent to collect an alleged debt related to his account at Credit One Bank. Under these facts, it is plausible that EGS makes similar attempts with other debtors and therefore regularly collects debts. The Rosenthal Act’s definition of debt collector is broader than the FDCPA’s. Robinson, 654 F. Supp. 2d at 1060 n.8. As Austria’s allegations regarding EGS’s status as a debt collector are sufficient under the FDCPA, they are sufficient under the Rosenthal Act as well.