In Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 U.S. Dist. LEXIS 42347 (N.D. Ill. Mar. 15, 2019), Judge Zee found that manually dialed calls did not involve the use of an ATDS under the TCPA. Plaintiffs have failed to point to any evidence that either SynTelate or the manual phone has that capacity. Certainly, once the Avaya Proactive… Read More
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 Richardson, et. al., v. Verde Energy USA, Inc., Civ. No. 15-6325, 2018 WL 6622996 (E.D. Pa. December 17, 2018), Judge Beetlestone declined to follow the 9th Circuit’s decision in Marks, and found that Defendants predictive dialer was not an ATDS under the TCPA. A careful parsing of ACA International indicates that the invalidation of the 2015 Order necessarily invalidated… Read More
In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 6653297, at *1–2 (M.D.Fla., 2018), the District Court denied a TCPA Plaintiff's request for an on-site inspection of the Defendant's facilities. Plaintiff moves to compel an on-site inspection of Defendant’s telephone dialing system. Plaintiff states that such an inspection pursuant to Fed. R. Civ. P. 34(a) is necessary because Plaintiff’s burden… 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 Roark v. Credit One Bank, N.A., Defendant., 2018 WL 5921652 (D.Minn., 2018), Judge Magnuson found that no ATDS was used by a caller under post-ACA standards. Roark is incorrect that ACA Int’l has no bearing on previous FCC rulings that determined that predictive dialing systems are autodialers. The D.C. Circuit in fact rejected this very argument. “According to the [FCC],… Read More
In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More
In Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l. Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it… Read More
In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International. Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to… Read More
In Keifer v. Hosopo Corp., No.: 3:18-cv-1353-CAB-(KSC), 2018 WL 5295011 (S.D. Cal. Oct. 25, 2018), the Court found that a TCPA Plaintiff adequately pleaded an ATDS after Marks. Defendant’s contention that Plaintiff has failed to establish that it, or any agent, made any of the alleged 14 calls is unavailing. [Doc. No. 14-1 at 17-21.] For purposes of the motion to… Read More
On October 3, the FCC issued a Request for Comment on the TCPA's definition of ATDS following the 9th Circuit's Marks decision. A copy of the FCC's Request is here. The deadline to file commentary is October 24, 2018. The FCC seemed concerned by Marks' expansive interpretation of the TCPA's definition(s). In other words, the [Marks] court interpreted the statutory language expansively so… 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 Ramos v. Hopele of Fort Lauderdale, LLC, 2018 WL 4568428, at *1–2 (S.D.Fla., 2018), Judge Moreno adopted the Magistrate's recommendation and granted summary judgment to a TCPA defendant who sent text messages to an uploaded list of numbers. Defendant's Motion for Summary Judgment is GRANTED. The defining issue in the Report and Recommendation and Plaintiff's principal objection to the… Read More
In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More
The Court of Appeals for the Ninth Circuit issued its opinion in Marks v. Crunch San Diego on September 20, 2018. Marks v. Crunch San Diego, LLC, 2018 WL 4495553 (9th Cir. 2018). The court held that equipment needs only “store” numbers and automatically dial them to qualify as an ATDS. The court held: “the statutory definition of ATDS includes a… Read More
In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 4217065, at *5–6 (M.D.Fla., 2018), Judge Moody described the effect of ACA Int'l on what constitutes an ATDS. In sum, ACA Int’l vacated the FCC’s 2015 Order in two ways relevant here: it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as… Read More
In Heard v. Nationstar Mortgage, LLC, 2018 WL 4028116 (N.D. Ala. August 23, 2018), Judge Haikala found that a mortgage company’s dialer was an ATDS under the TCPA. Nationstar argues that its system is not an automatic dialer because it does not “store” caller information. That information, Nationstar argues, is located on a separate “host system.” (Doc. 51, p. 6). But… Read More
In Abanta Rooter and Plumbing, Inc., v. Alarm.com, Inc., 2018 WL 3707283, at *6–7 (N.D.Cal., 2018), Judge Gonzalez-Rogers denied all parties' motions for summary judgment as to what constituted an ATDS. The record indicates that Nationwide, Alliance’s purported agent, used the Ytel Dialer to place calls to the cell phones of members of the Cell Phone Class. (Terrell Decl., Ex.… 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 Pinkus v. Sirius XM Radio, Inc., 2018 WL 3586186, at *7–9 (N.D.Ill., 2018), Judge Feinerman found that an ATDS must have the capacity to generate numbers randomly or sequentially and then to dial them, even if that capacity is not deployed for practical reasons. [T]he court must first assess ACA International’s scope. For the reasons stated below, ACA International… Read More
