CEB Prac. Guide § 2B.23: ATDS

In Goad v. Censeo Health, LLC., 2016 WL 2944658, at *2-3 (E.D.Ark., 2016), Judge Holmes granted summary judgment to a TCPA defendant, finding that no autodialer was used due to the requirement of human intervention. “The term ‘automatic telephone dialing system’ means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or… Read More

In Errington v. Time Warner Cable Inc., 2016 WL 2930696, at *3-4 (C.D.Cal., 2016), Judge Lew stayed a TCPA case pending the outcome of the ACA proceedings, but did not want to wait and see what the 9th Circuit did with Spokeo on remand.  Defendant placed calls to Plaintiff's number in an attempt to collect a debt that belonged to… Read More

In Chiba v. Bayview Loan Servicing, Inc., 2016 WL 2593979, at *3-4 (S.D.Cal., 2016), Judge Benitez granted summary judgment to a debt collector on the FDCPA Plaintiff's claim of improper debt validation. Plaintiff argues that she disputed the debt and requested validation from Bayview as early as November 14, 2012, yet she never received validation. She argues that because Bayview sent… Read More

In Strauss v. CBE Group, (Case No. 15-62026), here, Judge Cohn granted summary judgment to a debt collector on the basis that it's point-and-click telephony software and hardware system did not constitute an ATDS under the TCPA. Plaintiff has failed to create a material dispute regarding CBE’s use of an ATDS after April 15, 2014. The evidence clearly establishes that CBE made… Read More

In Duguid v. Facebook, Inc., 2016 WL 1169365, at *5-6 (N.D.Cal., 2016), Judge Tygar dismissed a TCPA case against Facebook because the Plaintiff could not plead that the texts were randomly generated. Here, as in Flores, Plaintiff's allegations do not support the inference that the text messages he received were sent using an ATDS. Plaintiff alleges that the login notifications… Read More

In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used. Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff's pleadings on the ATDS issue. See Aikens, supra; Padilla v.… Read More

In Hensarling v. Wells Fargo Bank, N.A., 2016 WL 775950, at *3-4 (E.D.Cal., 2016), Judge Mueller held that a TCPA Plaintiff must plead more that the definition of an ATDS -- it must plead that it was used somehow, as in the existence of pauses or clicks. Here, plaintiffs' TCPA claim can advance only if plaintiffs have alleged sufficient facts… Read More

In Keim v. ADF Midatlantic LLC,  2015 U.S. Dist. LEXIS 159070 (S.D. Fla. Nov. 9, 2015) (unpublished), Judge Marra denied a motion to dismiss based on the argument that human intervention disqualified the text message campaign engaged in by Pizza Hut. In Keim, consumers were encouraged to submit the cellphone numbers of their friends in exchange for Pizza Hut coupons, and… Read More

In In re Collecto, Inc., 2016 WL 552459, at *2-4 (D.Mass., 2016), Judge Stearns summarily rejected a challenge to the FCC's authority to define an ATDS. Collecto's summary judgment argument begins with the contention that the court should give no weight whatsoever to the FCC's determination that a predictive dialer is an ATDS for TCPA purposes. According to Collecto, the… Read More

In Cartrette v. Time Warner Cable, Inc.,  2016 WL 183483, at *4-6 (E.D.N.C., 2016), Judge Flanagan denied a TCPA defendant's summary judgment motion, holding that its subscriber agreement could not prohibit revocation of consent. However, such a contract does not prevent a consumer from revoking her prior express consent pursuant to the TCPA. See Gager, 727 F.3d at 273–74 (“The… Read More

In Norman v. AllianceOne Receivables Management, Inc., 2015 WL 9286778, at *1 (7th Cir. 2015) (unpublished), the Court of Appeals for the Seventh Circuit affirmed summary judgment granted on the basis that calls were placed manually and, therefore, were exempt from the TCPA. The district court granted summary judgment after AllianceOne produced evidence showing that its calls to Norman were dialed… Read More

In Sherman v. Yahoo!, Inc., 2015 WL 8757028, at *4-5 (S.D.Cal. 2015), Judge Curiel found a question of fact on whether Yahoo!'s IM system required human intervention. To support its position, Yahoo relies on district court cases, which have held that where a message must be “triggered” by human intervention, the system is not an ATDS. (ECF No. 134-1 at 8-12… Read More

In Estrella v. LTD Financial Services,  2015 WL 6742062, at *1-3 (M.D.Fla., 2015), Judge Whittemore granted summary judgment to a TCPA defendant who manually dialed calls by a "point-and-click" method. To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of… Read More

In Gossett v. CMRE Financial Services, 2015 WL 6736883, at *1 (S.D.Cal.,2015), Magistrate Judge Stormes followed her previous decision on a motion to compel in Thrasher v. CMRE Financial Services, since the same defendant was involved, and the same counsel were involved as in Thrasher.   The parties presented this court with a discovery dispute regarding CMRE's responses to Gossett's first set of… Read More

Severson partner Eric Troutman evaluates a series of ATDS decisions involving emerging tech companies that have been issued after the FCC’s new omnibus TCPA ruling. https://casetext.com/posts/rivals-defeat-tcpa-claims-on-home-turf-as-yahoo-takes-big-loss-in-the-third-circuit Read More

In Dominguez v. Yahoo, Inc., 2015 WL 6405811, at *2-3 (C.A.3 (Pa.),2015), the Court of Appeals for the Third Circuit revived a TCPA class action against lawsuit, where Yahoo! had prevailed in the lower court on the basis that it did not have an ATDS. The only issue on appeal is whether a reasonable trier of fact could find Yahoo's system… Read More

In Gensel v. Performant Technologies, Inc., 2015 WL 6158072, at *2 (E.D.Wis.,2015), Judge Randa stayed a TCPA case, that was previously stayed under the Primary Jurisdiction Doctrine, because it was likely that the D.C. Circuit will overrule the FCC on the ATDS issue. Performant pins its hopes on the expectation that the appellate courts, particularly the Seventh Circuit, will overrule… Read More

In Ybarra v. Dish Network, L.L.C., 2015 WL 6159755, at *4 (C.A.5 (Tex.),2015), the Court of Appeals for the Fifth Circuit held that the TCPA was not violated when a dialer system designed to leave pre-recorded messages only when a "live" voice is reached did not leave any messages, but disconnected, when it reached an answering machine. The TCPA makes… Read More

In Freyja v. Dun & Bradstreet, Inc., here, Judge Fischer granted summary judgment to a defendant in a TCPA case because human intervention involved in the call disqualified the call as being from an ATDS. The undisputed facts demonstrate that Plaintiff was not called from an ATDS. An ATDS is a piece of “equipment which has the capacity to (a) store or… Read More

In Al-Zaharnah v. Innovative Loan Servicing Company, 2015 WL 5897685, at *2 (M.D.Fla., 2015), Judge Sneed once again denied a TCPA Plaintiff a site inspection request. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet his burden of establishing that Defendant used… Read More