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Human Intervention

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District Court (Ill.) Says “Pause”, Not “Click-and-Pause”, Is Sufficient to Please Use of ATDS in TCPA Class Action; But, Says Class is a “Fail-Safe” Class

by Scott J. Hyman |

In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More

District Court (Cal.) — Judge Birotte Issues A Couple on TCPA Post-Spokeo Standing; Reaches Different Conclusions on Different Facts, Suggesting that TCPA Art. III Standing Requires More than Episodic Contacts

by Scott J. Hyman |

In Smith v. Aitima Medical Equipment, Inc., here,  Judge Birotte dismissed a TCPA claim based on lack of Art. III standing.  In Szumilas v. CBE Group, LLC., here, however, Judge Birotte found Art. III standing in a TCPA case.  The difference between the two outcomes seemed to be the volume of the calls.   Read More

District Court (La.) Says TCPA Plaintiff Must Plead Facts Suggesting Use of an ATDS

by Scott J. Hyman |

In Saragusa v. Countrywide, 2016 WL 1059004, at *4 (E.D.La., 2016), Judge Vance found that a TCPA plaintiff had pleaded no facts suggesting that the calls were not manually dialed. The TCPA defines the “automatic telephone dialing system” as equipment capable of “stor[ing] or produc[ing] telephone numbers to be called, using a random or sequential number generator [and] dial[ing] such… Read More

District Court (Ill.) Says Plaintiff’s Burden of Proving ATDS Requires Allegation of “Clicks or Pauses”

by Scott J. Hyman |

In Schlotfeldt v. Wells Fargo Home Mortgage, Inc., 2016 WL 406341, at *5 (N.D.Ill., 2016), Judge Gettlemen dismissed a TCPA case because Plaintiff did not plead adequate "use" of an ATDS. As evidenced from the cases cited by each party, courts in this district are split concerning what is required to state a claim under the TCPA. See Martin v. Direct… Read More

District Court (Cal.) Discusses What Constitutes “Human Intervention” to Avoid Finding of ATDS under TCPA

by Scott J. Hyman |

In Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More

District Court (Minn.) Says TCPA Text-Message Plaintiff Pleaded Enough to Get Around Defendant’s “Lack of Human Intervention” Argument

by Scott J. Hyman |

In Rouse v. Delta Air Lines, Inc., 2015 WL 4636726 (D.Minn.,2015), Judge Magnuson held that a TCPA Text-Message Plaintiff survived a Motion to Dismiss on whether the Complaint adequately pleaded use of an ATDS.  The facts were as follows: In late 2014, Plaintiff Kevin Rouse received a text message on his personal cell phone from Defendant Delta Air Lines, asking… Read More

District Court (Cal.) Says Failure to Plead Absence of Human Intervention in ATDS Allegation Dooms TCPA Case

by Scott J. Hyman |

In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention. A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the… Read More

District Court (Pa.) Says TCPA Defendant Used ATDS Because No Human Intervention Was Required

by Scott J. Hyman |

In Morse v. Allied Interstate, LLC, --- F.Supp.3d ----, 2014 WL 7004036 (M.D.Pa. 2014),  Judge Nealon granted Plaintiffs' Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS. Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number… Read More

District Court (Wash.) Finds Taxi Company’s Text-Message Dialer Technology was not an ATDS under the TCPA Because Some Human Intervention was Required

by Scott J. Hyman |

Yes, you read it right. In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2014 WL 494862 (W.D.Wash. 2014), Judge Lasnik held that a TCPA did not use an ATDS within the meaning of the TCPA.  The facts were as follows: Defendant Orange Cab Company, Inc. (Orange Cab) utilizes TaxiMagic, a Ridecharge, Inc. product, as a means of remaining… Read More