Post-Facebook c. Duguid: lower courts speak out | Man’s pepper with trout

The eagerly awaited Supreme Court of the United States decision in Facebook vs. Duguid, 141 S. Ct. 1163 (2021), answered in the affirmative to a question that has divided the courts for years: the definition of “Automatic Telephone Numbering System” (ATDS) in the Telephone Consumer Protection Act (TCPA ) required the generation of random or sequential numbers? But that created a new question: How would the lower courts enforce this decision? A number of courts have now provided their reply, with these cases briefly summarized below.

• Montanez v. Future Vision Brain Bank LLC, No. 20-cv-02959 (D. Colo. April 29, 2021): dismissed the defendant’s motion for dismissal and concluded that if the appeal system used a random or sequential number generator was a problem for summary judgment.
• Bell v. Portfolio Recovery Assocs., Case 5: 18-cv-00243 (WD Tex. April 13, 2021): Discovery reopened to allow limited additional discovery regarding the extent to which the offending telephone system used a random or sequential number generator.
• McEwen v. Nat’l Rifle Ass’n of America, # 2: 20-cv-00153 (D. Me. April 14, 2021): noted in dicta that although the defendant did not decide to dismiss the TCPA claims based on the use of ATDS, the Plaintiff had only claimed automation, not the use of a random or sequential generator and, therefore, may not have adequately stated its ATDS claims.
• Gunn v. Prospects DM LLC, n ° 4: 19-cv-3129 (ED Mo. April 19, 2021): rejected a request for a stay, pending the Facebook ruling as moot and dismissed a motion for dismissal under
• Smith v. Liberty Mutual Ins. Co., n ° 1: 20-cv-11583 (D. Mass. April 22, 2021): Allowed a motion to dismiss without reaching the ATDS issue because the plaintiff had not alleged sufficient facts to support a theory of liability vicariously.
• Callier v Greensky, Inc., n ° EP-20-CV-00304 (WD Tex. May 10, 2021): Rejection of the request to reject the claims pro se TCPA because the plaintiff adequately pleaded the automation and the use of a number generator sequential to make calls, but not to produce the call list.
• Barton v. Temescal Wellness LLC, No. 20-40114 (D. Mass. May 26, 2021): Denied a motion to dismiss because the Facebook The ruling did not change the fact that text messages sent to cell phone numbers in the National Do Not Call Registry fell within the scope of the TCPA.
• Camunas c. National Republican Senate Commission, n ° 21-1005 (ED Pa. May 26, 2021): allowed the defendant’s motion for dismissal because the plaintiff had not alleged sufficient facts to show that his number had not been dialed intentionally, but automatically , and authorized the claimant to modify his complaint.
• Timms v. USAA Fed’l Sav. Bank, n ° 3: 18-cv-01495 (DSC June 9, 2021): granted the defendant’s motion for summary judgment, arguing that a system should store or produce numbers using a number generator random or sequential, not just dialing calls from a preset. list, booth Footnote 7.
• Carl v. First Nat’l Bank of Omaha, No. 2: 19-cv-00504 (D. Me. June 15, 2021): Dismissed the motion for summary judgment and declared that there was a worthy question as to whether the telephone system had the ability to store a number using a random or sequential generator and used that generator.
• Atkinson vs. Custom Pro Solar LCC, n ° SA-21-CV-178 (WD Tex. June 16, 2021): dismissed the defendant’s motion for dismissal and ruled that the use of a numbering system with the current capacity to dial numbers in a random or sequential was sufficient to present a question of fact for summary judgment.
• Watts v. Emergency Twenty Four, Inc., n ° 20-cv-1820 (ND Ill. June 21, 2021): allowed the defendant’s motion to dismiss without prejudice because the plaintiff had not sufficiently pleaded the supporting facts concerning the use of a random or sequential number generator and the high call volume alone was not sufficient to plausibly argue for the use of an ATDS.
• Hufnus v DoNotPay, Inc., n ° 3: 20-cv-08701 (June 24, 2021): granted the defendant’s motion to dismiss and ruled that the platform’s chatbots were not automatic dialers because they did not contacted only with numbers supplied by consumers, unidentified or obtained in a random or sequential fashion, cabin Footnote 7.
• Barnett v. Bank of America, NA, No. (WDNC July 1, 2021): Allowed the defendant’s motion for summary judgment and found that the Facebook The decision requires a plaintiff to demonstrate that a defendant’s phone system generates random or sequential phone numbers to dial, rather than dialing from a pre-existing, non-random list.
• Perrong v. MLA International, Inc., No. 6: 20-cv-01606 (MD Fla. July 2, 2021): Allowed the respondent’s motion to dismiss with leave to vary, following Camunas.
• Gross v. GG Homes, Inc., No. 3: 32-cv-00271 (SD Cal. July 8, 2021): Motion dismissed and ruled that although the court could not determine from the pleadings whether the composer in question was storing or was producing phone numbers using a sequential number generator, factual details that would answer this question were not required at the oral argument stage.
• Barry v. Ally Financial, Inc., n ° 20-12378 (July 13, 2021): Allowed the defendant’s motion to dismiss and Facebook decision requires telephone equipment to use, do not only have the ability to use a random or sequential number generator to qualify as an ATDS, and that footnote 7 is a dicta.
• Miles v Medicredit, Inc., n ° 4: 20-cv-01186 (ED Mo. July 14, 2021): request for dismissal rejected, following Raw.
• Franco v. Alorica, Inc., No. 2: 20-cv-05035 (CD Cal. July 27, 2021): Granted the defendant’s motion for judgment on the pleadings, following Hufnus.
• Jance v. Homerun Offer LLC, n ° CV-20-00482 (D. Ariz. July 30, 2021): Rejection of the motion for dismissal and found the applicant sufficiently alleged facts plausibly indicating the use of a random or sequential number generator.
• Guglielmo v. CVS Pharmacy, Inc., No. 3: 20-cv-1560 (D. Conn. Aug 2, 2021): Allowed a partial motion to dismiss the TCPA claims and ruled that the claimant did not sufficiently plead the use of a generator random or sequential numbers.
• Borden v. eFinancial LLC, No. C-19-1430 (WD Wash. August 13, 2021): Allowed the motion to dismiss and ruled that the use of a random or sequential number generator to order calls did not transform a system in an ATDS, in particular where the plaintiff had initially provided his number to the defendant.
• Edwards v. Alorica, Inc., No. 8: 19-cv-02124 (CD Cal. August 30, 2021): Allowed the defendant’s motion for unopposed judgment on the pleadings because the plaintiff did not allege that the telephone system had created its number randomly or sequentially.
• Grome v. USAA Savings Bank, n ° 4: 19-cv-3080 (D. Neb. August 31, 2021): Allowed the defendant’s motion for summary judgment and ruled that a telephone system must have the current capacity to use a number generator random or sequential to generate phone numbers, and the ability to reprogram a system to do so was not enough to make it an ATDS.
• Tehrani v. Joie de Vivre Hospitality, 19-cv-08168 (ND Cal. August 31, 2021): dismissed the plaintiff’s request for leave to file a third amended complaint, rejecting the preliminary request of the Ninth CircuitFacebook approaching ATDS determinations, following Hufnus, Watts, Barry, Borden, and Timms, and holding that Facebook the required use of a random or sequential number generator to create Telephone Numbers.
• LaGuardia v. Designer Brands, Inc., No. 2: 20-cv-2311 (SD Ohio September 9, 2021): Allowed the defendant’s motion for judgment, following Tehran.
• Jovanovic v. SRP Investments LLC, CV-21-00393 (D. Ariz. September 15, 2021): dismissed the Applicant’s amended complaint with prejudice and found that the Applicant did not adequately allege the use of an ATDS when the facts, the inclusion of an opt-out text mechanism, and the absence of a pre-existing business relationship were simply consistent with, but not affirmatively supporting, the inference of the use of ATDS and others facts, such as the personalization of messages, undermined an inference from ATDS.
• Marshall v Grubhub, Inc., 19-cv-3718 (ND Ill. 27 Sept. 2021): Rejection of the motion for dismissal without reaching the question of whether the applicant had correctly pleaded the use of an ATDS because the applicant had sufficiently alleged TCPA violation based on the use of a pre-recorded voice.
• Poonja v. Kelly Services, Inc., n ° 20-cv-4388 (ND Ill. September 29, 2021): Rejection of the motion to dismiss and found that the applicant’s allegations that a generic message sent by a toll-free number with automated response functions were sufficient to survive the pleading stage.
• Douglas v. TD Bank USA, NA, No. 3: 20-cv-395 (D. Or. Oct. 4, 2021): Dismissed a request for sanctions which argued that the complainant had no reasonable basis for his ATDS claim and considered that if the arguments were better suited to a motion to dismiss or a motion for summary judgment, the plaintiff could reasonably rely on a “telltale pause” to infer the use of a predictive dialer, which could include an ATDS.
• Smith v. Direct Building Supplies LLC, No. 20-3583 (ED Pa. Oct. 7, 2021): Allowed a motion to dismiss without prejudice and held that although the plaintiff did not allege adequate facts regarding the identity of the appellant, the allegations of break and absence from a previous business relationship were sufficient to support an ATDS inference.