Seventh Circuit Disagrees with Ninth Circuit and Joins the Third and Eleventh Circuit in Adopting a Narrow Interpretation of ATDS

In a decision released on February 19 that relied principally on rules of grammar, the Seventh Circuit held that to be an ATDS under the TCPA, a device must be capable of storing or producing telephone numbers using a random or sequential number generator, not merely capable of storing numbers. Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir. Feb. 19, 2020). As such, it affirmed the District Court’s decision (albeit based on a different interpretation of the TCPA) that granted summary judgment in favor of AT&T where AT&T’s customer management tool “dials numbers only from a customer database.” In so holding, the Seventh Circuit joined the Third Circuit’s and the Eleventh Circuit’s (which we blogged about here) narrow interpretation of ATDS and widened the split with the Ninth Circuit’s expansive interpretation. Compare Glasser v. Hilton Grand Vacations Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020) & Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) with Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018).

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Court Denies Class Certification in a TCPA Case for Lack of Numerosity and Predominance Despite Millions of Automated Calls

Recently, the Northern District of California joined other courts in more closely scrutinizing class certification motions in TCPA cases. In a case involving an automated phone call by a loan servicer regarding Plaintiff’s student loans, the district court held that the Plaintiff had failed to present evidence to satisfy Rule 23(a)’s numerosity requirement, even though the defendant had made millions of automated calls to millions of customers. Plaintiff also failed to satisfy Rules 23(b)(3) and (b)(2). The class failed under Rule 23(b)(3) because Plaintiff did not show that common questions predominated as to the consent defense and failed under Rule 23(b)(2) because Plaintiff primarily sought statutory damages rather than an injunction. Silver v. Pennsylvania Higher Education Assistance Agency, No. 14-cv-00652, 2020 WL 607054 (N.D. Cal. Feb. 7, 2020).

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Serial TCPA Plaintiff Suffers Another Defeat

The United States District Court for the District of Connecticut recently dealt another blow to serial TCPA plaintiff, Gorss Motels, Inc., granting summary judgment to the defendant in Gorss Motels, Inc. v. Lands’ End, Inc., No. 17-cv-00010, 2020 WL 264784 (D. Conn. Jan. 16, 2020). This is the latest in a series of adverse decisions—including from a Court of Appeal—suffered by Gorss Motels.

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Court Denies Class Certification Due to Plaintiff’s Lack of Objective Criteria and Lack of Evidence

The Western District of Michigan recently denied a motion to certify a class after holding that the class was not ascertainable and the plaintiff had not offered persuasive evidence in support of the motion. Visser v. Caribbean Cruise Line, Inc., No. 13-1029, 2020 WL 415845 (W.D. Mich. Jan. 27, 2020).

The plaintiff alleged that Caribbean Cruise Line had violated the TCPA by using either an ATDS or an artificial or prerecorded voice without his prior consent. Specifically, he alleged that the call began with a prerecorded message that was followed by a live person who told him that he had won a free all-inclusive cruise. The plaintiff stated the caller told him that he had entered his phone number into a website called “leadpile.com.” Not believing this was true, the plaintiff told the caller that he had questions about the cruise. The caller then transferred the plaintiff to an agent who answered Plaintiff’s questions and provided details about the cruise.

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Eleventh Circuit Narrows ATDS Definition

One area of continued confusion and conflict among courts reviewing TCPA cases has been how each approaches the scope of the statutory definition of an autodialer, as this critical matter can spell the difference between calls being deemed violative of the statute or acceptable. Last week, the Eleventh Circuit addressed a pair of appeals disputing the scope of the definition of “automatic telephone dialing system” (“ATDS”) under the TCPA. In Glasser v. Hilton Grand Vacations Co., the Eleventh Circuit determined that ATDS should include only equipment that generates numbers randomly or sequentially and then dials them automatically—effectively excluding equipment that dials numbers from preexisting lists. 2020 WL 415811, at *2 (11th Cir. Jan. 27, 2020). This places the Eleventh Circuit squarely at odds with the Ninth Circuit’s expansive definition of ATDS in Marks v. Crunch San Diego.

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