In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).
In many TCPA cases, the sufficiency of a plaintiff’s allegations, particularly those concerning the defendant’s alleged use of an automatic telephone dialing system (“ATDS”), are tested at the pleadings stage through a motion to dismiss. No matter which side prevails, a trial court’s ruling at that procedural moment is limited to whether ATDS allegations are plausible—not whether any evidence actually proves that an ATDS was, in fact, used. And because so many lawsuits are resolved through an early settlement, a defendant often does not have a day in court on the question of whether its dialing equipment as configured and used constitutes an ATDS.
Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.
In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading
As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading
A federal district court recently rejected a plaintiff’s bid at class certification in a TCPA case. See Bais Yaakov of Spring Valley v. ACT, Inc., No. CV 12-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018) (available here). The decision provides a useful illustration of how individualized issues of consent may defeat a plaintiff’s attempt to show that common questions “predominate,” as required by Rule 23(b)(3). Continue reading
As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018. Continue reading
The U.S. District Court for the Northern District of Texas recently granted a defendant debt collection agency’s motion to compel arbitration in a TCPA case. See Bow v. Ad Astra Recovery Servs., Inc., No. 18-0510-G, 2018 WL 3455510 (N.D. Tex. July 18, 2018) (available here). In doing so, the court enforced an arbitration agreement that the debt collection agency had never signed, on the ground that the agreement expressly referenced the agency as an “affiliate” of the two lenders that had signed the agreement. The court’s decision provides helpful guidance for enforcing arbitration agreements, particularly in the context of a loan agreement that may lead to debt collection efforts—and potential TCPA exposure. Continue reading