As readers of this blog know, a robust Circuit split has developed regarding the meaning of an ATDS. The Second and Ninth Circuits have taken one approach, while the Third, Seventh, and Eleventh Circuits have taken another. While we await Supreme Court guidance, lower courts continue to grapple with the ATDS issue. In Eisenband v. Pine Belt Automotive, Inc., No. 17-8549 (FLW) (LHG), 2020 WL 1486045 (D.N.J. Mar. 27, 2020), the District of New Jersey analyzed the definition of an ATDS and concluded that equipment that dials numbers from a manually prepared list does not constitute an ATDS.
The Middle District of Florida has denied a motion for class certification, finding the proposed class definition would have created a fail-safe class, the class members were not ascertainable, and the plaintiff’s claims were not typical of the class. Fennell v. Navient Solutions, LLC, No. 17-2083, 2019 WL 3854815, at *2 (M.D. Fla. 2019)
The plaintiff in Fennell alleged that, despite her revocation of consent, Navient had used an ATDS to repeatedly call her to collect a debt. Id. at *1. In response, Navient argued that, although it had used predictive dialers to call other people, it had not used that equipment to call the plaintiff because her delinquent loans had been assigned to Navient’s “Cures Unit,” which only made calls through manual dialing. Id. at *1, *2.
The Northern District of Illinois recently entered summary judgment against a group of plaintiffs because it found the system at issue was not an ATDS.
In Smith v. Premier Dermatology, No. 17-3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019), the Defendants used a proprietary “eRelevance” system to send medical marketing communications by text message to their clients’ customers or patients. Defendant eRelevance Corporation would have its clients provide their current and prospective customer contact information, which would be uploaded into the eRelevance system. Based on client-selected criteria, the system would create lists of contacts, and once eRelevance employees built a text-message marketing campaign, they could push a button to have the system automatically send text messages to each contact on the list.
A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.