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E.D. Pa. Dismisses Serial Plaintiff’s TCPA Case on ATDS Grounds

On July 18, 2023, the United States District Court for the Eastern District of Pennsylvania dismissed a TCPA claim filed by serial Plaintiff, Andrew Perrong.  Perrong v. Montgomery Cnty. Democratic Comm., No. 22-4475, 2023 WL 4600423 (E.D. Pa. July 18, 2023). You can read our prior coverage of Perrong decisions here and here.

The present case centers around three phone calls Perrong received from the Montgomery County Democratic Committee and its associates. Perrong claimed that Defendants violated the TCPA by using an ATDS to contact him. The Defendants moved to dismiss the case, arguing that Perrong’s complaint failed to state a claim because the device at issue randomly or sequentially dialed phone numbers from a preexisting list (such as a list of registered voters), rather than randomly producing phone numbers itself, and therefore did not qualify as an automatic telephone dialing system.

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Ninth Circuit Finds That One Text Can Cause Concrete Harm, Remands for Decision Regarding Whether Minors Can Consent

Ever since the Supreme Court confirmed that the TCPA’s autodialer restrictions apply only to devices that generate numbers randomly or sequentially, the plaintiffs’ bar has been digging deep for new theories of liability to fill the void. One example of that is Hall v. Smosh Dot Com, in which the plaintiff posits that minors cannot provide consent for purposes of the TCPA, and as a result that calls to minors with DNC-registered numbers necessarily violate the statute. That theory is hard to square with both tort law (which tells us that minors consent to more intrusive things all the time) and contract law (which tells us that contracts with minors are voidable rather than void). But the Ninth Circuit recently handed Hall a procedural win in the case—albeit one that should end up being Pyrrhic.

The case arises from five text messages sent over the course of seven months. Undeterred by the fact that her teenage son had requested the messages, the Plaintiff filed suit—in a class action, of course—under the TCPA’s DNC provisions. See 47 U.S.C. § 227(c)(5). The trial court dismissed the case for lack of Article III standing, finding that the Plaintiff had failed to allege that she was either the “actual user” of the phone or the “actual recipient” of the messages. The Plaintiff appealed, arguing that she could have Article III standing even if she was neither of those things. The Ninth Circuit has now agreed, reversed the trial court, and remanded for further proceedings consistent with its opinion.

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