We know it has to happen, but it still hurts every time a district court in the Ninth Circuit follows Marks.
Here’s a quick report on the Hon. Cathy Ann Bencivengo’s latest TCPA ruling involving ATDS issues that came down yesterday. You might recall that Judge Bencivengo rather famously decided the Romero and Ewing decisions that determined call recipients lack Article III standing to assert TCPA claims in federal court unless they suffered some harm specific to the use of an autodialer. The reasoning in those cases was later rejected by the Ninth Circuit court of appeal but the point is that Judge Bencivengo is no stranger to big TCPA rulings.
As fortune would have it, she also ended up being the first judge within the Ninth Circuit to rule on an ATDS challenge following the big Marks decision last year. Her first pass on the issue was in a case called Keifer v. Hosopo Corp., Case No. 3:18-cv-1353, 2018 U.S. Dist. Lexis 183468 (S.D. Cal. Oct. 25, 2018) wherein she found—unsurprisingly—that Marks was binding on her and that under Marks “an ATDS need not create or develop the numbers dialed on its own.” Keifer at *10. She went on to conclude, rather roughly, that the dialer used to place the calls in that case certainly stored and dialed numbers based upon “judicial experience and common sense.” Keifer at *10. I wrote all about it here.
Well, yesterday Judge Bencivengo got her second crack at the issue and the results were more or less the same. In Ewing v. Encor Solar, Case No. 18-cv-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019) the Court faced a motion to dismiss a complaint challenging both ATDS and vicarious liability allegations. As to the ATDS issue, the Complaint alleged merely that “the calls frequently exhibited signs associated with calls made from ATDs including repeated calls ‘within a period of time and the presence of a pause or click.’” As was in the case in Keifer, the Ewing Court noted that Plaintiff does not “specifically set forth allegations that are sufficient on their own to support his claims that an ATDS was used”—that seems promising– but the Court, nonetheless, “accepts as true the factual allegations of the FAC, applies the definition of an ATDS provided by the Ninth Circuit in Marks v. Crunch of San Diego, 904 F.3d 1041, 1052 (9th Cir. Sept. 20, 2018)6 , and draw[s] on [the] Court’s judicial experience and common sense” to determine that the allegations of the Complaint are sufficient to demonstrate ATDS usage. *Insert foghorn sound.*
As I have previously observed: “Judge Bencivengo is certainly no fan of TCPA claims and the fact that even she swiftly applied Marks and rejected the Defendant’s 12(b)(6) motion should serve as clear notice to defendant’s contemplating similar motions in the Ninth Circuit’s footprint: don’t try it.”
Although the ATDS component is the lead story, the vicarious liability component of Ewing is important too and probably a bit more helpful. The Court held directly that the Plaintiff was responsible for clearly articulating what role each of the various defendants played in launching the calls at issue. More importantly, the Court concluded that the mere allegation of a right to control conduct of a caller is not enough, in a vacuum, to allege facts plausibly demonstrating agency—“Plaintiff has failed to plead any facts in support of his conclusory allegations that Encor exercised any control over the other defendants allegedly making the calls to Ewing to establish an agency relationship between them and Encor.” Ewing at * 7. That’s dynamite stuff even if a little out of conformity with the weight of authority in this area. The Court goes on to grant the motion to dismiss on this ground and requires the Plaintiff to re-allege the complaint properly asserting the role each Defendant played with respect to launching the challenged calls and asserting clear facts demonstrating agency.