Time Warp: Court Adopts Old ATDS Reasoning in Denying Motion to Dismiss

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All that is old is new again in TCPAworld.

In Asher v. Quicken Loans, Inc., Case No. 2:17-cv-1203, 2019 WL 131854 (D. Utah Jan. 8, 2019) ruled that allegations the Plaintiff encountered “a delay before Plaintiff is able to speak to anyone” were perfectly sufficient to allege ATDS usage. The Asher court reasoned that a call recipient is unlikely to have any information regarding the technical capacity of the device used to make calls absent discovery. So the very basic allegation of a pause before a live voice was tolerable. The Court also noted that calls made using a pre-recorded voice are separately viable to state a TCPA claim—which is hardly a surprise given that the statute is written in the disjunctive and numerous courts have already so found.

Unlike Broughton the Asher court did address the ATDS functionality issue determining that the capacity to dial numbers randomly or sequentially is the hallmark of ATDS usage, even if the specific number was not dialed that way. See Asher at *3 (“Thus, the TCPA may be violated when an unconsented call is made with equipment that possesses the capacity to generate and dial random or sequential numbers, regardless of whether the call was the result of random number generation.”) My goodness, so we’re back to the Satterfield days– the required functionalities are random or sequential number generation but the system does not have to dial the call at issue in that manner to trigger statutory coverage. That, of course, begs the question “capacity”–but let’s not go there.

Notably although Asher parts ways with the analysis in Marks it does not specifically address the case. (That’s permitted because Utah is in the 10th Circuit, not the 9th). And also because this case traveled through time from 2009 to reach us…

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.