As everyone in TCPAWorld knows, the TCPA’s ATDS formulation and meaning remains a topic of intense debate.
While the Seventh Circuit wrestles with the issue anew—more on that to come this week— the Ninth Circuit has already had its word on the subject in Marks. By rule, therefore, all district courts in the Ninth Circuit’s footprint have to apply Marks—including courts in Arizona.
It is no surprise, therefore, that the court in McCullough v. Maximum Title Loans Llc, No. CV-19-00717-PHX-JJT, 2019 U.S. Dist. LEXIS 141323 (D. Az. Aug. 20, 2019) concluded that allegations of random dialing are not required in the Ninth Circuit. In Marks, of course, the court found that all dialers that call “automatically” from a list of stored numbers qualify as an ATDS. While the definition of “automatic” remains somewhat obscure, the McCullough court concluded that allegations of encountering a pause and clicks before connection to a live agent was sufficient to plead ATDS usage.
One other quick note: the court found that facts supporting an inference that the calls were knowingly or willfully placed in violation of the TCPA must be specifically pleaded. Threadbare allegations are insufficient. Plaintiff’s Complaint lacked the needed allegations and so the request for trebling was dismissed.