Ok, I’m probably reading too much into this but did you all catch the ruling in Tuck v. Portfolio Recovery Assocs., Case No.: 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274 (S.D. Cal. Oct. 16, 2019) yesterday?
There the Court considered a motion to dismiss a TCPA claim filed by a pro per Plaintiff for lack of adequate ATDS allegations. The Court concluded that threadbare recitals of ATDS usage, unadorned by any facts—such as the context of the calls or the phone number called from—are insufficient to state a claim. TCPA case dismissed.
While that holding is hardly newsworthy, what is very interesting is that the Court did not cite to Marks in refining the ATDS standard. Instead, the Court relied on the statutory definition and the Ninth Circuit’s earlier ruling in Satterfield. Here is the analysis:
An ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Under 47 U.S.C. § 227(a)(1), an ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” An ATDS “need not actually store, produce, or, call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield, 569 F.3d at 951.
In Marks, of course, the Ninth Circuit rejected a statutory approach requiring random and sequential number generation altogether and held that any dialer that calls ‘automatically”—what does that mean?—from a list of numbers qualifies as an ATDS. So the Tuck Court very clearly departs from Marks and adopts the statutory approach to ATDS—requiring random or sequential number generation—while also glomming on to the old-school “capacity” approach that has been out of vogue since ACA Int’l.
Since the Court was dealing with a pro se Plaintiff it is challenging to assess whether the holding is a deliberate rebuke of Marks or simply a situation where the Defendant lobbed Satterfield at the court and the Plaintiff lacked the wherewithal to refute it. Remember, however, that another Court within the Ninth Circuit was recently asked to apply Satterfield over Marks and chose not to. So while it is possible that Tuck represents an affirmative nose-thumbing to Marks it is probably too early to call Tuck the Lexington or Concord of a new Satterfield-based revolution in Ninth Circuit TCPA cases. Then again, it may end up being the shot heard round the (TCPA) world. We’ll keep a careful eye on developments here.
Also, shout out to my friends over at Severson & Werson who had a piece of this one. Nice work.