A Three-Way Circuit Split on ATDS?: Court Recognizes Mass ATDS Confusion in Overruling TCPA Pleadings Challenge

Now how did I overlook this?

I often say that no one profits from the ATDS chaos more than a guy running a TCPA-related website. Ahem.

But even I, apparently, failed to grasp the fullness of the present split of authority at the Circuit Court level as to what constitutes an ATDS.

My thinking was that a clear split now exists between the expansive ATDS definition adopted in the Ninth Circuit’s Marks opinion—one the one hand—and the statutory ATDS definition adopted by the Seventh and Eleventh Circuit’s ruling in Gadelhak and Glasser, respectively—on the other. In this duality, the Third Circuit’s Dominguez case fits as a weakly-worded “statutory approach” case—though not one that is particularly well analyzed—and the Sixth Circuit’s Trueblue decision fits as a did-it-or-didn’t-it footnote, also supporting the statutory approach.

But a district court in Maryland just rocked my (TCPA) world by suggesting that there is actually a three-way split out there in route to, nonetheless, denying a Defendant’s motion to dismiss.  In Boger v. Citrix Sys., Civil Action No. 819-cv-01234-PX, 2020 U.S. Dist. LEXIS 36517 (D. Md. March 3, 2020) the Court identifies that Trueblue and Dominguez are actually a newly-discovered “Type III” ATDS decision species that focuses on the capacity of the system to perform the statutorily-enumerated functions of an ATDS. As the Boger court puts it:

Other circuits focus on whether the equipment “could” randomly or sequentially dial such numbers. (Citing Trueblue and Dominguez as distinguishable from Glasser and Gadelhak.)

I went back and re-read all four decisions and—if you squint a little—I guess you can see where the Boger court is coming from. Either way its fun to recognize that the split plaguing TCPA ATDS jurisprudence is deeper than anyone could have imagined. (Again “fun” for guys running TCPA websites mostly.)

At the end of the day, however, the Court’s iconoclastic breakthrough didn’t move the needle much. The Court found that under any ATDS formulation the Plaintiff’s allegations were sufficient to pass muster at the pleadings stage. The Complaint contained the usual “click and pause” allegations that have become standard fare in TCPAWorld, and also an interesting allegation that Defendant’s agent told him he did not “know how a cell phone number slipped through” –suggesting that the company was aware of the use of an ATDS and the TCPA.

The Court also distinguished Snow as a case where allegations did not permit inference of ATDS usage, despite the fact that Snow looks pretty similar to the allegations in Boger. (Maybe if I squint a little more… ).

Unrelatedly, the Boger court also becomes the latest to regrettably overrule a Bristol Myers Squibb challenge in a TCPA class action concluding that BMS only applies to mass tort actions and not Rule 23 class actions. Is that really what anyone thinks SCOTUS will say when it has a chance to review the issue? I think not. Nonetheless, there is a sizable minority—perhaps even a majority—of district courts that refuse to apply BMS in this context.

So there you have it. Things are even more messed up than you thought out there. Happy Thursday TCPAWorld.


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