TCPA Quick Hitter: Avaya Dialer Deemed Not an ATDS as Gadelhak Makes its First Mark and Snyder’s Expert Opinions Are Struck—Again

Just yesterday I wrote about a district court in Rhode Island rejecting the Plaintiff bar’s latest theory on random and sequential number generation—that all dialers qualify as an ATDS because Excel programs can generate random numbers.

The “Excel” program theory is a subset of the broader “all computers can generate random numbers” argument that has been around for a while. And the number one Plaintiff’s expert espousing that theory—Randall Snyder.

Snyder has been hammered a few times for his expert opinions already, so it is not entirely surprising that the district court in Hagood v. Portfolio Recovery Assocs., Case No. 3:18-CV-1510-NJR, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. March 19, 2020) elected to strike his opinion. In the Hagood court’s view, Snyder’s overly broad opinion that a system is an ATDS merely because a windows-based system can generate random numbers is not a valid expert opinion. Snyder’s opinion that Avaya—the dialer platform at issue— can re-order numbers in a database before dialing is not germane because the numbers themselves must be sequential to trip the statute. Dialing numbers “randomly” from within a list does not trigger ATDS coverage because the numbers are not being generated.

And with Snyder’s opinion out of the way, there was simply no evidence that the Avaya dialer could operate in the manner prescribed by statute. Judgment for the defense.

Notably the Court had to follow Gadelhak—Illinois is within the Seventh Circuit footprint—so the case does not tread any new ground from a functionality standpoint. Still, the ruling’s determination that Avaya lacks the capacity to randomly or sequentially generate numbers to be dialed—at least on the record before the court—is a critical win for Defendants to keep in mind.

We expect to see rulings like Hagood start piling up as aged cases in the pipeline of district court dockets get cleared out under new—more positive—law

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