Mortgage origination giant Quicken is stuck in a putative TCPA class action after a Court refused to dismiss ATDS allegations–this is true although district courts in the Sixth Circuit Court of Appeals generally require random or sequential number generation allegations. Uh oh.
In Lopez v. Quicken Loans, Case No. 19-13340, 2020 U.S. Dist. LEXIS 86560 (E.D. Mich. May 18, 2020) Quicken moved to dismiss ATDS allegations from a complaint contending that insufficient allegations of ATDS usage were alleged.
The Sixth Circuit court of appeals—where Lopez was decided—has not yet ruled on the functionalities required for an ATDS. As TCPAWorld reads know, however, the courts are badly split on the issue. The Seventh and Eleventh Circuit Courts of Appeals have recently held an ATDS requires random or sequential number generation. The Second and Ninth Circuits have held, on the other hand, that any device that can call from a list of numbers automatically triggers the statute. The closest the Sixth Circuit has come on the issue was in Gary v. Trublue in which the Court affirmed a district court ruling granting summary judgment to a defendant on ATDS grounds but did not specifically adopt the district court’s reasoning that an ATDS requires random or sequential number generation. District courts in the Sixth Circuit mostly require random or sequential number generation but there are exceptions. See Lord v. Kisling, Case No. 1:17-CV-01739, 2018 U.S. Dist. LEXIS 116288 (N.D. Oh. July 12, 2018)(failure to allege random or sequential number generation sufficient to justify dismissal of TCPA text message case); Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445, at *15 (E.D. Mich. Aug. 16, 2018)(Aspect predictive dialer not an ATDS because did not dial using random or sequential number generator); but see Allan v. Pennsylvania Higher Education Assistance Agency, No. 2:14-cv-54 (W.D. Mich. Aug. 19, 2019)(following Marks and extending reach of Marks to Michigan and Sixth Circuit for the first time).
Against this backdrop Quicken’s motion to dismiss seemed like a pretty safe bet. The Complaint did not contain any allegations of random or sequential number generation and with TrueBlue working in its favor a dismissal should have been within its grasp. But alas, it was not to be.
While refusing to determine what the proper ATDS formulation was, the Lopez Court found—for purposes of surviving the pleadings stage—the following allegations sufficient to state a claim: 1) messages came via the use of an SMS shortcode, and SMS codes are reserved for automatically made text messages; 2) the calls and messages were of a generic and non-personal nature (ie, “Quicken Loans: Your simpler way to refinance is here. Get started online today . . .”); 3) that the calls received followed the same pattern under which, after answering the call, there would be a long pause, followed by a clicking sound that would signify the dialing system was operating automatically to send the call to a live representative when one became available; and 4) that both named plaintiffs continued to receive calls and texts after opting out.”
Notably the Lopez decision was at the pleadings stage and Quicken remains free to take a second crack at the issue on MSJ.
We will track this case for any developments that may take place, before the potentially ultimate SCOTUS development that is likely to be issued in about a month.