Horton Hears a TCPA Loss: “America’s Largest Homebuilder” Stuck in Robotext Class Suit Arising from Use of CallFire Dialer

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I love it when the universe winks at you.

Just yesterday I reported on a big class action settlement involving a Plaintiff named Horton and this morning I get to report on a different Horton-D.R. Horton—losing a motion in a TCPA suit.

In Davis v. D.R. Horton, C.A. No. 19-1686-LPS-JLH, 2020 U.S. Dist. LEXIS 189726 (D. Del.  October 13, 2020) the court held that Plaintiff’s allegations of ATDS usage were sufficient at the pleadings stage and refused to strike the class alleged against it.

D.R. Horton had allegedly made texts to consumers without their consent in an effort to pitch homes. It (allegedly) used the CallFire dialer to make these texts—a system that, according to the complaint, produce random numbers to be called.

Given that the allegations squarely asserted the ability of CallFire to randomly produce numbers to be dialed there didn’t seem to be much reason to challenge the case at the pleadings stage. But D.R. Horton did it anyway- twice.

As I reported back in March, the Magistrate Judge assigned to the case initially recommended denying the motion to dismiss given the well-pleaded allegations. D.R. Horton objected to those findings, forcing the district court to weigh in—which it did with de novo findings concluding that D.R. Horton’s motion lacked merit.

Notably, the Davis court found allegations that D.R. Horton used texts that were “standardized, impersonal, and consistent in structure and format” compelling on the issue and also noted Call Fire’s own public statements indicating that its users could “send thousands of messages instantly” as “proof” that an ATDS was used.

So “America’s Largest Homebuilder” can’t shake the big TCPA suit arising out of its (alleged) use of blast robotexts and the class action against it rolls on. Maybe it should try to stay the case instead….

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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