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….