TCPA Quick Hitter: “Click and Pause” ATDS Allegations Still Finding Favor in the Third Circuit

In the shadow of the big Supreme Court argument, the rank and file TCPAWorld suits carry on.

Indeed the same day as the big oral argument this Tuesday, a court in Pennsylvania was approving “click and pause” allegations as sufficient to survive the pleadings stage, even under Dominguez II.

In Smith v. Vision Solar Llc, CIVIL ACTION No. 20-2185, 2020 U.S. Dist. LEXIS 229989 (E.D. Pa. December 8, 2020) the defendant moved to dismiss arguing that vicarious liability allegations were lacking and that ATDS usage was not sufficiently set forth in the complaint.

In denying the motion the Court first found that vicarious liability is adequately alleged where a seller authorizes a marketer to send messages on its behalf. (Note: there is a split on this—courts in the Ninth Circuit apply a very different standard.) As the complaint alleged that the calls were, indeed, authorized by the defendant vicarious liability was adequately pleaded.

As to ATDS usage, the Court acknowledged the Third Circuit’s ruling in Dominguez II holding that an ATDS is a machine with “the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” Nonetheless the court found that “click and pause” allegations are sufficient at the pleadings stage, even post-Dominguez. This is especially so since the calls at issue were allegedly impersonal marketing calls.

Separately the court denied a motion to strike the class definition—even though the definition plainly included merits-based determinations and qualified as a failsafe. The Court reserved the issue for the certification stage—a real mistake since it forces Defendant to litigate through expensive class discovery to address a class that could never be certified. Foolish (IMO).

The beat goes on…



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