GETTING CLOSER: New Suit Dismissing ATDS Claim is Best Look Yet at Effect of Facebook in ATDS TCPA Suits

You’ll recall earlier this year we discussed the series of cases filed against the National Republican Senatorial Committee. 

Well in the first of those cases the Court just issued a potentially hugely-important ruling that will be shortly listed on the Facebook Resource Page as the third big post-Facebook ATDS ruling.

Like the first two, however, it nibbles around he edges and doesn’t quite give us a nice solid ruling on the application of Facebook at the pleadings stage.

The case is Camunas v. Nat’l Republican Senatorial Comm., CIVIL ACTION NO. 21-1005, 2021 U.S. Dist. LEXIS 100125 (E.D. Pa.  May 26, 2021) and in it the Court grants a motion to dismiss to the NRSC primarily on the ground that the complaint does not provide enough information to state a claim.

The Court is mostly concerned that the content of the purportedly unwanted texts are not supplied, nor is any information definitively linking the texts back to the NRSC.

Nonetheless, on the ATDS piece the Court specifically analyses Duguid and determines that allegations the messages were  “generic and obviously prewritten” and that “[u]pon information and belief, Defendant uses dialing technology, which calls phone numbers from a stored list using a random or sequential number generator to select those phone numbers” were insufficient to state a claim without more.

That least piece is HUGE because Footnote 7 seems to encapsulate dialers that do what the Plaintiff has alleged–on information and belief–the dialer in Cumunas did.

Still the case isn’t perfect because the Court never really stops to analyze the allegations in light of FN 7. Instead, it is focused on missing allegations:  i) the actual content of the messages; ii) information about past dealings with the NRSC; iii) the phone number from which the message was sent; and iv) whether a shortcode was used.

The dismissal is without prejudice so an amendment is sure to follow.

We’ll keep an eye on this.



Leave a Reply