MORE BAD TCPA NEWS: Court Holds “Click and Pause” Allegations Sufficient to State ATDS Claim

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So I just covered the Gross case and I thought that was all the bad news I was going to have for today.

Nope.

Apparently back in May a court in Texas held that click and pause allegations were sufficient to state a TCPA ATDS claim even post-Facebook. This is true even where the Defendant asked for the Plaintiff by name!

In Callier, EP-20-CV-00304-KC, 2021 U.S. Dist. LEXIS 126769 (W.D. Tex.  May 10, 2021) the court held:

When Plaintiff answered, he was met with silence for several seconds before the system connected him with a live agent. This reasonably suggests that Defendant placed the call using an automated system.

Well that’s just peachy.

And the Court wasn’t bothered by the clearly non-random nature of the calls:

To be sure, that each agent asked to speak with “Armando” suggests that Defendant did not use a random number generator to produce its call list. Cf. Facebook, 141 S. Ct. at 1169 (finding no TCPA violation where the defendant “sent targeted, individualized texts to numbers linked to specific accounts.”). However, it is not unreasonable to infer from the pleadings that Defendant relied on a sequential number generator to place its calls. 

The case was apparently decided back in May but just popped up on Lexis today, seemingly to double the headache I have from Gross. 

I don’t like today.

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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.

4 Comments

  1. Also see Atkinson v. Pro Custom Solar LLC d/b/a Momentum Solar (W.D. Tex. 2021). Sorry to make your day worse Eric, if I can make it better let me know.

    Reply
  2. Pingback: 140 Days Later: Here Are Five Things To Know (RIGHT NOW) About How Courts Are Handling ATDS Cases Post Facebook – TCPAWorld

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