Things certainly aren’t getting any better for the Plaintiff’s bar when it comes to ATDS (aka autodialer) claims—even in the Ninth Circuit. A court in the Southern District of California recently granted a motion to dismiss an ATDS claim, illustrating the difficulty plaintiffs are facing in bringing an ATDS claim posts-Facebook.
In this case—Wilson v. Rater8 et al., No. 20-cv-1515-DMS-LL, 2021 U.S. Dist. LEXIS 201274 (S.D. Cal. Oct. 18, 2021), Plaintiff went to a doctor (Dr. Larry Dodge) for orthopedic exam, and minutes after, received the following text message from a short-code number:
Plaintiff sued the doctor as well as the texting vendor, rater8, claiming the text violated the TCPA’s ATDS provision and some state statutes as well.
Under Facebook, of course, “the equipment in question must use a random or sequential number generator” (RoSNG). Although the Complaint alleged that “[t]he systems utilized by Defendants have the capacity to store telephone numbers using a random or sequential generator; and to dial such numbers from a list without human intervention,” the Court confirmed that ATDS allegations like this, which merely “parrot the TCPA’s text” are “insufficient to state a claim.”
The Court also analyzed the following non-dispositive factors, which some courts have used to assess the plausibility of ATDS claims:
- the nature of the message (with a generic, impersonal, or promotional message making it more likely an ATDS was used);
- the number or frequency of messages (with repetitive messages sent over a short period of time suggesting an ATDS was used);
- the ability to respond to or interact with the text messages (with language such as “Reply Stop to unsubscribe” suggesting use of an ATDS);
- the relationship between the parties (with a pre-existing relationship weighing against ATDS)
- whether identical messages were sent to multiple numbers simultaneously (which would weighing in favor of an ATDS finding); and
- whether the message was sent from a SMS short code or long code (with a short codes leaning in favor of finding an ATDS was used).
Even though the text was sent from a short code and included an opt-out notification—two factors that might have supported an ATDS claim pre-Facebook—the Court found Plaintiff’s ATDS claims implausible. Since the text related to the business’ services and was sent right after they were rendered, the Court simply didn’t buy Plaintiff’s claim it was sent using an RoSNG. In the Court’s words:
Plaintiff invites the Court to find it plausible that minutes after undergoing his examination with Dr. Dodge, a device happened to randomly generate his cellular phone number and send a text about that examination. The Court declines to credit this speculative possibility over the much more plausible scenario that the text message was targeted at Plaintiff’s cellular telephone number.
The post-Facebook wins are really piling up now. Plaintiffs like this keep trying, though, so even if you’re sending a text to an individual customer like here, getting that prior express written consent is still considered best practice.