FN7 IS DICTA!: New TCPA MSJ Ruling May by the Best ATDS Case Yet

Lots of important cases out today.

In a HUGE MSJ in here in California, a Court has outright rejected a Plaintiff’s footnote 7 argument–concluding the Supreme Court’s famous dangling thread in Facebook is just dicta!!

In Cole v. Sierra Pac. Mortg. Co., Case No. 18-cv-01692-JCS, 2021 U.S. Dist. LEXIS 239792 (N.D. Cal.  December 15, 2021) the Defendant moved for summary judgment arguing that it did not use an ATDS to call the Plaintiff.

Plaintiff countered that the system was using an ATDS because–in classic footnote 7 fashion– an RoSNG helped determine the sequence in which numbers were to be dialed.

The Court rejected the argument outright, concluding that Fn7 is not binding to begin with:

While the footnote could perhaps be read more broadly, it is dicta addressing an issue that was not before the Court. It is true that dicta of the Supreme Court is generally
entitled to great weight.  Here, however, the intent of Footnote 7 as applied to the facts of this case is far from clear, and adopting [Plaintiff’s] reading of it would undermine the broader reasoning of the opinion in which that footnote appears.


The Court goes on to hold directly that a system must use an RoSNG to generate telephone numbers and not merely any number.

This is a great win for the defendant in this case and a great TCPAWorld victory overall.

Nonetheless, this is merely the determination of a single court and many other courts read FN7 to have far more force. So be careful out there. And always consult counsel before deploying a new outreach strategy.


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