Part of my job as strategic national counsel for big brands is helping them pick and choose what cases to fight and which to stay away from. Looks like Navient is deploying a similar strategy–and I like to see it.
In Creech v. Navient, 2:21CV118-PPS/JEM, 2022 U.S. Dist. LEXIS 31576 (N.D. Ind. February 23, 2022) Navient went to the mat against a pro per and made some very positive case law for users of Genesys based dialers in the meantime.
In Creech, the Plaintiff sued Navient contending that he had revoked his consent prior to calls he contends violated the TCPA.
One little problem though–the calls weren’t made using an ATDS.
Navient introduced great evidence to the effect that:
Navient has the Genesys “telephony platform” custom- configured to support its call centers in both placing and receiving telephone calls. Navient’s customized telephony platform is incapable of storing or producing numbers to be called using a random or sequential number generator, and then dialing those numbers. In other words, the technology does not have the capacity to generate, or to store, either arbitrary or sequential ten-digit telephone numbers.
Navient does not use random telephone number generation for any purpose. Instead, Navient creates curated customer lists to determine potential contacts, stores those lists in a separate database, and uses those lists to create “calling campaigns.” When it uses a customer list for a calling campaign, the numbers to be called are not selected randomly or sequentially. All the numbers on the list are called, in an order based on business criteria and data points selected by Navient, such as the date and time of the last contact attempt, the date of account delinquency, the loan balance, and credit bureau score.
On the other hand, the Plaintiff–who has no lawyer at all–came to bat with something he apparently copied and pasted from another case:
In his only direct response to Navient’s asserted facts, Creech contends that Navient’s “dialing system device places calls without human intervention.” This claim is supported by reference to “Plaintiff’s Statement of Facts, contemporaneously filed, No. 48 through 53.” There is no such filing in this case. The mystery may be solved by the header appearing at the top of the page, which suggests that the text was lifted from a filing made in Case Number 0:18-cv-60743-RAR n the United States District Court for the Southern District of Florida. In any event, whether or not the matter is material, the attempt to establish a dispute of fact is unsuccessful for lack of evidence.
Given this mismatched evidence the Court had zero problem finding that the Genesys calls were not made using an ATDS under the Facebook standard. Again, that’s a great win.
The Court went farther and also determined that Plaintiff had failed to introduce any evidence sufficient to rebut Navient’s showing that a prerecorded voice had not been used. So it was a clean sweep victory for Navient and judgment was entered in its favor.
Navient continues to do good work in the TCPAWorld. Not sure who the in house counsel in charge of litigation is over there but–keep doing what you’re doing. Strategic vision pays off and creating good case law in WINNABLE cases helps you (and all of us) leverage those victories in cases that aren’t as palatable.