BARRY GOOD: Court Dismisses ATDS Case–Rejects Footnote 7 Argument–Relying on “Awesome” Case

The pun may be the lowest form of humor, but I still giggled a bit writing the headline here.

Mondays. 🙂

So you folks might remember my write up on Barry vs Ally. At the time I called it an “Awesome TCPA Win” and today’s case shows why.

In  Barnett v. First Nat’l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 37563 (W.D. Ky. March 3, 2022) the court granted a Defendant’s motion for summary judgment. In assessing the case the Court relief HEAVILY on Barry in determining that a LiveVox dialer was not an ATDS.

Relying on Barry, the Court ruled that only dialers that actually created telephone numbers–in real time or from storage–randomly or sequentially qualifies as an ATDS.

Once that ruling was established the rest of the opinion wrote itself. Obviously, “LiveVox only calls customers from a predetermined list, which is ordered and provided by FNBO.”

In the case, there was “no evidence to suggest that the predetermined lists provided to LiveVox by FNBO were “sequentially generated or stored”:

Rather, as explained by Paul Osborne (“Osborne”), Director of Recovery at FNBO, FNBO’s predetermined lists are created as follows:

  • Each day, FNBO’s TWX system generates a file of accounts that are past due, and therefore, eligible to be called.
  • That file is then sent to the LiveVox System, where FNBO’s administrators work with the files to develop calling campaigns and strategies based on different criteria, such as “delinquency, balances, other types of segmentation, from time zones, and so forth.” Id. at 22, 21:7-13. While developing campaign strategies, FNBO’s administrators determine the numbers to be called and the order in which the numbers are to be called. Id. at 34-35, 38- 40, 33:11-34:10, 38:11-40:5.
  • The LiveVox system then uses the FNBO administrators’ predetermined lists to call the designated customers. [R. 31-1, Ex. A, p. 3, ¶ 14].

Such process makes evident that the predetermined lists used by LiveVox are not “sequentially generated or stored,” but are crafted and provided daily to LiveVox by FNBO’s administrators. As a result, and just like in Barry, Barnett’s reliance on footnote 7 is misplaced.

This is a great win, of course, and it joins another in a long line of MSJ victories for TCPA defendants who call based upon stored lists of numbers. Callers should keep this case in mind.

That said, not every court is going to agree with this reasoning. Facebook does NOT necessarily require that telephone numbers be randomly or sequentially generated–although that is how some courts (like Barry and now Barnett) read the decision. Other courts follow a more literal read of FN7 and focus on whether an RoSNG is used to determine dialing sequence.

So be careful–don’t let Barnett be a “trap” case that fools you into thinking you’re safe when you might not be in some courts. Be sure to seek advice before deploying any new contact strategy.


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