The seesaw battle continues.
This Friday will mark one year from the Supreme Court’s Facebook decision–and will also mark one of the biggest webinars ever–but the courts continue to struggle with the impact of the Supreme Court’s ruling.
One of the biggest splits on the ATDS subject is whether–and under what circumstances–these claims ought to survive the pleadings stage.
Well, in Niemczyk v. Pro Custom Solar LLC, Civil Action No.: 19-7846 (ES) (MAH), 2022 U.S. Dist. LEXIS 54026 (D. N.J. March 25, 2022) the Court held that allegations a predictive dialer was used are sufficient to meet the pleadings standard.
The complaint alleged the numbers were dialed “using a predictive dialer, which is an ‘automatic telephone dialing system . . . capable of storing, producing, and dialing any telephone number’ and is ‘capable of storing, producing, and dialing telephone numbers using a random or sequential number generator.'”
If those allegations feel a bit threadbare to you, that’s probably because they are.
Like those courts that have held “click and pause” allegations are sufficient to allege ATDS usage, the Niemczyk court held that the mere whisper of predictive dialer usage was sufficient to get a case into the expensive discovery phase of the case:
Plaintiff is correct that Defendant may seek to prove that its dialing technology does not use random or sequential number generators at trial; however, that is a factual issue to be explored in discovery, rather than an issue to be decided as a matter of law at this stage.
Eesh.
See you Friday.
So hang on… you’re saying the courts are now taking a defined Predictive Dialer, and are automatically grouping that in as a Number Generator? Wow.
Yep. Not that far off from the old click and pause cases. And remember the number generator doesn’t have to produce phone numbers, just be used in the storage of phone numbers. Automatic sequencing using an rosng is enough. And many courts have held that predictive dialers may have that ability….