PLEADING WARS: Courts Are In Complete Disarray as to the ATDS Pleadings Standard a Year After Facebook

So tomorrow is the HUGE one-year Facebook anniversary webinar that everyone is talking about.

Been checking out some coverage from some of the “other guys” recently and, I must say, a lot of swings and misses out there. I think some law firms just like to tell potential clients what they want to hear. That’s too bad.

Here’s what I know– Facebook has proven far more helpful at the MSJ phase than at the pleadings stage. Indeed, the old “click and pause” allegations that came to prominence way back in 2015 keep finding pay dirt in the Post-Facebook world.

For instance, in Laccinole v. Solutions, C.A. No. 1:21-CV-00045-MSM-PAS, 2022 U.S. Dist. LEXIS 38868 (D. R.I.  March 4, 2022) the Court found that typical click and pause allegations were sufficient to demonstrate ATDS usage post-Facebook:

For instance, he claims some calls involved an audible click followed by a pause before an operator joined the call or the use of a prerecorded message. (ECF No. 17 ¶¶ 80-81.) This could indicate the calls were made automatically and generated without human intervention.

Never mind that “human intervention” is no longer the test post-Facebook, decisions like these keep cropping up.

In fact-in honor of he webinar tomorrow- I took a closer look at the Facebook Ruling Resource Page and found 5 other cases that have held click and pause allegations sufficient to allege ATDS usage:

• Callier, EP-20-CV-00304-KC, 2021 U.S. Dist. LEXIS 126769 (W.D. Tex.  May 10, 2021)(allegations of a pause upon receipt of unsolicited calls sufficient to state ATDS claim post-Facebook);
• Jance v. Homerun Offer LLC, No. CV-20-00482-TUC-JGZ, 2021 U.S. Dist. LEXIS 143145 (D. Ariz. July 29, 2021)(pause allegations coupled with lack of consent and general marketing content sufficient to allege ATDS usage at the pleadings stage);
• Smith v. Direct Bldg. Supplies, CIVIL ACTION No. 20-3583, 2021 U.S. Dist. LEXIS 193657 (E.D. Pa. Oct. 7, 2021)(click and pause allegations sufficient to allege ATDS claim against caller with whom plaintiff had no previous relationship);
• Garcia v. Case No. Pro Custom Solar Llc, 4:21-CV-00392, 2022 U.S. Dist. LEXIS 4445 (E.D. Tex.  January 10, 2022)(Click and pause allegations sufficient to survive the pleadings stage even post-Facebook);
• Landy v. Natural Power Sources, Civil Action No.: 3:21 -cv-00425-PGS-TJB, 2022 U.S. Dist. LEXIS 46534 (D. N.J. Mar. 14, 2022)(Click and pause allegations sufficient to survive pleadings stage).

No good.

On the other side of the ledger a good number of cases have held only systems that randomly generate telephone numbers trigger the TCPA at the pleadings stage:

• Hufnus v DoNotPay, Case No. 20-cv-08701, Doc. No. __ (N.D. Cal. June 24, 2021)(System that called from list of customers not an ATDS because list was not randomly dialed; FN7 only applies where random numbers are called);
• Barry v. Ally Fin., Case No. 20-12378, 2021 U.S. Dist. LEXIS 129573 (E.D. Mich.  July 13, 2021)(Motion to dismiss granted as to targeted collection calls. Facebook requires usage of R&SNG, not just capacity. FN7 only applies to lists of random numbers);
• Borden v. Efinancial, LLC, No. C19-1430JLR, 2021 U.S. Dist. LEXIS 153086 (W.D. Wash. Aug. 13, 2021)(Motion to dismiss granted. FN7 only applies to lists of random numbers);
• Franco v. Alorica Inc., No. 2:20-CV-05035-DOC-(KESx), 2021 U.S. Dist. LEXIS 164438 (C.D. Cal. July 27, 2021)(Debt collection calls cannot trigger TCPA since calls not made at random);
• Cole v. Sierra Pac. Mortg. Co., Case No. 18-cv-01692-JCS, 2021 U.S. Dist. LEXIS 239792 (N.D. Cal.  December 15, 2021)(Fn7 is just dicta. ATDS must generate random or sequential TELEPHONE numbers);
• Lauren Cross., Case No. 1:20-cv-01047, 2022 U.S. Dist. LEXIS 10676 (W.D. Ark.  January 20, 2022)(Only calls to randomly generated telephone numbers trigger the TCPA post-Facebook);
• Brickman v. Facebook, Inc., Case No. 16-cv-00751-WHO, 2021 U.S. Dist. LEXIS 175700 (N.D. Cal.  September 15, 2021)(Even if the text sequence were determined using an R&SNG that is not enough—only the use of an R&SNG to generate phone numbers is sufficient to trigger TCPA);
• 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)(MSJ granted to defendant following Barry. Only randomly or sequentially generated phone numbers trigger ATDS post Facebook)
• Pascal v. Concentra, Inc., Case No. 19-cv-02559-JCS, 2021 U.S. Dist. LEXIS 239583 (N.D. Cal.  December 14, 2021)(Textedly system not an ATDS at pleadings stage. After Facebook only random-generated phone numbers qualify).

Not bad.

And a bunch of cases fall somewhere in between but mostly allow ATDS cases to get past the pleadings stage:

• Atkinson v. Pro Custom Solar Lcc, CIVIL NO. SA-21-CV-178-OLG, 2021 U.S. Dist. LEXIS 112396 (W.D. Tex.  June 16, 2021)(ATDS allegations survive the pleadings stage where present use of R&SNG to determine dial sequence alleged);
• Libby v. Nat’l Republican Senatorial Comm., No. 5:21-CV-197-DAE, 2021 U.S. Dist. LEXIS 140103 (W.D. Tex.  July 27, 2021)(Allegations of generic campaign texts sufficient to plead ATDS usage)
• Garner v. Allstate Ins. Co.,  No. 20 C 4693, 2021 U.S. Dist. LEXIS 163121 (N.D. Ill.  August 30, 2021)(allegations of predictive dialer usage consistent with ATDS pleading where marketing calls were made using spoofed numbers);
• Poonja,, Case No. 20-cv-4388, 2021 U.S. Dist. LEXIS 186809 (N.D. Ill. Sept. 29, 2021)(Presence of “stop” instruction in generic text from shortcode sufficient to survive pleadings stage post Facebook);
• Delgado v. Pro Custom Sollar Llc, CAUSE NO. 1:21-CV-251-LY, 2021 U.S. Dist. LEXIS 224397 (W.D. Tex. Nov. 22, 2021)(Case holds allegations of predictive dialer usage to send cold call solicitation calls sufficient to state a claim under the TCPA);
• Macdonald v. Brian Gubernick Pllc, No. CV-20-00138-PHX-SMB, 2021 U.S. Dist. LEXIS 216788 (D. Az.  November 8, 2021)(Court accepts FN7 allegations at pleadings stage; Mojo power dialer potential ATDS);
• Raphael Aus. V. Alorica, Inc., 2021 U.S. Dist. LEXIS 240677 (C.D. Dec. 16, 2021)(Motion to dismiss granted. Use of an RoSNG to populate a list triggers TCPA, use of RoSNG to determine dialing sequence does not);
• 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)(Allegations of predictive dialer usage sufficient to establish ATDS usage at the pleadings stage).

There is just not way to square these rulings folks. NO clear ATDS pleadings standard has emerged a year after Facebook. 

Wild, no?

We’ll break all of this down tomorrow.