Happy New Year everyone!
Here in TCPAWorld it is officially Year 1 P.FB. (Post-Facebook.)
As I explained yesterday, the Courts are far from arriving at a pleadings standard for ATDS claims in the one year that has passed since Facebook was decided.
Apropos, just yesterday a court held that essentially any allegations of autodialer usage is sufficient to survive the pleadings stage because Facebook is essentially only relevant at the MSJ phase:
Given the Supreme Court’s decision in Duguid, determining whether [Defendant] used an ATDS when it allegedly made calls to Swartz will be more appropriate at summary judgment than in a motion to dismiss. Without the benefit of discovery, it would be extremely unlikely that Swartz could gain knowledge of the specific type of telephone technology [Defendant] employed. With discovery, Swartz may be able to provide facts that support her claim that [Defendant] used an ATDS. At the same time, [Defendant] will have an equal opportunity to defend against claims that it used an ATDS.
Indeed, the Court found the following allegations sufficient to demonstrate ATDS usage:
1) the cellular telephone called; 2) the content of an automated message; 3) the dates of the calls; 4) the calling telephone numbers; and 5) the number of calls.
Ok… but how does that relate to the use of an RoSNG to store or produce telephone numbers to be called?
Bottom line folks–as I’m about to explain in about 30 minutes–there is no reliable ATDS pleadings standard right now.
The case is Swartz , Civil No. 3:21-CV-01064, 2022 U.S. Dist. LEXIS 60610 (M.D. Pa. March 31, 2022).