ATDS CASE AGAINST DMS PROCEEDS: Pro Per Plaintiff Scores Unusual Victory Against Major Lead Seller in TCPA Suit

So there’s a ton of buzz around TCPAWorld surpassing the 1,000,000 hit mark recently–and I’m going to cover that soon, I promise. Then there’s that whole thing about LeadsCon only having a handful of women speakers that Queenie brought up yesterday and lit LinkedIn on fire. I will cover that too. And soon.

But for now, we need to cover a quick and important TCPA story.

The doors of federal courthouses were seemingly closed to ATDS suits following the recent Borden decision. Most every court to look at a supposed ATDS case–especially a text message ATDS case–in recent memory has come out in favor of the defense.

Indeed the vaunted Facebook Ruling Resource Page has grown a bit stale as the cases–once flowing in at a steady rate–have been reduce to a mere trickle.

But along comes repeat litigator Todd C. Bank.

He filed suit against DMS alleging it sent him unwanted text messages using an ATDS. Again, these cases have been meeting swift and certain ends lately. Yet Bank prevailed.

In the Court’s view:

The five text messages that Bank challenges here likewise give rise to a reasonable inference that DMS used an ATDS to contact him. For one, the five text messages were all sent from the same “short code” phone number owned by DMS.  Further, four of the text messages included links to websites owned by DMS, while the fifth message instructed Mr. Bank to dial a phone number owned by DMS. Finally, the content of the messages is generic, impersonal, and sales-oriented. Together, these facts afford Bank’s claim adequate support to survive a motion to dismiss.

So we’re back to the “generic” messages might have been sent via an ATDS line of cases. Hmmm.

Notably DMS’ lawyer apparently tried to argue at the hearing that the calls were not the result of random number generation but of a reassigned number scenario. This seems odd in context–why is DMS sending texts to an aged lead?–but the bigger issue is that those facts were not alleged, so bringing them up in the context of a motion to dismiss is not helpful:

DMS argues that the existence of a plausible alternative theory shows that Bank’s claim is inadequately pleaded. At oral argument, DMS suggested that Bank could have received the text messages not because DMS used an ATDS but because a previous owner of Bank’s cell phone number had consensually provided the number to DMS.  Notwithstanding the merits of this alternative theory, it fails to defeat Bank’s claim at the pleading stage. 

Interestingly, Mr. Bank then turned around and asked to have DMS’ counsel sanctioned for “trying to mislead the court.” But since the Court found he did not comply with the requirements to seek such sanctions under Rule 11, DMS avoided being sanctioned.

What a wild and wooly TCPAWorld we have….

The case is Bank v. Digital Media Solutions, Inc. Case No. 22-cv-293, 2023 WL 1766210 (E.D.N.Y. Feb. 3, 2023).

Also jumping on a R.E.A.C.H. board call in a few minutes. Looking forward to chatting with a bunch of you.


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