UH OH: Another ATDS TCPA Case Makes it Past the Pleadings Stage– Is this a Trend?

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This is the third time in the last 30 days that I have reported on an ATDS TCPA case making it past the pleadings stage– and remarkably this guy didn’t even have a lawyer.

In Frato v. Capital Management Services, 2025 WL 2830614 (D. N.J. Oct. 6, 2025) the Defendant moved to dismiss an ATDS claim and the court refused to throw out the case.

Here is the meat of the analysis:

Frato alleges that, upon information and belief, Capital utilized an ATDS “that produces and dials numbers sequentially, rather than manual dialing.” (Am. Compl. ¶ 31.) In support of this assertion, Frato sufficiently alleges that: (1) the calls had “[a] notable delay followed by a clicking noise before a representative spoke”; (2) the calls were made by “multiple different phone numbers to contact [Frato], reflecting a dialing pattern characteristic of auto-dialed calls”; (3) the calls were “made in rapid succession from numbers with similar patterns, indicating sequential dialing”; (4) the calls had a “consistent delay upon answering, with a clicking noise and/or beep before a live representative spoke”; (5) the calls predominantly had a 1-800 callback number and/or versions of similar numbers; (6) Capital called Frato twenty-nine times; and (7) the calls’ contents consisted of Capital’s representatives refusing to identify themselves as debt collectors seeking to recover a debt, and asking to speak with a different person, to which Frato explained he was not the person whom Capital attempted to reach and conveyed he did not want to be contacted again. (Id. at ¶¶ 5-6, 16, 18, 23, 25, 30-31)… As such, Frato sufficiently pleaded that Capital used an ATDS, therefore, the Court denies Defendant’s Motion to Dismiss Count One of the Amended Complaint.

Fascinatingly, this case follows the trend of being a DEBT COLLECTION call allegedly made using an ATDS– yet numerous cases have held debt collectors simply do not use such systems as they need to have pinpoint accuracy with their calling practices (long story as to why that matters.)

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

1 Comment

  1. Plaintiff alleges that he was called 29 times for someone else’s debt, with what was obviously an automated predictive dialer, and that defendant continued calling him after he told them to stop. Maybe defendant has some good factual defenses they can’t raise at the pleading stage, but this is a prima facie case of harassment. Really, there should be an FDCPA count as well. If there is any wiggle room in the ATDS definition, these are the kinds of facts that push judges toward taking the plaintiff’s position and create “bad” law for other defendants. These facts also undercut any defense that debt collectors use “pinpoint accuracy” in making automated calls. When are these people going to start using the RND?

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