QUICK KILL: Yes ATDS Claims Are Still Perfectly Dead in the Ninth Circuit Footprint

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As TCPAWorld readers know well, the Supreme Court has defined an ATDS to be a system that EITHER stores OR produces telephone numbers to be dialed using a random or sequential number generator.

And as they also know the Ninth Circuit Court of Appeals has since held otherwise–concluding in Borden only systems that actually PRODUCE phone numbers using an RoSNG are subject to the TCPA’s ATDS restrictions.

Weird, but also, ok.

Well the court in Cupps v. TA Fintech, 2026 WL 852048 (N.D. Cal. March 27, 2026) reminder everyone that Borden says what it says in brutally efficient language.

In Cupps Plaintiff claimed he had received 97 autodialed calls and SMS messages. But he failed to allege facts demonstrating the calls were randomly sent to him. So the court dismissed the case concluding:

As the Ninth Circuit has recognized, “[w]hile we all wish for fewer calls and messages from marketers, [the Court is] limited
to the bounds of the TCPA.” Borden, 53 F.4th at 1236. Thus, where the pleaded facts do not plausibly support the random
or sequential number generation requirement, dismissal must follow. See Cupp v. ABC-Amega, Inc., 2025 WL 932970, at *2
(“Without additional factual support, the Court must conclude that Cupp has not adequately pleaded an ATDS was used.”).
Plaintiff fails to plead the second element of a TCPA claim, and the Court therefore need not reach the issue of whether he
consented to the calls to determine dismissal of the complaint is appropriate. Accordingly, the motion to dismiss is GRANTED.

That’s it.

That’s the ruling.

And really what more do you need?

ATDS claims remain functionally dead in the Ninth Circuit and given the relatively low volume across the nation right now I don’t expect an immediate resurrection.

Still I will be covering the latest on all things ATDS during my TWO HOUR TCPA breakdown at Law Conference of Champions in just a little over a month! May 4-6, 2026. PRICES JUMP WEDNESDAY! So get your tickets right now!

AmFam’s Jessica Miller will be there– will you?

Chat soon.

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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.

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