The statutory damages available under the Telephone Consumer Protection Act (“TCPA”), 27 U.S.C. § 227, make it ripe for abuse. (Statutory damages are when Congress dictates the amount a Plaintiff can be awarded for a statutory violation, rather than having to prove any real, actual damages; under the TCPA, it's $500 per violation, which the Court can triple for knowing or willful violations.) Thus, with all that easy money on the table, there is no shortage of plaintiffs seeking statutory damages under the TCPA, regardless of whether they have a viable TCPA claim. Luckily, the federal courts have a pleading standard, often referred to as the Iqbal/Twombly standard, that requires plaintiffs to plead a plausible (not merely possible) claim supported by well-pleaded factual allegations. That standard is intended to protect defendants from being dragged into expensive discovery by a plaintiff simply filing a threadbare complaint containing only conclusory allegations. Whether a plaintiff has met that pleading standard is often an issue in TCPA cases where a plaintiff is claiming he or she received autodialed or prerecorded calls. In a defendant-friendly opinion, the United States District Court for the Southern District of California just held that a plaintiff, when claiming he or she received a TCPA-violating prerecorded call, must provide factual details regarding the use of a prerecorded voice to meet the Iqbal/Twombly standard. Below we discuss what the court held must be pled to meet that standard.
TCPA's Prohibition on Autodialed and Prerecorded Calls.
The TCPA prohibits making a non-emergency call to a cellphone number or a service that charges the called party for the call, using an automatic telephone dialing system (“ATDS”) or artificial or prerecorded voice, without the called party's prior express consent. See 47 U.S.C. 227(b)(1)(A)(iii). The called party's prior express written consent is needed if the ATDS or prerecorded call is a sales call. The TCPA also prohibits making non-emergency calls to residential telephone lines, using an artificial or prerecorded voice, without the called party's prior express consent. See 47 U.S.C. § 227(b)(1)(B). The called party's prior express written consent is needed if the prerecorded call is a sales call. TCPA plaintiffs alleging the receipt of ATDS or prerecorded calls often fail to meet the Iqbal/Twombly standard as they incorrectly believe that merely stating a call was made with an ATDS or prerecorded voice is enough.
Davis v. Rockloans Marketplace, LLC1
In Davis v. Rockloans Marketplace, LLC, the plaintiff claimed she received ATDS calls and prerecorded calls without her consent. The district court originally dismissed the case because it found that the defendant could not have called the plaintiff using an ATDS as the plaintiff previously provided her number to the defendant. The plaintiff appealed the case to the Ninth Circuit Court of Appeals. The circuit court agreed that the plaintiff's ATDS claim failed. But it overturned the district court's dismissal because the failure of plaintiff's ATDS claim did not necessitate the dismissal of her prerecorded call claim. It is important to remember that the TCPA prohibits the making of non-emergency calls to a mobile telephone number assigned or a service that charges the called party for the call, using an ATDS or artificial or prerecorded voice, without the called party's consent.
With the trial-level case reopened, the district court had to decide whether the plaintiff alleged sufficient facts to support her prerecorded-call claim. The plaintiff had repeatedly offered the conclusory allegation that the defendant called her using an artificial or prerecorded voice. But the district court, correctly, found that that conclusory allegation did not meet the Iqbal/Twombly pleading standard. The district court recognized that the majority of the district courts in the Ninth Circuit2 require factual allegations to plausibly plead that a call was made using an artificial or prerecorded voice. For example, a plaintiff should be able to allege facts about the tenor, nature, or circumstances of the calls that demonstrate a live person was not speaking. Since the plaintiff did not allege any such facts or anything else that demonstrated a live person was not speaking, the district court found she had not pled a plausible TCPA claim. But the district court did provide the plaintiff with the opportunity to amend her complaint.
If you are a defendant in a TCPA case concerning alleged ATDS or prerecorded calls, it is important to look at whether the plaintiff has included sufficient factual allegations concerning the alleged ATDS or prerecorded voice usage. If the plaintiff hasn't, it may be worth raising that via a motion to dismiss. While a plaintiff with a potentially legitimate TCPA claim may be able to adequately amend his or her complaint to correct this issue, it could be an effective way to ward off plaintiffs with less meritorious claims that are only seeking a quick payday by trying to force a defendant to consider settlement vs. proceeding into expensive discovery.
Footnotes
1. Case No.: 23cv0134 DMS (BLM), 2024 U.S. Dist. LEXIS 215499 (S.D. Cal. Nov. 26, 2024).
2. Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
