As part of Manatt's continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court's newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable decisions since our last roundup. While the results remain somewhat mixed, a growing number of federal courts (if not a majority) are adopting Facebook and holding that use of a random or sequential number generator is a necessary prerequisite to an ATDS finding. At the district court level, defendants have generally continued to fare well under the new ATDS standard both at the pleadings and the summary judgment stage. These courts are also increasing rejecting what some have called the "Footnote 7" argument—referring to footnote 7 in the Facebook decision, where the Supreme Court suggested in dicta that randomly or sequentially selecting numbers from a predetermined list might qualify as an ATDS—with judges focusing on the generation, not the selection, of numbers.
Key takeaway: While Facebook gives the current standard for finding whether a system is an ATDS with respect to the use of a random and sequential number generator, some courts may elect to examine factors considered determinative pre-Facebook and may still follow pre-Facebook authority.
Recent Notable Decisions:
Past Notable Decisions:
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