On November 26, 2024, the United States District Court for the Southern District of California issued a noteworthy decision highlighting the importance of carefully contesting a plaintiff's prerecorded voice claims. In Davis v. Rockloans Marketplace, LLC, the Court granted Defendant's Motion to Dismiss, in part,finding that Defendant had not placed prerecorded voice calls to Plaintiff in violation of the Telephone Consumer Protection Act("TCPA"). As our readers are aware, the TCPA makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party."
In its Order, the Court explained that Plaintiff had not sufficiently demonstrated that Defendant utilized prerecorded voice messages to contact her. Accordingly, Plaintiff's TCPA claims were dismissed. Plaintiff originally sought treble damages for over 150 allegedly willful and/or knowing violations – each carrying a statutory penalty of up to $1,500. As such, this was a significant victory for Defendant.
In Davis, Plaintiff defaulted on an unsecured loan provided by Defendant. On October 26, 2022, she allegedly revoked her consent to the receipt of further autodialed calls from Defendant. Despite this revocation, Plaintiff alleges that Defendant continued to call her cellphone – over 150 times between October 26, 2022 and January 24, 2023. Plaintiff further alleges that these calls utilized either an autodialer or prerecorded voice, in violation of the TCPA.
The Prerecorded VoiceCall Analysis Set Forth in Davis
After the Court dismissed Plaintiff's TCPA claims for failure to adequately plead the use of an autodialer, Plaintiff appealed. On remand, the Court was asked, in part, to decide if Plaintiff had sufficiently plead facts to support the "artificial or prerecorded voice" element of her TCPA claims.
In its opinion, the Court noted that the majority of district courts in the Ninth Circuit have held that, in addition to the commonplace "parroting" of statutory language, factual allegations are required to satisfy the artificial or prerecorded voice element of a TCPA claim. For example, the Court related that "a plaintiff should be able to allege facts about the tenor, nature, or circumstances of the alleged calls or otherwise demonstrate that a live human was not speaking during the calls." In deciding for Defendant, the Court detailed that Plaintiff: 1) only offered repeated conclusory allegations regarding Defendant's prerecorded voice usage; and 2) hadfailed to demonstrate that a human being was not speaking on the subject calls. Accordingly, the Court dismissed her TCPA claim.
Why Does theDavisDecision Matter to Your Business?
As discussed in previous blogs, the Facebook v. Duguid ruling has made filing claims under the TCPA more complicated. Specifically, many plaintiffs are having difficulty establishing that certain telemarketing equipment qualifies as an autodialer for TCPA purposes. As a result, many TCPA litigantshave become increasingly reliant on the prerecorded voice call prohibitions contained in the statute. The Davisdecision offers detailed insight into how courts determine whether calls at issue in TCPA cases may have utilized prerecorded voice. More importantly, this decision serves as a good reminder for how defendants should proceed at the responsive pleading stages of TCPA litigation proceedings. As we tell our clients, defendants should strive to contest every substantive allegation when seeking dismissal of a TCPA complaint.
Given the ever-changing landscape of TCPA litigation, it is important that businesses regularly consult with experienced telemarketing law counsel. Over the past decade, the attorneys at Klein Moynihan Turco have defended countless TCPA claims on behalf of the telemarketing industry.
Related Blog Posts:
Did This Fresh Subway TCPA Litigation Decision Refresh A New Type of Claim?
Florida TCPA Action Survives Motion to Dismiss
New Oklahoma Mini-TCPA Becomes Law
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.
