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On September 8, 2025, Bank of America ("Defendant") was sued in the United States District Court for the Southern District of California for allegedly violating the Telephone Consumer Protection Act's ("TCPA") rules regarding the use of automatic telephone dialing systems (each, an "ATDS"). In Lopez v. Bank of America, N.A., Plaintiff alleges that she received over 80 automated calls from Defendant after she revoked consent to be called. As our readers are aware, these allegations, if proven true, could subject Defendant to a massive financial judgment for violating the TCPA's dialer provisions.
The Current Landscape of TCPA ATDS Claims
As our readers are aware, the TCPA was enacted to restrict certain telemarketing practices, including the use of an ATDS for marketing purposes. Specifically, Section 227(b)(1)(A) prohibits placing certain calls using an ATDS or artificial or prerecorded voice to wireless/cellular numbers without obtaining prior express consent.
In the wake of the United States Supreme Court's landmark decision in Facebook v. Duguid, fewer and fewer TCPA plaintiffs are filing claims involving alleged violations of TCPA dialer rules. Our readers will recall that, in Facebook, the Supreme Court decided that an ATDS must have the capacity to store or produce telephone numbers using a "random or sequential number generator." Previously, a circuit split existed, with certain courts holding that any dialing system that could store and automatically dial numbers qualified as an ATDS. Consequently, it is not as common to see lawsuits alleging violations of the TCPA's ATDS provisions today.
The TCPA Dialer Claims in Lopez
As most consumers are aware, Defendant is a major bank that does business throughout the country. Defendant issued Plaintiff a consumer credit card. In September 2024, Plaintiff allegedly began defaulting on her monthly credit card payments. Soon thereafter, she started receiving collection calls from Defendant on her cellphone. Certain calls and text messages initiated by financial institutions are sometimes exempt from the TCPA's ATDS prohibitions. Among other considerations, a court will examine whether: 1) the customer provided his or her phone number when signing up for a product or service; 2) the subject calls and/or texts were only sent to the number provided by the customer; and 3) the calls and texts were limited to addressing issues with the customer's account (and did not include any marketing/advertising content).
On November 18, 2024, Plaintiff revoked consent for the receipt of future calls from Defendant. Since that date, Plaintiff alleges that she received over 80 calls that violate the TCPA's dialer rules. In her Complaint, Plaintiff maintains that Defendant's calls utilized either an ATDS or prerecorded voice. Among other allegations, the Complaint states that when Plaintiff answered certain calls, "there was a delay before the line made a sound, indicating the use of an artificial or prerecorded voice." Additionally, Plaintiff alleges that when she did not answer a call from Defendant, she "then received multiple calls in rapid succession from [Defendant], indicative of the use of a computerized phone system." In response, Defendant will likely argue that the alleged calls are exempt from the TCPA's ATDS prohibitions. If Plaintiff is able to substantiate her claims, however, Defendant may be liable for up to $1,500 in statutory damages per violation.
Why is the Lopez DecisionNotable?
Facebook was unequivocal in clarifying that automatic telephone dialing equipment must have the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Many TCPA claimants have now turned their attention to other provisions of the statute. Those plaintiffs that file ATDS claims, such as Ms. Lopez, often plead that defendants utilize either an ATDS or prerecorded voice. That way, they have two bites at the proverbial apple. Although not as commonly pled these days, businesses that engage in telemarketing must maintain vigilance to avoid TCPA dialer-related claims.
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