As part of Manatt's continuing monthly coverage of the aftermath of the  Facebook v. Duguid decision and how district courts are applying it when determining 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), there have been several notable decisions since our last roundup. While many courts have continued to hold that a calling system must actually use (not just have a hypothetical capacity to use) a random or sequential number generator in order to qualify as an ATDS consistent with the Facebook holding and have dismissed such claims at the pleadings stage lacking such facts, the results have not been uniform.

A summary of some recent noteworthy district-level decisions applying and interpreting Facebook follows.

Courts Granting Motions to Dismiss

Barry v. Ally Financial, Inc., No. 20-12378, 2021 WL 2936636 (E.D. Mich. Jul. 13, 2021):

Relying on several similar post-Facebook decisions, like Watts and Hufnus among others, Judge Paul Borman for the U.S. District Court, Eastern District, Michigan, dismissed the complaint with prejudice. The plaintiff alleged the defendant called her cell phone (using an ATDS, without her consent) in an attempt to reach her brother, and that the defendant continued to call her after she requested not to be called. The court granted the defendant's motion to dismiss (MTD) because the plaintiff did not allege that the defendant used a random or sequential number generator to make the calls. The court also noted that "because the calls Plaintiff complains about were directed to Plaintiff specifically and purposefully, related to her brother's account with Defendant, the Court can only conclude that the technology that called her used a stored list containing the names and numbers of persons to be contacted; had the technology stored or produced Plaintiff's number at random or in sequence, it would have no way of knowing that it was contacting someone associated with a specific account holder."

To read the opinion in Barry v. Ally Financial, Inc., click here.

Stewart v. Network Capital Funding Corp., No. CV 21-368-MWF (MAAX), 2021 WL 3088011 (C.D. Cal. Jul. 16, 2021):

Citing to the U.S. District Court, Colorado's post-Facebook decision in Montanez v. Future Vision Brain Bank, LLC, No. 20-cv-02959, 2021 WL 1697928 (D. Colo. Apr. 29, 2021) discussed in our previous roundup, which notably was the first federal district court to apply Facebook, Judge Michael W. Fitzgerald of the U.S. District Court, Central District, California, dismissed the plaintiff's complaint on a Rule 12(b)(6) motion. Fitzgerald found that the plaintiff failed to allege any facts to plausibly establish that the defendant used an ATDS, such as, for example, showing the identical, repetitive or impersonal nature of the calls, let alone any facts plausibly showing that the defendant's dialing equipment employed or used a random or sequential number generator in placing the complained-of calls.

To read the opinion in Stewart v. Network Capital Funding Corp., click here.

Guglielmo v. CVS Pharmacy, Inc., Civil No. 3:20cv1560, 2021 WL 3291532 (D. Conn. Aug. 2, 2021):

Dismissing, Judge Janet Bond Arterton of the U.S. District Court, Connecticut, ruled that the plaintiff's ATDS allegations were inadequate after applying "Facebook's strict reading of the TCPA." The plaintiff alleged that he "received multiple calls in the form of text messages, on the same day, on several occasions" that "indicated they were automatically dialed" because "there was no way to respond to anyone directly to communicate concerning the message[,]" and despite his "attempt[s] to opt out using the instructions, [ ] he continued to receive messages." "However, he neither allege[d] that his number was stored or produced with a random or sequential number generator, nor d[id] he claim that the calls he received used an artificial or prerecorded voice."

To read the opinion in Guglielmo v. CVS Pharmacy, Inc., click here.

Courts Denying Motions to Dismiss

Miles v. Medicredit, Inc., No. 4:20-CV-01186 JAR, 2021 WL 2949565 (E.D. Mo. Jul. 14, 2021):

Declining to dismiss, Judge John A. Ross for the U.S. District Court, Eastern District, Missouri, held that the ATDS issue is more appropriate for resolution at the summary judgment stage. There, the plaintiff alleged the defendant made numerous calls to the plaintiff's cell phone using an ATDS and an artificial prerecorded voice, without consent, in an effort to collect a debt owed by someone named Amy. The court refused to follow Timms,  which the defendant cited to argue that the plaintiff's allegation that it uploads numbers to be called is incompatible with the Facebook ATDS definition, because Timms was decided on a motion for summary judgment and not an MTD. Citing Callier,  the court also rejected the argument that because the calls were made to a specific individual, they could not be randomly or sequentially generated.

To read the opinion in Miles v. Medicredit, Inc., click here.

Jance v. Homerun Offer LLC, et al., No. CV-20-00482-TUC-JGZ, 2021 WL 3270318 (D. Ariz. Jul. 30, 2021):

Judge Jennifer G. Zipps of the U.S. District Court, Arizona, ruled that the pro se plaintiff had plausibly alleged the defendants used an ATDS despite only alleging circumstantial and indirect allegations of ATDS use, such as the content of the calls and the context and manner in which they were made. The court stated that the system need only have the capacity to call randomly or sequentially generated phone numbers (rather than actually use such a generator) and suggested that the issue was not properly resolved without discovery. Among other things, the plaintiff alleged he had no business relationship with the defendants, did not give the defendants his contact information and did not consent to be called. He further alleged he heard a pause before a person began speaking, the calls were generic in nature and never referenced the plaintiff specifically, and the numbers were spoofed. He also claimed to have received numerous calls after requesting to be placed on the defendants' internal "Do Not Call" list.

To read the opinion in Jance v. Homerun Offer LLC, et al., click here.

Key takeaway: While Facebook  sets 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 follow pre-Facebook  authority.

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.