TCPA Litigation Update — District Courts Reach a Consensus on the Impact of Facebook

District courts have begun to succeed in a consensus on the impact of Facebook, Inc. v. Duguid[1] at the pleading levels. In July 2021, the chief choose of the Southern District of California held in Gross v. GG Properties, Inc.,[2] that Facebook’s import on the automated phone dialing system (ATDS) situation “is more relevant to a summary judgment motion than at the pleading stage.”[3] The court docket’s 25-page determination joined a refrain of district courts that have been reluctant to dismiss circumstances at the pleading stage on the foundation of Duguid.[4]

In a notable flip of occasions, nonetheless, on a movement for reconsideration, the court docket was persuaded to reverse its place and be part of the view of the majority of courts. In doing so, the court docket acknowledged that the movement was initially briefed earlier than key choices have been issued regarding Duguid and overruled its earlier order.[5] The focused nature of the texts, concluded the court docket, fatally undermined the plaintiff’s ATDS claims as a result of they belie the notion that the defendant used a machine that randomly or sequentially generated her cellphone quantity.[6] The court docket dismissed the plaintiff’s TCPA claims with prejudice — the case has already been cited a half dozen occasions by federal courts each in California and round the nation.

Solely a few days later, in October 2021, the similar court docket issued one other ATDS determination in Wilson v. Rater8.[7] The case concerned a plaintiff who visited a physician for an unbiased medical examination and alleged improper use and disclosure of his medical data, claiming violations of California’s Unfair Competitors Regulation (UCL), the Confidentiality of Medical Info Act (CMIA), and the TCPA’s prohibition on the use of an ATDS.

The court docket utilized the following non-dispositive components to evaluate the plausibility of the ATDS declare:

  • The character of the message with a generic, impersonal, or promotional message;

  • The quantity or frequency of messages, with repetitive messages despatched over a brief interval of time;

  • The flexibility to answer or work together with the textual content messages (i.e., sending Cease);

  • The connection between the events;

  • Whether or not equivalent messages have been despatched to a number of numbers concurrently; and

  • Whether or not the message was despatched from an SMS brief code or lengthy code.

After weighing the components, the court docket agreed that the plaintiff’s TCPA claims failed as the plaintiff didn’t plausibly allege he was despatched a textual content message utilizing an ATDS.[8] Whereas the court docket famous the plaintiff acquired a textual content message utilizing a brief code, the court docket believed the “nature of this solitary text and the relationship between the parties indicate the text was not sent using an ATDS.”[9]

This court docket’s choices spotlight the outstanding evolution of how courts are more and more casting doubt over ATDS allegations post-Duguid. Whereas that is actually excellent news for defendants and potential defendants, some courts (even at abstract judgment) have interpreted Duguid as capturing expertise that doesn’t generate phone numbers at random or in sequence — the greatest follow continues to be coupling consent with a lack of ATDS protection. 

1 141 S. Ct. 1163 (2021).
Gross v. GG Properties, Inc., No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 127596 (S.D. Cal. July 8, 2021).
3 Id. at 20.
4 Id. at 25.
5 Gross v. GG Properties, Inc., No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 198339, at *6 (S.D. Cal. Oct. 14, 2021).
6 Id. at 7.
Wilson v. Rater8, Ltd. Liab. Co., No. 20-cv-1515-DMS-LL, 2021 U.S. Dist. LEXIS 201274, at *6 (S.D. Cal. Oct. 18, 2021).
8 Id. at 5.
9 Id. at 7.

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