Court upholds click and pause allegations enough to argue for ATDS use

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Tuesday, January 11, 2022

New Year. Same bad case law.

Those of you who have been to my shows have heard me explain that majority rule right now is just click and pause claims – that is, claims that a Complainant heard a click and a pause before a live individual joined the line – sufficient to allege ATDS use for TCPA purposes.

It is apparently impossible after Facebook. The Supreme Court ruled that only the use of random or sequential number generation in connection with the storage or production of telephone numbers constitutes ATDS use. But the courts have been extremely liberal in applying this rule at the oral argument stage.

Here is another example.

In Garcia v. Case No Pro Custom Solar Llc, 4: 21-CV-00392, 2022 US Dist. LEXIS 4445 (ED Tex. January 10, 2022), the respondent requested the dismissal of the ATDS claim of a TCPA complaint. The court ruled that the allegations that the appellant encountered a click and a pause when responding were sufficient to make a claim:

At this point, the Court need not decide whether the numbering system had the current or future capacity to dial numbers randomly or sequentially…. no plaintiff will have personal knowledge of the defendant’s telephone system at the oral argument stage. For this reason, the plaintiff need only plead sufficient facts to proceed with the discovery, at which point he will have the opportunity to discover the precise technology that was used at the time of the alleged violations… Here, the plaintiff alleged have received three phone calls. , each of which began with a pause, and the plaintiff alleged that, based on these pauses, the “numbering system used by the defendant to call the plaintiff has the current and / or future capability of dialing numbers in a random and / or sequential ”That’s all he needs to allege at this point.

Not good.

Clearly, decisions like these continue to open the door to ATDS TCPA class actions, which should have been categorically shut down by Facebook. And the difference between a dismissal at the pleadings stage and a dismissal at the MSJ stage – which should still be in sight for many of these lawsuits – is about $ 250,000 to $ 300,000 out of the defendant’s pocket.

So decisions like Garcia continue to allow ATDS shakedown lawsuits – the plaintiff’s lawyer knows full well the case is likely related to the garbage heap. But they also know that the defendant will have to spend a ton of money to get the probationary judgment that will end the case. So they file and make a claim that is less than the cost of the defense but infinitely more than what the case is “worth”.

Raw.

Unrelated, my clients still haven’t had to deal with a single ATDS complaint from Facebook. For some reason, the plaintiff’s bar just doesn’t seem worth pursuing these cases when the Tsar is involved. I wonder why.

We will be keeping an eye on all of this. And for all of my new friends / subscribers, be sure to keep an eye on the Facebook Ruling Resource page for a full list of all post-Facebook ATDS cases. I will be updating the page to revamp decisions soon now that we are reaching critical mass.

© Copyright 2022 Squire Patton Boggs (US) LLP National Law Review, Volume XII, Number 11

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