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June 01, 2020

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Another Motion to Dismiss Denied: ATDS Allegations For Unwanted Text Messages Sufficient at Pleading Stage

A text message is considered a call under the TCPA. And to state a valid TCPA claim, the plaintiff must show that the equipment or system used to send the unwanted text messages are qualified as an ATDS under the TCPA. But the question is with the allegations requirement at the pleading stage. What and how much does the plaintiff need to allege regarding the ATDS in order to pass the pleading stage? The courts have been going easy on the plaintiff in this regards. However, as Czar reported earlier today, we should see if Perez could be a start to shift the pleadings requirement.

In Geraci v. Red Robin Int’l, Inc., Civil Action No. 1:19-cv-01826-RM-KLM, 2020 U.S. Dist. LEXIS 53143 (D. Colo. Mar. 25, 2020), Plaintiff filed a class action alleging violations of the Telephone Consumer Protection Act (“TCPA”) by unwanted text messages via the use of an ATDS. See id. Magistrate judge recommended denying the defendant’s motion to dismiss complaint for failure to state a claim. Defendant objected the recommendation on the sole basis that Plaintiff’s complaint fails to adequately allege Defendant used an ATDS to send unwanted text messages at issue. And the court overruled.

In reviewing the magistrate judge’s recommendation, the court finds that Plaintiff’s allegations are sufficient to state a plausible claim at this stage of the case, despite the existence of some gray area as to the parameters of an ATDS.

Key factual allegations regarding the text messaging system allegedly used by Defendant are that:

  • the messages were sent from a specific SMS short code;

  • Plaintiff’s cell phone number are stored in this text messaging system with thousands of other phone numbers;

  • the system automatically sent identical messages to Plaintiff and thousands of other individuals at the same time;

  • no human directed any single text message to Plaintiff’s number; and

  • identical messages were composed of pre-written templates of text and sent to thousands of phone numbers.  

The court found that these allegations do not merely recite the statutory language. And the court noted to other courts’ decisions that plaintiffs in TCPA cases are without a realistic means of alleging precise the type of machine a defendant has used to make unauthorized calls or send unauthorized text messages. “While additional factual details about the machines might be helpful, further facts are not required move beyond the pleading state.” In re Jiffy LubeLabe Int’l, Inc., 847 F. Supp. 2d 1253, 1260 (S.D. Cal. 2012) Therefore, the court overruled the defendant’s objection and accepted the magistrate judge’s recommendation.

Well, although I am practicing in the defense bar, I think I’d give this one to plaintiff too, yeah?

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About this Author

Associate

Sara Borjigin is a Litigation associate in the Los Angeles office, focusing on business and commercial disputes and matters involving the Telephone Consumer Protection Act (TCPA).

Prior to joining our team, Sara handled various disputes involving business and employment law, professional liability, securities and insurance coverage.

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