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Breaking Tcpa News: Are You Kidding Me?–second Circuit Coa Follows Marks–finds Atds Includes Texts Sent from List

I just can’t believe it.

In Duran v. La Boom Disco, case no. 19-600-cv, (2nd Cir. 2020)–available here- LaBoom-the Second Circuit Court of Appeals held today that the TCPA’s ATDS definition includes any dialer that can call automatically from a list–following the Ninth Circuit’s approach in Marks. Specifically the Court holds:

we hold that an ATDS may call numbers from stored lists, such as those generated, initially, by humans.

Court determines ExpressText and EZ Texting programs are ATDS as a matter of law.

This decision departs “markedly” from the Eleventh and Seventh Circuit Court of Appeals decisions in Glasser and Gadelhak, respectively.

On human intervention the court holds that clicking a “send” button to initiate a text campaign is not sufficient human intervention to remove a system from ATDS consideration. System still “dials” automatically.

Duran seems certain to embolden additional TCPA suits, just when the Ninth Circuit’s Marks decision-adopting a broad ATDS interpretation- was looking increasingly like an outlier.

Full analysis here. Even more to come.

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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