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Coming Up Short: Court Denies Summary Judgment on ATDS use in TCPA Class Action Due to Evidentiary Shortcomings

A magistrate judge in the Southern District of Florida has recommended that the Defendant’s motion for summary judgment based upon ATDS use be denied.  Fortunately, this isn’t a Marks effect case. In fact, the legal definition of an ATDS isn’t even touched.  Instead, the Court’s ruling was based largely on evidentiary shortcomings in the declaration proffered by the Defendant on the issue of ATDS use.

In Camayd v. United Auto Credit Corp., No. 17-24538-CV-SCOLA/TORRES, 2018 U.S. Dist. LEXIS 191412 (S.D. Fla. Nov. 7, 2018), the Defendant moved for summary judgment on the basis that the calls at issue were made with the “LiveVox human-initiated service and outbound dialing system.”  The Defendant’s motion was supported by a declaration from its Director of Servicing stating that the system requires the agent to “manually input phone numbers into a dialing system and click a button to launch the call.”

Seems straightforward enough.  And courts have routinely hold that similar LiveVox manual systems don’t meet the definition of an ATDS.  See e.g. Fleming v. Associated Credit Servs., Civ. No. 16-3382 (KM) (MAH), 2018 U.S. Lexis 163120 (D. N.J. Sept. 21, 2018); Maddox v. Cbe Group, No. 1:17-CV-1909-SCJ, 2018 U.S. Dist. LEXIS 88568 (N.D. Ga. May 22, 2018); Schlusselberg v. Receivables Performance Mgmt., LLC, No. 15-7572(FLW), 2017 U.S. Dist. LEXIS 100710, at *10 (D.N.J. June 29, 2017) (collecting cases).

However, the Court wasn’t convinced that the declaration of Defendant’s Director of Servicing was based on personal knowledge.  The court observed that the Director of Servicing wasn’t a LiveVox employee and did not otherwise demonstrate that he had the “relevant knowledge to speak on its behalf concerning its dialing systems.”  It also found that many of the statements made in the declaration were conclusory and “unsupported”.

The Court also said the motion should denied because other “cases dealing with LiveVox products show in many instances the company’s systems were found to meet the definition of an ATDS.”  While technically correct, LiveVox has many systems it offers.  Notably, each of the cases cited by the Court involved other systems that actually have automated or predictive capabilities.  And there was no discussion of the plethora of cases (including those referenced above) holding that LiveVox manual systems such as the HCI do not qualify as an ATDS.

Ultimately, this case goes to show that nothing can be taken for granted in TCPAland.  Even when things might seem like a slam dunk, Defendants should still take care to make robust showings on the evidence and the law that their systems do not qualify as an ATDS.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 313


About this Author

Artin Betpera, Class action litigation lawyer, Womble

Artin is a partner in the firm’s business litigation practice group.  Precise and analytic, Artin brings over a decade of experience to bear on complex litigation problems.

Artin adeptly manages significant volumes of litigation for some of the country’s largest banks and financial institutions, never losing sight of providing an exceptional level of service to his clients.  He has been a dedicated financial services litigator since starting the practice of law at ground-zero of the financial crisis, affording him with an unparalleled depth of...