October 18, 2021

Volume XI, Number 291

Advertisement
Advertisement

October 18, 2021

Subscribe to Latest Legal News and Analysis

CRUSHING VICTORY: Court finds Aspect/ALM NOT an ATDS– Rejects “Capacity” Argument (but there’s a Big “FN7” Wrinkle Here)

USAA is crushing it. And Aspect is on a roll.

The duo already combined for what was one of the best ATDS decisions to date in Timms, but their latest win is even better.

How about the first true victory for a predictive dialer post-Facebook on full evidence and overcoming the force of a Snyder expert report, a well-made FN7 argument and a capacity challenge?

(Isn’t it funny how TCPAWorld denizens know exactly what my rhetorical question signifies and everyone else thinks I’m speaking in code. hahaha)

But there’s a really important nuance to this case– USAA’s big win could be a big LOSS for you, if you’re not careful.

Here we go.

In Grome v. Usaa Sav. Bank, 4:19-CV-3080, 2021 U.S. Dist. LEXIS 164255 (D. Ne. August 31, 2021) the Plaintiff alleged USAA made unwanted calls to her cell phone to collect a credit card debt.

USAA moved for summary judgment arguing that the system it used–the popular Aspect UIP with ALM–was not an ATDS post-Facebook since it did not use an R&SNG.

The Plaintiff countered with an expert report by Randall Snyder–amazing he’s still around, although he probably thinks the same thing about me–pointing out that the SQL environment used by USAA can, in fact, generate random numbers. Plaintiff also argued that the sequence of dialing is what matters–not whether phone numbers are generated randomly–and argued that the “capacity” of the system is critical–not how specific calls were placed.

In other words, this was the grand enchilada for Aspect and USAA. And they ate the whole thing. With green sauce.

First, the Court found that the whole “SQL can generate numbers” thing was nonsense.

It’s undisputed that USAA Aspect UIP did not use those commands.

And that’s about the end of the needed analysis in the Court’s view.

Next the Court actually accepted the Plaintiff’s FN7 argument–really important to catch this nuance folks–but found that even though a system CAN be an ATDS if it uses an R&SNG to determine dialing sequence USAA’s system did not do that: “it is undisputed that the Aspect UIP was not using a random number generator to determine the order in which to pick phone numbers.”

See that critical finding? Plaintiff apparently made a FN7 argument–to a willing listener–but couldn’t see the issue through with evidence that USAA was actually using a R&SNG to determine dialing sequence. So this case is different from Hufnus–that case held that only randomly generated numbers trip FN7–and don’t let anyone tell you otherwise.

Rather than focus on FN7 paydirt, Plaintiff retreated to the common argument we saw before Facebook. You can force feed random numbers into Aspect. So it must be an ATDS.

*Yawn*

The Court had no interest in this garbage argument: “[t]he Court is unwilling to adopt such an expansive view of the statutory definition of the autodialer.”

To support its interpretation of ATDS the Court took the “capacity” issue head on and held that only present configured capacity matters– not future capacity. So while Plaintiff argued (for some reason) that the system could be configured to force generate random numbers to be dialed the Court took a common sense view–USAA was not doing anything of the sort, so it was not using an ATDS.

Again this is a huge and great victory for Aspect and USAA but PLEASE PLEASE PLEASE do not miss the FN7 angle here. This is the first case that actually seemingly accepts the Plaintiff bar’s viewpoint on FN7. The Plaintiff here just didn’t see it through and focused on the goofy “I can feed random numbers into the dialer” angle instead. Had they come with evidence directly on dialing sequence this case might have had a different outcome. So be cautious, even while raising a glass of champagne in USAA/Aspect’s honor.

Also keep in mind that different courts may take a different view of “capacity.” This case was out of Nebraska. Not sure a court in California or Washington would come to the same view. Again, be cautious.

We’ll keep an eye on this.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 244
Advertisement

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...

213-689-6510
Advertisement
Advertisement
Advertisement