February 17, 2019

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The Debate on Predictive Dialer TCPA Cases Post ACA Int’l Continues . . . Now in the Northern District of California

On June 18, 2018, the district court in McMillion v. Curtis & Associates (2018 WL 3023449) in the Northern District of California, denied the defendant’s motion for reconsideration of the court’s earlier decision granting partial summary judgment for the plaintiff and finding that predictive dialers constituted an Automatic Telephone Dialing System (“ATDS”) within the meaning of the TCPA.  See McMillion, 2018 WL 692105.  The defendant sought reconsideration of this issue in light of ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. March 16, 2018).

As a reminder to TCPAlanders, the standard for reconsideration by a court is very high:  “Reconsideration is ‘an extraordinary remedy, to be used sparingly in the interests of finality and conversation of judicial resources.’”  McMillion, 2018 WL 3023449 at *3 (citing Kona Enters, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).  “Absent highly unusual circumstances, a court should not grant a motion for reconsideration unless the court is presented with newly discovered evidence, committed a clear error, or if there is an intervening change in the controlling law.”  Id.

In denying the defendant’s motion for reconsideration, the district court found that the defendant did not meet the requirements for reconsideration, as the ACA Int’l decision did “not constitute controlling law.”  McMillion, 2018 WL 3023449 *3.  Specifically, the McMillion court found that ACA Int’l invalidated only the 2015 FCC Order, but that it did not rule on the validity of the 2003 or 2008 FCC Orders.  And that even if the 2003 and 2008 FCC Orders were invalidated, ACA Int’l had no bearing on pre-existing 9th Circuit precedent, such as Meyer v. Portfolio Recovery Assoc., 707 F.3d 1036 (9th Cir. 2012) (relying on the FCC’s 2003 Order and finding that the predictive dialer at issue fell within the definition of an ATDS).  Id.

So the debate continues within the 9th Circuit, likely until the 9th Circuit issues its decision in Marks v. Crunch San Diego, LLC, Case No. 14-56834 (9th Cir. December 14, 2016) (appeal of district court decision granting summary judgment for defendant on basis that platform used to send text messages was not an ATDS under the TCPA).  Stay tuned, folks.

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About this Author

Erin Kubota Attorney California Womble Bond Dickinson
Senior Counsel

Erin represents clients in commercial litigation matters in both federal and state courts and has tried several month-long cases before juries in California. Erin’s practice encompasses all aspects of complex commercial litigation, including in state and federal courts and at both the trial and appellate levels. She represents banks, financial institutions and companies in litigation involving the Telephone Consumer Protection Act, the Uniform Commercial Code, the Electronic Funds Transfer Act, the Bank Secrecy Act, the Fair Credit Reporting Act, the Fair Debt Collection...