September 26, 2020

Volume X, Number 270

September 25, 2020

Subscribe to Latest Legal News and Analysis

September 24, 2020

Subscribe to Latest Legal News and Analysis

September 23, 2020

Subscribe to Latest Legal News and Analysis

District of Massachusetts Grants Dismissal of Threadbare ATDS Claims

The U.S. District Court for the District of Massachusetts recently granted a TCPA defendant’s motion to dismiss, in part, because the plaintiff failed to allege plausible facts supporting an assertion that the defendant, QuoteWizard, used an ATDS to send two text messages to his phone. Mantha v. QuoteWizard.com, LLC, No. 19-cv-12235, 2020 WL 1274178 (D. Mass. Mar. 16, 2020). The case highlights an important point, namely that defendants can still prevail on ATDS-related claims at the motion to dismiss stage, even despite a recent decision from the jurisdiction applying the expansive definition of an ATDS from the Ninth Circuit’s opinion in Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018). See, e.g.Gonzalez v. HOSPO Corp., 371 F. Supp. 3d 26, 34 (D. Mass. 2019) (applying the Marks definition of an ATDS).

The Mantha plaintiff filed a two-count complaint against defendant alleging that two text messages he received from defendant in August of 2019 violated the TCPA. 2020 WL 1274178, at *1. The complaint’s first count alleged a “violation of the [TCPA’s] automatic calling provisions.” Id. (citing 47 U.S.C. § 227). It asserted that: 1) defendant had a “strategy for generating new customers [that] involve[d] the use of an [ATDS]” to send texts; 2) the text messages were sent from a long code number; 3) the text messages contained commercial content; and 4) the number from which the texts were sent was registered to a “cloud-based telecom company that provides mass text messaging services.” Id. Defendant’s motion to dismiss argued that plaintiff failed to allege plausible facts regarding the use of an ATDS. Id.

The court expressed skepticism that these assertions were anything more than threadbare makeweights and concluded that they were insufficient to survive defendant’s motion to dismiss. Id. Specifically, the court determined that mere allegations about “business strategy” were conclusory and stated that the “use of a long code” did not “support a plausible inference that an ATDS was used.” Id. (emphasis in original). The court also observed that the plaintiff’s allegations regarding the “number, frequency, nature and content of the two messages [did] not give rise to a plausible inference of the use of an ATDS.” Id. at *2. Consequently, the court granted defendant’s motion to dismiss the first count of the complaint.

The second count of the compliant alleged that defendant violated the TCPA when it “(a) initiated telephone solicitations to persons and entities whose telephone numbers were listed on the Do Not Call Registry, or (b) by the fact that others made those calls on its behalf.” Id. Defendant also sought dismissal of this claim and argued that the complaint did not “plausibly suggest a solicitation, as opposed to an informational[] message.” Id. The plaintiff included the language of the two text messages in his complaint. Id. The texts stated as follows:

  • “Hey, it’s Amanda following up. When’s a good day for us to talk, Joe? You requested a quote on auto insurance. Message me if you’re still interested!”

  • “Hi this is Amanda! Are you looking for an accurate estimate, Joe? We can review your options together. Call me when you’re free, it won’t take long!”

Id.

The court initially observed that the TCPA defines a “‘telephone solicitation’” as “‘the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.’” Id. (quoting 47 C.F.R. § 64.1200(f)(14)). Next, the court reviewed the content of the two text messages and concluded that the purpose of the messages was to solicit the purchase of automobile insurance. Id. Thus, the court denied defendant’s motion to dismiss the second count of the complaint due to the specific language that defendant used in its text messages. Id.

In light of Mantha, defendants facing TCPA litigation in the District of Massachusetts should continue to assess whether they can attack the sufficiency of a complaint’s ATDS allegations.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 91

TRENDING LEGAL ANALYSIS


About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney
Partner

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

202-842-8891
Matthew Morrissey, Drinker Biddle Law Firm, Litigation Attorney
Associate

Matthew M. Morrissey litigates claims in federal and state courts throughout the country. Matt represents clients in commercial disputes, class actions, internal investigations and financial services litigation. He is also frequently called upon to represent clients in regulatory and enforcement actions involving federal, state and municipal authorities.

Matt is a contributor to the firm's SEC Law Perspectives Blog, which provides reports, discussions, and analyses on noteworthy trends in enforcement and regulatory activity of the U.S. Securities and Exchange Commission (SEC) and other agencies, such as the U.S. Commodity Futures Trading Commission (CFTC).

312-569-1365