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Do Not Pass Go: Morgan & Morgan Form TCPA Complaint Tossed at the Pleadings Stage

In Broughton v. DJ Acquisitions, LLC, Case No. 1:18-CV-1636-SCJ, Doc. No. 17 (N.D. GA Jan. 7, 2019), the Hon. Steve C. Jones dismissed one of Morgan & Morgan’s form Complaints—yep, that Morgan & Morgan—ruling that allegations a caller used an “ATDS” to call a cellular phone “approximately 80 times” were insufficient to state a TCPA claim because Plaintiff failed to allege “any description of the alleged caller (whether it be a live person or an automated robotic sound) or the content of the phone messages and the context in which they were received.” Broughton at *11. The Court also rejected allegations of the existence of a corporate policy of ATDS usage: “[w]hile Plaintiff repeatedly alleges throughout his complaint that [Defendant] ‘had a corporate policy to use an [ATDS]’ and ‘[u]pon information and belief, some of the calls [Defendant] made to Plaintiff’s cellular telephone were made using an [ATDS],’ such conclusory statements are insufficient absent other supporting factual details.”

Notably the Broughton decision does not address the functionalities required to allege ATDS usage—a debate that has been brewing in TCPAworld since ACA Int’l was decided so long ago—so it is a little unclear what standard Morgan & Morgan needs to hit upon amendment.

© 2022 Troutman FirmNational Law Review, Volume IX, Number 66
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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