April 20, 2021

Volume XI, Number 110

Advertisement

April 20, 2021

Subscribe to Latest Legal News and Analysis

April 19, 2021

Subscribe to Latest Legal News and Analysis

Dropping the Heavy Hammer: Rare Motion to Dismiss ATDS Allegations Granted in California Court

Here’s a quick and interesting one for you.

In Hildre v. Heavy Hammer, Case No.: 3:20-cv-00236-L-LL, 2021 U.S. Dist. LEXIS 35294 (S.D. Cal. February 24, 2021) a district court actually granted a motion to dismiss ATDS allegations at the pleadings stage. This is pretty rare since: i) the pleadings standard on ATDS allegations is pretty low nationwide; and ii) ATDS standard under Marks is really quite low; and iii) why would a Defendant try to dismiss ATDS allegations in the Ninth Circuit with Facebook out there?

Despite all these hurdles, the Court found a way to dismiss the complaint noting that the mere allegation of the receipt of two calls is not sufficient to establish ATDS usage. Even in the Ninth Circuit something still qualifies as manual. And whatever that something is, it can make two calls.

Moreover the use of spoofing, masking or local touch numbers—i.e. a local area code number although the caller is from out of state—is not probative on whether an ATDS was used. So just because the caller masked a number doesn’t mean it was using automatic technology to call. Makes sense.

The Court granted Plaintiff leave to amend, however, so Heavy Hammer probably hasn’t seen the last of this case. Cool name though.

Advertisement
© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 61
Advertisement
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
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