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FN7 IS DICTA!: New TCPA MSJ Ruling May Be the Best ATDS Case Yet

Lots of important cases out today.

In a HUGE MSJ in here in California, a Court has outright rejected a Plaintiff’s footnote 7 argument–concluding the Supreme Court’s famous dangling thread in Facebook is just dicta!!

In Cole v. Sierra Pac. Mortg. Co., Case No. 18-cv-01692-JCS, 2021 U.S. Dist. LEXIS 239792 (N.D. Cal.  December 15, 2021) the Defendant moved for summary judgment arguing that it did not use an ATDS to call the Plaintiff.

Plaintiff countered that the system was using an ATDS because–in classic footnote 7 fashion– an RoSNG helped determine the sequence in which numbers were to be dialed.

The Court rejected the argument outright, concluding that Fn7 is not binding to begin with:

While the footnote could perhaps be read more broadly, it is dicta addressing an issue that was not before the Court. It is true that dicta of the Supreme Court is generally entitled to great weight.  Here, however, the intent of Footnote 7 as applied to the facts of this case is far from clear, and adopting [Plaintiff’s] reading of it would undermine the broader reasoning of the opinion in which that footnote appears.

Wow!

The Court goes on to hold directly that a system must use an RoSNG to generate telephone numbers and not merely any number.

This is a great win for the defendant in this case and a great TCPAWorld victory overall.

Nonetheless, this is merely the determination of a single court and many other courts read FN7 to have far more force. So be careful out there.

© 2022 Troutman FirmNational Law Review, Volume XI, Number 350
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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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