Good Lord!: Putative TCPA Class Action Dismissed at the Pleading Stage for Want of Allegations re: Random or Sequential Number Generation
In another huge TCPAland development, a district court in Ohio dismissed a TCPA case at the pleadings stage yesterday for want of allegations regarding the use of a random or sequential number generator. This first-of-its-kind ruling inches the TCPA ever closer to the limited impact Congress originally intended when it enacted the statute back in 1991.
In Lord v. Kisling, Case No. 1:17-CV-01739, 2018 U.S. Dist. LEXIS 116288 (N.D. Oh. July 12, 2018) the district court considered a pleadings challenge to the ATDS allegation in a TCPA class action text message case and found them wanting. The complaint alleged that the device used to send the text messages could be “modified or programmed to generate and dial random or sequential numbers.” The Court found these allegations insufficient to demonstrate the use of a device with the present capacity to store or produce numbers using a random or sequential number generator. Lord at *7.
Even better, the Court rejected Plaintiff’s allegations that the device could dial en masse without human intervention as follows:
In addition, after ACA Int’l, the fact that KNR’s system maybe capable of sending bulk or mass messages without human intervention is irrelevant. Lord at *7.
Finally, the Lord court found that merely parroting the language of the statute so as to recite ATDS usage is insufficient–“Plaintiffs must do more than simply parrot the statutory language… a plaintiff must at least describe, in laymen’s terms, the facts about the calls or circumstances surrounding the calls that make it plausible that they were made using an [ATDS].” Id.
Concluding that the Complaint lacked sufficient allegations of random or sequential number generation, the Court dismissed the TCPA claim.
Lord is truly groundbreaking. While requiring the use of a random or sequential number generator in a TCPA case is nothing new–the Third Circuit just highlighted that functionality requirement a handful of days ago– Lord is the first district court to dismiss such a claim at the pleadings stage on that basis pursuant to a motion to dismiss. Indeed, just a few weeks ago (and well after ACA Int’l) a different court held that the pleading standard in text message TCPA cases remained essentially unchanged.
Obviously uncertainty still reigns supreme in TCPAland (along with the Czar) but we’ll keep you updated as developments in this space continue to come in–and don’t forget to review our deep dive ATDS article for an up-to-date look at the debate over predictive dialers.