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Hedging Bets: Court Finds Sufficient Allegations of ATDS without Taking Clear Stance on Standard

The Western District of Oklahoma weighed in on the pleading standard for an ATDS earlier this week, denying a defendant’s motion to dismiss the plaintiff’s complaint for insufficient allegations.  But the court issued its decision without taking a clear stance on just what constitutes an ATDS beyond the pleading stage.

In Hill v. USAA Savings Bank, 2019 U.S. Dist. LEXIS 117493 (W.D. Okla. July 15, 2019), the plaintiff alleged that the defendant made debt collection calls to her cell phone after she revoked consent.  According to the complaint, the defendant called the plaintiff at least 119 times, up to seven times a day, six days a week, at various times of day.  The plaintiff did not answer the defendant’s calls, and the defendant did not leave voicemails. 

In seeking dismissal, the defendant contended both that the plaintiff alleged only legal conclusions regarding use of an ATDS and that the plaintiff’s allegations really showed “direct targeting”—calls purposely made to the plaintiff, at the plaintiff’s phone number, for the plaintiff’s specific debt—not any random or sequential number generation.  But the plaintiff pointed to the other allegations in her complaint, lending themselves to finding an ATDS: that the defendant’s equipment had the capacityfor random or sequential number generation; that the calls were frequent and unpredictable; and that the calls would disconnect when sent to voicemail.

Though noting a gap in Tenth Circuit authority on what constitutes an ATDS, the court hedged making any decision on whether the 2003, 2008, 2012, and 2015 FCC rulings still stand post-ACA International.  Instead, the court held that “[e]ven assuming” the prior FCC rulings are no longer in effect, the plaintiff sufficiently alleged use of an ATDS at the dismissal stage.  The court acknowledged that “the bare allegation that Defendant used an ATDS is not enough,” but found that the plaintiff had gone a step further by alleging the capacity of the defendant’s calling equipment and characteristics of the calls (their frequency and unpredictability and all of the disconnects without any voicemails). 

The court rejected the defendant’s “direct targeting” argument as premature, finding that even if the defendant did not use random or sequential dialing for calls to the plaintiff, the plaintiff should have the chance to develop evidence on whether the defendant’s equipment generally had the capacity, or present ability, for random or sequential number generation. 

Even in denying the motion to dismiss, the court in Hill gives some hope that there is an open door on what ATDS standard the court will eventually apply at the proof stage.  The court gave some answers where allegations are concerned but left more questions on where things stand in the Tenth Circuit.  Do the interpretations of ATDS under the prior FCC orders still stand? What standard will the court apply when the plaintiff must prove, rather than just plead, use of an ATDS? Could “direct targeting” be a viable defense even after Duguidand Marks? All unclear, and open to argument at the next phase of the case.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 200


About this Author

Keshia Lipscomb, Squire Patton Law Firm, Atlanta, Litigation Attorney

Keshia Lipscomb is a member of the firm’s Litigation Practice. She focuses her practice on complex commercial litigation and has a wide range of experience defending clients in state and federal courts at the trial and appellate levels. Keshia has experience representing companies across various industries in class action litigation and in lawsuits arising from general business disputes.