HITTING BACK: Live Vox GC Responds to New Kuch Decision–Notes Court Relied on Inapposite Authority
Live Vox’ GC Mark Mallah provided these comments today to TCPAWorld.com in response to the Kuch decision I just discussed. These are his opinions and assertions:
The magistrate judge properly acknowledged that based on the Laurence Siegel declaration (Mr. Siegel is an Executive VP at Livevox, not an expert witness), HCI is a manual system and not an ATDS, noting that the evidence from LiveVox established that HCI “does not qualify as an ATDS such that any calls placed to Plaintiff using HCI would not subject Defendant to liability under the TCPA.” The judge chose not to rely on this declaration only because of a supposed failure by the Defendant to disclose Mr. Siegel as a witness.
The magistrate judge also made some factual errors: For example, as you are aware, there is an unbroken line of eleven District Court cases that have held that HCI is not an ATDS as a matter of law, and Facebook only strengthens the argument. The magistrate judge also cited a case where there was an issue of fact regarding whether HCI was used (Schaefer v. IC System) and one involving a LiveVox system other than HCI (Jimenez v. Credit One Bank). Those cases have no bearing here.
As you know, the magistrate judge recommended summary judgment for the defendant on consent, so the HCI issue may no longer be alive in this case. But if it remains open, we are quite confident it will be resolved correctly, with HCI being found not to be an ATDS because, among many other reasons, HCI does not produce or store numbers to be called using a random or sequential number generator, which is expressly stated by Mr. Siegel in his declaration.
So now you have a little more context here. Good on Live Vox for providing a witness declaration supporting the Defendant’s position. Too bad the timing didn’t align–or perhaps this would have been a “W” instead of a no decision on the ATDS issue.