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LiveVox HCI Not an ATDS Under Marks v. Crunch

The LiveVox HCI is a manual dialing system in which a human clicker agent must click a button on a screen to make the system dial a telephone number.  The system has, thus far, been found not to be an Automatic Telephone Dialing System in numerous jurisdictions across the country. See Collins v. Nat'l Student Loan Program, 360 F. Supp. 3d 268, 273 (D.N.J. 2018) (collecting cases).  However, up until now, no lower court within the Ninth Circuit has examined whether the system meets the definition of ATDS which was broadly interpreted by the Ninth Circuit in Marks v. Crunch as:

[E]quipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).

Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018).

In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842 (C.D. Cal. Oct. 9, 2019), the court applied this standard in determining whether the HCI was an ATDS.  Plaintiff argued that the system met the definition because it could “store a list of numbers to be called.”  However, there was no dispute over the fact that, the system still required human intervention (a click) at the point of dialing.  And the court was unconvinced by Plaintiff’s position that the HCI should still be considered an ATDS because it was “‘transparently designed to insert and unnecessary person into the process’ for the purpose of avoiding TCPA liability.”  It stated that, regardless, an ATDS must be capable of “automatic dialing” under Marks, which is a function that HCI cannot perform given the necessity of the human clicker agent.  Based upon this reasoning, the court held:

True, the Ninth Circuit in Marks envisioned that some level of human interaction with a system may still qualify as an ATDS. 904 F.3d at 1053 (holding that an ATDS must have the capacity “to dial such numbers automatically (even if the system must be turned on or triggered by a person)”). However, LiveVox HCI goes far beyond merely triggering a system to run automatically. It requires human interaction to initiate each call. The Court agrees with other courts to consider the LiveVox HCI system and, applying Marks, finds that the clicker agent’s role precludes LiveVox HCI from qualifying as an ATDS.

As mentioned, this is the first time a lower court within the Ninth Circuit that is bound to follow Marks has found that the HCI is not an ATDS.  The ruling is thus a helpful step forward in defining the threshold at which “human intervention” will preclude a finding that a system is an ATDS under the Marks standard.  Ultimately, given the numerous courts in other jurisdictions to conclude the same, this ruling essentially signals that for now the status quo on the HCI will remain, even under the Ninth Circuit’s broad interpretation of ATDS.  

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Artin Betpera, Class action litigation lawyer, Womble
Senior Counsel

Artin serves as a chief lieutenant on one the nation’s most experienced and powerful class action defense teams.  Precise and analytic, Artin brings over a decade of experience to bear on complex litigation problems.

Artin adeptly manages significant volumes of litigation for some of the country’s largest banks and financial institutions, never losing sight of providing an exceptional level of service to his clients.  He has been a dedicated financial services litigator since starting the practice of law at ground-zero of the financial crisis, affording him with...

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