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December 13, 2018

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Making them Work For It: Court Dismisses TCPA Case for Lack of Factual Allegations Regarding ATDS Usage

Quick tip: While the focus these days in TCPAland is on the definition of ATDS–and quite properly so— it should not be forgotten that threadbare recitals of ATDS usage at the pleadings stage are categorically improper. Consumer lawyers are now commonly asserting such conclusory allegations regarding ATDS usage, however, specifically to avoid setting up a debate at the pleadings stage regarding the functionalities of the device used to make the challenged phone calls. But TCPA defendants are too smart to fall for that, right?

Navient certainly is. (Big day for it BTW.)  In Gill v. Navient Sols., LLC, CASE NO. 8:18-cv-1388-T-26SPF, 2018 U.S. Dist. LEXIS 132491 (M.D. Fl. Aug. 7, 2018) the defendant challenged Plaintiff’s threadbare allegations of ATDS usage via a motion to dismiss. The court granted the motion with little fanfare and dismissed the suit reasoning that: “Plaintiff fails to describe the phone messages or the circumstances surrounding the calls, such as the actual messages or conversations, to cause her to believe an ATDS was being used.” Gill at *3.

Plaintiff was granted leave to amend and will, presumably, have to add facts describing why she believes Navient used a random or sequential number generator to contact her or else face another motion to dismiss, this time of the Pinkus variety. This should allow Navient to challenge one of the key issues in the case without expending much, if any, time dealing with expensive TCPA discovery. Something to keep in mind TCPAlanders.

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About this Author

Eric Troutman, Womble Dickinson, TCPA Litigation Attorney

Eric is one of the country’s prominent class action defense attorneys and is nationally-recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance.  He has served as lead defense counsel in more than 50 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. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon...

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