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Volume XI, Number 267

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No Summary Judgment on ATDS Allegations, Despite Glasser

As we’ve covered extensively, the Eleventh Circuit’s ruling in Glasser provided a helpful victory for TCPA defendants facing ATDS claims.  The decision holds that the TCPA only applies to ATDS calls that are made using a system with the capacity to dial randomly or sequentially.  As we also predicted, it does not always mean dismissal at the pleadings stage. That is again the case in a recent decision out of the Northern District of Alabama. See Williams v. Schanck, No. 5:15-cv-01434-MHH, 2021 U.S. Dist. LEXIS 16858 (N.D. Ala. Jan. 29, 2021).

In that case, Mr. Williams alleged that Mr. Schanck (and his company, Stellar) violated the TCPA because Mr. Schanck allegedly “continually harassed [Mr. Williams] with pre-recorded calls to [his] cell phone without having consent to call his cell number,” and that the calls occurred “via” an ATDS.  The complaint did not describe the ATDS or its operational characteristics.

Yet the court refused to dismiss the complaint on the pleadings, holding instead: “From a pleading perspective, it is true that Mr. Williams has not alleged the specific operational characteristics of the auto-dialer that he contends Stellar used, but nothing in the Glasser decision suggests that Mr. Williams had to plead those details.”  Instead, the court explained, the general allegations of ATDS use “are sufficient to give Stellar and Mr. Schanck notice of the TCPA claims that Mr. Williams makes against them[.]”

The court also refused to grant summary judgment to Mr. Schanck in his personal capacity because he played a role in the calls made by his company, Stellar.  Specifically, the court rejected Mr. Schanck’s contention that “as a matter of law” he could not be held liable for TCPA violations in his corporate capacity.

The takeaway: Glasser remains an important tool for TCPA defendants facing ATDS claims, particularly in the Eleventh Circuit.  But it may not always support a motion to dismiss.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 47
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
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