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.