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Northern District of Illinois - Conclusory ATDS Allegations Fail Again Under Rule 12

Joining a trend of decisions finding that conclusory ATDS allegations cannot survive Rule 12, Judge Leinenweber of the U.S. Northern District of Illinois found earlier this month that a plaintiff asserting ATDS (automatic telephone dialing system) and prerecorded voice claims under the TCPA (Telephone Consumer Protection Act), 47 U.S.C. § 227, “must supply enough additional independent facts ‘to raise a reasonable expectation that discovery will reveal evidence’ of the alleged misconduct.  Plaintiffs provide no information about the calls they received from BSI beyond vague statements about their content. . . .  Therefore, the Court grants BSI’s Motion to Dismiss Count II of the Complaint without prejudice.”  Ananthapadmanabhan v. BSI Fin. Servs., 2015 U.S. Dist. LEXIS 167648, *9-11 (N.D. Ill. Dec. 15, 2015) (citation omitted).

communications, tin cans, telephone, string, communicating, talking

The plaintiffs alleged that over the course of six months, BSI placed at least ten calls to one plaintiff’s cell phone and at least five to the plaintiffs’ home phone, leaving at least ten voice mails related to collection of a debt.  Id. at *2-3.  The court found these allegations insufficient to support the ATDS or prerecorded voice claims.  Id. at *12.

According to the court:

There is no indication that the messages that were left on Plaintiffs’ voice voicemail were prerecorded, or that when Plaintiffs answered the calls there was a delay before getting a human response. . . .  [A] TCPA plaintiff could describe the robotic sound of the voice on the other line, the lack of human response when he attempted to have a conversation with the ‘person’ calling him, the generic content of the message he received, or anything else about the circumstances of a call or messages contributing to his belief it was prerecorded or delivered via an ATDS.  Plaintiffs do not do so in the present case and may not rely on the discovery process to cure such deficiencies in the complaint.
Id. at * 11-12.

In this daunting new era following the FCC’s July 10 ATDS order — in which plaintiffs’ lawyers apparently believe that even two cans and a string can be an ATDS — decisions such as this will continue to prove useful in defending against these burgeoning yet frequently tenuous claims.

© 2020 Vedder PriceNational Law Review, Volume V, Number 364

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About this Author

Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office
Shareholder

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property,...

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