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Northern District of Illinois Finds Plaintiff Failed to Adequately Allege Use of an ATDS

In a recent Northern District of Illinois case, a plaintiff’s TCPA claim was dismissed after the court found that the complaint did not contain sufficient facts to plausibly allege the defendant had used an ATDS. See Bader v. Navient Solutions, LLC, No. 18-1367, 2019 WL 2491537 (N.D. Ill. June 14, 2019). This is yet another example of a case in which a plaintiff failed to plead the use of an ATDS under post-ACA International v. Federal Communications Commission, 885 F.3d 687, 693 (D.C. Cir. 2018) standards.

In Bader, the plaintiff alleged that the defendant had violated the TCPA when it called his phone more than 100 times in an attempt to collect someone else’s student loan debt. He also alleged that, when he answers those calls, he “experiences a noticeable pause, lasting approximately four to five seconds in length, before [he] is connected with a live representative.” This, he alleged, must mean that the defendant had used a “predictive dialer” to place the calls.

In response, the defendant filed a Rule 12(c) motion for judgment on the pleadings, arguing that the plaintiff had failed to allege facts from which the court could find that it had used an ATDS. Specifically, it argued that the plaintiff did not allege facts showing that it “used a device that had the ability to generate random or sequential numbers and dial such numbers….”

The court agreed. It held that, under the new ACA International standard, the plaintiff had failed to adequately allege the use of an ATDS. While the Plaintiff argued that the “continual calling, even after being told that he was not the person [the defendant] was seeking” evidences that the defendant had stored his phone number and therefore used an ATDS, the court found that this was not enough to state a claim under the post-ACA Int’l standard. Rather, it held that plaintiffs must plead—and eventually prove—that dialing equipment “can (1) generate numbers, either randomly or sequentially and (2) dial such numbers.” Because the plaintiff had not done so here, the court dismissed the case.

This decision highlights that ACA International is critical to companies defending against TCPA claims. By clarifying the definition of ATDS, ACA International raised the bar for plaintiffs seeking to recover under the TCPA. See alsoSnow v. Gen. Elec. Co., 2019 WL 2500407 (E.D.N.C. June 14, 2019) (citing ACA International and granting defendants’ motion to dismiss because plaintiff—who alleged that she had received at least 105 calls—had not sufficiently alleged facts from which the court could find that an ATDS had been used to dial her 

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About this Author

Christina Chapin, Drinker Biddle, Trial Lawyer

Christina R. Chapin assists clients with various aspects of trial preparation, including legal research and the drafting of motions and other legal memoranda.

As a summer associate at Drinker Biddle, she researched and drafted memoranda on issues including cross-border discovery conflicts and tortious interference claims.

Christina served as a judicial extern for the Hon. Thomas M. Durkin of the District Court for the Northern District of Illinois and the Hon. Mary Anne Mason of the Illinois Appellate Court. 

(312) 569-1106
Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight about the Telephone Consumer Protection Act; and a senior member of the firm's Class Actions Team and interdisciplinary Retail Industry Team.

Committed to civil rights and civic engagement, Michael has spearheaded public interest matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest matters resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. As a result of the settlement, thousands of class members have already requested and received documents in accessible alternative formats.