April 19, 2021

Volume XI, Number 109


April 16, 2021

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One of a Kind Ruling?: Extremely Rare ATDS Win for Defendant on Summary Judgment in Ninth Circuit Entered in California Court

Earlier this week I did a story on a motion to dismiss ATDS claims being granted in the Ninth Circuit’s footprint. Well this ruling is even stranger/rarer/cooler/odder.

Setting the stage, the Ninth Circuit deploys an extremely broad definition of ATDS. Any dialer with the capacity to call from a list of numbers automatically qualifies. This includes platforms that can send texts from a list automatically. See Marks v Crunch.

In  Trujillo v. Free Energy Sav. Co., Case No. 5:19-cv-02072-MCS-SP, 2021 U.S. Dist. LEXIS 38310 (C.D. Cal.  February 25, 2021), however, a Defendant was awarded summary judgment with the occur concluding that Defendant’s system was not an ATDS.

Well, actually, that’s not quite right.

The Court actually concluded that the Plaintiff had failed to raise a triable issue as to whether the Defendant’s system was an ATDS—which is a little bit different.

But what makes Trujillo fascinating if that the Court did not even address Marks in making its ruling. It simply pointed to the statutory language and concluded Plaintiff lacked evidence that Defendant’s system has “the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial those numbers.”

So relying on the statutory definition, rather than the Marks definition, the Court ruled in favor of the defense. Weird, no?

I think this result was largely animated by a bad opposition by the Plaintiff, however. As the court notes, Plaintiff did not “substantively dispute Defendant’s facts or argument on this issue.” Instead Plaintiff fell back on requesting additional time for discovery and challenging Defendant’s evidentiary presentation as incomplete. That’s not going to get you very far.

So while Trujillo is a big win for the defendant I wouldn’t get too excited TCPAWorld. This one feels like a one-off. Something to make note of, however.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 63



About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 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 deep experience, rigorous...