Plaintiffs Alleging Use of Predictive Dialer Defeat Motion to Dismiss TCPA Class Action
A federal district court in Illinois recently denied an insurance provider’s motion to dismiss a TCPA class action complaint, finding that the alleged use of a predictive dialer was sufficient at the pleading stage.
In Garner v. Allstate Insurance Company, No. 20 C 4693, 2021 WL 3857786 (N.D. Ill. 2021), plaintiffs alleged that Allstate violated the TCPA by making numerous unauthorized calls to their cellphone using an ATDS. Plaintiffs also alleged that the calls were made despite the fact that they had registered their phone numbers with the National DNC Registry.
Allstate moved to dismiss, contending that plaintiffs “failed to plead facts sufficient to allow the Court to draw a reasonable inference that Allstate made the alleged calls using an ATDS.” Additionally, Allstate argued that plaintiffs’ descriptions of its alleged dialing system do not meet the definition of an ATDS. In particular, Allstate argued that even though plaintiffs dutifully recited the statutory definition of an ATDS, plaintiffs’ allegation that such a dialing system is “also known as a predictive dialer” defeats the sufficiency of this description because the TCPA does not necessarily encompass predictive dialers. In addition, Allstate maintained that plaintiffs failed to allege any of the signs typically associated with an ATDS, such as a robotic sounding voice, a lack of human response, or a distinctive “click and pause” sound upon answering the call.
An ATDS is defined by the TCPA as “equipment which has the capacity (a) to store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers.” 47 U.S.C. § 227(a)(1). As we have previously discussed, the Supreme Court’s recent decision in Facebook clarified that unless the dialing equipment uses a random or sequential number generator, businesses will not be required to obtain prior written consent from the consumer before contacting them. Under the Supreme Court’s recent interpretation, equipment that merely dials from a list, and does not incorporate the use of a random or sequential telephone number generator is not bound by the TCPA’s requirements to obtain prior express consent before making calls or sending text messages using an ATDS.
Despite this precedent, the court began its analysis by noting the split of authority within its district regarding what it takes to allege use of an ATDS. On the one hand, a few courts have found that the complaint need only allege that the defendant used an ATDS as defined by the TCPA, without offering any supporting facts. On the other hand, most courts within the district have held that merely reciting the statutory definition of an ATDS is not enough to survive a motion to dismiss. These latter courts require a plaintiff to allege enough facts to “allow a plausible inference that the defendant in fact used an ATDS.”
The court adopted the majority view, finding that plaintiffs’ complaint had included enough supporting facts. Specifically, the court found persuasive the fact that plaintiffs had alleged they each received numerous unsolicited calls from Allstate or its agents within the span of just six months, even though their phone numbers were on the National DNC Registry. These eleven calls came from nine different phone numbers, and each call bore the area code of a geographic region relatively near to each plaintiff’s place of residence. The court also noted that “the calls were generic in nature and served to market Allstate’s insurance policies to Plaintiffs, who had no prior business relationship with Allstate.” At bottom the court reasoned that plaintiffs’ allegations were sufficient because existing precedent did not “purport to provide a comprehensive list of boxes a plaintiff must check.”
The court also rejected Allstate’s contention that plaintiffs’ allegations that a predictive dialer was used to place the calls at issue was not dispositive of whether an ATDS was used. According to the court:
Predictive dialers include a wide variety of devices, some of which do not qualify as an ATDS under the TCPA because they lack the capacity to randomly or sequentially generate numbers to dial. Importantly, however, the difference between a predictive dialer and an ATDS is not readily apparent to a recipient of an automated call. Rather, such a determination requires information about the technical details of the device that the defendant used to make the calls information that the plaintiff lacks prior to discovery.
In sum, although many viewed Facebook as a decisive victory for companies that use automated equipment to make calls or send text messages, the district court’s decision here indicates that Facebook may not always be sufficient to protect defendants at the pleading stage. Until further precedent is developed at the appellate level regarding the nature and extent of the facts that must be pled to survive a motion to dismiss, each judge retains a level of discretion as to how high the bar will be for pleading the use of an ATDS. For this reason, companies that use any type of automated dialing system should consult with competent legal counsel when facing threatened or actual TCPA claims.