In the Seventh Circuit Court of Appeals footprint—including Indiana—a system must randomly or sequentially generate numbers and dial them in order to qualify as an ATDS under the TCPA. But you’d never know it reading  Friend v. Taylor Law, CAUSE NO.: 4:17-CV-29-JVB-JPK, 2020 U.S. Dist. LEXIS 238481 (N.D. Ind.  Dec. 18, 2020).

In Friend a court denied summary judgment to a law firm that was collecting a debt owed to its client. The law firm’s representative testified that it used the LiveVox system but wasn’t very sure how it worked. He testified that he “believed” the system lacked the capacity to dial automatically as a predictive dialer. The Court found that the Defendant’s belief regarding the system’s ability to dial automatically was insufficient to merit summary judgment and sent the issue to the jury.

So what’s wrong with that?

Well, just about everything.

In the first place it is the Plaintiff’s burden to prove ATDS usage and once a Defendant challenges ATDS usage at MSJ it is the Plaintiff’s burden to come forth with evidence sufficient to raise a jury question on the issue. The Defendant’s equivocal testimony may not be sufficient to prove the lack of ATDS usage, but it is certainly—standing alone—insufficient to prove that a system with the capacity to operate as an ATDS was used. So there was no triable issue created. So Defendant should have won.

Aside from the procedural misstep, there is a clear disconnect here with respect to the substantive law. Again, under Gadelhak it does not matter if a system can call “automatically” or not—what matters is whether the system has the capacity to dial randomly or sequentially. Yet the Friend court never analyzed that issue, and seemed to assume that any automated dialing is sufficient to trip the statute. As the Friend court summarized the law, an ATDS is “equipment which has the capacity” to store and dial numbers in certain ways.”

Umm, yeah. But those “certain ways” an ATDS must dial are not merely “automatically” but rather “using a random or sequential number generator.” The Court nonetheless concludes that the evidence is unclear on whether “[Defendant’s] agents make calls with software capable of automated dialing…” and denies judgment to the defendant.

I have not studied the briefing here so I don’t know whether this was a misstep by counsel or the Court flubbed one, but either way the Friend case is a true outlier. The focus was on the wrong substantive determination and the evidentiary burden was placed on the wrong party.

Other than that though it was all groovy.