October 27, 2021

Volume XI, Number 300

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TCPA Litigation Update — Courts Dispose of TCPA Claims at Summary Judgment Post-Facebook

Back in April we reported on the Supreme Court’s landmark ruling in Facebook v. Duguid, highlighting the court’s narrow definition of an automatic telephone dialing system (“ATDS”). In Facebook the court found “that a necessary feature of an autodialer under [the TCPA] is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” 141 S. Ct. 1163, 1173 (2021). Now, courts are applying Facebook’s holding to dispose of TCPA cases at summary judgment on the ATDS issue. See Timms v. USAA Federal Savings Bank, 2021 WL 2354931 (D.S.C. June 9, 2021); Barnett v. Bank of America, N.A., 2021 WL 2187950 (W.D. N.C. May 28, 2021).

Timms involves a plaintiff arguing that the dialing system at issue qualifies as an ATDS because it “dials numbers automatically without the assistance of an agent.” Timms, 2021 WL 2354931, at *4. First, the court rejected this argument because Facebook instructs that “the automatic dialing capability alone is not enough to qualify a system as an ATDS.” Id. Next, turning to the evidence, the court found that USAA’s dialing equipment – Aspect Unified IP (“Aspect UIP”) and Aspect Agent Initiated Contact (“Aspect AIC”) – did not violate the TCPA because neither system meets Facebook’s narrow definition of an ATDS. Indeed, the evidence showed both systems “are capable of making telephone calls only to specific telephone numbers from dialing lists created and loaded by” USAA. Id., at *7. Specifically – and notable for current TCPA defendants – the record established that USAA's dialing systems worked as follows:

  1. “Telephone numbers of all [USAA] members are stored in the Aspect Advanced List Management (‘ALM’)”;

  2. “Each day, [a USAA] representative identifies accounts he or she wishes to call the next day based on different criteria, such as ‘account is overlimit, the period of delinquency, [or] the amount of debt’”;

  3. “ALM creates a list of telephone numbers for members matching those criteria”;

  4. “The numbers are then transferred to Aspect UIP or Aspect AIC”;

  5. “Numbers are dialed from those pre-created lists”;

  6. “If the Aspect UIP system is used, the Aspect UIP system dials the numbers” and “[i]f a person answers, the call is connected to a live representative”; and

  7. “If the Aspect AIC system is used, the [USAA] representative initiates the call to a specific number on the list.”

Based on the evidence, the district court found that the systems at issue “cannot store or produce telephone numbers using a random or sequential number generator.” Id. at *7. Therefore, there was no TCPA violation.

Timms provides a blueprint for TCPA defendants who have been unable to dispose of TCPA cases at the pleading stage. Many SMS and dialing platforms on today’s market do not have the ability to randomly generate numbers to be dialed. The Supreme Court acknowledged this issue in Facebook, but stated “this Court cannot rewrite the TCPA to update it for modern technology.” Facebook, 141 S. Ct. at 1164. Accordingly, in cases where systems mirror the capacity of the Aspect system in Timms, litigants are encouraged to produce discovery on the relevant systems at issue and then bring early motions for summary judgment to dispose of TCPA claims.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 230
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About this Author

Joshua Briones Litigation Lawyer Mintz
Member / Managing Member, Los Angeles Office

Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach and specializes in high-stakes, bet-the-company litigation. He represents clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education. He frequently publishes and lectures before national and local bar and industry...

310-226-7887
E. Crystal Lopez Associate Class Action TCPA & Consumer Calling Complex Commercial Litigation
Associate

Crystal focuses her practice on class action defense, with an emphasis on consumer fraud, data privacy, marketing and compliance issues claims. Crystal has extensive experience successfully defending against class action claims brought under the Telephone Consumer Protection Act, California Unfair Competition Law, False Advertising Law, the Fair Credit Reporting Act, the Hobby Protection Act and Auto-Renewal Law in both state and federal courts.

She has defended corporate clients against class actions at all stages of litigation, including...

310-586-3203
Esteban Morales, Mintz, Class Action Defense Lawyer, financial services litigation
Associate

Esteban is an experienced litigator whose practice is principally focused on class action defense and financial services litigation. Esteban has successfully defended both small and large corporate clients targeted in class action suits alleging violations of the Telephone Consumer Protection Act, California’s Unfair Competition Law, and California’s Invasion of Privacy Act. Results include dismissals at the pleading stage and without any discovery following aggressive defense strategies. In addition to defending class actions, Esteban has represented clients in real...

310-226-7841
Matthew Novian Complex Commercial Litigation Attorney
Associate

Matt focuses his practice on complex commercial litigation, including consumer protection matters. He has experience in drafting briefs and letters to opposing parties and in conducting depositions. In addition, Matt maintains an active pro bono practice, in which he counsels clients in matters related to immigration and domestic violence. He was a Law Clerk at Mintz in 2017. 

While attending law school, Matt was a summer associate at a Los Angeles-based law firm, where he worked on matters involving closely held corporations, commercial real estate disputes, and trademark licensing...

310.226.7842
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