May 29, 2022

Volume XII, Number 149

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May 27, 2022

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May 26, 2022

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TCPA Quick Hitter: “Click and Pause” ATDS Allegations Still Finding Favor in the Third Circuit

In the shadow of the big Supreme Court argument, the rank and file TCPAWorld suits carry on.

Indeed the same day as the big oral argument this Tuesday, a court in Pennsylvania was approving “click and pause” allegations as sufficient to survive the pleadings stage, even under Dominguez II.

In Smith v. Vision Solar Llc, CIVIL ACTION No. 20-2185, 2020 U.S. Dist. LEXIS 229989 (E.D. Pa. December 8, 2020) the defendant moved to dismiss arguing that vicarious liability allegations were lacking and that ATDS usage was not sufficiently set forth in the complaint.

In denying the motion the Court first found that vicarious liability is adequately alleged where a seller authorizes a marketer to send messages on its behalf. (Note: there is a split on this—courts in the Ninth Circuit apply a very different standard.) As the complaint alleged that the calls were, indeed, authorized by the defendant vicarious liability was adequately pleaded.

As to ATDS usage, the Court acknowledged the Third Circuit’s ruling in Dominguez II holding that an ATDS is a machine with “the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” Nonetheless the court found that “click and pause” allegations are sufficient at the pleadings stage, even post-Dominguez. This is especially so since the calls at issue were allegedly impersonal marketing calls.

Separately the court denied a motion to strike the class definition—even though the definition plainly included merits-based determinations and qualified as a failsafe. The Court reserved the issue for the certification stage—a real mistake since it forces Defendant to litigate through expensive class discovery to address a class that could never be certified. Foolish (IMO).

The beat goes on…

© 2022 Troutman FirmNational Law Review, Volume X, Number 345
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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