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Threadbare ATDS Allegations Not Enough–Even in the Second Circuit

As we have covered , the Second Circuit in Duran v. La Boom concluded that the Telephone Consumer Protection Act (“TCPA”) applies to any system that calls or texts automatically from a list of numbers. Specifically, the Court held that the TCPA’s automated telephone dialing system (“ATDS”) definition applies to devices that store numbers–in addition to just those that can randomly or sequentially generate numbers to be dialed. That decision contributed to the massive circuit split that the Supreme Court recently agreed to resolve in granting Facebook’s cert. petition.

Meanwhile, TCPA litigation chugs along, and the United States District Court for the Eastern District of New York recently dismissed a pro se Plaintiff’s complaint for threadbare ATDS allegations.  See Herrera v. Navient Corps., 19-CV-06583, 2020 U.S. Dist. LEXIS 122710 (E.D.N.Y. July 13, 2020). That court explained that the plaintiff did not adequately alleged ATDS use because she simply recited “the statutory language.”  Without a “reasonable inference that the calls were made from an ATDS,” the complaint failed.  Id. at *16.

The takeaway: even in the Second Circuit with its broad approach (among the”Dark Red” states in our ATDS overview), a plaintiff cannot state a claim simply by reciting the statutory elements.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 198


About this Author

Brent Owen, Squire Patton Boggs, Denver, public lands attorney, natural resources lawyer

Brent represents clients on a range of matters, with an emphasis on complex commercial litigation, public lands and natural resources law. Brent joined Squire Patton Boggs after a two-year stint at a large regional firm. He has significant litigation experience – including second-chairing a federal jury trial on behalf of a prisoner asserting a First Amendment claim. Additionally, Brent has handled a range of appellate matters, including drafting briefs to the Colorado Court of Appeals, Colorado Supreme Court, and Tenth Circuit.

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