January 15, 2021

Volume XI, Number 15

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January 15, 2021

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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.

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

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

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