April 19, 2021

Volume XI, Number 109


April 16, 2021

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United States Supreme Court Exempts Certain Technology from the TCPA

In Facebook v. Duguid, (Case No. 19-511) on April 1, 2021, the United States Supreme Court unanimously confirmed that equipment without the capacity to randomly or sequentially store or produce numbers is not an autodialer for TCPA purposes. The Facebook ruling focuses on text messages, which many institutions are using as a primary method of customer contact, but it is also a victory for those using predictive dialers and preview dialers without random and sequential source codes.

This ruling provides excellent precedent for summary judgments or early settlements, since technology capacity can be established through affidavits and testimony. That said, we anticipate TCPA plaintiffs will continue to challenge the nature of such dialers to coerce high-dollar capitulation.

We recommend that companies obtain expert opinions or manufacturer statements establishing that the technology they use to contact the consumer by phone or text cannot store numbers or produce numbers randomly or sequentially. For example, many cloud-based systems can only reach consumers from existing customer files or lists and cannot contact customers randomly or in some pre-set sequence of numbers and such facts may stop drawn-out TCPA litigation before it starts.

The Facebook decision is another step in the right direction, as the Court dismissed as untenable labeling any equipment with the capacity to store and produce (and dial) telephone numbers (without the random or sequential element) as autodialers. While this favorable ruling only slightly narrows the definition of an autodialer, it still provides defendants an additional weapon in the ongoing TCPA conflict.

© 2021 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XI, Number 97



About this Author

Richik Sarkar Litigation Attorney Dinsmore

Richik advocates and advises clients working in media, technology, utility, real estate, finance, retail, and other industries. He spearheads commercial, consumer, and cybersecurity complex and class action litigation (often related to unfair and deceptive trade practices, consumer regulations, and government sanctions) and special projects for his small, middle market, and Fortune 500 companies.

He also counsels clients with respect to risk and crisis management and is regularly sought to speak on issues, including corporate and governance...

(216) 413-3861
Karen Hockstad, Dinsmore shohl, business attorney, tax lawyer

With extensive experience representing a wide variety of businesses and entrepreneurs, Karen is adept at counseling clients through a variety of transactional and tax matters. She also has experience in guiding her clients through litigation, having represented clients in cases throughout the country. Her unique background allows her to see and help avoid potential litigation issues in business transactions. Her business and tax knowledge is an asset in helping her commercial litigation clients. Karen is a member of the Corporate and Litigation Departments.