So I’m working on my big 2021 TCPA Annual Review (presented by Drips) and I am reminded by just how divided the courts are regarding ATDS allegations at the pleadings stage.

For a while it looked like the courts were going to let virtually all ATDS cases past the pleadings stage on “click and pause” allegations, but then there was a big swell of cases that held only allegations of random-fire calls survived the pleadings stage.

Truthfully, both of these lines of cases are incorrect. The issue is whether an RoSNG is used to store or produce numbers–not whether a system dials en masse, on the one hand, or random phone numbers, on the other.

Well in a new case involving Paronich, a court has refined a different rule that seems to hew more closely to the intent of Facebook. 

In Shank v. Givesurance Ins. Servs., CASE NO. 3:19-CV-136, 2022 U.S. Dist. LEXIS 32259 (S.D. Oh.  February 23, 2022) the court denied a motion for judgment on the pleadings on the ATDS issue.

In assessing the complaint the Court held, in essence, that where the allegations plausibly demonstrate that the calls at issue are not targeted in nature that the complaint survives the pleadings stage. Specifically the court relied on the following allegations:

(1) “[T]he call to Plaintiff was made from SMS Code 555888;” (2) an SMS code is evidence of the use of an ATDS, since they are “used to send out advertisements en masse;” (3) SimpleTexting advertises its ability to do “mass text messaging;” (4) the text message was “non- personalized,” generic and part of a “nationwide telemarketing campaign;” and (5) Plaintiff did not consent to receiving the text.

Based on these allegations the Court found the case should proceed to the discovery phase:

The Court finds that the above-cited allegations allege a plausible claim under the TCPA. Unlike Duguid, Plaintiff does not allege that his name was prepopulated or dialed from a legitimate list of customer or client contacts and not through a random or sequential number generator.

Get it?

If the Complaint shows that list of numbers dialed was a “legitimate” customer list then there’s no claim. If the Complaint, on the other hand, shows that the calls/texts arose out of a generic mass blast call/text campaign then the case proceeds to discovery.

While I obviously prefer the “only random phone numbers get past the pleadings stage” approach, the “generic mass blasting” rule is a pretty good one. It gives a semi-brightline to litigants so they can predict the likely outcome of a motion to dismiss, beyond the mere whims of the judge.

There are whispers of this line of reasoning in other cases, but I like the Shank formulation best. Perhaps it will be the new gold standard for assessing ATDS issues at the pleadings stage–and deter filing of TCPA cases where targeted messages are involved.

There’s another interesting piece to this case as well. The defendant claimed that it only made the calls at issue because a third-party (Informa) promised it that the list of numbers to be called was “opted in.” Since it turn out that may not be the case the Defendant filed a cross-claim for fraud against the lead list supplier.

Informa moved to dismiss the third-party complaint but the Court allowed the count to stand finding that sufficient allegations exist to demonstrate a fraudulent inducement took place.

I love the fraud claim angle here. Obviously I don’t know whether the facts alleged are true or not–Informa vigorously denies making any false statements– but where a caller is lied to and provided fake/false leads or non-opted in data they MUST take the necessary steps to hold the fraudsters liable. Otherwise the ecosystem continues to be cluttered with bad data and illegal phone calls.

If you’re a caller who has been the victim of fake leads or “opt-in” data that was anything but, keep the Shank case in mind. Pursuing a fraud claim helps to make you whole for the damage caused by the bad guy and also helps deter this conduct in the future.

Stay classy TCPAWorld.