Court of Appeals, Fourth Circuit, in a wide-ranging ruling spanning a number of legal claims, had occasion to address the issue of what evidence a consumer must present to refute a defendant’s denial that they used an autodialer. Key takeaway: While Facebook gives the current standard for finding whether a system is an ATDS with respect to the use of a random and sequential number generator, some courts may elect to examine factors considered determinative pre- Facebook and may still follow pre- Facebook authority.Īffirming Motion for Summary Judgment in Part Guthrie v. These courts are also increasing rejecting what some have called the “Footnote 7” argument-referring to footnote 7 in the Facebook decision, where the Supreme Court suggested in dicta that randomly or sequentially selecting numbers from a predetermined list might qualify as an ATDS-with judges focusing on the generation, not the selection, of numbers.
At the district court level, defendants have generally continued to fare well under the new ATDS standard both at the pleadings and the summary judgment stage.
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While the results remain somewhat mixed, a growing number of federal courts (if not a majority) are adopting Facebook and holding that use of a random or sequential number generator is a necessary prerequisite to an ATDS finding. Duguidand how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable decisions since our last roundup. As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v.
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