District courts have begun to reach a consensus on the effect of Facebook, Inc. v. Duguid at the pleading stages. In July 2021, the chief judge of the Southern District of California held in Gross v. GG Homes, Inc., that Facebook’s import on the automatic telephone dialing system (ATDS) issue “is more relevant to a summary judgment motion than at the pleading stage.” The court’s 25-page decision joined a chorus of district courts that were reluctant to dismiss cases at the pleading stage on the basis of Duguid.
In a notable turn of events, however, on a motion for reconsideration, the court was persuaded to reverse its position and join the view of the majority of courts. In doing so, the court acknowledged that the motion was originally briefed before key decisions were issued concerning Duguid and overruled its previous order. The targeted nature of the texts, concluded the court, fatally undermined the plaintiff’s ATDS claims because they belie the notion that the defendant used a device that randomly or sequentially generated her phone number. The court dismissed the plaintiff’s TCPA claims with prejudice — the case has already been cited a half dozen times by federal courts both in California and around the country.
Only a few days later, in October 2021, the same court issued another ATDS decision in Wilson v. Rater8. The case involved a plaintiff who visited a doctor for an independent medical exam and alleged improper use and disclosure of his medical information, claiming violations of California’s Unfair Competition Law (UCL), the Confidentiality of Medical Information Act (CMIA), and the TCPA’s prohibition on the use of an ATDS.
The court applied the following non-dispositive factors to assess the plausibility of the ATDS claim:
- The nature of the message with a generic, impersonal, or promotional message;
- The number or frequency of messages, with repetitive messages sent over a short period of time;
- The ability to respond to or interact with the text messages (i.e., sending Stop);
- The relationship between the parties;
- Whether identical messages were sent to multiple numbers simultaneously; and
- Whether the message was sent from an SMS short code or long code.
After weighing the factors, the court agreed that the plaintiff’s TCPA claims failed as the plaintiff did not plausibly allege he was sent a text message using an ATDS. While the court noted the plaintiff received a text message using a short code, the court believed the “nature of this solitary text and the relationship between the parties indicate the text was not sent using an ATDS.”
This court’s decisions highlight the remarkable evolution of how courts are increasingly casting doubt over ATDS allegations post-Duguid. While this is certainly good news for defendants and potential defendants, some courts (even at summary judgment) have interpreted Duguid as capturing technology that does not generate telephone numbers at random or in sequence — the best practice continues to be coupling consent with a lack of ATDS defense.
1 141 S. Ct. 1163 (2021).
2 Gross v. GG Homes, Inc., No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 127596 (S.D. Cal. July 8, 2021).
3 Id. at 20.
4 Id. at 25.
5 Gross v. GG Homes, Inc., No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 198339, at *6 (S.D. Cal. Oct. 14, 2021).
6 Id. at 7.
7 Wilson v. Rater8, Ltd. Liab. Co., No. 20-cv-1515-DMS-LL, 2021 U.S. Dist. LEXIS 201274, at *6 (S.D. Cal. Oct. 18, 2021).
8 Id. at 5.
9 Id. at 7.