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As TCPAWorld.com readers are now well aware, the clear majority of courts favor a narrow statutory reading of ATDS in assessing TCPA claims. To prove a valid claim a Plaintiff must demonstrate that the equipment used to make the call had the present capacity to dial randomly or sequentially—that’s a pretty high standard.
But the positive evolution in the law has not been all it’s cracked up to be for many Defendants that still find themselves stuck in lawsuits past the pleadings stage. Many courts have continued to apply pre-shift (i.e. pre-Gadelhak and Glasser) standards to assessing the pleadings. That means a Plaintiff can generally get past a motion to dismiss by alleging they heard a click and experienced a pause at the inception of the call.
Obviously in a world where only random calls trigger statutory treatment encountering a pause at the outset of the call says little—if anything—about the viability of a claim. And that is exactly what one court just recognized in granting a Defendant’s motion to dismiss—perhaps setting a new TCPAWorld standard in so doing.
In Perez v. Quicken Loans, Inc., Case No. 19-cv-2072, 2020 U.S. Dist. LEXIS 53476 (N.D. Ill. March 27, 2020) the Court granted the Defendant’s motion to dismiss the ATDS allegations in a TCPA case at the pleading stage. Plaintiff had alleged “click and pause” allegations—commonly sufficient at the pleadings stage to state a claim— but the Court found the Plaintiff must do more following Gadelhak.
Given that the law of the circuit “changed” since the filing of the FAC, however, the Court granted Plaintiff leave to file an SAC admonishing: “While it is true, as many courts have observed, that a plaintiff should not be required to plead specific facts as to the technical specifications of the type of call system employed by the defendant, it also cannot be the case that every barebones TCPA claim can survive a motion to dismiss by alleging unwanted calls and a short period of dead air when the call is answered. And it is not too much to ask that a plaintiff who was so frustrated over persistent calls from the same number to have contacted a lawyer actually recall and set down in a pleading the details of the interactions that led her to bring a federal case.”
Wow. This is exactly what the defense bar needed—a way to cut off TCPA claims at the pleadings stage. There are a large number of zombie TCPA claims out there—cases that have been killed by recent appellate court decisions but still live on because they have not yet been challenged at the summary judgment stage. If a claim can be cut down at the pleadings stage, however, great expense can be saved by a Defendant—especially in a class action where a court is not asked to, or does not, bifurcate discovery. Perez could be a real “take the power back” moment for the Defense bar.
Keep Perez in mind Defense lawyers, and we’ll see if we can shift the pleadings requirements over time.
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