The Wins Keep Coming! Another Court Finds Calling From Curated List of Numbers is Not R&SNG

Editor's note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved.

Well TCPAWorld, we have another great post-Facebook case for you. Franco v. Alorica Inc., No. 2:20-CV-05035-DOC-(KESx), 2021 U.S. Dist. LEXIS 164438 (C.D. Cal. July 27, 2021) used the Supreme Court’s Facebook ATDS definition and the Northern District of California’s recent ruling in Hufnus v. DoNotPay, Inc., 2021 WL 2585488 (N.D. Cal. June 24, 2021) to find that when a defendant randomly makes calls from a curated list, it is not randomly or sequentially generating phone numbers as is required under Facebook. Exciting stuff.

As to the facts: In or around November 2018, Plaintiff Emy Franco began receiving calls from individuals seeking to collect on a debt that Plaintiff allegedly owed. Plaintiff alleged that between November 2018 and March 2019, she was called approximately one-hundred and fifty times from over fifty different phone numbers.  When she answered the phone, Plaintiff claimed that she would hear a short pause before the person on the other end of the line began to speak, which, she alleged, indicated the use of an automated telephone dialing system. The kicker here though is that Plaintiff had a pre-existing relationship with Defendant: Plaintiff owed a debt to Defendant, and Defendant was calling to collect.

In evaluating Plaintiff’s TCPA claim, the Court noted that post-the Supreme Court’s decision in Facebook, “district courts have been split in applying Facebook’s definition of an ATDS in cases where the plaintiff and the defendant had a pre-existing relationship.”  Id. at *5-6. The Court then summarized the Northern District of California’s recent decision in Hufnus v. DoNotPay, Inc., which had found that a system is not an ATDS if it calls sequentially from a non-random (i.e. voluntarily provided) list of numbers.  Even better, the Court disagreed with a recent ruling in Miles v. Medicredit, Inc., 2021 U.S. Dist. LEXIS 131128 (E.D. Mo. July 14, 2021), where, in that case, the court did not grant defendant’s motion for judgment on the pleadings as to plaintiff’s TPCA claim, even though plaintiff merely alleged defendant “upload[ed] telephone numbers”—numbers that were voluntarily provided—to a database and a dialer randomly selected the number.

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