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.
Going back
to Franco, the Court adopted the Hufnus approach, and determined that when
a defendant randomly makes calls from a curated list, it is not randomly or
sequentially generating phone
numbers as is required under the Supreme Court’s ATDS definition. As it
would be “wildly implausible” (Court’s words, not mine) for the Defendant to
randomly or sequentially generate phone numbers to reach Plaintiff to collect
on a debt, it was infinitely more likely that Plaintiff provided her number
while taking out the loan she now owed on, and Defendant called that number to
collect.
Based on
this, the Court granted Judgment on the Pleadings as to Plaintiff’s TCPA
claim. Another great post-Facebook ruling.
