Second Circuit Dismisses TCPA Case for Failure to Plead Use of an ATDS | Troutman Pepper

On January 9, the district courtroom for the Eastern District of New York dismissed a professional se plaintiff’s TCPA lawsuit for failure to correctly allege that the defendants used an computerized phone dialing system (ATDS) when putting calls to the plaintiff.

In Kannon v. Warranty Protection Services, the plaintiff alleged that the auto guarantee defendants positioned a gross sales name from a spoofed telephone quantity to his cellphone utilizing an ATDS. He additional alleged that the defendants offered opt-in data via an internet affiliate marketing community that despatched three unsolicited textual content messages to him.

Applying a number of circumstances from the Second Circuit as precedent, the district courtroom held that the plaintiff failed to increase an inference that the defendants used an ATDS, a requisite for TCPA claims. The courtroom additional discovered that the plaintiff failed to set up the connection between defendants and the internet affiliate marketing community. Additionally, because the textual content messages weren’t despatched by “brief code” telephone numbers, nor did the plaintiff describe the content material of the messages, the courtroom held there was “no method to decide whether or not an ATDS was used.” The courtroom concluded the plaintiff’s TCPA declare have to be dismissed as he didn’t adequately describe the content material of the calls or allege a quantity of calls that will increase an inference that the defendants used an ATDS.

Notwithstanding the above, the courtroom did present the plaintiff the chance to treatment his grievance given his professional se standing, advising {that a} profitable amended grievance would require him to plead particular information about: (1) the connection between the defendants and the internet affiliate marketing community; and (2) how the defendants communicated utilizing an ATDS.

While the courtroom didn’t additional discover whether or not the opt-in textual content messages the plaintiff acquired constituted TCPA violations, a number of courts within the Second Circuit have reviewed comparable points.

In Rotberg v. Joseph A. Bank Clothiers, Inc., 345 F.Supp.3d 466, 479 (S.D.N.Y. 2018), a district courtroom held {that a} caller searching for out a client’s specific written consent to ship subsequent telemarketing or promoting texts is just not, as a matter of legislation, already engaged in telemarketing. Other courts have held that after specific consent to obtain non-telemarketing texts is established, texts despatched to allow recipients to full registration have been permissible. For instance, in Daniel v. Five Stars Loyalty, Inc., 2015 WL 7454260, at *4 (N.D. Cal. Nov. 24, 2015) the courtroom held {that a} textual content despatched solely for the aim of permitting the recipient to full a registration course of was not telemarketing throughout the that means of 47 C.F.R. § 64.1200(f)(12).

Troutman Pepper will proceed to monitor developments in TCPA litigation.

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