Ned Flores v. Adir International, LLC
685 F. App'x 533
9th Cir.2017Background
- Plaintiff Ned Flores received identical marketing text messages from Adir International on multiple occasions and replied "Stop" each time.
- After each "Stop" reply, Flores received an almost-immediate confirmation text stating he would no longer receive messages.
- Despite confirmations, Flores received the same text message at least three more times.
- The messages (initial and confirmation) were generically worded, appeared scripted, included a reference number but did not address Flores personally, and were sent from an SMS shortcode.
- Flores sued under the Telephone Consumer Protection Act (TCPA), alleging Adir used an automatic telephone dialing system (ATDS); the district court dismissed under Rule 12(b)(6) for failure to plausibly allege ATDS use.
- The Ninth Circuit reversed, holding Flores’ allegations were sufficient to permit a reasonable inference that Adir used equipment with the statutory capacity of an ATDS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flores plausibly alleged use of an ATDS under the TCPA | Flores alleged repetitive identical texts, scripted format, shortcode origin, and immediate automated confirmations after "Stop," supporting inference of ATDS capacity | Adir argued messages showed direct, non-random targeting inconsistent with ATDS use and thus failed to allege random/sequential generation or storage capacity | The Ninth Circuit held the pleadings sufficiently alleged that the equipment had the capacity to store/produce numbers using a random or sequential generator; dismissal was improper |
| Proper standard on Rule 12(b)(6) review for ATDS allegations | Plead facts should be construed favorably and reasonable inferences drawn for plaintiff | Defendant urged narrow reading requiring randomness in actual use, not just capacity | Court reiterated courts must draw reasonable inferences and focus on statutory definition of ATDS capacity, not actual randomness of dialing |
| Relevance of device’s present use vs. capacity | Flores argued capacity alone suffices under statute even if not presently used for random/sequential generation | Adir stressed actual method of targeting matters to plausibility | Court held that capacity to store/produce numbers using a random or sequential generator is the relevant statutory inquiry and may be inferred from allegations |
| Whether shortcode and message characteristics support inference of automation | Flores said shortcode and generic/scripted content support automated system use | Adir contended those facts indicate targeted human-driven messaging | Court found shortcode and generic, repeated messages are consistent with automated systems and support plausible ATDS inference |
Key Cases Cited
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009) (defines ATDS by equipment capacity to store or produce numbers using a random or sequential number generator)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (courts must draw on judicial experience and common sense when assessing plausibility at pleading stage)
- Ass’n for Los Angeles Deputy Sheriffs v. City of Los Angeles, 648 F.3d 986 (9th Cir. 2011) (pleadings must be construed in favor of nonmoving party and reasonable inferences drawn)