354 F. Supp. 3d 639
E.D. Pa.2018Background
- Verde hired Fluent to collect consumer lead data (including TCPA consent checkboxes) and passed leads to Transparent BPO, which used CallShaper's predictive dialing platform to call consumers' cell phones.
- Five named plaintiffs received a total of 75 calls promoting Verde's electricity service; Plaintiffs allege TCPA violations based on use of an ATDS and/or prerecorded or artificial voice and seek class relief.
- Dispute centers on whether the CallShaper Predictive Dialer is an ATDS (i.e., can store/produce numbers using a random or sequential number generator and dial them) and whether calls used prerecorded/artificial voices.
- FCC declaratory rulings from 2003, 2008, and 2015 had previously treated predictive dialers as ATDSs; the D.C. Circuit in ACA International invalidated key aspects of the 2015 Order, creating circuit split and ambiguity about the 2003/2008 Orders.
- The Third Circuit in Dominguez II was read to require that a device itself have the capacity to generate random or sequential numbers to qualify as an ATDS; applying Dominguez II, the court granted Verde partial summary judgment dismissing ATDS-based claims because CallShaper, as configured, only dialed stored lists.
- The court found genuine disputes of material fact remain regarding whether most calls used prerecorded/artificial voices and denied summary judgment on Richardson's consent defense and denied Defendant's motion to strike the remaining class allegations as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CallShaper Predictive Dialer is an ATDS | Dialer qualifies as ATDS because predictive dialers can call from stored lists and/or have capacity to generate numbers | Dialer is not ATDS because, as configured, it only stores and dials uploaded lists and lacks capacity to generate random/sequential numbers | Held: Not an ATDS as configured; ATDS-based claims dismissed (summary judgment for Verde) |
| Whether calls used artificial or prerecorded voice | Plaintiffs present testimony alleging prerecorded/artificial messages were played when agents unavailable | Verde contends calls were live or fell into limited prerecorded-identification exception | Held: Genuine dispute exists for most calls; summary judgment denied except for three calls where plaintiffs conceded no prerecorded voice was used |
| Whether Richardson gave prior express consent | Plaintiffs say consent not given; possible third-party/bot could have submitted form | Verde points to Fluent declaration and Richardson’s deposition suggesting he registered and submitted consent | Held: Genuine factual dispute; summary judgment denied as to Richardson’s consent defense |
| Whether class allegations should be struck | Plaintiffs argue class pleading adequate and premature to strike | Verde contends claims incapable of class certification and seeks to strike class allegations now | Held: Motion to strike denied as premature; ATDS-related class claims curtailed by summary judgment but other class claims survive for later certification analysis |
Key Cases Cited
- ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018) (invalidated core parts of the FCC's 2015 TCPA declaratory ruling and narrowed agency interpretation of ATDS)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (interpreted ATDS to require device capacity to generate random or sequential numbers; applied at summary judgment)
- Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (read TCPA text and context to cover devices that call from stored lists; reached a different conclusion than Dominguez on ATDS scope)