Who doesn’t like a good seesaw battle?
Just a few weeks ago we saw two cases that treated Facebook as if it were a non-issue–especially at the pleadings stage.
But July 13, 2021, brought us the best post-Facebook decision yet. Quite the swing.
In Barry v. Ally Fin., Case No. 20-12378, 2021 U.S. Dist. LEXIS 129573 (E.D. Mich. July 13, 2021) the court granted a motion to dismiss a Telephone Consumer Protection Act (TCPA) Automatic Telephone Dialing System (ATDS) class action, finding that allegations of specifically-targeted calls necessarily prevent a finding of ATDS usage.
In Barry the Defendant allegedly called the Plaintiff looking to collect on her brother’s car loan. The Plaintiff argued that the Defendant had, nonetheless, used an ATDS because the system had the capacity to use an Random and Sequential Number Generator (R&SNG). She sought discovery on the subject and asked the court to deny the motion to dismiss on that basis.
The Court was not having it.
Unlike the gross Gross case, the Barry court determined that allegations of specifically-targeted calls necessarily terminate the ATDS inquiry. This is true because under the “clear holding” of Facebook it is the USE and not just the CAPACITY to use a R&SNG that matters:
In this case, Plaintiff does not dispute that Defendant’s autodialer system did not use a random or sequential number generator in connection with its calls to her (or to the purported class members). Rather, these calls were targeted at specific individuals in connection with specific accounts held by Defendant. That ends this case.
And it gets better.
As to FN7, the Barry court adopts the Hufnus court’s analysis that FN7 only applies where the underlying list of numbers is, itself, generated randomly or sequentially:
Thus, the “preproduced list” of phone numbers referenced in the footnote was itself created through a random or sequential number generator….There has been no allegation that the pre-existing “stored” list of phone numbers in this case were “sequentially generated and stored.” Rather, Plaintiff pleads that the phone numbers called are specifically identified in connection with an account.
That’s just perfect.
So under Barry any targeted calls made using a predictive dialer are going to be treated as non-ATDS calls. And while that shouldn’t be an extraordinary outcome–I mean, that is pretty much what Facebook says after all–Barry is the first case to say it plain and simple.
I love plain and simple.
My hat is off to my friends over at Ally and their counsel. Nice win folks!
Putting Barry into the hopper, we can start to see ATDS jurisprudence take shape but it's still too early to start making predictions about which courts are likely to approach Facebook in what way–especially at the pleadings stage. Still, every Defendant and caller should have Barry on the tip of their tongue when dealing with ATDS allegations.
Be sure to check the Facebook resource page for comprehensive coverage.