I’m on record stating that the Plaintiff’s bar is more creative than the Defense bar. Indeed, sometimes I wonder if me and Ryan/Paul are the only guys dreaming stuff up on this side of the v.

Maybe the Plaintiff’s bar is more innovative because creating case law is thought to be the province of entrepreneurial one-man shops and not the stuff of prestigious law firms. Who’s to say.

What I do know is that the Plaintiff’s bar keeps coming up with little tactics/adjustments to keep their Automatic Telephone Dialing Systems (ATDS) cases alive.

Here’s the latest one I noticed.

As every TCPA.World denizen knows by now claims for prerecorded/artificial calls live alongside ATDS claims–so you can assert one, or the other, or both. But critically, a prerecorded/artificial voice call triggers the statute regardless of whether an ATDS is used

So now the Plaintiff’s bar is using allegations of the receipt of prerecorded calls as a vehicle to hold open the door to ATDS claims. Specifically, they are asking courts to reserve ruling on whether or not an ATDS was separately used to contact the called party once they have pleaded that a prerecorded voice was used. The case is going to get past the pleadings stage anyway–the argument goes–so why not just reserve on the issue of ATDS usage pending discovery?

I mean… that’s pretty good.

And it is finding pay dirt.

In Morales v. Sunpath Ltd., C.A. NO. 1 :20-cv-01376-RGA-MPT, 2022 U.S. Dist. LEXIS 17858 (D. De. February 01, 2022) for instance the Defendant moved to dismiss the ATDS claim arguing that the calls were not made at random. The Plaintiff countered that prerecorded calls were also made so whether or not an ATDS was used a valid claim was stated. The Court agreed and–without analyzing Facebook— elected to allow the ATDS portion of the claim to proceed as well:

Here, plaintiffs similarly “reserve the right to argue that Defendants used an automatic telephone dialing system to place the calls to Plaintiffs and the Class members should facts uncovered in discovery support that argument.” Thus, the court recommends denying defendants request to dismiss pursuant to Rule 12(b)(6).

You see that?

The plaintiff just “reserved the right” to argue an ATDS was used if discovery bears it out and the Court said “ok, sounds fine.”

So the motion to dismiss was denied. The case proceeds to discovery. And Plaintiff is free to pursue both the ATDS and the prerecorded call claims in discovery–even though the ATDS allegations may have been insufficient.

Now, in truth, the Plaintiff’s bar is winning the Facebook battle at the pleadings stage anyway. But the idea that a Plaintiff can avoid any review of their ATDS allegations at the pleadings stage by merely “reserving” the issue is somewhat revolutionary. It converts every prerecorded call case into an ATDS case in waiting–and redoubles the need for callers to fully understand their source code.

In short, I don’t like this at all. But I have to admit–its pretty clever.

Defendants should keep in mind that a Plaintiff does not simply get to “reserve” issues for later in the case. The 12(b)(6) mechanism exists to allow the court to cast out claims that lack probable merit before the expense and intrusion of discovery. But this is an issue that now needs to be directly argued in the motion-otherwise a court will merely sidestep a fulsome analysis of Facebook and allow the claim to proceed.

This is also FURTHER reason why folks should be moving away from prerecorded/artificial voice calls/voicemails/RVMs/avatar and toward live calls and texts. And it is further reason why human selection dialers remain all the rage.

Always here to chat.

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