Political campaigns remain prime targets during election season. And, despite a narrow interpretation of an ATDS by the Seventh Circuit, one District Court in Illinois found that the Plaintiff had plausibly pled the Defendant’s use of an ATDS based upon the nature of its business as a political pollster.
In Michael Drew v. America Directions Research Group, Case No. 20-cv-00402, 2020 WL 6118539 (N.D. Ill. Oct. 16, 2020), Plaintiff allegedly received unsolicited text messages from an unknown number as part of a mass-text campaign directing “voters” and encouraging them to “participate” in an online survey. Plaintiff’s complaint alleged that Defendant America Directions Research Group (“ADRG”) obtained consumers’ cellular telephone numbers, including Plaintiff’s, by purchasing lists of telephone numbers collected by other companies, and that he, and other consumers, received text messages from ADRG despite having never given consent. Plaintiff further alleged (i) that ADRG used an automated telephone dialing system (“ATDS”) based on the impersonal, unsolicited nature of the text message and the unknown number from which it was received, and (ii) that the ATDS used a random or sequential number generator to store the lists of telephone numbers that were then sent text messages automatically.
ADRG argued the complaint should be dismissed because Plaintiff had not pled sufficient facts that ADRG used an ATDS to text him in violation of the TCPA.
Relying on the Seventh Circuit’s decision in Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 (7th Cir. 2020), the Court reasoned that, in order to succeed in his TCPA claim, Plaintiff must allege and later prove that the equipment that originated the contact was capable of either storing or producing telephone numbers using a random or sequential number generator. However, as noted by the Court, Gadelhak does not provide authority as to the pleading standard required to overcome a motion to dismiss when alleging use of an ATDS.
The Court acknowledged the disagreement among district courts in the Seventh Circuit addressing this issue, and ultimately denied ADRG’s motion to dismiss.
Drawing on one decision in which the court considered the type of business being accused of a TCPA violation as indicative of the likelihood of ATDS usage, the Court found, as a survey research provider, ADRG was significantly more likely to employ a random or sequential number generator (than say a debt collector) and, therefore, this factor weighed in favor of denying ADRG’s motion to dismiss. Further, the Court reasoned that the complaint alleged some detail and not just barebone allegations by reciting the relevant language of the statute. For example, Plaintiff alleged the use of the plural “voters” implied a high volume of recipients and encouraging “voters” to “participate” in an online survey made the text messages generic.
Relying on the foregoing, the court held the generic and impersonal nature of the text message Plaintiff received, coupled with the business platform of ADRG, suggested the use of an ATDS was more plausible than possible such that the machine used to text Plaintiff was capable of storing and producing telephone numbers and subsequently dialing them.
The Drew case illustrates that political campaigns and pollsters remain in the crosshairs of the plaintiff’s bar. And unfortunately, it seems that some courts have started to fashion a rather discriminatory pleading standard that favors some industries over others in determining whether a plaintiff has plausibly pled the defendant’s use of a device with the capacity to randomly or sequentially generate telephone numbers to be called. While this means the Defendant in Drew will have to proceed with litigation, it is likely the odds of the Plaintiff’s success will diminish once the Defendant is able to put on evidence regarding the technology it used to send the texts at issues. However, this leaves one to wonder whether this is all an expensive and wasteful exercise in futility to get to the same outcome: a finding that the defendant was dialing from a list of phone numbers, rather than using an antiquated device to randomly or sequentially generate those numbers.