Ninth Circuit Affirms Summary Judgment in Favor of TCPA Defendant on Duguid Footnote 7 Argument

Author: Thomas Blatchley

On January 19, 2022, the Ninth Circuit affirmed a District Court’s Order granting summary judgment to defendant, holding that the subject dialing platform was not an automatic telephone dialing system or ATDS under the TCPA. Meier v. Allied Interstate LLC, Case No. 20-55286 (9th Cir. Jan. 19, 2022). The decision is yet another victory for TCPA defendants rejecting plaintiffs’ Duguid footnote 7 argument that an ATDS simply use a random number generator to determine the order in which to ptick numbers from a pre-produced list and then store those numbers to be dialed in the future.

On appeal, plaintiff-appellant argued that defendant’s LiveVox Platform is an ATDS under the TCPA. The LiveVox platform requires customers (including defendant) to upload lists of telephone numbers; it does not produce the numbers it dials using a random or sequential number generator. Significantly, during the pendency of the appeal, the U.S. Supreme Court held that an ATDS “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021).1

The Ninth Circuit found that plaintiff must show that the dialing platform stores telephone numbers using a random or sequential generator. Plaintiff-appellant did not argue that the LiveVox system stored telephone numbers using a random number generator, but instead argued that it stored telephone numbers using a sequential number generator because it uploads a customer’s list of numbers and produces them to be dialed in the same order they were provided, e.g., sequentially. The Ninth Circuit rejected this argument, finding that virtually every system that stores a pre-produced list of telephone numbers would qualify as an ATDS if it could also autodial the stored numbers. Of course, this is the same outcome the Supreme Court rejected in Duguid when it reversed a district court holding that an ATDS need only have the capacity to store numbers to be called and to dial such numbers automatically. Not surprisingly, the Ninth Circuit rejected plaintiff-appellant’s expansive interpretation and reliance on footnote 7 of the Duguid decision that endeavored to explain why Congress might have used both “produce” and “store” in the ATDS definition. Accordingly, the Ninth Circuit held that the LiveVox system did not qualify as an ATDS under the TCPA simply because it stores pre-produced lists of telephone numbers in the order in which they are uploaded.

1 For a comprehensive overview of the Duguid decision, see here.

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