Just last week we reported on the first case to follow Marks in assessing the scope of the TCPA’s ATDS definition. That case was in California, within the Ninth Circuit. Well now we have our first out-of-circuit opinion applying Marks to deny a Defendant’s motion to dismiss: Adams v. Ocwen, Case No. 18-81028, Dkt # 23 (M.D. Fl. Oct. 29, 2018). Case found here: Order Denying Def.’s MTD (Adams.Ocwen) 10.29.18
Adams analyzes the issue thusly: Prior to ACA Int’l, courts commonly applied the 2003 and 2008 predictive dialer rulings to find that predictive dialers were subject to the TCPA. But, Adams finds that ACA Int’l reversed both the Omnibus and those earlier 2003 and 2008 orders following Gonzalez. (So far so good.)
Turning to the issue of the scope and meaning of the TCPA, the court finds that Marks has it right:
Upon the Court’s independent review of the relevant case law, the Court agrees with the reasoning and conclusions of post-ACA decisions which hold that “the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” Marks v. Crunch San Diego, LLC, No. 14-56834, 904 F.3d 1041, *1 (9th Cir. Sept. 20, 2018).
Adams at p. 6.
The court then reviews the sufficiency of the pleadings and concludes that allegations that Defendant directed over 300 calls to his cell phone were sufficient to state a claim under the Marks ATDS formulation. Notably, Adams may be the first case ever to hold that allegations of call volume alone qualify as sufficient to plausibly assert an ATDS was utilized.
Ocwen also re-tried its re-tried argument that debt collection calls are not covered by the TCPA. That did not go well:
Second, Defendant asserts that Plaintiff’s TCPA claim fails because debt collection calls are not covered by the TCPA. The Court rejects this argument.
Ocwen is certainly carving out a place for itself in TCPAland lore. Not long ago it was riding high on victories in Keyes and Gonzalez. But then its reconsideration bid on debt collection calls was turned down, a major TCPA class settlement it agreed to was rejected and now it has the first post-Marks ATDS loss outside the Ninth Circuit to call its own. This is how fortunes swing in TCPAland. Good luck out there folks.