“OVERSTATEMENT”: Court Throws Shade on Ninth Circuit’s Big ATDS Ruling– But Follows It Anyway in Massive TCPA Case Against Porch
There are a few really big and interested cases going on in TCPAWorld right now.
Perhaps my favorite one to write about is the case of Dawson v. Porch. This is the case involving Dr. Evil– LawHQ’s Tom Alvord–who has invented an app to basically robo-file TCPA lawsuits with a left swipe. Here he is talking about it:
But before he mass-commoditized TCPA lawsuits he found a way to hack into a company called Porch’s database of scraped data leads to rustle up a huge number of Plaintiffs to join him in a mass TCPA suit.
So the Dawson case continues to grow– Alvord now has 942 Plaintiffs.
Each one of these individuals is claiming Porch violated the TCPA in making cold calls to it, in addition to claims under the Washington CEMA–a very dangerous mini-TCPA.
Well in the latest ruling out of the case the Plaintiffs tried to amend the complaint to allege that an ATDS was used to send the texts under Facebook.
The Defendant urged the court to reject the amendments–which would make the case even more dangerous–urging that under Borden only allegations that numbers were completely made up suffices to state a claim.
The Court in Dawson v. Porch, 2023 WL 3947831 (W.D. Wash. June 11, 2023) agreed, but did so only after throwing a bit of shade at the Ninth Circuit. Check this out:
The Court notes that, contrary to the Ninth Circuit’s discussion in Borden, 532 F.4 th at 1233, neither the statutory text nor the Supreme Court’s Duguid decision is wholly supportive of this interpretation of the TCPA. The statute defines an ATDS as equipment which uses a random or sequential number generator to store or produce telephone numbers. Production of a telephone number is not, therefore, the sine qua non of an ATDS: storage of telephone numbers using a random or sequential number generator would also suffice. Duguid acknowledges that, “as a matter of ordinary parlance, it is odd to say that a piece of equipment ‘stores’ numbers using a random number ‘generator,’ ” but goes on to explain that patents for such devices have been granted since 1988. 141 S. Ct. at 1171-72. The Supreme Court suggested in a footnote that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list” and “then store those numbers to be dialed at a later time.” Id. at 1172 n.7. Borden’s holding that an ATDS “must generate and dial random or sequential telephone numbers” may therefore be an overstatement. 53 F.4 th at 1231 (emphasis omitted).
You dont see a district court telling an appellate court panel they got something wrong very often. But in the Dawson court’s defense– Borden’s central holding is definitely wrong and a re-write of the statute. (See here to learn more.)
Nonetheless Dawson followed Borden –as it had to–and denied the Plaintiffs the right to pursue their ATDS claim.
The Dawson court also rejected the Plaintiffs’ alternative (creative) argument that Porch scraping numbers from the internet “at random” was the same thing as generating numbers randomly. hahaha at that.
We’ll keep an eye on this one for you.