I just can’t believe it.

In Duran v. La Boom Disco, case no. 19-600-cv, (2nd Cir. 2020)–available here- LaBoom-the Second Circuit Court of Appeals held today that the TCPA’s ATDS definition includes any dialer that can call automatically from a list–following the Ninth Circuit’s approach in Marks. Specifically the Court holds:

we hold that an ATDS may call numbers from stored lists, such as those generated, initially, by humans.

Court determines ExpressText and EZ Texting programs are ATDS as a matter of law.

This decision departs “markedly” from the Eleventh and Seventh Circuit Court of Appeals decisions in Glasser and Gadelhak, respectively.

On human intervention the court holds that clicking a “send” button to initiate a text campaign is not sufficient human intervention to remove a system from ATDS consideration. System still “dials” automatically.

Duran seems certain to embolden additional TCPA suits, just when the Ninth Circuit’s Marks decision-adopting a broad ATDS interpretation- was looking increasingly like an outlier.

Full analysis here. Even more to come.