Look, we all knew this was going to be a seesaw affair.

We’ve seen a run of good TCPA ATDS decisions recently, so we were bound to get a stinker sooner or later. And so now we have.

The N.D.Ill.–that’s Gadelhak country!–just ruled that predictive dialers may be an ATDS even after Facebook. And that friends is why those dialers are firmly in the YELLOW in the Czar’s awesome handy-dandy prescient stoplight:

In Garner v. Allstate Ins. Co.,  No. 20 C 4693, 2021 U.S. Dist. LEXIS 163121 (N.D. Ill.  August 30, 2021) the Plaintiffs alleged that Allstate agents peppered them with multiple phone calls although their numbers were on the national DNC. Plaintiffs also alleged the calls were made using an ATDS.

Allstate moved to dismiss arguing that the allegations of the complaint were insufficient to allege an ATDS was used. The Court disagreed.

In the first instance the Court held that allegations of out-of-the-blue marketing calls sent from nine different phone numbers on behalf of the same company were consistent with ATDS usage: “the calls were generic in nature and served to market Allstate’s insurance policies to Plaintiffs, who had no prior business relationship with Allstate.”

Second, Plaintiff’s allegations that a predictive dialer was used to place the calls at issue was not dispositive of whether an ATDS was used. In the Court’s view:

Predictive dialers include a wide variety of devices, some of which do not qualify as an ATDS under the TCPA because they lack the capacity to randomly or sequentially generate numbers to dial. Importantly, however, the difference between a predictive dialer and an ATDS is not readily apparent to a recipient of an automated call. Rather, such a determination requires information about the technical details of the device that the defendant used to make the calls information that the plaintiff lacks prior to discovery.

Eesh.

So just like that allegations of marketing calls made using a predictive dialer trip the TCPA. Its like Facebook never happened.

Sigh.

We can put Garner firmly in the Gross camp as a court that holds Facebook does little to nothing for a Defendant at the pleadings stage. Still Garner is the first case to directly hold that affirmative allegations of predictive dialer usage is consistent with ATDS usage. And that’s really bad news.

Hang in there TCPAWorld. Rest assured, the next good decision in this tug of war is right around the corner.