I told you this Gross case was going to hurt.

As soon as I read the line: “The newly clarified definition of an ATDS is more relevant to a summary judgment motion than at the pleading stage.” I knew it was going to have legs.

And so it does.

A court in Missouri today expressly followed Gross and held that the Supreme Court ruling in Facebook is essentially irrelevant at the pleadings stage. Ruling here: Miles Ruling

In Miles, the Defendant moved for judgment on the pleadings arguing that the calls at issue were targeted calls designed to collect a debt–not random fire calls of the sort Facebook holds are subject to the TCPA.

The Court acknowledged all of the case law on both sides of the ATDS debate–noting that some courts have read FN7 only very narrowly. Nonetheless, the Court found it was simply unwilling to dismiss the case without allowing discovery. This is true although the calls at issue were plainly targeted to specific individuals for the purpose of debt collection.

As Miles demonstrates, many courts are reluctant to dismiss ATDS suits at the pleadings stage post-Facebook. In fact you can almost start to see two schools of thought on Facebook–those courts that hold Facebook requires true random dialing (these courts seem to be willing to dismiss at the pleadings stage) and those courts that hold that randomness is not, strictly speaking, required (these courts are unwilling to grant motions to dismiss.)

We’ll continue to monitor these developments.