In Beal v. Outfield Brew House, 2020 U.S. Dist. LEXIS 22487, Defendant Brew House moved for summary judgment against Plaintiff’s claim that it violated the TCPA’s ATDS provision. Brew House, a nightclub in St. Louis, offers text message promotions.  Brew House gets customer information from white paper cards they claim patrons voluntarily fill out. The white paper cards contain a disclaimer: “By providing us with your contact information… you consent to receiving calls, and text messages.. via automated means…”

Over the course of a year, Plaintiff received two texts announcing that he won free happy hours. Plaintiff claimed that he never filled out a card, and sued under the TCPA.  The texts were sent using SendSmart and Txt live! platforms. For each platform, a Brew House employee had to log in, create the message, and press a button to send it, as well as manually enter all the patrons’ contacts.

The Court declined to follow Marks and reasoned, despite Plaintiff’s argument that the platforms shuffle manually uploaded contacts, that they are not an ATDS, as they did not have the ability to generate numbers.  Furthermore, the court held there is simply too much human intervention to consider them an ATDS.  For these reasons, the court granted summary judgment to Brew House, and denied Plaintiff’s motion for class certification, and cross summary judgment motion. Cheers.