Yesterday we reported on a stunning decision finding that a case survived the pleadings stage based upon FN 7 of Facebook.

Today we have more bad news, although it’s a little more mundane—a pleadings stage win for a Plaintiff.

In Atkinson v. Pro Custom Solar Lcc, CIVIL NO. SA-21-CV-178-OLG, 2021 U.S. Dist. LEXIS 112396 (W.D. Tex.  June 16, 2021) the court found allegations of the use of an R&SNG to determine dialing sequence to be sufficient to survive the pleadings stage. Here is the primary analysis:

Plaintiff claims that Defendant called and texted her using an automatic telephone dialing system that “has the present . . .capacity to dial numbers in a random and/or sequential fashion.” Docket no. 1, ¶ 11, 12, 14, 23, 25. She does not allege that Defendant placed targeted, individualized calls or texts to her. The Court finds these factual allegations sufficient to survive dismissal under Rule 12(b)(6).”

Without question, this case may open the door to new ATDS cases being filed as it establishes a very low bar at the pleadings stage—at least where the calls at issue appear to be scattershot or random marketing calls. The Court seems well aware of the effect its finding will have in promoting discovery in cases of potentially dubious merit:

“As a practical matter, no plaintiff will have personal knowledge of the defendant’s telephone system at the pleadings stage. Only the defendant has that knowledge. However, Plaintiff has pled enough facts to proceed with discovery, at which time she will have the opportunity to discover the precise technology that was used at the time of the alleged violation(s). If the technology does not meet the definition set forth in the statute, as construed by the Supreme Court in Facebook, Inc. v. Duguid, then Defendant may move for summary judgment on that basis.”

Obviously, if more cases follow this line of reasoning Facebook will be much less potent at the pleadings stage. And keep in mind this case is out of West Texas!

Notice again, however, that dialing sequence is critical. This is the sea change following Facebook folk. Its no longer about creating phone numbers to be dialed, due to FN7 the issue is now whether a dialer creates any numbers as part of its dial sequencing.

We’ll keep an eye on this.