In Derrick Virgne v. C.R. Eng., No. 1:19-cv-02011-SEB-MJD, 2020 U.S. Dist. LEXIS 14977 (S.D. Ind. Jan. 28, 2020) the Plaintiff alleged he inquired about the Defendant’s services, and then received many text messages after repeatedly replying STOP to opt out of the Defendant’s “automated” campaign.  The Plaintiff alleged the texts violated the TCPA for unlawful ATDS use.  The Defendant argued that the Plaintiff failed to allege ATDS because the Plaintiff merely alleged the claim “upon information and belief…that the hardware and software combination utilized by [the Defendant]” was an ATDS per the definition of the statute.  The court denied the Defendant’s motion to dismiss.

The Court walked through the relevant TCPA background, for example, affirming that a text message is considered a call under the TCPA, and stopped short of deciding on an ATDS definition to let the Defendant know that focusing on that “misses the forest for the trees.”  Simply put, the Court ruled it does not need to determine what constitutes an ATDS at the pleading stage.  The Court further pointed to a decision out of the Northern District of Illinois with corresponding facts and outcome: plaintiff had received text messages “from the same 894-48 SMS code” and that opinion explained that even with a narrow ATDS definition the plaintiff’s allegations did not foreclose the Defendant’s ATDS. 

Similarly here, the Court explained the Plaintiff’s complaint included allegations beyond conclusory language that tracks the statute.  The Complaint alleged that the text messages (1) came via use of an SMS shortcode; (2) were composed of pre-written templates of impersonal text; (3) were devoid of any actual human intervention in the drafting or sending of the messages;  and (4) were sent en masse to thousands of other consumers.

The Court highlighted that the Plaintiff had sharpened his ATDS claim further by mentioning the text message’s similarity in content as sufficient to raise the inference that an automatic dialer was utilized.  The Court also rejected the Defendant’s argument that the Plaintiff provided his number to the Defendant, and therefore the text messages couldn’t have been randomly generated.  The court held that this would “read the word capacity out of the definition of an ATDS.”  Therefore, Plaintiff’s allegations that the Defendant violated the ATDS provision of the TCPA were sufficient at the pleadings stage regardless of the definition of an ATDS.