There’s simply no shelter from Marks in the Ninth Circuit, which is not particularly surprising. But the court in Singer v. Las Vegas Ath. Clubs, Case No.: 2:17-cv-01115-GMN-VCF, 2019 U.S. Dist. LEXIS 48838 (D. Nv.  March 25, 2019) did a whole bunch of additional damage to common TCPA defense positions as well.

First, on the ATDS issue, the Singer court had little problem concluding that a dialer calling from a list of numbers pre-loaded into the system qualified as an ATDS under the Ninth Circuit Court of Appeal ruling in Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043-47 (9th Cir. 2018).  In Singer the Court found that the indisputable evidence demonstrated the Defendant’s system had  the present capacity to store numbers to be called, and to dial such numbers. Specifically, the company’s President declared that the system dials “phone numbers loaded into the system by a [third-party] system administrator.” The 30(b)(6) designee if the third-party system provider “testified that the system dial calls from a pre-loaded database of numbers, connecting live calls to available agents.” Singer at *17.   The evidence also demonstrated that the Plaintiff’s phone number was added to a spreadsheet, which was subsequently uploaded “to a phone system, which would place a call to a phone number included on the spreadsheet.” Id.  This evidence was plenty for the Court to conclude that the system meets the ATDS definition under Marks although, notably, the court did not address the contours or requirements of “automatic” dialing.

Singer also represents the first court within the Ninth Circuit to directly reject Reyes v. Lincoln Auto. 861 F.3d 51, 56-57 (2d Cir. 2017), holding that Reyes is irreconcilable with Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir. 2017)..  As even occasional readers of TCPAWorld know, Reyes—knows as “Good Reyes” to distinguish it from that other Reyes case I don’t want to discuss right now—holds that contractual consent cannot be revoked because… contract law. But many courts refuse to follow Reyes because… robocalls bad. Although there is a wide split of approach at the district court level, Singer represents the first case to hold directly that Van Patten precludes application of Reyes in the Ninth Circuit. That’s a pretty serious problem for those of us looking to enforce contractual revocation provisions on the West Coast—especially since Van Patten never addresses the issue of contractual consent at all. 

Singer also reads the 2015 FCC Order broadly (improperly?) for the proposition that it affords a statutory—non-common law—right to revoke consent that transcends contract law. That would make sense except that it makes no sense. The FCC did not state that it was bypassing common law, and its own lawyers told the D.C. Circuit Court of Appeal that it did not intend to alter the common law of contract with its ruling—and ACA Int’l then went on to specifically state that the Omnibus did not alter contact principles regarding revocation. Plus the TCPA does not mention revocation, so how can there be a statutory right to revoke?

But setting all of those issues aside, we get to the really scary stuff. Virtually no court has determined a revocation issue at the summary judgment stage—these issues are far too fact intensive to take away from a jury. But the Singer court managed to do just that.  As to the first claimed revocation a note reading “REQ STOP CLLNG” was insufficient to merit judgment in Plaintiff’s favor because that might have meant that the Plaintiff wanted calls to stop always or just for a brief period of time (i.e. regarding a single payment.)  But the Court did find that—as a matter of law—that a second purported revocation— “I’ve asked you guys to stop calling me. I don’t have the money” coupled with a note reading  “SD DONT HAVE THE MONEY. . . STOP CALLING” –was enough to constitute a revocation as a matter of law. As the Court states: “ No reasonable jury could construe Plaintiff’s request as anything other than a clear request that LVAC stop calling him.”

Couple of takeaways here. First, this might be the first case to ever determine the sufficiency of a revocation at the summary judgment stage in favor of a Plaintiff. The result was likely driven by the combination of the call recording with the written record confirming that the agent understood the Plaintiff’s request for calls to stop. Keep that in mind friends. Next, the rejection of Reyes is stunning in its scope. If other courts follow the Signerreasoning, Good Reyes is dead under Van Patten—but let’s hope no other courts do that. As to ATDS, it is nice that the Court focused on the “present” capacity to store and dial numbers automatically rather than any sort of latent or potential capacity. But it is highly troublesome that the Court never paused to consider what “automatic” means in this context.  There mere fact that the system dialed from a list seemed to be all the Court was interested in.