Plausibility Over Parroting — Sixth Circuit Tightens TCPA Pleading Standards

The Sixth Circuit recently delivered a clear message to litigants pursuing claims under the Telephone Consumer Protection Act (TCPA): high call volume alone is not enough.[1] In Fluker v. Ally Financial, Inc., the court reaffirmed that plaintiffs must meet the pleading standards set forth in Twombly[2] and Iqbal,[3] including when alleging violations involving autodialers and prerecorded voice messages.

Antonio Lynn Fluker, Jr., a pro se litigant, alleged that Ally Financial made over 800 unauthorized calls to his cell phone to collect on a car loan debt using an automatic telephone dialing system (ATDS) and prerecorded voice messages. (Fluker at *2.) He further claimed that he had instructed Ally Financial to stop calling his phone. (Id.) Seeking $1.3 million in statutory and punitive damages, Fluker’s complaint was dismissed by the Eastern District of Michigan, and the Sixth Circuit affirmed. The courts held that Fluker failed to plausibly allege that Ally Financial used either an ATDS or a prerecorded voice, as his complaint merely recited the statutory elements without providing factual support. (Id. at *3.)

For the ATDS claim, Fluker pointed to the volume of calls but provided no details about how the calls were made or what led him to believe an ATDS was used. (Id. at *6.) The court emphasized that calls made to collect a specific car loan debt suggest targeted dialing, which is inconsistent with the random or sequential number generation required under the Supreme Court’s decision in Facebook, Inc. v. Duguid.[4]

Similarly, Fluker’s claim regarding the use of prerecorded voice messages failed for lack of factual detail. As the court noted, “merely parroting the statutory language — without more — fails the plausibility standard” under Iqbal. (Id. at *4.)

The District Court dismissed the complaint with prejudice, and the Sixth Circuit affirmed, concluding that Fluker’s complaint “lacked crucial factual allegations.” (Id. at *8.)

While courts afford leniency to pro se plaintiffs, the Sixth Circuit reiterated that even self-represented litigants must allege facts that nudge their claims across “the line from conceivable to plausible.” (Id. at 8.)

Key Takeaways

Fluker v. Ally Financial, Inc. is a textbook application of Twombly and Iqbal in the TCPA context. It serves as a reminder that even in consumer protection cases, plaintiffs must do more than plausibly allege — they must articulate. As courts continue to scrutinize TCPA pleadings post-Duguid, this case provides guidance for how far beyond call volume a complaint must go.

McLaughlin Fallout — Court Holds Text Messages Do Not Trigger Internal and National DNC Claims

In an issue of first impression following the Supreme Court’s decision in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006 (2025), the Central District of Illinois concluded that text messages did not trigger TCPA claims under 47 U.S.C. § 227(c) premised on alleged violations of the TCPA’s National Do Not Call Registry (47 C.F.R. 64.1200(c)(2)) and Internal Do Not Call List (47 C.F.R. 64.1200(d)) regulations.

Three named plaintiffs in a consolidated class action complaint alleged that a defendant “operate[d] an aggressive telemarketing campaign where it repeatedly sen[t] text messages” to numbers on the National Do Not Call Registry and after consumers requested that messages stop.[5] As a result, the plaintiffs alleged, the defendant violated the TCPA’s implementing regulations at 47 C.F.R. 64.1200(c)(2) and (d), and brought claims under the private right of action at 47 U.S.C. § 227(c)(5).

As the court noted, however, Section 227(c)(5) explicitly allows claims premised on “telephone calls” with no mention of text messages.[6] “Defendant . . . argues that the phrases ‘text message’ and ‘SMS message’ are wholly absent from Section 227(c)(5) and its implementing regulations, 47 C.F.R. § 64.1200(c) and (d). Indeed, only ‘call’, ‘telephone call’, and ‘artificial or prerecorded-voice telephone call’ appear in Section 227(c) and its implementing regulations.”[7] The plaintiffs responded by relying on prior FCC authority that they contended brought text messages within the purview of the regulations. However, post-McLaughlin, the court “must independently determine for itself whether the agency’s interpretation . . . is correct.”[8]

That analysis starts with the text of the statute to ascertain its plain meaning. And, because “telephone call” was not defined in the statute, the court relied on its ordinary and common meaning, concluding:

[I]n today’s American parlance, “telephone call” means something entirely different from “text message”. Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages.[9]

And with that, the court dismissed the plaintiffs’ TCPA claims.

Key Takeaways

Defendants facing TCPA cases premised on text messages should keep Jones v. Blackstone in mind and monitor this developing space. While Jones is not binding, it provides an important data point and opportunity to argue for dismissal of text message claims premised on violations of the TCPA’s National Do Not Call Registry and Internal Do Not Call List regulations.