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Predictive Dialer NOT ATDS In Huge Post-Facebook Ruling Court GRANTS BofA Summary Judgment

  • Written by Steel Rose

earlier this year a unanimous Supreme Court held that the TCPA means what it says: for equipment to qualify as an ATDS, the TCPA “requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”  Facebook, Inv. v. Duguid, 141 S. Ct. 1163, 1170 (U.S. 2021) (emphasis added).  Now, we have a court applying Facebook and granting summary judgment to Bank of America in a debt collection case where the bank made hundreds of calls using the popular Avaya platform.  See Barnett v. Bank of Am., N.A., 2021 U.S. Dist. LEXIS 101171 (W.D.N.C. May 28, 2021). The decision is great, and a nice win for Avaya. But the record is thin. So don’t get too excited.

The Good: Court Holds That Avaya System is Not ATDS after Facebook

Let’s start with the good news, the win.  The Court paid proper fidelity to the Supreme Court’s reasoning in Facebook.  For instance, Plaintiff’s counsel argued that the bank’s Avaya system “uses a random or sequential number generator” because Bank of America’s employees testified “that the numbers are selected for calls based on several factors.” However, the Court properly rejected that reasoning:

"this very testimony undermines Plaintiff’s argument, as the numbers chosen for the calls are selected from a pre-existing list created based on criteria from the dialer administrators, rather than by random or sequential number generators."

Likewise, the Court rejected Plaintiff’s argument that the system’s ability to “leave a message” transformed it into an ATDS. Particularly after Facebook, the mere capability to leave a message “does not demonstrate that” the bank’s system “uses a random or sequential number generator[.]” Given all that, the Court concluded that Bank of America “is entitled to summary judgment based on the Supreme Court’s ruling in Facebook, along with the lack of Plaintiff’s evidence that the Avaya system uses a random or sequential number generator, and [the bank’s] affirmative evidence that the system does not use such a number generator.” To read more click here.