In Barry v. Ally Fin., Case No. 20-12378, 2021 U.S. Dist. LEXIS 129573 (E.D. Mich. July 13, 2021) the court granted a motion to dismiss a TCPA ATDS class action, finding that allegations of specifically-targeted calls necessarily prevent a finding of ATDS usage.
In Barry the Defendant allegedly called the Plaintiff looking to collect on her brother’s car loan. The Plaintiff argued that the Defendant had, nonetheless, used an ATDS because the system had the capacity to use an R&SNG. She sought discovery on the subject and asked the court to deny the motion to dismiss on that basis.
The Court was not having it.
Unlike the gross Gross case, the Barry court determined that allegations of specifically-targeted calls necessarily terminate the ATDS inquiry. This is true because under the “clear holding” of Facebook it is the USE and not just the CAPACITY to use a R&SNG that matters. To read more click here.