Plaintiff Argues ‘Ship Has Sailed’ on Ninth Circuit’s ATDS Definition

The plaintiff in a Telephone Consumer Protection Act case is urging the Ninth Circuit Court of Appeals not to undo its definition of an automated telephone dialing system, saying that “ship has sailed,” even though other Courts of Appeals have ruled otherwise.

A copy of the brief in the case of Lamkin v. Portfolio Recovery Associates can be accessed by clicking here.

The defendant has requested an en banc hearing before the entire Ninth Circuit Court, attempting to convince it that how it has defined an ATDS under the TCPA is — “with the greatest respect” — “simply wrong as a matter of statutory text.”

In this case, a judge awarded the plaintiff $300,000 in damages over 199 calls that were allegedly made by the collector to the plaintiff’s cell phone.

The issue before the courts is largely one of grammar. The TCPA defines an ATDS as equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. What is causing the conflict in the courts is whether “using a random or sequential number generator” applies to equipment that “stores” or “produces” telephone numbers or applies to equipment that does both.

The Ninth Circuit in Marks v. Crunch San Diego ruled that the phrase applies to one or the other. But the Eleventh and the Seventh Circuits have ruled that the phrase has to apply to both, and if the equipment does not store or produce numbers using a random or sequential number generator then it is not an ATDS.

Hurting the defendant’s situation in this case is a ruling that came out last week from the Second Circuit Court of Appeals, which sided with the Ninth Circuit in how an ATDS should be defined.

That ruling undermines the defendant’s argument that the Ninth Circuit is an “outlier,” the plaintiff wrote in her brief. “It also reinforces Lamkin’s argument that if there is a Circuit split that needs to be resolved, there is a procedure for resolving that split, and it is not this appeal.”

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